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State v. Johnson

Court of Appeals of Kansas

June 22, 2019

State of Kansas, Appellee,
v.
Teri Lynn Johnson, Appellant.

         SYLLABUS BY THE COURT

         1. Courts must presume the constitutionality of a statute and resolve all doubts in the favor of validity.

         2. The term "other person in a position of authority" in K.S.A. 2015 Supp. 21-5512(a)(9) is not unconstitutionally vague.

         3. The 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.

         4. When 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.

         5. An 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.

         6. Ultimately, the courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation.

         7. 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."

         8. 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 through 12."

         9. A paraprofessional educator assigned to a school is a person in a position of authority as set out in K.S.A. 2015 Supp. 21-5512(a)(9).

         10. 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.

         11. The 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 evidence.

         12. 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."

         13. "Material" as used in K.SA. 2015 Supp. 21-6401(f)(2) includes digital media shared by sending or transmitting it to another person.

          Appeal from Douglas District Court; Peggy C. Kittel, judge.

          Clayton J. Perkins, of Capital Appellate Defender Office, for appellant.

          Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Green, P.J., Schroeder, J., and Stutzman, S.J.

          Schroeder, J.

         Teri 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.

         Facts

         Johnson's job and duties

         Johnson 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.

         K.E.'s enrollment and status as a student

         K.E. 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.

         The relationship between Johnson and K.E.

         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 would react.

         A 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.

         K.E. 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."

         Johnson went to K.E.'s house on the Saturday before Thanksgiving, and the two had sexual intercourse one time in his bedroom.

         After 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."

         K.E. 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.

         Johnson 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."

         Report and criminal investigation

         K.E. 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 K.E.

         As the 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 exclusively messaging.

         Later 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.

         Johnson also admitted she and K.E. exchanged videos involving both of them masturbating. Johnson acknowledged K.E. sent her a picture of his penis.

         Trial and sentencing

         The 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.

         Johnson 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 following:

• Johnson was in a position of authority;
• K.E. was a student at the school where Johnson was a ...

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