Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge.
1. The sole difference in the relevant portions of the statutes for indecent solicitation of a child under K.S.A. 21-3510 and aggravated indecent solicitation of a child under K.S.A. 21-3511 is the age of the victim. Thus, indecent solicitation of a child is not a lesser included offense of aggravated indecent solicitation of a child when the age of the child is not disputed.
2. K.S.A. 21-4704(j)(1) requires the sentencing court to double the presumptive imprisonment term of a persistent sex offender. K.S.A. 21-4704(j)(2) defines a persistent sex offender to include a person convicted in Kansas of a sexually violent crime as defined in K.S.A. 22-3717. K.S.A. 22-3717(d)(2) identifies 11 different criminal offenses as sexually violent crimes, including indecent solicitation of a child (K.S.A. 21-3510), aggravated indecent solicitation of a child (K.S.A. 21-3511), and sexual exploitation of a child (K.S.A. 21-3516).
3. K.S.A. 22-3717 does not identify enticing a child to commit "an immoral act" or to submit to an "act of depravity" as a sexually violent crime. On the other hand, G.S. 1949, 38-711 (1961 Supp.), the statute under which the defendant in this case was convicted in the past, criminalizes these activities. G.S. 1949, 38-711 (1961 Supp.) criminalized the solicitation of a child for a broad range of activities, some of which may not have been sexual in nature.
4. Under the facts of this case, in using the defendant's prior conviction under G.S. 1949, 38-711 (1961 Supp.) to determine that the defendant is a persistent sex offender, the sentencing court went beyond the mere fact of this prior conviction to make the factual finding that this prior conviction involved sexually motivated conduct.
5. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt.
6. Under the facts presented, the defendant's prior conviction under G.S. 1949, 38-711 (1961 Supp.) is not enough to establish that he is a persistent sex offender. To establish that the defendant is a persistent sex offender requires a second fact which the sentencing court sought to establish on its own and in a manner contrary to the holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
The opinion of the court was delivered by: McANANY, J.
Convictions affirmed, sentences vacated, and case remanded with directions; cross-appeal dismissed.
Before CAPLINGER, P.J., McANANY, J., and BRAZIL, S.J.
In May 2004, 13-year-old V.D. was walking home from school with her friends L.H. and R.C. A man driving an ice cream truck stopped and offered them ice cream. The truck was decorated with white and black markings similar to those on a cow. The man offered the children free ice cream if V.D. would expose her breasts. V.D. declined. The children later provided a description of the ice cream truck driver that fit Kenneth E. Lowden.
On another occasion V.D.'s younger sister, C.D., was walking home when a man similarly described and driving the same kind of ice cream truck made the same proposition. Later that month, J.S., age 13, was propositioned in the same manner by a similarly described man driving the same kind of ice cream truck. J.S.'s father contacted the owner of the ice cream truck company who identified Lowden as the driver.
Lowden denied any involvement and claimed that another driver fit the children's description. The children were shown a photo lineup that included pictures of both Lowden and the other driver. J.S. was unable to identify the perpetrator; but V.D., C.D., and L.H. each identified Lowden.
Lowden did not testify at trial but argued mistaken identity. He was convicted of two counts and acquitted on a third count of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511(a). Aggravated indecent solicitation of a child is a sexually violent crime. K.S.A. 22-3717(d)(2)(G). Based on Lowden's prior conviction in 1970 for solicitation of a minor, the court classified Lowden as a persistent sex offender and imposed a 76-month sentence for the ...