Appeal from Anderson District Court; JAMES J. SMITH, judge.
1. An appellate court conducts a de novo review of the evidence when reviewing a district court's determination regarding probable cause made at a preliminary hearing; when the accused subsequently has gone to trial and been found guilty, however, any error at the preliminary hearing stage is harmless unless the error caused prejudice at trial.
2. When the sufficiency of the evidence is challenged on appeal, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
3. An appellate court applies a clearly erroneous standard to review a party's failure to object to a given jury instruction, or a district court's failure to give an instruction, in circumstances where the party neither requested the instruction nor objected to its omission.
4. The term "lewd fondling or touching" as used in K.S.A. 21-3504 means a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of either the child or the offender or both.
5. For the purposes of K.S.A. 21-3503 and K.S.A. 21-3504, whether a touching is lewd depends on the totality of the circumstances and is a question for the jury.
6. Under K.S.A. 21-3504, proof of actual arousal is not required. Intent to arouse the sexual desires of the victim or the defendant is sufficient, which may be shown by circumstantial evidence.
7. Under K.S.A. 21-4721(d), appellate review of an upward durational departure in sentencing is limited to whether the sentencing court's findings of fact and reasons justifying the departure: (1) are supported by evidence in the record, and (2) constitute substantial and compelling reasons for a departure.
8. Whether the facts relied upon by the sentencing court constitute substantial and compelling reasons for an upward durational departure is a question of law, providing an appellate court with unlimited review.
9. As long as one or more of the factors relied upon in imposing a departure sentence is in fact substantial and compelling, the departure sentence will be affirmed.
The opinion of the court was delivered by: Standridge, J.
Before HILL, P.J., GREEN and STANDRIDGE, JJ.
John D. Rutherford appeals his convictions of aggravated criminal sodomy and aggravated indecent liberties with a child and argues the district court erred (1) by finding probable cause at the preliminary hearing to bind him over for trial; (2) by convicting him at trial of aggravated indecent liberties with a child; and (3) by allowing age of the victim to be used in sentencing as an aggravating factor to support an upward durational departure. We reject all three of Rutherford's arguments. First, we find any error that may have existed at the preliminary hearing stage was harmless given a lack of evidence that such error caused prejudice at trial. Second, we find there was sufficient evidence at trial to support Rutherford's conviction of indecent liberties with a child. Finally, we find it unnecessary to determine whether age of the victim erroneously was considered as an aggravating factor because there are two other aggravating factors that support the upward durational departure in sentencing. Accordingly, we affirm.
Rutherford was convicted of aggravated criminal sodomy in violation of K.S.A. 1993 Supp. 21-3506(a) and aggravated indecent liberties with a child in violation of K.S.A. 1993 Supp. 21-3504(a). Rutherford's convictions are based on contact he had with C.R., the daughter of his girlfriend, B.R. Rutherford and B.R. started dating during the end of January 2005. Rutherford moved in with B.R. and C.R. around March or April 2005.
C.R. was born on May 7, 2001. C.R. has development delays and functions at a level similar to a child who is 2 years old or younger. C.R. called Rutherford "Bubby," because she was unable to say his name. Rutherford baby-sat C.R. when C.R. got ...