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State of Kansas v. Mark D. Waggoner

April 12, 2013

STATE OF KANSAS, APPELLEE,
v.
MARK D. WAGGONER, APPELLANT.



Appeal from Jefferson District Court; GARY L. NAFZIGER, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. Because the phrase "either the child or the offender, or both" in K.S.A. 21-3504(a)(3)(A) does not state material elements of the crime of aggravated indecent liberties with a child but merely outlines options within a means, a jury instruction reiterating these options does not include alternative means of committing the charge of aggravated indecent liberties. 2. A jury instruction is not favored but is not erroneous if it states: "If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find the defendant not guilty; if you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty." 3. A sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence. 4. Although lifetime electronic monitoring is mandated by K.S.A. 2012 Supp. 22-3717(u), the sentencing court does not have the authority to impose parole conditions.

The opinion of the court was delivered by: Luckert, J.

Conviction affirmed, sentence affirmed in part and vacated in part, and case remanded with directions.

The opinion of the court was delivered by LUCKERT, J.:

A jury convicted 58-year-old Mark D. Waggoner of one count of aggravated indecent liberties with a child under the age of 14, in violation of K.S.A. 21-3504(a)(3)(A). Because this qualifies as a Jessica's Law case, the trial court sentenced Waggoner to life imprisonment with a mandatory minimum term of imprisonment of not less than 25 years. See K.S.A. 21-4643(a)(1)(C). From the bench, the court also imposed "lifetime parole with lifetime electronic monitoring." The court's oral pronouncement differs from the sentencing journal entry, which indicates that, in addition to a hard 25 sentence, Waggoner was sentenced to lifetime postrelease supervision and lifetime electronic monitoring.

Waggoner appeals, and this court has jurisdiction under K.S.A. 2012 Supp. 22-3601(b)(1) (maximum sentence of life imprisonment imposed; sentence imposed prior to repeal of K.S.A. 21-4643 on July 1, 2011). He raises two issues attacking his conviction. First, he contends the jury was instructed on alternative means of committing aggravated indecent liberties with a child and, because the trial court did not give a unanimity instruction, he was denied his right to a unanimous verdict. Second, he takes issue with language in the burden of proof jury instruction that he contends violated his constitutional right to have a jury determine whether the State had met its burden of proving his guilt beyond a reasonable doubt. Both of these contentions have been rejected in recent decisions of this court. Consequently, we affirm Waggoner's conviction.

Additionally, Waggoner raises two sentencing issues, arguing the sentencing court erred in imposing lifetime electronic monitoring and the sentencing journal entry incorrectly reflects that the sentencing court imposed postrelease supervision rather than parole. Waggoner is correct that he is entitled to relief on both of these aspects of his sentence as that sentence is reflected in the journal entry.

ALTERNATIVE MEANS ARE NOT STATED

Waggoner first challenges his conviction for aggravated indecent liberties with a child, claiming the jury instructions presented alternative means of committing the crime and the State failed to present sufficient evidence of each means. See State v. Wright, 290 Kan. 194, 206, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). The crime of aggravated indecent liberties is set out at K.S.A. 21-3504(a)(3)(A) and is defined in relevant part as: "Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both." In this case, the statutory requirements were incorporated into the jury instruction regarding the charge of aggravated indecent liberties. In relevant part, the instruction informed the jury that to find Waggoner guilty it must find that he "fondled or touched the person of [the victim] in a lewd manner, with the intent to arouse or to satisfy the sexual desires of either [the victim] or the defendant, or both."

Waggoner argues that this instruction requires the State to present evidence that he acted with the intent to arouse or satisfy both his sexual desires and the victim's sexual desires. He reasons that because the State presented no evidence that he acted with the intent to arouse or satisfy the victim's sexual desires, the State necessarily failed to present sufficient evidence of each of the alternative means upon which the trial court instructed the jury.

This court recently rejected this argument in State v. Brown, 295 Kan. 181, 202, 284 P.3d 977 (2012), holding that the phrase "either the child or the offender, or both" under K.S.A. 21-3504(a)(3)(A) does not state a material element of the crime but merely describes a secondary matter, the potential yet incidental objects of the offender's required intent to arouse or to satisfy sexual desires. Thus, the phrase outlines options within a means, and describes factual circumstances that may prove the distinct, material mental state element of the crime. See State v. Britt, 295 Kan. 1018, 1026, 287 P.3d 905 (2012) (aggravated indecent liberties case following Brown); State v. Burns, 295 Kan. 951, 287 P.3d 261 (2012) (same).

Because the phrase "either the child or the offender, or both" in K.S.A. 21-3504(a)(3)(A) does not state material elements of the crime, but merely outlines options within a means, the jury instruction reiterating these options did not include alternative means of committing the charge of aggravated indecent liberties. The jury, following the instructions given in this case, had to unanimously agree that Waggoner possessed the culpable mental state of an intent to arouse or satisfy sexual desires. Waggoner concedes that circumstantial evidence allowed the jury to infer that he acted with the intent to satisfy his own sexual desires.

Consequently, Waggoner is not entitled to the reversal of his conviction for aggravated indecent liberties with a child based ...


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