Opinion
No. 109,042.
2013-11-22
STATE of Kansas, Appellee, v. Michael A. JOHNSON, Appellant.
Appeal from Saline District Court; Jared B. Johnson, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Jared B. Johnson, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
LEBEN, J.
Michael Johnson appeals the portion of his sentence subjecting him to lifetime postrelease supervision, a punishment he contends is grossly disproportionate to the crime he committed and thus unconstitutional. But the district court found that the sentence was not grossly disproportionate when it considered the facts of Johnson's offense—aggravated sexual battery committed against a woman who was so intoxicated she had passed out. We agree that Johnson's sentence was not so disproportionate to his offense that it violated any constitutional provisions.
Factual and Procedural Background
Johnson's conviction arose after he attended a party at a private home in Salina on June 15, 2011. We take our summary of the facts from a police officer's affidavit, which the parties agreed the district court could consider for the purposes of Johnson's no-contest plea to these charges.
The party attendees were drinking alcohol, and the victim, K.S., drank heavily. K.S. said that she had passed out in a bedroom; Johnson told an officer that he remained in the living room talking to another person for about 30 to 45 minutes after K.S. went to the bedroom. K.S. said that when she awoke, she was on a couch in the living room, and Johnson was having sexual intercourse with her. She said that she told Johnson that she needed to use the bathroom, and he let her get up. She then reported to another person at the party that Johnson had raped her. K.S. also noted that the bikini bottom she had been wearing that summer night under her dress was missing.
Johnson said that he had gone into the bedroom where K.S. was lying down. He said that he had talked to K.S. there and begun kissing her breasts when another woman asked Johnson to leave the room. That woman said she wasn't awake at the time and didn't recall such a conversation. Johnson said he asked K.S. to walk with him into the living room, but that K.S. said she was too drunk to walk. Johnson said he then carried her to the living room, “threw” her on the couch, removed her bikini bottom, and began performing oral sex. He said he then had intercourse with K.S. for about 15 minutes.
Johnson said that he looked for K.S. after she left the sofa and found her in a bedroom, where K.S. and another party attendee (who lived at the residence) confronted him about the alleged rape and demanded that he leave the residence. A brief physical altercation then took place between Johnson and the other attendee; she said she slapped Johnson when he refused to leave and that Johnson hit her several times in the face and back in return. An officer later noted a red mark on the other attendee's back. Johnson left, and the police were called.
Johnson also called police, demanding to speak with two off-duty officers. When the dispatcher told him that he couldn't speak with them because they weren't at work, Johnson became irate: “ ‘What if I say I was on a fuckin’ building and I was gonna blow my head off and nobody could stop me but [the requested officers?]' “ He then made what the dispatcher viewed as a threat: “Check this out, I'm on top of a building and I'm gonna blow my head off and I'm gonna kill my wife and I'm gonna kill my son if y'all don't get [the requested officers] .... [h]ow about that[?]' “ Johnson was soon arrested; he had K.S.'s bikini bottom in his possession.
As part of a plea agreement, Johnson eventually pled guilty to two charges—aggravated sexual battery in violation of K.S.A. 21–3518(a)(3) and criminal threat in violation of K.S.A. 21–3419(a)(l). K.S.A. 21–3518(a)(3) forbids the intentional touching of a person who is 16 or older, without consent, with the intention of arousing or satisfying the sexual desires of the offender or another when the victim is incapable of giving consent because of the effect of alcohol and that condition was known by, or reasonably apparent to, the offender.
In exchange for Johnson's plea, the State agreed to recommend a shorter prison sentence on the aggravated-sexual-battery conviction, 36 months, than the 44–month sentence called for under state sentencing guidelines. The district court followed the plea agreement, giving Johnson a 36–month prison sentence for aggravated sexual battery. The court sentenced Johnson to 6 months for criminal threat to be served concurrently with the other sentence.
K.S.A. 22–3717(d)(1)(G) requires that offenders who have committed a sexually violent offense—defined to include aggravated sexual battery—be subject to lifetime supervision after their release from prison. But Johnson asked the district court not to impose lifetime supervision, arguing that doing so would violate section 9 of the Kansas Constitution Bill of Rights. The district court denied Johnson's request and imposed lifetime supervision.
Johnson has appealed to this court, again contending that the lifetime-supervision requirement violates section 9 of the Kansas Constitution Bill of Rights. On appeal, we must accept the district court's factual conclusions to the extent they are supported by substantial evidence. We then independently determine whether the sentence was constitutionally permitted without any required deference to the district court. State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012).
Analysis
Section 9 of the Kansas Bill of Rights bars “cruel or unusual punishment.” Our Supreme Court has held that a punishment may violate this provision, even if not thought of as traditionally cruel or unusual in its method, if it is so disproportionate to the offense “that it shocks the conscience and offends fundamental notions of human dignity.” State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
In Freeman, the court gave three factors that should be examined where a defendant challenges the proportionality of a sentence. First, the court looks at the nature of the offense and the character of the offender, specifically considering “the degree of danger present to society.” 223 Kan. 362, Syl. ¶ 2. Second, the court compares the punishment for this defendant's crime with the punishment in Kansas “for more serious offenses”; if more serious offenses are punished less severely, the penalty for the defendant's crime “is to that extent suspect.” 223 Kan. 362, Syl. ¶ 2. Third, the court compares the penalty for the defendant's crime with punishments in other jurisdictions for the same offense; again, the defendant's penalty may be suspect if generally punished less severely elsewhere. 223 Kan. 362, Syl. ¶ 2. Kansas courts generally refer to these tests as the Freeman factors.
No single Freeman factor controls. A court must consider all three, though a single factor may be particularly weighty in a given case. State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). In two cases in which the Kansas Supreme Court has upheld the lifetime-supervision requirement against sexually violent offenders, the first Freeman factor—the nature of the offense and the character of the offender—significantly affected the case's outcome. Mossman, 294 Kan. 901, Syl. ¶ 5;State v. Cameron, 294 Kan. 884, Syl. ¶ 1, 281 P.3d 143 (2012).
In Mossman, the 25–year–old defendant committed aggravated indecent liberties with a minor against the 15–year–old stepdaughter of his roommate. The Kansas Supreme Court emphasized that sex offenses against minors present a special danger to society and that sex offenders generally pose a high risk of recidivism, even though the defendant had presented evidence that his chance of reoffending was low. 294 Kan. at 909–10. The court noted that Mossman's character included poor impulse control and rebelliousness and concluded that the strong findings under the first Freeman factor “outweigh[ed] the lack of strict proportionality with other sentences in Kansas and other jurisdictions, especially given that the sentence [was] not grossly disproportionate.” 294 Kan. at 921.
In Cameron, the 45–year–old defendant pled guilty to aggravated indecent solicitation of his 12–year–old step-granddaughter after rubbing his erect penis against her backside and asking her to engage in sexual acts. The defendant argued that he had been intoxicated when he committed the offense and that he had since undergone alcohol treatment, but the court noted that the crime was “very serious” and psychologically harmful. 294 Kan. at 892. The court concluded that the sentence was not so disproportionate as to shock the conscience or offend fundamental notions of dignity. 294 Kan. at 895.
Here, Johnson argues that both Mossman and Cameron involved child victims, while his victim was an adult. He suggests that the first Freeman factor thus should be given less weight in his case, and that the balance of the factors leads to the conclusion that lifetime supervision as to him is unconstitutional.
But the district court made factual findings on the first Freeman factor that are quite important—and not mentioned by Johnson. The court found that Johnson violated the victim when she was unable to consent due to intoxication, which was an element of the crime for which Johnson was convicted. The court also noted that Johnson later threatened to shoot himself, his wife, and his son if the police didn't comply with his request to speak with two officers. And the court noted that Johnson had numerous prior convictions, including domestic battery, assault on a law-enforcement officer, and drug offenses.
As Mossman and Cameron make clear, an important question when considering the first Freeman factor is the risk to society that seems likely based on the facts of the offense and the defendant's character. The district court also rightly noted that there is a strong public-safety interest in having a longer term of supervision for individuals who commit an offense against a person who is unable to consent. Just as a minor is both legally and practically unable to consent to sexual advances from an adult, a woman so intoxicated that she has no recollection even of being thrown onto a couch is unable to consent. And the offense to which Johnson pled specifically requires that the inability to consent because of intoxication have been known by or reasonably apparent to Johnson. See K.S.A.21–3518(a)(3).
As in Mossman and Cameron, the first Freeman factor again weighs heavily in the analysis here. Johnson's criminal record shows an inability to control his impulses, and the crimes at issue in this case—both serious offenses—do too. As the court noted in Mossman, there is generally a high degree of recidivism for sex offenders, and as in Mossman and Cameron, Johnson committed the offense against someone who could not consent.
Johnson's primary argument is that it's unconstitutional to provide for lifetime supervision when the victim is an adult. In other cases, our court has approved the constitutionality of lifetime-supervision sentences for sexually violent crimes with a victim over the age of 16. E.g., State v. Lazo–Gaitam, No. 103,818, 2013 WL 678205 (Kan.App.2013), rev. denied 291 Kan. –––– (August 19, 2013); State v. Smith, No. 105,525, 2013 WL 517607 (Kan.App.2013), rev. denied 297 Kan. –––– (August 19, 2013). We certainly find no error in doing so here, given the weight appropriately placed in Johnson's case on the first Freeman factor.
The district court's judgment is therefore affirmed.