State v. Coman

Greene, J.:

Joshua B. Coman appeals his conviction for criminal sodomy under K.S.A. 21-3505(a)(l) and the district court’s order that he register as a sex offender, arguing that his conviction does not require registration under the Kansas Offender Registration Act (KORA) and that K.S.A. 21-3505(a)(l) is unconstitutional in criminalizing sex between a human and an animal. We reject Co-man’s arguments and affirm his conviction and registration order.

Factual and Procedural Background

Upon entering her garage to access the freezer, the complaining witness reported seeing her ex-boyfriend Coman lying on the floor his shirt pulled up, and her female Rottweiler lying beside him. When she turned on the light, Coman moved his hips away from the dog and quicldy pulled his pants up. Coman then said he loved the dog, Yodi, and he told the witness, “I don’t expect you to understand, but I had to see her one more time.”

When police arrived, a pat-down revealed Coman’s penis remained erect and he had a bottle of personal lubricant in his left front pocket. Coman denied having intercourse with the dog, but he admitted that he tongue-kissed her and digitally penetrated her. A search of Coman’s cell phone revealed several photos of dogs and one video clip of a man engaging in sexual intercourse with a canine.

Coman was charged with one count of criminal sodomy under K.S.A. 21-3505(a)(l), with sexual motivation requiring registration under K.S.A. 22-4902(c)(14). He pled guilty to this offense and was sentenced to 6 months in the county jail, to run consecutive to a Reno County sentence for similar conduct. He was also ordered to receive psychiatric treatment and to register as a sex offender under KORA.

Coman appeals, challenging his conviction and the registration order.

*594Should We Reach Coman’s Challenge to the Constitutionality of K.S.A. 21-3505(a)(l)?

We are unable to reach the merits of Coman’s constitutional challenge to K.S.A. 21-3505(a)(l) due to a host of procedural bars.

First, Coman failed to appeal his conviction. His notice of appeal states that he is appealing the “sentence imposed . . . specifically . . . from that part . . . which requires this Defendant to register.” We obtain jurisdiction to review rulings that are identified in the notice of appeal, and where other rulings or judgments are thereafter challenged, we must dismiss such challenges for lack of appellate jurisdiction. See State v. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004).

Second, Coman entered a guilty plea to the charge framed under K.S.A. 21-3505(a)(l), the statute that he now seeks to challenge. It is elementaiy that a plea of guilty freely and voluntarily entered after consultation with counsel and with full knowledge of the possible consequences waives any defects or irregularities occurring in any of the prior proceedings. McGoldrick v. State, 33 Kan. App. 2d 466, 473, 104 P.3d 416, rev. denied 279 Kan. 1007 (2005). This rule applies even to alleged defects with constitutional dimensions. State v. Melton, 207 Kan. 700, 712-13, 486 P.2d 1361 (1971).

Finally, Coman has filed no motion to withdraw his plea at the trial court level and is therefore precluded from seeking such relief for the first time on appeal. See State v. Robertson, 30 Kan. App. 2d 639, 641, 44 P.3d 1283 (2002).

For these reasons, and any one of them would suffice, we are obliged to dismiss Coman’s challenge to the constitutionality of K.S.A. 2143505(a)(1).

Did the District Court Err in Ordering Coman to Register as a Sex Offender?

Coman next argues that the district court erred when it ordered him to register as a sex offender after it found that his crime had been sexually motivated. Specifically, Coman contends that the legislature purposefully excluded his crime of conviction, criminal sodomy as defined by K.S.A. 21-3505(a)(l), from the list of specifically described “sexually violent” crimes in K.S.A. 22-*5954902(c)(l)-(ll), and argues that this purposeful exclusion precludes the court from requiring him to register under the catch-all provision in K.S.A. 22-4902(c)(14). Notably, Coman does not dispute on appeal that his offense was motivated by sexual gratification.

Standards of Review

The Kansas Offender Registration Act governs the registration of sex offenders. K.S.A. 22-4901 et seq. Interpretation of a statute is a question of law over which this court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).

The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).

“When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to státutory construction.”. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). However, when ambiguity arises because various statutes are in conflict, the canons of statutory construction must be applied and legislative history may be consulted for indications of legislative intent. State v. Valladarez, 288 Kan. 671, 678-79, 206 P.3d 879 (2009).

When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008). However, a “specific statute controls over a general statute. [Citation omitted.] Likewise, a specific provision within a statute controls over a more general provision within the statute.” In re K.M.H., 285 Kan. at 82.

Finally, as a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the *596meaning of the statute is decided in favor of the accused. Nevertheless, this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008).

The Statutes at Issue

K.S.A. 22-4902 provides definitions for KORA, and its provisions give rise to Coman’s challenge in this appeal. K.S.A. 22-4902(c) defines “sexually violent crime” to include 11 specific crimes, and three general categories of crime. Among the specific crimes is subsection (c)(4), “criminal sodomy as defined in subsection (a)(2) and (a)(3) of K.S.Á. 21-3505 and amendments thereto.” Coman’s principal argument on appeal is that the legislative omission of subsection (a)(1) of K.S.A. 21-3505 (his crime of conviction) from the specific listed crimes in K.S.A. 22-4902(c)(l)-(ll) demonstrates legislative intent to exclude this crime from the definition of sexually violent crimes and therefore from the registration requirements of KORA. The dissent essentially agrees with Coman, finding the statute ambiguous and applying the rule of lenity. See State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2007) (reasonable doubts about meaning of a criminal statute are resolved in favor of the person accused).

K.S.A. 21-3505 proscribes criminal sodomy as follows:

“(a) Criminal sodomy is:
(1) Sodomy between persons who are 16 or more years of age and members of the same sex or between a person and an animal;
(2) sodomy with a child who is 14 or more years of age but less than 16 years of age; or
(3) causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal.”

This statute classifies sodomy defined in subsection (a)(1) as a class B nonperson misdemeanor and classifies sodomy defined in the other subsections as severity level 3, person felonies.

We Construe, and Apply These Statutes

We conclude that the omission of subsection (a)(1) of the criminal sodomy statute from the specific crimes listed in K.S.A. 22-*5974902(c)(l)-(ll) does not indicate an intent necessarily to exclude all such convictions from registration requirements, but only an intent to exclude such convictions from perse inclusion. We believe subsection (c)(14) of K.S.A. 22-4902 may be applied to “any” crime. This subsection creates a general category of crimes that may be considered “sexually violent” in providing within the definition:

“any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in this sub-paragraph, ‘sexually motivated’ means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant’s sexual gratification.” (Emphasis added.) K.S.A. 22-4902(c)(14).

We believe the legislative intent reflects the belief that not every violation of K.S.A. 21-3505(a)(l) should be considered sexually violent, but that a violation of that statute could be considered to be sexually violent if the facts of the offense meet the general definition in subsection (c)(14). Coman and the dissent construe the statute in such a manner that subsection (c)(14) is emasculated. This we refuse to do given our mandate to consider various provisions of the act in pari materia with a view of reconciliation of all provisions. See Breedlove, 285 Kan. at 1015. If the failure of the legislature to list specific offenses within subsections (c)(1) through (11) insulates all other crimes from being considered sexually violent, the general category defined by subsection (c)(14) would be rendered meaningless.

We simply construe the plain words of subsection (c)(14) to mean that “any act” may be considered sexually violent without regard to its specific reference or absence within the other subsections if the conduct meets the requirements in subsection (c)(14). There is no ambiguity here; the statute is clear in providing that all convictions for the specific crimes listed in subsections (c)(1) through (11) will be considered sexually violent, but any other criminal offense may also be considered within the definition if the facts meet the criteria of subsection (c)(14). There is no cause to apply the rule of lenity where there is a reasonable and sensible judicial interpretation that effects legislative design. See Paul, 285 Kan. at 662.

*598Moreover, our construction and application is consistent with a host of appellate decisions construing-subsection (c)(14) and its predecessor. Most compelling is Judge Pierron’s opinion' in State v. Patterson, 25 Kan. App. 2d 245, 963 P.3d 436 (1998), where the panel considered whether convictions of burglary and theft could be considered to be sexually motivated for purposes of KORA'. Construing the predecessor to K.S.A. 22-4902(c)(14), the opinion states:

“In light of the legislative history, it is clear that the legislature passed the KSORA in order to protect Kansas residents from sex offenders who pose a high risk of reoffense. It is clear from tire KSORA that the legislature specifically required all people convicted of Chapter 21, Article 35 crimes, or crimes of a similar nature, to register as sex offenders. K.S.A. 22-4902(b)(l)-(10). It is also clear from the legislative history, and the language of K.S.A. 22-4902(b)(12), that the legislature was concerned with those offenders who commit crimes not commonly called sex crimes, but which nevertheless are criminal offenses committed' by persons seeking sexual gratification. Notwithstanding the ambiguous statutory language, it is both reasonable, and consistent with legislative intent, to conclude that K.S.A. 22-4902(b)(12) [predecessor to K.S.A. 22-4902(c)(14)] defines as ‘sexually violent’ all crimes committed for the purposes of sexual gratification.” 25 Kan. App. 2d at 249-50.

Note that the ambiguity addressed by Judge Pierron is the categorization of “sexually violent” for all crimes committed for sexual gratification, not the issue here. - •

Our court has consistently construed KORA to conclude that any act meeting the requirement of tire general definitional subsection for sexually motivated crime will implicate registration without regard to inclusion or exclusión of the crime of conviction within the specific listing provided by other subsections. See, e.g., State v. Lembke, 2008 WL 1946845 (Kan. App. 2008) (unpublished opinion) (affirming as sexually violent a conviction for possession of child pornography); State v. Stenger, 2007 WL 1530118 (Kan. App. 2007) (unpublished opinion) (affirming as sexually motivated a conviction for furnishing alcoholic beverages to a minor for illicit purposes); State v. Lopez, 25 Kan. App. 2d 777, 973 P.2d 802 (1998) (affirming attempted aggravated burglary as sexually motivated).

*599Notwithstanding the legislature’s exclusion of K.S.A. 21-3505(a)(1) from the list of specific sexually violent crimes in K.S.A. 22-4902(c)(l)-(ll), this does not indicate any intent to have convictions under this statute insulated from the consideration for registration obligations under K.S.A. 22-4902(c)(14). We agree with the district court in ordering Coman to register under this statute after finding beyond a reasonable doubt that his crime was sexually motivated.

Affirmed in part; dismissed in part.