*1 90,120 No. v. Steven Appellee, Appellant. Kansas,
State 1267) (118 P.3d 9, filed 2005. Opinion September Holland, Holland, Russell, cause, Michael S. of Holland and and argued II, firm, Michael S. Holland of the same was with him on the brief for appellant. Schroeder, cause, Kline, Keith E. district and Phill attorney, argued attorney was with him on the brief for general, appellee. of the court was delivered opinion The State of Kansas this court to review Lockett, petitioned J.: the Court of reversal of defendant Steven Peterman’s con- Appeals’ viction of for insufficient evidence. The State ar- attempted rape that there was sufficient evidence to Peterman’s con- gues support viction of attempted rape. 7, 2001, beer,
On after wine coolers September drinking Donna Davis and her sister-in-law went to a club. Davis met Pe- terman at the bar After Peterman Davis and her night. bought drink, Peterman and Davis discussed sister-in-law money making *2 the internet. The discussion turned to child from on pornography Davis, who was offended Peterman’s statements pornography. that wanted to take of little contin- he pornographic pictures girls, to determine if Peterman was serious. When ued the conversation asked, Peterman that she him with Davis informed could provide if him with Peterman Davis she promised provided young girls. would make a lot of So Peterman could young girls, they money. her, her number. later contact Davis Peterman gave pager later, if Two weeks Peterman Davis and asked Davis had paged him that little for to have sex with and any night. girls photograph Davis lied to Peterman and told him that she had a 10-year-old girl with her. In to Peterman’s about what the child response inquiry like, Davis described her who was looked niece 9-year-old having á that Peterman wanted to come to Davis’ day. birthday party house, but Davis that could not with explained they get together the child until after the child’s Davis told Peterman birthday party. to call her back in 30 minutes so she could make for arrangements him to the child. get Peterman,
After her conversation with Davis called telephone and the situation to them. The officer police explained police with Peterman off until the Davis requested put meeting next Davis informed the officer that Peterman had insisted on day. it that told Davis needed some evi- police they doing night. act. Davis Pe- dence before could The officer advised they give terman the address of her location.
Peterman called Davis back about 20 minutes after their first Peterman her conversation. Davis brother’s address telephone gave if the and directions to his Peterman asked little apartment. girl Davis that she was. Peterman informed Davis he was there. stated would be there in about 20 minutes.
After this conversation Davis called the again and informed them that Peterman was on his to her way police brother’s While Davis was on the apartment. phone police, Peterman drove and beside Davis’ brother’s apartment. up parked Davis’ niece and some other children were outside the playing Peterman sister-in-law immedi- when drove Davis’ apartment up. went outside and took the children into the Davis ately apartment. and Peterman his truck. Davis’ joined hung up phone brother then called the and informed of the kept police situation. truck,
While were Peterman asked about the they sitting little Davis to him that the little was in the house girl. explained girl at her Peterman that he said wanted to take the birthday party. girl then. Davis could not she the birth- again explained interrupt because would ask Davis then con- day party people questions. vinced Peterman to wait until after the birthday party promised the litde to meet Peterman at a motel. bring girl
While Peterman and Davis were seated in the truck discussing meet, their Peterman described in detail what he wanted plans to do with the litde included girl. plan drugging young *3 vibrator, her with a sex girl, penetrating vagina finally having discussion, with the After this Peterman his briefcase girl. opened dildos, vibrators, creams, and showed Davis various sex and con- Peterman doms. then exhibited to Davis of Hi- naked photographs her, de and stated he had sex with girls, explained pictures truck, While Davis held Peterman’s girls. sitting pictures so her brother could observe them window. through apartment brother, Davis’ who was on the informed phone police, them about the pictures. truck,
While Davis was still in Peterman’s two cars poHce ap- one front of Peterman’s truck and the second proached; parked arrived, behind Peterman’s truck. When the Peter- parked pohce man his briefcase a under in the backseat. in- Davis put jacket formed the that there were in the briefcase. pohce pictures
The told Peterman to out of the truck and then advised pohce get him of Miranda his Peterman told the officers could rights. they search his truck but that could not search the black briefcase they because briefcase contained items “that could in trou- [him] get ble.” After to the officers he had obtained admitting photo- internet, of the children from the Peterman con- graphs young sented to a search of his briefcase. then searched the truck and the briefcase. Inside truck, officers found a sack an paper containing empty dildo,
case for a a that a dildo had been receipt showing purchased afternoon, Center, at Skateland and a a for kids flyer night contained of black briefcase. briefcase pornographic pictures children, vibrators, dildos, a a of black women’s bottle pair panties, Lubricant,” a an “Climax Personal bottle un- containing containing oil, identified bottles of a container of liquid, massage ginseng pow- der, balls, chain, condoms, two a set of metal with a skin gold clips lotion, Cream,” Cream,” care “China Shrink “Hard-on a of jar lubricant, and a bottle of Peter- spermicidal liquid “Spanish Fly.” man stated to the that he had take officers planned photographs of himself sexwith the child and would have used the items having in his briefcase on the child. counts,
The State Peterman with at- charged multiple including and sohcitation. Several of the were dis- tempted rape charges missed at the Peterman was tried preliminary hearing. ultimately for and convicted a sohcitation to com- by jury attempted rape, mit and sohcitation to commit sexual of a child. rape, exploitation The district sentenced Peterman to a sentence judge controlling of 144 months in sentences all for prison, ordering aggravated three convictions to run Peterman his con- consecutively. appealed to the victions Court of insufficient evidence and Appeals, claiming and convictions and that the dis- multiplicity charges asserting trict court erred in evidence. refusing suppress
A affirmed Peterman’s convic- tions for sohcitation to commit and sohcitation to commit sexual and reversed his conviction for exploitation attempted rape. 90,120, State v. filed No. unpublished opinion August *4 20, 2004. Both the State and Peterman filed for review. petitions We the State’s and denied Peterman’s granted petition petition.
The State claims that the erred when there was insufficient evidence to support finding had asserted that because conviction for Peterman attempted rape. he was never in close with the child physical proximity purported victim, overt act for a conviction for at- there was no sufficient mere Peterman that his actions were prep- tempted rape. argued the final had not been and the aration because plans completed intended victim was fictional. When the of evidence is sufficiency whether, case, in of review is a criminal standard
challenged
evidence,
of all the
viewed in the
most favorable
after review
light
convinced that a rational
to the
court is
appellate
prosecution,
factfinder could have found the defendant
a reason
beyond
guilty
54, 58,
Zimmerman,
State v.
251 Kan.
Attempt a crime done who intends to commit such of petration by a-person crime but fails in the thereof or is or in- perpetration prevented in such crime.” K.S.A. 21-3301. K.S.A. 2004 tercepted executing 21-3502(a)(2) defines as intercourse with a child “sexual Supp. who is under of Sexualintercourse is defined as years age.” “any the male of female sex sex penetration organ by finger, organ Therefore, 21-3501(1). or K.S.A. to Peterman convict any object.” of that State was Peterman attempted rape, required prove (1) an overt act toward the sexual of performed penetrating organ 14; (2) a female child under the that act with the age performed female, intent to the sexual of a child .under penetrate organ 14; (3) failed to the sexual of a female age penetrate organ child under the of 14. See P.I.K. Crim. 3d 55.01. The second age two elements are not Peterman and little dis- disputed by require cussion.
We have
stated
the intent
for an
previously
required
attempt
to commit a crime must be
to the
crime. State
specific
underlying
Robinson,
133, 137,
(1994). Here,
v.
256 Kan.
Did Peterman commit an overt act toward a female penetrating child’s sex Kansas law does not definitive as rules organ? provide
61
act
crime. The overt
what constitutes an overt
for
attempting
made
the
must extend
mere
act
beyond
preparations
necessarily
near to the consummation
and must
accused
sufficiently
approach
in a
to stand either as the first or
of the offense
subsequent step
toward the
offense. State v.
direct movement
completed
Hedges,
895, 905,
(2000).
The intent to commit
possi-
the
act constitutes
of success determines whether
defendant’s
bility
Martens,
459, 466,
Kan.
54
the crime of
State v.
274
P.3d
attempt.
(2002).
960
We have
determined that the crime of at-
previously
does not
evidence of
tempted rape
require
attempted penetration.
Gonzales,
691, 698,
(1989).
245
1239
Al-
State v.
Kan.
783 P.2d
the
act does not have to be the last
act in
overt
though
proximate
crime,
the consummation of the
it must be either the first or some
a direct movement toward
commission of
subsequent step
crime after the
are made.
269 Kan. at
preparations
Hedges,
905.
include
the means
Mere
or
“devising
arranging
preparations
for
the offense. State v. Gar-
or measures necessary”
committing
239,
ner,
227,
(1985).
237 Kan.
The Peterman’s ar- majority Appeals accepted that there could be no crime because there was no actual gument victim; here the victim was fictional. We note that this conclusion 21-3301(b), is to K.S.A. which “It shall not be a contrary provides: defense to that the circumstances under which charge attempt the act was means or the or the act itself were performed employed such that the commission of the crime was not possible.”
The concurrence and dissent observed: “The that ‘he had no or time es- majority adopts arguments place crime; to, victim; tablished for the he had never seen or met the he did spoken victim; victim; not restrain the he did not disrobe the he did not disrobe himself victim; victim; for the he did not or touch fondle the and he cer- preparation so, did not the victim.’ In find the tainly attempt penetrate doing they prepa- rations and determine that ‘where there is a victim nor a incomplete yet place and time established for sexual intercourse’ the could not find an juiy permissibly 21-3303(c), overt act. also K.S.A. that Peterman They would have suggest, citing had an to abandon his and renounce his intention opportunity to com- plan prior (District Stutzman, the act.” at 4-5 David L. pleting slip op. Judge dissent). concurrence and assigned,
The concurrence and dissent then out: points view, however, “In Peterman’s there was a victim. The fictional nature of that victim, holds, immaterial, as the is as that anis based on im- majority argument evidence, Based on the Peterman had possibility. determined that the effectively time for the crime was to be as soon as Davis’ was clear that possible. testimony Peterman came to the house not to ‘observe the child’ but to just pick up child and that he asked Davis more than if once he could leave with the child. When Davis first called the the officer asked whether she could Pe- police, put terman off until the time to she told tire following day give prepare; officer tiiat Peterman was on that for die crime insisting day. place apparently motel, was to be a since that is where Peterman told Davis he intended to go. There was no evidence diat Peterman showed indecision about where he any formulated, would he had and diere was no accomplish plan fully suggestion tiiat, location, ‘but for’ a his world be possible plans complete. “The fact that Peterman still could have his mind and abandoned all changed to commit die crime does not affect the overt act since that purpose analysis, crimes, could be said of or most defendants many whose charged attempt final, overt acts were first or but not toward their subsequent, steps completing 21-3303(c), crimes. K.S.A. renunciation defense to criminal solici- voluntary tation, (concurrence dissent). 5-6 is not instructive this context.” at Slip op. The concurrence and dissent concluded: “The in this case was aware that the elements of the clearly jury required act, an included overt as reflected its attempted rape charge by question asking for a ‘better definition of an “overt” act.’ The trial judge responded appropriately deliberations, and the resumed Peterman on that count. jury eventually convicting Their decision should be writes that this con- respected. affirming viction would show we are ‘influenced our sensibilities rather tiran the being letter of tire law.’ I this conviction would let the respectfully disagree. Affirming members of the who saw the witnesses and defendant and heard the evi- juiy, dence, decide the factual of whether Peterman’s distinctly question preparations were and he had act on his stated intent. complete begun clearly *7 (concurrence “I would affirm the conviction for at 6 attempted rape.” Slip op. dissent). 201, (2001),
In State v. 271 Kan. 569 P.3d this court Jones, a addressed whether defendant could be found guilty attempted indecent with a liberties fictional created a 14-year-old girl by in Wichita officer to the defendant’s internet police response per- 21-3301(b) sonal advertisement. that K.S.A. codified the Noting law that to commit a crime is anot existing impossibility factual defense and ehminated the doctrine of as a de- legal impossibility fense, the court the defendant’s conviction. 271 Kan. upheld Jones 203, at 205. of the Court of majority Appeals attempts distinguish victim, because there a female a officer as albeit posed Jones an an actual with the fictional imposter, thereby associating person However, of the victim. at 7-8. that identity slip op. 21-3301(b), fact does not K.S.A. which elim- distinguishing change Moreover, inates both factual and as a defense. legal impossibility cannot be in that Like the factually distinguished regard. Jones in defendant there is evidence that have Peterman could Jones, an associated actual child the fictional child Davis described case, to him. of this Davis testified she Though dispositive described her niece to Peterman. Davis’ niece was outside when Peterman drove Davis’brother’s Davis asked Peter- apartment. inside, man if he had seen the before went and he said she girl her, Thus, that he had seen but did not look at her.” get “good Peterman’s that he could not have com- precludes argument Jones mitted a fictional victim. The Court of attempted rape against Ap- conclusion to the is in error. peals’ contrary that he an did not commit overt act be- argument in cause he was not close with a victim relies on physical proximity Kansas cases decided and cases from other prior jurisdic- Jones tions. Peterman did not come close Although physical proximity child, with a his intent was to have sexual intercourse with a child. Peterman’s act of to meet Davis to a child for the driving pick up of sexual intercourse constituted an overt act mere purpose beyond Peterman went as far as he could toward preparations. completing his criminal intentions that the child victim was prior discovering fictional. the district judgment Appeals reversing
court is reversed. The of the district court is affirmed. judgment Retired,
Lockett, J., assigned. I dissent from the ma- Allegrucci, J., dissenting: respectfully of this court in the Court of as to the jority reversing Appeals conviction. I of the Court attempted rape agree majority insufficient evidence of an overt act. Appeals finding the Court of mentions the lack of a Although Appeals majority victim, Instead, its conclusion did not rest on fact. solely concluded that the State failed to establish attempted The Court of stated: rape. *8 Peterman’s intentions were and “Obviously, morally reprehensible disgusting. Nevertheless, it is not our role to be influenced our sensibilities rather than the letter of the law. Unless and until our a crime of‘intent legislature proscribes child,’ and to commit with a we must avoid the preparation temptation such conduct as as defined and construed.”
punish attempted rape currently I I would affirm the Court of decision agree. Appeals’ affirming to the district court. part, reversing part, remanding