NOT DESIGNATED FOR PUBLICATION
No. 122,026
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
GEORGE R. KETRON,
Appellant.
MEMORANDUM OPINION
Appeal from Ford District Court; E. LEIGH HOOD, judge. Opinion filed April 2, 2021. Affirmed
in part, reversed in part, and remanded with directions.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., MALONE, J., and MCANANY, S.J.
PER CURIAM: George R. Ketron appeals his various convictions for sex crimes
involving a number of young girls who visited his home from time to time. For his crimes
Ketron received a controlling sentence of life imprisonment with the possibility of parole
after 40 years plus an additional 84 months' imprisonment.
The parties are well acquainted with the facts of this case and we need not recount
all of them here. We will describe them as recounted in the trial testimony only to the
extent necessary to resolve the issues raised by Ketron in this appeal.
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Ketron contends on appeal that the evidence was insufficient to support the
following convictions:
● Three counts of aggravated indecent liberties with a child in connection with his
fondling of three girls under the age of 14 whom we will identify as A.B., S.P.,
and K.P.
● One count of indecent liberties with a child, T.B., age 14.
● One count of indecent liberties with a child, Y.B.
● One count of aggravated indecent solicitation of a child, A.B.(2).
Convictions involving A.B., S.P., and K.P.
The State charged Ketron with three counts of aggravated indecent liberties with a
child under 14 years of age for his actions with A.B., S.P., and K.P. Each charge stated in
part that Ketron unlawfully engaged in lewd fondling or touching of the person of the
child "with the intent to arouse or satisfy the sexual desires of the child or of the
offender." (Emphasis added.) This is consistent with K.S.A. 2015 Supp. 21-
5506(b)(3)(A), the statute under which Ketron was prosecuted in these counts.
The jury instruction for these counts differed from the statute in that the
instruction stated that the State had to prove Ketron intended to arouse or satisfy the
sexual desires of both himself and the victim. Ketron contends, without authority, that
these three convictions can stand only if the evidence established the crimes described in
the jury instruction; viz., that he acted with the intent to arouse or satisfy the sexual
desires of both himself and of each of these three young girls. He contends that because
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there was no evidence that his actions were intended to arouse these three children, these
convictions must be set aside.
Kansas prosecutions "are based on the charging document, which may be a
complaint, indictment, or information." State v. Fitzgerald, 308 Kan. 659, Syl., 423 P.3d
497 (2018). Moreover, the Due Process Clause of the Fourteenth Amendment to the
United States Constitution only "requires proof beyond a reasonable doubt of each
element of the crime charged." (Emphasis added.) State v. Douglas, 230 Kan. 744, 745,
640 P.2d 1259 (1982). The State's information here did not allege that Ketron committed
these crimes with the intent to arouse or satisfy his sexual desires and the sexual desires
of each of these three children. Instead, consistent with the statute, it alleged that Ketron
acted "with the intent to arouse or satisfy the sexual desires of the child or of the
offender."
We find no Kansas authority, and Ketron cites none, that supports Ketron's
contention that the language of the jury instruction trumps the language of the charging
document.
A case considering an argument similar to Ketron's is United States v. Deutsch,
451 F.2d 98 (2nd Cir. 1971). There, the district court instructed the jury it had to find that
the defendant gave compensation to someone with the intent to influence that person. But
the statute under which the defendant was charged only required that the defendant's
intent in making the payment was "in appreciation of past, or in anticipation of future,
conduct." 451 F.2d at 112. The Second Circuit Court of Appeals rejected the defendant's
argument that the evidence was insufficient because it did not establish the intent element
stated in the instruction, even though the evidence established the intent element in the
statute under which the defendant was charged. 451 F.2d at 113.
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In United States v. Houston, 406 F.3d 1121 (9th Cir. 2005), a jury convicted
Houston of distributing a controlled substance resulting in the death of Trina Bradford.
The district court erroneously instructed the jury that the crime contained an element of
proximate cause, meaning that the jury had to find that Bradford's death was reasonably
foreseeable to Houston. Houston argued there was insufficient evidence supporting
proximate cause. The Ninth Circuit Court of Appeals affirmed the conviction, reasoning:
"In this case, the jury—through its guilty verdict—found that the Government
proved all of the essential elements of the crime, and more, beyond a reasonable doubt.
Although the district court incorrectly instructed the jury that it needed to find proximate
cause, and not simply cause-in-fact, the jury necessarily reached the cause-in-fact inquiry
in the course of concluding beyond a reasonable doubt that Houston's actions were the
proximate cause of Bradford's death." 406 F.3d at 1125.
In our present case, Ketron does not contend that the evidence was insufficient to
support a finding that he acted with the intent to arouse or satisfy his own sexual desires.
In convicting Ketron on these counts, the jury necessarily determined under the court's
jury instruction that Ketron acted with the intent to arouse or satisfy his own sexual
desires, which is sufficient to support these convictions under the statute. Because the
State was only required to prove that Ketron acted to satisfy or arouse his own desires,
his challenge to his convictions relating to A.B., S.P., and K.P fails. We affirm these
convictions.
Conviction involving T.B.
Ketron challenges the sufficiency of the evidence to convict him of indecent
liberties with a child for the incident involving T.B., who was age 14 at the time of the
crime. The State charged Ketron under K.S.A. 2017 Supp. 21-5506(a)(1), which states:
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"(a) Indecent liberties with a child is engaging in any of the following acts with a
child who is 14 or more years of age but less than 16 years of age:
(1) Any 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 the child or the offender, or both."
Unlike the instructions relating to the charges involving A.B., S.P., and K.P., the court's
instruction to the jury on the charge related to T.B. was consistent with the statute.
In considering Ketron's challenge to the sufficiency of the evidence, we review the
evidence in a light favoring the State, the prevailing party, to determine whether we are
convinced that a rational fact-finder could have found Ketron guilty of this charge
beyond a reasonable doubt. In doing so, we do not reweigh evidence, resolve evidentiary
conflicts, or redetermine the credibility of the witnesses. See State v. Chandler, 307 Kan.
657, 668, 414 P.3d 713 (2018).
In determining whether Ketron lewdly fondled or touched T.B., we adhere
to our Supreme Court's observations in State v. Ta, 296 Kan. 230, Syl. ¶ 5, 290
P.3d 652 (2012):
"[W]hether a touching or fondling 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 looseness; inciting to sensual desire or
imagination; or indecent, obscene, or salacious. In considering if a touching meets this
definition, a factfinder should consider whether the touching tends to undermine the
morals of a child and is so clearly offensive as to outrage the moral senses of a reasonable
person."
We also take into account our court's observation in State v. Rutherford, 39 Kan. App. 2d
767, 776, 184 P.3d 959 (2008): "Whether a touching is lewd depends upon the totality of
the circumstances and is a question for the jury. [Citation omitted.] Accordingly, whether
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the action offends the moral senses of a reasonable person is a determination left to the
jury."
Here, the evidence was that Ketron had T.B. sit on his lap while he rubbed her
thighs. T.B. described the incident as Ketron "getting . . . sexual with [her]." Moreover, it
is apparent that Ketron's conduct was "done . . . with the intent to arouse or to satisfy the
sexual desires of the child or the offender, or both." Ketron argues that there is no
evidence of intent because there is no evidence that he made any statements while T.B.
was on his lap or that he was aroused during the incident. But intent can be established by
circumstantial evidence. Rutherford, 39 Kan. App. 2d at 776. Circumstances tending to
show sexual intent include (1) a pattern of touching that extends over time; (2) the places
on the body touched; (3) the nature of the touching; (4) the defendant's consciousness of
guilt; (5) a desire for secrecy; and (6) the isolation of the victim. See State v. Reed, 300
Kan. 494, 503, 332 P.3d 172 (2014) (evaluating evidence of these factors); State v. Clark,
298 Kan. 843, 850, 317 P.3d 776 (2014) (same). This list is not exclusive or exhaustive.
Here, the evidence established a clear pattern of Ketron repeatedly and
inappropriately touching young girls who were entrusted to his care. Among other things,
he had girls remove all their clothes so he could give them massages. He had them sleep
naked in bed with him. He also made improper sexual comments to the children,
especially to T.B. Among other things he showed T.B. pornography, used a dildo to show
her how to put on a condom, instructed her on manual and oral stimulation of a penis, and
explained different sexual positions to her. The jury could consider this evidence in
determining Ketron's intent when he rubbed T.B.'s thighs. See K.S.A. 2020 Supp. 60-
455(d) (In a criminal action in which the defendant is accused of a sex offense, "evidence
of the defendant's commission of another act or offense of sexual misconduct is
admissible, and may be considered for its bearing on any matter to which it is relevant
and probative.").
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The weight of this evidence was a matter for the jury. We do not reweigh the
evidence. Here, the evidence was sufficient to support Ketron's conviction of lewd
fondling or touching of T.B. A reasonable person could find that this conduct was
"'sexually unchaste or licentious; suggestive of or tending to moral looseness'" and would
"'outrage the moral senses of a reasonable person,'" all as described in Ta, 296 Kan. at
242-43. Moreover, the evidence supports a finding that this conduct was done for the
purpose of sexual arousal or satisfaction. We will not disturb the jury's determination that
Ketron's conduct constituted lewd fondling. We affirm this conviction.
Conviction involving Y.B.
Ketron challenges the sufficiency of the evidence to support his conviction for
taking indecent liberties with Y.B. She testified that Ketron offered her a massage and
told her she had to be naked for the massage; but she did not accept his offer. The only
evidence that Ketron touched her was her statement that he popped her back by touching
her on her hips and shoulders and twisting. She was clothed at the time. Y.B. did not have
any concerns about the touching. The State concedes that this evidence was insufficient
to convict Ketron of taking indecent liberties with Y.B. We agree. We reverse this
conviction.
Conviction involving A.B.(2)
Ketron was convicted of aggravated indecent solicitation of A.B.(2), a 10-year-old
child. . Ketron's sole argument is that the evidence supporting this conviction is
insufficient because A.B.(2)'s testimony was so incredible as to defy belief as a matter of
law. A.B.(2) testified that while she was in the shower one day, Ketron came into the
bathroom and offered to shave her pubic hair.
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Ketron does not explain why A.B.(2)'s testimony was not believable or provide
any basis for us to draw such a conclusion. A point raised incidentally in a brief and not
argued is deemed abandoned. State v. Lowery, 308 Kan. 1183, 1231, 427 P.3d 865
(2018). Besides, A.B.(2)'s testimony was consistent with her statement in her forensic
interview and it was corroborated by Y.B., who overheard Ketron's offer to A.B.(2). The
testimony on this charge was not so incredible as to defy belief. Ketron's challenge to this
conviction fails. We affirm this conviction.
Affirmed in part, reversed in part, and remanded for resentencing.
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