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State v. Clark

Supreme Court of Kansas

February 7, 2014

STATE OF KANSAS, Appellee,
v.
ROBERT D. CLARK, JR., Appellant

Page 777

Appeal from Shawnee District Court; CHERYL RIOS KINGFISHER, judge.

SYLLABUS

BY THE COURT

1. A rational factfinder could find a defendant guilty beyond a reasonable doubt of two counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A) if there is uncontroverted evidence the defendant lewdly touched two children under the age of 14, even though there was no evidence that the sexual desire of either the defendant or the child was actually aroused, if there was circumstantial evidence from which a rational factfinder could find beyond a reasonable doubt that the defendant acted with the intent to arouse the sexual desires of the defendant, the child, or both.

2. An inmate who has received an off-grid indeterminate life sentence can leave prison only if the Kansas Prisoner Review Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of lifetime postrelease supervision in conjunction with an off-grid indeterminate life sentence, and the portion of a sentence imposing lifetime postrelease supervision must be vacated.

3. A sentencing court errs in imposing lifetime electronic monitoring. Although lifetime electronic monitoring is mandated as a condition of parole under K.S.A. 2013 Supp. 22-3717(u), the sentencing court does not have the authority to impose parole conditions.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

OPINION

Page 778

LUCKERT, J.

A jury convicted Robert D. Clark of two counts of aggravated indecent liberties with a child under 14 years of age in [298 Kan. 844] violation of K.S.A. 21-3504(a)(3)(A). In considering Clark's direct appeal, we reject Clark's sole attack on his convictions and hold the evidence was sufficient to support the jury's verdict that he engaged in the lewd fondling or touching of two children with the specific intent to arouse or satisfy his sexual desires, the desires of the children, or both. Although we affirm Clark's convictions, we find merit in two issues relating to Clark's sentences and vacate those portions of his sentences that imposed lifetime postrelease supervision and lifetime electronic monitoring.

Facts and Procedural Background

Clark's convictions arose from his touching of A.L. and C.L., who were his son's daughters.

Clark's relationship with his son was " [s]trained at best" during his son's childhood. The two lost touch in the late 1980's and approximately 15 years passed before they reconnected. During the time they were estranged, Clark's son married and moved to Topeka. Clark contacted his son in the early 2000's, but their contact consisted of only telephone conversations until Clark also moved to Topeka in early 2008. Once Clark moved to Topeka, he would visit his son's residence at least once a week and would have " [j]ust regular family interaction" with his son and his son's family, which included five children.

On June 9, 2009, after Clark left his son's residence, 12-year-old A.L. asked to privately speak with her mother. A.L. told her mother that " Grandpa [Clark] has been touching me." A.L. explained that Clark had been touching her breasts " every opportunity he seemed to have." Later that night, A.L. told her father that " for at least six months, . . . since before Christmas of 2008, that just about every time [Clark] would sit next to her on the couch or wherever they were, he would reach his arm over her shoulder and touch her breasts." A.L. told her father she would occasionally move Clark's hand and tell him to stop. Clark would temporarily stop, but within a few minutes he would begin to rub her breasts again. A.L. decided to tell her parents because she had become " extremely uncomfortable" during a visit to Clark's apartment earlier in the day. She told her parents she had bent over while cleaning Clark's oven [298 Kan. 845] and he had said, " ...


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