Appeal from Shawnee District Court; NANCY E. PARRISH, judge.
1. At the time of this offense, a person convicted of unlawful sexual relations, contrary to K.S.A. 21-3520(a)(1), was required to register as a sex offender if one of the parties involved was less than 18 years of age. K.S.A. 22-4902(a)(5)(F). 2. The catch-all provision of the Kansas Offender Registration Act, K.S.A. 22-4902(c)(14), remains viable and useful for unlisted nonsex crimes. 3. Because neither the offender nor the victim here was less than 18 years of age on the date of the crime, the offender was not required to register as a sex offender.
The opinion of the court was delivered by: Hill, J.:
Reversed and sentence vacated in part.
Before HILL, P.J., GREEN and ARNOLD-BURGER, JJ.
A panel of this court held there were sufficient facts in the record on appeal to support the district court's conclusion that Ananstacio Deleon Gallardo's crime was sexually motivated in State v. Gallardo, 43 Kan. App. 2d 346, 224 P.3d 1192 (2010). Gallardo appealed that ruling to our Supreme Court. Ultimately, that court remanded this case to us for reconsideration in light of their recent ruling in State v. Coman, 294 Kan. 84, Syl. ¶ 6, 273 P.3d 701 (2012).
On June 19, 2008, Gallardo was convicted of unlawful sexual relations in violation of K.S.A. 21-3520(a)(1). The district court required Gallardo to register as a sex offender after finding the crime of conviction fell under K.S.A. 22-4902(c)(14), as it was a "sexually motivated" crime. Gallardo, 43 Kan. App. 2d at 347-48.
Gallardo appealed to this court, arguing the district court erred in requiring him to register as a sex offender. Gallardo claimed the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., was not applicable to the crime of unlawful sexual relations as it pertains to two consenting adults. Gallardo also argued the district court erred in determining his crime fell under the "catch-all provision" of K.S.A. 22-4902(c)(14) because (1) his crime was not sexually violent; (2) there was no evidence his crime was sexually motivated; and (3) where the statute specifically provided that unlawful sexual relations requires registration if one of the parties is less than 18 years old, a finding that he must register under the catch-all provision renders the age requirement superfluous.
This court rejected Gallardo's claim. In doing so, the court first noted that Gallardo's crime is not among those specifically listed at K.S.A. 22-4902(c)(1)-(13)-a list of crimes deemed "'sexually violent.'" The court then concluded:
"The Kansas Legislature's specific failure to include unlawful sexual relations under subsections (c)(1) through (c)(13) does not indicate an intent to exclude all other convictions from registration requirements, but only an intent to exclude such convictions from per se inclusion. In fact, the legislature did not intend the listing to be exclusive given the addition of subsection (c)(14), which serves as a general 'catch all' for crimes meeting the criteria set forth therein. If the failure of the legislature to list specific offenses within subsections (c)(1) through (c)(13) were to insulate all other crimes from being considered sexually violent, the general category defined by subsection (c)(14) would be rendered meaningless. Therefore, the only question is whether unlawful sexual relations meets the criteria of subsection (c)(14)." Gallardo, 43 Kan. App. 2d at 350.
The court went on to note that panels of this court have "consistently construed" the applicable statutes to mean that "any act meeting the requirement of the general definitional subsection for sexually motivated crime ([c]) will implicate registration without regard to inclusion or exclusion of the crime of conviction within the specific listing provided by other subsections." 43 Kan. App. 2d at 351. The court concluded:
"If unlawful sexual relations is found beyond a reasonable doubt to have been committed with sexual motivation pursuant to subsection (c)(14), the person so convicted is an 'offender.' We are convinced that any reasonable scrutiny of the entire legislative scheme set forth in 22-4902 manifests a strong legislative intent to broadly include within the ...