BY THE COURT
Courts must presume the constitutionality of a statute and
resolve all doubts in the favor of validity.
term "other person in a position of authority" in
K.S.A. 2015 Supp. 21-5512(a)(9) is not unconstitutionally
party claiming an error occurred has the burden of
designating a record affirmatively showing prejudicial error.
Without such a record, an appellate court presumes the action
of the trial court was proper.
sufficiency of the evidence is challenged in a criminal case,
the standard of review is whether, after reviewing all the
evidence in a light most favorable to the prosecution, the
appellate court is convinced a rational fact-finder could
have found the defendant guilty beyond a reasonable doubt.
Appellate courts do not reweigh evidence, resolve evidentiary
conflicts, or make witness credibility determinations.
appellate court must first attempt to ascertain legislative
intent through the statutory language enacted, giving common
words their ordinary meanings. When a statute is plain and
unambiguous, an appellate court should not speculate about
the legislative intent behind that clear language, and it
should refrain from reading something into the statute not
readily found in its words.
Ultimately, the courts must construe statutes to avoid
unreasonable or absurd results and presume the Legislature
does not intend to enact meaningless legislation.
K.S.A. 2015 Supp. 21-5512(a)(9) defines unlawful sexual
relations as "engaging in consensual sexual intercourse,
lewd fondling or touching, or sodomy with a person who is not
married to the offender if . . . the offender is a teacher or
other person in a position of authority and the person with
whom the offender is engaging in consensual sexual
intercourse, lewd fondling or touching, or sodomy is a person
16 years of age or older who is a student enrolled at the
school where the offender is employed."
K.S.A. 2015 Supp. 21-5512(d)(9) defines a teacher to include
"teachers, coaches, supervisors, principals,
superintendents and any other professional employee in any
public or private school offering any of grades kindergarten
paraprofessional educator assigned to a school is a person in
a position of authority as set out in K.S.A. 2015 Supp.
Under K.S.A. 2015 Supp. 21-5510(a)(1), sexual exploitation of
a child by enticing a child to engage in sexually explicit
conduct with the intent to promote any performance is not an
alternative means crime.
subpoints in the definition subparagraph of K.S.A. 2015 Supp.
21-5510(d)(2)(A) and (B) describe options under the
definition of "promoting" and do not create an
alternative means crime requiring super-sufficiency of the
K.S.A. 2015 Supp. 21-6401(f)(2) defines "material"
as "any tangible thing which is capable of being used or
adapted to arouse interest, whether through the medium of
reading, observation, sound or other manner."
"Material" as used in K.SA. 2015 Supp.
21-6401(f)(2) includes digital media shared by sending or
transmitting it to another person.
from Douglas District Court; Peggy C. Kittel, judge.
Clayton J. Perkins, of Capital Appellate Defender Office, for
Duncan Butler, assistant district attorney, Charles E.
Branson, district attorney, and Derek Schmidt, attorney
general, for appellee.
Green, P.J., Schroeder, J., and Stutzman, S.J.
Lynn Johnson appeals her jury convictions for unlawful sexual
relations, sexual exploitation of a child, and promoting
obscenity to a minor. She challenges the sufficiency of the
evidence under each count and also claims K.S.A. 2015 Supp.
21-5512(a)(9) as applied is unconstitutionally vague as it
fails to give notice of who is covered by the law and does
not support her conviction for unlawful sexual relations. She
also complains K.S.A. 2015 Supp. 21-5510(a)(1) requires
super-sufficiency of the evidence, claiming it is an
alternative means crime. The jury found Johnson guilty as
charged stemming from her sexually oriented relationship with
K.E., a minor. The record shows the court ordered K.E. to
attend school where Johnson worked as a classroom
paraprofessional. Their relationship began with flirtations
in school. Johnson exchanged sexually explicit communications
with K.E. on social media, resulting in Johnson ultimately
going to K.E.'s home where they engaged in sexual
intercourse. In a light most favorable to the State, the
evidence presented supports Johnson's convictions. K.S.A.
2015 Supp. 21-5512(a)(9) is not unconstitutionally vague, and
K.S.A. 2015 Supp. 21-5510(a)(1) is not an alternative means
crime. We affirm.
job and duties
worked as a paraprofessional educator for U.S.D. 497. She was
assigned as a paraeducator to the Douglas County Detention
Center in what is commonly referred to as the Day School at
the Juvenile Detention Center (JDC). Johnson worked at the
Day School under the supervision of a licensed teacher. The
essential functions of Johnson's position included
adapting classroom activities, administering discipline,
conferring with teachers, participating in team meetings to
assist in evaluating student progress, implementing academic
instruction, implementing behavior plans, and monitoring
classrooms and students to ensure their safety and welfare.
Paraeducators had supervision responsibilities and were also
responsible for leading, guiding, and coordinating with
others, including the students. If needed, Johnson would also
"take over" and substitute for various teachers at
the Day School.
enrollment and status as a student
was a student enrolled in the 12th grade in the Lawrence
Public School system during the 2015-2016 school year. He was
court ordered to attend school at the JDC that year.
relationship between Johnson and K.E.
testified he found Johnson attractive and would joke with his
friends about who would have sex with her first. He would
flirt with Johnson a couple of times a week by staring at her
breasts and deliberately getting caught by her to see how she
relationship developed and Johnson began communicating with
K.E. outside of school using two social media applications:
Facebook Messenger and Snapchat. Johnson told K.E. in their
first exchange on Facebook she could be fired if their
contacts were discovered. They switched to using Snapchat to
send pictures, videos, and text messages to each other. K.E.
testified they favored Snapchat because it deletes messages,
pictures, and videos after a user views them. However, a
Snapchat user can actively save images sent to the user. If
saved by the recipient, the sender is sent a notification
explaining the last sent item was saved by the recipient.
K.E. testified he initially saved messages exchanged with
Johnson through the chat function, but he "unsaved"
them because he did not want anyone to see them.
testified they started sending pictures early in their
communications and that "sex was already on my
mind." He also testified that they discussed the age of
consent in Kansas. Johnson was concerned because K.E. was not
yet 18 years old. He searched on Google for the age of
consent in Kansas, determined it was 16, and told Johnson he
was over the "age of statutory rape."
went to K.E.'s house on the Saturday before Thanksgiving,
and the two had sexual intercourse one time in his bedroom.
having sex, K.E. and Johnson continued to communicate on
Snapchat. They discussed their sexual encounter, having sex
again, and mutually agreed to not tell anyone. Over the
course of the relationship, Johnson sent K.E. approximately
20 pictures over Snapchat, and "all but like four or
five" included pictures of her breasts. The rest
included images of things such as lingerie and her vagina.
K.E. also received pictures and at least two videos from
Johnson over Facebook, one of her "rubbing her breasts
and then playing with her vagina and [in] the other one she
was in the shower playing with her vagina."
testified he requested most of the photographs and videos
Johnson sent to him; however, Johnson also sent him videos
and pictures he had not requested. He also testified prior to
having sex, Johnson asked him for a picture of his penis and
he sent it. He did not recall her asking him for a video of
himself. At trial, K.E. identified a video of himself
masturbating. He did not recall sending the video to Johnson.
This video of K.E. masturbating, as well as other images of
an erect penis-believed by police, in context, to be of
K.E.-were located on Johnson's cellphone.
told K.E. throughout all of their communications to not save
the content. K.E. testified "[i]f it involved naked
pictures I saved it."
and criminal investigation
disclosed his relationship with Johnson to his father. His
father told K.E.'s mother, and she contacted law
enforcement. Law enforcement interviewed K.E. Then detectives
went to the JDC and requested Johnson accompany them to the
police department for an interview. Johnson did not testify
at her trial, but the court admitted a video recording of her
interview which was played for the jury. At the end of her
police interview, Johnson provided a written statement, which
was also admitted at her trial. Throughout the course of the
investigation, the detectives reviewed Facebook and Snapchat
records and phone reports downloaded from K.E.'s and
Johnson's cellphones. These downloaded records included
some restored information previously deleted by Johnson and
interview progressed, Johnson admitted she had exchanged
photos with K.E., first claiming she had done so by accident.
After the police told her they could retrieve even some
deleted information, Johnson admitted she sent K.E. images.
At first, she claimed she was not unclothed but then
acknowledged she intentionally sent K.E. pictures of her
breasts and vagina. She told police their contacts were
in the interview, she acknowledged she went to K.E.'s
house but claimed they only talked. When asked if her DNA
would be on K.E.'s bed, Johnson replied, "I guess
you know?" Johnson then admitted she had sexual
intercourse with K.E. with K.E.'s penis penetrating her
vagina, and K.E. also performed oral sex on her.
also admitted she and K.E. exchanged videos involving both of
them masturbating. Johnson acknowledged K.E. sent her a
picture of his penis.
State charged Johnson with one count of unlawful sexual
relations, a severity level 5 person felony; one count of
sexual exploitation of a child, also a severity level 5
person felony; and one count of promoting obscenity to a
minor, a class A nonperson misdemeanor. The jury convicted
her on all three charges.
moved for a downward dispositional departure, or in the
alternative, a downward durational departure. After hearing
the evidence, a statement from K.E.'s mother, and
arguments of counsel, the district court continued the
sentencing to review the records and caselaw citations. In
ruling on the motion, the district court stated the
• Johnson was in a position of authority;
• K.E. was a student at the school where Johnson was a