State v. ComanState v. Coman
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Joshua Coman pled guilty to misdemeanor criminal sodomy, as defined in
Factual and Procedural Overview
Coman had previously been a roommate of Diana Sells, who had a Rottweiler dog. Sells discovered Coman in her garage with the dog in a compromising position. Coman told Sells that he loved the dog and wanted to see it one more time. Sells called the police, who discovered personal lubricant in Coman’s pocket. Coman admitted to the officers that he used the lubricant to penetrate the dog’s vagina with his finger.
Ultimately, Coman pled guilty to one count of criminal sodomy as defined in
Coman appealed to the Court of Appeals, stating in his notice of appeal that he was appealing “from the sentence imposed” and specifically describing the subject matter of the appeal as being “that part of the Sentence which requires this Defendant to register as a sex offender, pursuant to the Kansas Sex Offender Registration Act.” But in briefing the case, Coman raised two issues: (1) The KORA should not be construed to require him to register as a sexually violent offender; and (2) the crime of criminal sodomy described in
The Court of Appeals declined to consider the merits of Coman’s constitutional challenge to
With respect to the registration issue, a majority of the Court of Appeals panel found no ambiguity in
Even though the majority found no ambiguity in the registration statute, it discussed the rule of lenity. That rule provides that any reasonable doubt as to the meaning of a criminal statute is resolved in favor of the accused. But the majority declared that the rule of lenity may not be invoked where there is a reasonable and sensible judicial interpretation of the statutory provision that will effect legislative design. 42 Kan. App. 2d at 597.
The dissent agreed that the language of subsection (c)(14) could be read, as the majority did, to include Coman’s conduct because it was a sexually motivated act. But the dissent noted that reading subsection (c)(14) to include sex crimes that were not listed as automatically requiring registration would render the list superfluous. The apparent suggestion is that, given that all sex crimes are sexually motivated, applying the sexually motivated act definition of subsection (c)(14) to all sex crimes renders the per se list meaningless because registration will always be required for sex crimes, whether listed or unlisted. The dissent pointed out that, in applying canons of statutory construction, courts should read each section of a statute as adding new meaning, rather than reading a subsequent provision as being redundant to a prior provision. 42 Kan. App. 2d at 603 (Leben, J., dissenting).
Further, the dissent noted that the maxim,
expressio unius est exclusio alterius,
should be applied to the text of the registration statute. Courts apply that maxim to presume that when the legislature includes specific items in a statutory list, it intends to exclude similar items not expressly listed. In this instance, the dissent opined that the legislature meant something when it included two of the three subsections of the sodomy statute in the per se list, but excluded the third version of the crime. The dissent bolstered that view by observing that one manner in which to commit the crime that was omitted from tire list of sexually violent crimes,
i.e.,
The dissent then embarked on an extensive review of the lengthy and sometimes convoluted legislative history of the registration statute, concluding that the legislature might well have intended the catch-all provision to apply only to nonsex crimes. Its review of case precedent uncovered nothing to refute that interpretation. Ultimately, tire dissent determined that the legislature specifically intended to exclude the
Coman petitioned for review, ostensibly raising three issues: (1) whether the court erred in requiring Coman to register as a sex offender; (2) whether the court erred in applying the rule of lenity and the rules of statutory construction; and (3) whether the court erred in determining tire appellant’s constitutional challenge. We take the liberty of consolidating the first two issues and considering the third issue first.
Constitutionality of Criminal Sodomy Statute
Sodomy is defined in
In Lawrence v. Texas, 539 U.S. 558, 574, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), the United States Supreme Court struck down a sodomy law as unconstitutional under the Equal Protection Clause, finding that a state cannot criminalize sexual practices between two mutually consenting adults conducted in private, even if those practices are common to a homosexual lifestyle. The Lawrence Court explicitly narrowed its holding and warned against any broader interpretation. 539 U.S. at 578. Nevertheless, Coman would have us read Lawrence as prohibiting states from legislating for moral purposes, which he believes includes prohibition of bestiality.
As noted, the Court of Appeals declined to reach the merits of the constitutional argument because of procedural bars. Coman’s review petition does not address the panel’s decision on the procedural matters, opting instead to argue the merits of the undecided issue. We will review the issue as it was decided by die Court of Appeals, i.e., whether the statute’s constitutionality is properly before the appellate courts.
Standard of Remeto
Ordinarily, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007). More fundamentally, the existence of jurisdiction is a question of law over which this court’s scope of review is unlimited. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
Analysis
In his petition for review, Coman identifies the remedy he seeks for the unconstitutionality of
“It is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over the rulings identified in the notice of appeal.”
State v. Huff,
278 Kan. 214, Syl. ¶ 2, 92 P.3d 604 (2004); see also
Coman is likewise harnessed with the consequences of having pled guilty to violating the statute that he now wants to invalidate. A defendant who enters into a guilty plea “ ‘is deemed to have waived any irregularities which may have occurred in the proceedings prior thereto.’ ”
State v. Woodward,
288 Kan. 297, 304, 202 P.3d 15 (2009) (quoting
Jones v. State,
207 Kan. 622, 625, 485 P.2d 1349 [1971]). The waiver exists even if such defects “may reach constitutional dimensions.”
State v. Melton,
207 Kan. 700, 713, 486 P.2d 1361 (1971). More generally,
Finally, to the extent that
In short, the Court of Appeals appropriately declined to consider Coman’s first-time-on-appeal challenge to the constitutionality of
KORA Registration for Misdemeanor Criminal Sodomy
Pursuant to
Standard of Review
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Analysis
As we have indicated,
“(a) Criminal sodomy is:
(1) Sodomy between persons who are 16 or more years of age and members of the same sex or between a person and an animal;
(2) Sodomy with a child who is 14 or more years of age but less than 16 years of age; or
(3) causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal.” (Emphasis added.)
Coman was convicted under the above-emphasized bestiality proscription of subsection (a)(1), albeit for registration purposes, KORA does not differentiate between the two ways in which a person can commit criminal sodomy under that subsection. The KORA does, however, specifically differentiate between persons
who are convicted of subsection (a)(1) criminal sodomy and those who violate the other two subsections of
“(a) ‘Offender’ means: (1) A sex offender as defined in subsection (b);
(5) any person convicted of any of the following criminal sexual conduct if one of the parties involved is less tiran 18 years of age:
(B) criminal sodomy as defined by subsection (a)(1) ofK.S.A. 21-3505, and amendments thereto;
“(b) ‘Sex offender’ includes any person who, after the effective date of this act, is convicted of any sexual violent crime set forth in subsection (c) . . . .
“(c) ‘Sexually violent crime’ means:
(4) criminal sodomy as defined in subsection (a)(2) and (a)(3) ofK.S.A. 21-3505 and amendments thereto;
(14) any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in this sub-paragraph, ‘sexually motivated’ means that one of the purposes for which the defendant committed the crime was for the purpose of tire defendant’s sexual gratification.”
We frequently declare that the most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.
Arnett,
290 Kan. at 47. An appellate court’s first attempt to ascertain legislative intent is through an analysis of the language employed, giving ordinary words their ordinary meaning.
State v. Urban,
291 Kan. 214, 216, 239 P.2d 837 (2010). If a statute is plain and unambiguous, an appellate court does not need to
The Court of Appeals majority found no ambiguity in the language the legislature used in the catch-all provision of subsection (c)(14). It points to the provision’s plain language requiring KORA registration if the court, at sentencing, finds beyond a reasonable doubt that any act by the defendant in committing the crime had as one of its purposes the sexual gratification of the defendant. There is no stated exception, such as an exemption for sex crimes omitted from the list of per se sexually violent crimes. Coman, 42 Kan. App. 2d at 597. We agree with that assessment of the statutory language.
Yet, even crystal clear language cannot always save a statutory provision from the specter of ambiguity. See State v. Horn, 288 Kan. 690, 692, 206 P.3d 526 (2009) (conundrum arising not from lack of clarity in statutory language, but from existence of two apparently controlling but conflicting statutes). Even the Court of Appeals majority, citing to State v. Valladarez, 288 Kan. 671, 678-79, 206 P.3d 879 (2009), acknowledged that ambiguity can arise because “various statutes are in conflict,” and that in such an event “the canons of statutory construction must be applied and legislative history may be consulted for indications of legislative intent.” Coman, 42 Kan. App. 2d at 595.
Here, the potential conflict is contained within the same statute, triggering the concept that, when construing a legislative act to determine the legislature’s intent, courts should avoid isolating any particular provision. Rather, an act should be construed as a whole. In that vein, tire reviewing court must consider the various provisions of an act in pari materia with a view to reconciling and bringing the provisions into workable harmony, if possible. See State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008).
All concerned in this case have concentrated their attention on the possible conflict between subsection (c)(4) and (c)(14) of
The panel majority believes that the legislative intent in omitting misdemeanor criminal sodomy from subsection (c)(4) “reflects the belief that not
every
violation of
When viewed in that light, it is not the catch-all provision that is emasculated, as the panel majority suggests. That provision remains viable and useful for unlisted, nonsex crimes. Rather, the majority’s interpretation renders the omission of misdemeanor criminal sodomy in subsection (c)(4) virtually meaningless and useless, because the very act of committing the omitted crime brings the actor within the broadly cast net of the (c)(14) catch-all. See Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006) (courts presume legislature does not intend to enact useless or meaningless legislation).
Although the Court of Appeals only discussed the legislature’s
omission
of misdemeanor criminal sodomy from the list of per se sexually violent crimes in subsection (c), the legislature also specifically listed misdemeanor criminal sodomy in another subsection of
In other words, when the legislature directly addressed misdemeanor criminal sodomy, it made registration dependent upon the age of the participants, rather than upon the sexual motivation of the defendant. Adopting the panel majority‘s interpretation that a defendant committing misdemeanor criminal sodomy must register under subsection (c)(14) upon a finding of sexual motivation would truly render superfluous the explicit provisions of
As evidenced by tire extensive discussion in the Court of Appeals dissent, the legislative history of the registration statute does not resolve the ambiguities. On the one hand, the fact that the legislature deleted a list of nonsex crimes and added the catch-all provision could indicate that the legislature intended the catch-all to apply only to nonsex crimes. Coman, 42 Kan. App. 2d at 606 (Leben, J., dissenting). That is the use to which it has been employed by the precedent the majority found persuasive. See State v. Chambers, 36 Kan. App. 2d 228, 240, 138 P.3d 405, rev. denied 282 Kan. 792 (2006) (theft and burglary sexually motivated); State v. Patterson, 25 Kan. App. 2d 245, 251, 963 P.2d 436, rev. denied 265 Kan. 888 (1998) (burglary and theft of woman’s underwear sexually motivated); State v. Lopez, 25 Kan. App. 2d 777, 778, 973 P.2d 802 (1998), rev. denied 266 Kan. 1113 (1999) (attempted aggravated burglary with intent to commit sexual battery sexually motivated); State v. Stenger, No. 96,182, 2007 WL 1530118, at *4 (Kan. App. 2007) (unpublished opinion) (furnishing alcoholic beverages to minor for illicit purposes sexually motivated); State v. Ward, No. 89,659, 2004 WL 324214, at *2-3 (Kan. App. 2004) (unpublished opinion) (criminal threat sexually motivated); State v. Saunders, No. 91,136, 2004 WL 2160942, at *3 (Kan. App. 2004) (unpublished opinion) (criminal threat, child endangerment, and battery sexually motivated).
On the other hand, the legislature also removed all misdemeanors from the list of crimes, at the same time as the catch-all provision was added to the precursor of the Registration Act. Minutes of the House Judiciary Committee, Feb. 26, 1993. The dissent views this as an intent to require registration only for the more serious, felony crimes. Another explanation is that the catch-all provision was to apply to the misdemeanors, as well as the deleted nonsex crimes. But the point is that the legislative history does not inform us as to tire legislature’s intent with
As a general rule, criminal statutes must be strictly construed in favor of the defendant. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008). Any reasonable doubt as to the meaning of the statute is decided in favor of the accused, subject to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010). See also State v. Bonner, 290 Kan. 290, 296, 227 P.3d 1 (2010) (stating that strict construction “simply means that the court reads words with their ordinaiy meaning,” and then decides any reasonable doubt in favor of the accused).
The Court of Appeals majority cites to Paul’s caveat that the rule of strict construction of criminal statutes “is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” Coman, 42 Kan. App. 2d at 596 (citing Paul, 285 Kan. at 662). It interprets that constraint as meaning that “[tjhere is no cause to apply the rule of lenity where there is a reasonable and sensible judicial interpretation that effects legislative design.” Coman, 42 Kan. App. 2d at 597. We disagree with that summary dismissal of the rule of lenity in this case for two reasons.
First, the majority presumes that its interpretation is the one that will effect legislative design. If, in fact, the legislature really
intended that the provisions in
Next, the majority misconstrues the constraint on the rule of lenity. The caveat simply means that the statutory interpretation favoring the accused cannot be unreasonable or nonsensical. In other words, there must be a reasonable doubt as to a criminal statute’s meaning before the rule of lenity comes into play. The majority appears to suggest that if its interpretation of the statute is reasonable and sensible, then it can ignore the rule of lenity, even if the accused’s statutory interpretation is also reasonable and sensible. That application of the rule directly contradicts the whole concept of lenity, and we unequivocally reject it. If, as here, there are two reasonable and sensible interpretations of a criminal statute, the rule of lenity requires the court to interpret its meaning in favor of the accused.
To summarize, we hold that a person who commits misdemeanor criminal sodomy as defined in
Reversed.
Moritz, J., not participating. Donald R. Noland, District Judge, assigned.