dissenting: I respectfully disagree with my colleagues’ conclusions that the dispositional departure is not supported by the district court’s findings and otherwise is not a substantial and compelling reason to depart, and I would affirm the district court.
As recognized by the majority, when the sentencing court imposes a dispositional departure, our review is limited to determining whether the district court’s findings and reasons justifying a departure are supported by substantial competent evidence in the record and whether they constitute substantial and compelling reasons for a departure. State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008).
The initial question posed for our panel is whether the findings encompassed in the district court’s comments are supported by the record. I find the record replete with evidence to support these findings. First, the sexual offender evaluation of Thomas reports the following:
“He began a relationship with the victim as friends. They were friends about three or four months. They then became friends with benefits during which they had sexual intercourse, she performed oral sex, and he performed oral sex on her. She was on his phone plan. He got irritated with her and took her off his phone plan. She got highly upset. She told her parents what was going on, her dad went to the police and the client was arrested [some four months after the incident charged],
“He met the victim through a friend at the Smoky Hill River Festival. They were friends about three or four months. She'initiated their first time having sex at her house. They had sexual intercourse and mutual oral sex one evening. She had shaved. He assumed the girl was sixteen or seventeen.
*1092“Since being arrested he has had sexual intercourse with a sixteen year old female friend that he has known since high school. He was dating her when he got arrested for the fifteen year old. They have sex two to three times a week. Their sex is restricted to intercourse mainly because of her preference and his not enjoying oral sex with a girl unless she shaves.
“I recommend Mr. James Thomas be placed on probation.”
Second, although the district court made no express findings as to credibility of either the victim or the defendant, the court’s comments — coupled with its lecture to the victim — suggest that the court found few if any discrepancies in the defendant’s story. According to Thomas, the victim invited him to come back to her house and watch movies; during the movies, she asked him to stay the night. After that invitation, she “said she would be right back and she came back with a t-shirt and underwear on only and she sat in the chair across the room” until joining him on the couch. “And then I was going to go to bed and she just had her hand on my leg and then she went down to the floor, because she slept on the floor that night and she was down on the floor and she started playing with herself and she grabbed my hand and just kind of motioned me down to where she was.” During cross-examination, Thomas confirmed that the victim “was the one who initiated any sexual contact.”
Third, the victim’s testimony did not expressly controvert Thomas’ version of events, except that “once intercourse started,” she told him to stop. When given an opportunity to say that Thomas removed her clothing, the victim would not do so, choosing instead to use the passive voice.
“Q. And I’m probably not making myself very clear. Before the intercourse started, did the Defendant or you take your clothing off?
“A. Ugh-uh (negative sound).
“Q. What did he do?
“A. They got pushed.
“Q. They got pushed to the side?
“A. No audible response.
“Q. Okay. You said that you told him to stop?
“A. Yes, I did.”
*1093The findings of the district court include (1) the victim’s conduct was sexually suggestive; (2) there was “mitigating conduct” on behalf of the victim that mitigates the conduct of the defendant; and (3) the conduct of the victim leading to the offense was a substantial and compelling reason for the departure. Although the court did not employ the magic word “participated” or “participation” from K.S.A. 21-4716(c)(1)(A), it is clear to me that these findings can and should be read to mean that the defendant “participated” in the acts charged. Even if the magic word from the statute was not intended, these findings suggest that the court found the victim’s “sexual suggestion” or “mitigating conduct” to be encouragement to commit the offense, or otherwise a nonstatutoiy ground to support a dispositional departure.
In rejecting the district court’s findings as either unsupported or unsubstantial, the majority has mistakenly focused principally on “aggression.” Such focus is incomplete. The statute, K.S.A. 21-4716(c)(1)(A), counts “participation” as equivalent to “aggressor,” and I respectfully suggest the majority has not adequately considered the victim’s participation in the initiation of the events that gave rise to the charge, including the victim’s invitations to her home for the night, suggestive clothing or lack thereof, physical proximity to the defendant, exhibition of her own sexual gratification, and “grabbing” the defendant’s hand and motioning him down to her as a part of that gratification. Again, the victim did not controvert these aspects of the defendant’s story, although it appears she was not asked in a direct manner to do so. In fact, scrutiny of tire record reveals that there is absolutely no evidence to suggest that the victim resisted intercourse until sometime after it was commenced. Careful review of the record reveals veiy little dispute as to essential facts; I disagree with the majority in its reference to “factual contradictions.”
I respectfully suggest that these circumstances have proven a substantial and compelling reason for departure and have previously been viewed as adequate for this court to affirm dispositional departures. As a panel of our court held in State v. Haney, 34 Kan. App. 2d 232, 241, 116 P.3d 747 (2006), “[t]o the extent sexual activity is encouraged by an underage victim, the legislature has *1094provided for mitigation. See K.S.A. 2004 Supp. 21-4716(c)(1)(A). Likewise, the legislature and the courts have considered the relative immaturity of an offender in providing for mitigation.” (Emphasis added.) Here, the record is replete with unrefuted evidence of “encouragement” by the victim, and that characterization of her conduct is rather mild given the facts. This dispositional departure is also consistent with other case authority from our appellate courts, including those cited by the majority. See, e.g., State v. Chapman, No. 95,687, unpublished opinion filed March 23, 2007.
With due respect to my colleagues, I think reversal and remand here is unnecessary. I suggest that on remand the district court judge need do little more than support the departure by making a record that he finds the defendant’s story credible and that die victim “encouraged” or “participated” in the conduct that gave rise to the defendant’s conviction. Concluding that the record is already more than adequate in this regard, I do not think the failure to use the magic word “participation” on the record merits a reversal under these circumstances. I would simply affirm the dispositional departure.