This аppeal raises the issue of whether the State presented sufficient evidence of a lewd fondling or touching by proving that Dinh Loe Ta touched the faces, hair, arms, and legs of two young girls, touches the trial judge referred to as “relatively innocuous.” Because the touches did not tend to undermine the children’s morals and were not so clearly offensive as to outrage the moral senses of a reasonable person, we conclude the evidence against Ta was insufficient, and we reverse his convictions on two counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A).
Facts and Procedural Background
The charges arose on July 19, 2009, when Ta approached and touched two young girls who were playing outside a Wichita movie theater. The girls, who were 2 and 3 years old respectively, were with their mothers. Just before Ta approached the group, one of the mothers placed her daughter, who was the older child, on a bench and then sat on an
According to Ta’s testimony, he approached the group, introduced himself, and then began talking to the older child. He testified that he told the child she was cute and asked her name. When the child did not respond, Ta held out his hand to her and she tentatively stuck out her hand. He then released her hand and touched her leg because there “was some kind of dirt in the grass so I brush[ed] it off.” Ta further testified that when the child did not say anything, he touched her face and her hair.
The older child’s mother testified that Ta approached the group and introduced himself to tirе adults. He then approached her daughter and asked the child her name. When the child did not answer, Ta pulled the child’s hair away from the front of her face and tucked it behind her ear. He then began to rub his fingertips up and down the child’s arm in what the mother agreed could he described as a very brief, “comforting pat.” She did not see Ta touch her daughter’s leg.
The younger child’s mother testified that Ta approached the older child and moved her hair back while “kind of caressing her face.” He then rubbed up and down on the older child’s upper leg. She did not see Ta touch the older child on the arm before she picked up the child and began to walk toward the theater.
Ta then approached the younger child. Ta testified that he noticed the girl was not enjoying the day and because she was sitting with her head down, he rubbed her knee and said “hi” to her and told her his name “just to get her to look up, but she didn’t look up ... . [Tjhen I. . . touchfed] her face and her hair and her chin, and I ask[ed] her what’s wrong and I didn’t get any response from her.” When he decided tire younger child did not want to talk, he walked away, according to his testimony before the jury.
The older child’s mother, who was sitting next to the younger child, told the juiy, “He grabbed [the younger child’s] arm and was feeling on it.” He then walked away. She picked up the younger child and walked toward the theater.
The younger child’s mother, who had picked up the older child before Ta approached the younger child, testified she heard Ta ask her daughter her name and age. The younger child did not respond. The mother did not see Ta touch her daughter.
The mother of the older child, who worked at the theater, approached her boss and told him what had happened. She testified, “[H]e said that if [Ta came] up to them again he’d call the cops, and then we took matters in our hands and we called the cops ourselves.” When the law enforcement officer arrived, the mothers reported that a man had touched their daughters’ legs and faces and “they believed he was trying to molest the kids.” The officer decided to do a brief interview of Ta “because at that point I didn’t know if we had a violation of anything.”
The officer first asked Ta some general questions. Ta dien “land of went into advising that he had a problem, that he wanted to go speak with a doctor and then stated that he felt that he was a danger.” When the officer asked Ta to explain what he meant, Ta “advised that he wanted to have sex with children. Then he stated that he was having a difficult time controlling his urges and they were becoming stronger, and then he repeated that he wanted to have sex with lads and that he feels that he’s a danger.” During follow-up questioning, the officer asked Ta whether “touching their legs ... satisfied] your sexual desires or did you feel the need for more?” Ta replied that “he wanted to have sex with them.” The officer explained that all the statements Ta made about having sex with children were hypothetical, Ta did not admit that it was something that he did or had done. In fact, “[h]e said he never had sex with children.”
The officer took Ta into custody. Subsequently, Ta made several statements in which he reiterated that he had strong urges to have sex with small children. A video of some of these statements, including some sexually explicit and vulgar statements he made while by himself in a conference room, were played to the jury.
The judge also denied Ta’s motion for a departure sentence and imposed concurrent terms of life imprisonment with a mandatory minimum sentence of 25 years. Ta timely appeals his convictions. This court has jurisdiction under K.S.A. 22-3601(b) (maximum sentence of life imprisonment imposed; appeal docketed prior tо July 1, 2011).
Analysis
On appeal, Ta raises two arguments regarding the trial judge’s denial of his motions for judgment of acquittal. First, Ta contends the judge applied the wrong standard when it ruled on the motions. Second, Ta contends there is insufficient evidence of a violation of K.S.A. 21-3504(a)(3)(A), which provides that aggravated indecent liberties with a child is engaging in “[a]ny 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 die child or the offendеr, or both.” As at trial, Ta does not dispute that there is overwhelming evidence of his intent, but he continues to argue the State failed to present evidence of a lewd fondling or touching.
K.S.A. 22-3419(1) Standard and Standard of Review
In Ta’s first argument, he challenges die trial judge’s application of K.S.A. 22-3419(1), the statute that governs a Kansas court’s consideration of a motion for judgment of acquittal. K.S.A. 22-3419(1) provides in relevant part:
“The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more crimes сharged in the complaint, indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such crime or crimes.”
Ta claims die trial judge erred in his application of this statute when the judge stated:
“I can’t make a finding that this jury acted unreasonably. ... I don’t believe that substituting my judgment for that of tire jury is appropriate in this case. I can’t say that no reasonable juror should have found what the juiy found. I can’t go that far and I won’t go that far.”
Specifically, Tа argues tiiat rather than determine the reasonableness of the jury verdict, the trial judge was obligated to examine whether there was evidence to establish each element of the crime beyond a reasonable doubt. Ta argues it was predictable that a reasonable jury would find him guilty because the tiieme of the State’s case was that his illicit thoughts proved his guilt of the crimes. As an example of how this theme played out during the trial, Ta points to the following comments during the rebuttal portion of the State’s closing argument:
“Counsel wants you to think that anybody who goes up to a child in a park and touches them on the face is going to be charged with aggravated indecent liberties. The officers told you when they talked to the moms they looked at it and thought, well, I don’t know what we’ve got here, we’ve got a guy touching lads. His confession, his words are what makes it a crime, ladies and gentlemen. It’s not just touching a child. It’s touching a child in a lewd manner with the intent to arouse or satisfy the sexual desires. He told them what his intent was and what his sexual desires were, and that is what makes it а crime to go up and touch a child on the legs, on the arms, on the face and the hair. Normal [people], everyday [people don’t] have to worry about that. They don’t have that [kind of] sexual desire. This defendant does.” (Emphasis added.)
Ta argues this was a misstatement of law, yet it also illustrates the prosecutor’s theory and theme throughout the trial—a normal
The State’s melding of the elements also led the trial judge to commit error, according to Ta. He argues the judge, in denying the motions for judgment of acquittal, single mindedly focused on Ta’s intent and not his actions, stating:
“[I]f this case had been tried to the Court, bench trial, I’m not sure I would have convicted the defendant on the basis of the facts presented. I think the acts in and of themselves are relatively innocuous, but you have to look at the defendant’s actions in their entire context, and the defendant’s intent is critical here and I think that’s what the jury particularly focused on. The acts taken on face value, I would say that the defense would be correct in their judgment, but the jury didn’t have just the acts of the defendant. They had his numerous statements that he made after the fact discussing his desire to have sex with children, and I think we all know that those—it was the statements ... of tire defendant that I think are the critical turning point in this case.”
According to Ta, these statements illustrate that the trial judge— like the State and the jury—focused on the overwhelming evidence of intent and failed to examine the separate element of whether the touching was a lewd fondling or touching defined by the statute.
As Ta notes, “die Due Process Clause of the Fourteenth Amendment requires proof beyond a reasonable doubt of each element of the crime charged. [Citation omitted.]” (Emphasis added.) State v. Douglas,
Further, due process requires the factfinder to “ ‘rationally apply [the proof-beyond-a-reasonable-doubt] standard to the facts in evidence.’ ” Douglas,
If there is not sufficient evidence of each element of a charged crime, under K.S.A. 22-3419(1) a court “shall order the entry of judgment of acquittal. . . .” (Emphasis added.) Thus, a trial court’s “decision to grant a motion for judgment of acquittal is not discretionary.” State v. Murdock,
An appellate court applies the same standard:
“In reviewing the denial of a motion for judgment of acquittal, the appellate court examines the sufficiency of the evidence in support of the conviction. [Citations omitted.] The applicable standard of review is well known: When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citations omitted.]” State v. Raskie,293 Kan. 906 , 919-20,269 P.3d 1268 (2012).
In evaluating the evidence, the courts do not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. Raskie,
Hence, the trial judge in this case was correct in concluding his role was not to substitute his judgment for the jurors.
This brings us to an analysis оf the definition of a “lewd fondling or touching,” an assessment of whether there was sufficient evidence of a lewd act in this case, and whether, as Ta argues, the trial judge improperly relied on evidence of Ta’s mental state to determine there was sufficient evidence of lewd fondling or touching.
The Evidence of a Lewd Act was Insufficient
The State, in responding to Ta’s argument that the trial judge incorrectly considered his mental state in assessing whether his acts were lewd, argues the trial judge correctly considered the totality of the circumstances, which necessarily included Ta’s state of mind. For support, the State cites State v. Rutherford,
In Rutherford, the Court of Appeals was presented with facts of an adult kissing a 4-year-old girl in a way that was described as being “ like you would kiss a girlfriend’ ” and continued to do so after the child objected; in addition, the defendant admitted the kiss was inappropriate, and he told other adults that the child “had pretty lips and would be a good kisser because guys liked full bps.” Rutherford,
The Court of Appeals reached the same holding in Stout where the alleged lewd touching included what was described as a “ ‘good,’ ‘deep,’ ‘passionate,’ ‘intimate,’ ‘romantic,’ and ‘memorable’ french kiss in the bed of the defendant after an overnight stay, and the kiss achieved emotional arousal and was followed by professions of true love and repeated encounters involving the same conduct.” Stout,
Drawing a comparison to Rutherford and Stout, the State argues a “normal” touch of a child’s hair, face, arm, or leg can be lewd when the totality of the circumstances is considered. In this case, the State argues the surrounding circumstances included the fact Ta was a complete stranger to the two girls who were of tender age. Ta approached the older child when she was sitting on a bench by herself and caressed her face, played with her hair, rubbed the upper portion of her leg, and ran his fingertips up and down her arm. When the older child was physically removed from the situation, Ta was “undaunted,” approached the younger girl, and began touching her as well. This conduct led the girls’ mothers to feel that Ta was trying to molest their daughters. Further, the State argues that Ta’s statements to the police were clearly within the totality of the circumstances of the event itself, and these statements indicate that Ta’s actions “were akin to romantic foreplay.”
Although neither the Rutherford nor Stout courts explicitly considered the defendant’s intent, the State argues intent would have been an appropriate consideration because it is incorporated into the definition of “lewd fondling or touching” found in PIK. As stated
“[Lewd fondling or touching means] fondling or touching in a manner which tends to undermine the morals of the victim, which is sо clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of either the victim or the offender or both. Lewd fondling or touching does not require contact with the sex organ of one or the other. [Citation omitted.]”
This definition is taken from this court’s decision in State v. Wells,
Conley challenged the constitutionality of the prior version of the indecent liberties with a child statute because it vaguely prohibited “any fondling or touching.” (Emphasis added.) K.S.A. 21-3503(l)(b) (Weeks). This court agreed with Conley’s arguments, concluding the statute did not sufficiently describe the type of contact that was prohibited. The court noted that “[i]t seems doubtful the legislature meant to proscribe every form of touching of the person even though some degree of sexuality be present as in youthful kissing or embracing, yet that can be argued from the language еmployed.” Conley,
The Kansas Legislature responded by adding the word “lewd” to the phrase “fondling or touching.” L. 1975, ch. 193, sec. 2. The impact of that change was then considered in Wells,
First, the Wells court noted that the Kansas Legislature did not choose to restrict the prohibited conduct by identifying body parts that could not be touched, even though that was a possible remedy mentioned in Conley. Instead, the Kansas Legislature restricted the type of touching that was prohibited by adding the word “lewd,” which is a word with “an unmistakable meaning which is very well and generally understood.” Wells,
Next, the Wells court noted that the common definition of “lewd” is “sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; indecent, obscene, salacious.” Wells,
Then, in summaiy, the Wells court stated:
“In our judgment the words in the statute, ‘lewd fondling or touching’ of the person of either the child or the offender, should be construed to require the [S]tate to prove a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or to satisfy the sexual desires of either the child or the offender or both.” (Emphasis added.) Wells,223 Kan. at 98 .
The contrasting arguments presented by Ta and the State reveal the conflicting instruction created by the Wells court’s summaiy. The first portion of the summary, the portion on which Ta relies, restates the common meaning of the word “lewd” and provides, at least in part, an objective standard—a reasonable person standard—by requiring the touch be one that is clearly offensive so as to outrage die moral senses of a reasonable person. The second portion of the summaiy, the portion on which the State relies, brings the defendant’s subjective intent into consideration.
On close reading of the Wells decision, we conclude the Wells court mislabeled its summary as a definition of one element of the crime of indecent liberties with a child—the element of a “lewd fondling or touching”—-when the court was actually restating both elements of the crime in commonly understood
For example, in State v. Colston,
Additionally, in cases where this court determined a touching was lewd, the focus wаs placed on whether there was evidence of an act that undermined the morals of a child and was clearly offensive to the morals of a reasonable person. See, e.g., State v. Ramos,
We have also cautioned against collapsing the separate elements of a lewd touching and an intent to arouse into one element. One such caution can be found in State v. Naputi,
“The remark suggests that the jury’s inquiry is reduced to the single determination of whether a rеasonable person would find that Naputi’s touching of the boys fit tire definition of lewd fondling. Following tire prosecutor’s logic, all tire State was required to prove was tire fact of the lewd contact, allowing tire juiy to assume the presence of the specific intent element from the act of touching. Moreover, the prosecutor specifically tells the jury not to consider Naputi’s subjective intent for touching the boys. Accordingly, we must conclude that the prosecutor’s comment was a misstatement of law that effectively combined the lewd touching or fondling element with tire requisite specific sexual intent element, both of which are required for a conviction of aggravated indecent liberties with a child.” Naputi,293 Kan. at 60-61 .
Here, the trial judge’s findings similarly collapsed the two elements into one, and the State perpetuates this error on appeal by arguing the strong evidence of intent is proof Ta’s acts were lewd. This interpretation of the law reverts to the crime found to be unconstitutionally vaguе in Conley, it makes any fondling or touching a violation of the statute as long as tire act is performed with a lewd intent. To avoid this constitutional infirmity, there must be evidence that the act was lewd, and this element should not be dependent upon the subjective intent of a defendant.
To hold otherwise would allow punishment for impure, criminal thoughts, and it is a fundamental principle that “the law does not punish criminal thoughts.” United States v. Shabani,
In summaiy, a defendant’s mental state should not be used to define or determine whether a touching is lewd. We, therefore, clarify Wells and hold that whether a touching is lewd should be determined by considering the common meaning of the term “lewd,” that is, whether a touching is “sexually unchaste or licentious; suggestive of or tending to moral loosеness; inciting to sensual desire or imagination; indecent, obscene, or salacious.” Wells,
In the present case, viewing the evidence in the light most favorable to the State, thе State presented evidence that Ta caressed the children’s faces, hair, arms, and legs. This type of touching, when considered without regard to surrounding circumstances, was not lewd. When considered in the surrounding circumstances, as it should be, tire fact that Ta was a stranger who approached small children and who was undaunted by the reaction to his touching makes the touching awkward and strange to the point the mothers were understandably uneasy. Nevertheless, die touches were not indecent, obscene, salacious, unchaste, or licentious. See Wells,
Accordingly, because the State failed to present evidence that Ta engaged in any lewd fondling or touching of the two children, we reverse Ta’s convictions for aggravated indecent liberties with a child.
Consequently, we need not address Ta’s other allegations of trial and sentencing error.
Reversed.