State v. Warren

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,662

STATE OF KANSAS,
Appellee,

v.

WESLEY A. WARREN,
Appellant.


SYLLABUS BY THE COURT

When reviewing a challenge to the sufficiency of the evidence in a criminal case,
an appellate court considers whether it is convinced, after considering all of the evidence
viewed in the light most favorable to the prosecution, that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt.

Appeal from Seward District Court; CLINT B. PETERSON, judge. Opinion filed September 28,
2012. Reversed.

Christina M. Kerls, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Don L. Scott, county attorney, argued the cause, and Derek Schmidt, attorney general, was with
him on the brief for appellee.

The opinion of the court was delivered by

MORITZ, J.: Wesley Warren appeals his conviction for aggravated indecent
liberties, challenging the sufficiency of the evidence of his conviction on several grounds.
Because we conclude the State failed to present any evidence, much less sufficient
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evidence, that Warren "submitted to lewd fondling or touching" as specified in the jury
instruction, we reverse his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On November 17, 2008, Elizabeth Hamre, an employee with the Kansas
Department of Social and Rehabilitation Services (SRS), informed Liberal Police
Department Detective Christopher Head that SRS had received an anonymous complaint
that four-year-old E.W. had seen Warren's penis. According to Hamre, Warren also told
E.W. that "her vagina was sexy." Following an investigation, the State charged Warren
with aggravated indecent liberties with a child.

At trial, E.W. did not testify as she was disqualified as a witness under K.S.A. 60-
417.

Detective Head testified he interviewed Warren on December 31, 2008. In the
interview, Warren denied that any incident occurred between E.W. and him. Head asked
Warren if E.W. may have accidentally seen his penis, and Warren responded that "his
penis had accidentally fallen out of a pair of pajama pants while [E.W.] was in his
bedroom and she had actually seen his penis." But Warren denied telling E.W. her vagina
was sexy and denied intentionally showing E.W. his penis.

Kansas Bureau of Investigation (KBI) Special Agent Roger Butler testified he
interviewed Warren on February 9, 2009. Warren initially told Butler that E.W. saw his
penis when Warren wore pajama pants that were missing a button. According to Warren,
his penis fell out of his pajamas when he stood up. Later in the interview with Butler,
Warren said his penis was exposed while he was lying in bed with E.W. playing a
"waitressing game" and that E.W. pointed at his penis and said "pretty." But even later in
the interview, Warren acknowledged that he intentionally exposed his penis to E.W.
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Detective Head watched a simulcast of the February 9, 2009, interview and
conducted a follow-up interview with Warren on April 15, 2009. At trial, Head described
the colloquy between him and Warren at the April 15, 2009, interview:

"A. [Head:] I informed him that he was asked to come back to the police department
because he had told Mr. Butler that he had showed [E.W.] his penis on purpose.

"Q. [Prosecutor:] And what was the defendant's response?

"A. [Head:] At that point I don't think he said anything. I asked him why he had done
that and told him that I couldn't see any reason for someone to do something like that
unless they were trying to turn themselves on or to turn on the child to become aroused."

"Q. [Prosecutor:] But did he deny that when you made that statement to him?

"A. [Head:] No.

"Q. [Prosecutor:] Okay. And so your interview continued, and do you recall what you
asked him next?

"A. [Head:] I asked—after I asked Mr. Warren if—or I told him that I couldn't see any
reason for someone to do such an act unless they were trying to become aroused or to
arouse the child. I then asked him if he was trying to become sexually aroused, not to
have sex with [E.W.], but to possibly have sex with his wife later on.

"Q. [Prosecutor:] And why did you offer that to him in that alternative?

"A. [Head:] Because it was obvious that he had done that to become aroused. I was
wanting to find out what his intentions were, as far as whether he wanted to have sex with
[E.W.] or if he was wanting to have sex with his wife.

"Q. [Prosecutor:] And what did the defendant tell you?
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"A. [Head:] After I asked him if he was wanting to become aroused to have sex with his
wife, he told me that was more of a probability."

L.W., E.W.'s mother and Warren's stepdaughter, testified over objection that she
told her mother, M.L.W., that E.W. said she had seen Warren's "peepee" and "that she
had showed him her private area and he said it was pretty."

Warren's ex-wife, M.A.W., testified that between 1985 and 1989 Warren molested
their daughter, A.W., and he eventually pleaded guilty to a charge of indecent liberties.

The jury found Warren guilty of aggravated indecent liberties, and the court
imposed a life sentence with no possibility of parole for 25 years. Warren directly appeals
his conviction to this court, raising numerous issues. However, because we find his
challenge to the sufficiency of the evidence determinative, we consider only this issue.

ANALYSIS

The evidence is insufficient to support Warren's conviction.

Warren raises two challenges to the sufficiency of the evidence to support his
conviction—the first, an alternative means challenge, and the second, a traditional
sufficiency challenge. Because his traditional challenge is outcome determinative, we
will address only that issue.

Our standard of review when reviewing a sufficiency challenge is whether, after
considering all of the evidence, viewed in the light most favorable to the prosecution, we
are convinced that a rational factfinder could have found the defendant guilty beyond a
reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).

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Warren was charged with and convicted of aggravated indecent liberties with a
child, K.S.A. 21-3504(a)(3)(A). That statute provides in relevant part:

"(a) Aggravated indecent liberties with a child is: . . .

(3) engaging in any of the following acts with a child who is under 14 years of age:

(A) 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 either the child or the
offender, or both."

Here, Warren argues that even viewing the evidence in a light most favorable to
the prosecution, the State failed to present any evidence that he fondled or touched either
himself or E.W., as required to support the conviction. Instead, he contends the State
proved, at most, that he exposed himself to E.W.

Notably, the State fails to respond to Warren's sufficiency argument other than to
suggest that the jury instructions were not clearly erroneous. But the State's argument
misses the point, as Warren challenges the sufficiency of the evidence to convict him, not
the instructions given by the trial court. See, e.g., State v. McMannis, 12 Kan. App. 2d
464, 466, 747 P.2d 1343 (1987), rev. denied 242 Kan. 905 (1988).

We agree with Warren that the evidence is insufficient to support his conviction of
aggravated indecent liberties because the State presented no evidence that Warren
engaged in any lewd fondling or touching of E.W. or himself, done or submitted to with
the intent to arouse or satisfy the sexual desires of E.W., Warren, or both.

As noted, E.W. did not testify at trial. And none of the law enforcement personnel
who testified indicated that Warren fondled or touched anyone. In fact, the agents
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testified exactly the opposite—i.e., that Warren only exposed himself to E.W. Agent
Butler testified on cross-examination:

"Q. [Defense counsel:] And you never asked Wesley [Warren] about any fondling or
touching?

"A. [Butler:] I basically just addressed that as far as saying it didn't go any further, and
he acknowledged that it didn't go any further.

"Q. [Defense counsel:] Did you feel at that point that he was being honest with you? I
mean, is that why you didn't press it, is what I'm asking?

"A. [Butler:] Yeah. What we had, the allegations being that there was just an exposure,
there had been, to my knowledge, no further allegation of any type of sexual contact or
touching, so I didn't pursue that any further." (Emphasis added.)

Similarly, Detective Head testified:

"Q. [Defense counsel:] He admitted exposure to you?

"A. [Head:] Yes.

"Q. [Defense counsel:] Nothing more?

"A. [Head:] Um, no, not at that time."

E.W.'s mother, L.W., also testified that according to E.W., no touching occurred.

While the State failed to brief this issue on appeal, when Warren argued at the
close of the evidence that the evidence was insufficient to establish a touching, the State
responded that it had presented evidence that Warren "took" his penis out and that this
action satisfied the touching element.
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But a review of the record shows that both officers who testified used the terms
"exposed" or "showed" to describe Warren's actions, and no one testified that Warren
touched his penis, took his penis out, or touched himself in order to remove his penis
from his pajamas.

Moreover, even if the State had presented evidence that Warren touched himself in
order to take his penis out of his pajamas, that touching would not have satisfied the
elements of aggravated indecent liberties with a child. That statute clearly requires that
the lewd fondling or touching be done or submitted to with the intent to arouse or to
satisfy the sexual desires of either the child or the offender, or both. K.S.A. 21-
3504(a)(3)(A).

Here, the State presented no evidence that Warren touched his penis in order to
arouse or satisfy his or E.W.'s sexual desires. Rather, if anything, the evidence showed
that Warren exposed his penis to arouse or satisfy the sexual desires of E.W. or himself,
or both. As Warren points out, while touching his penis in order to expose it may have
met the definition of lewd and lascivious behavior, it clearly was not sufficient to
establish the charge of aggravated indecent liberties with a child. See K.S.A. 21-
3508(a)(2) ("Lewd and lascivious behavior is . . . (2) publicly exposing a sex organ or
exposing a sex organ in the presence of a person who is not the spouse of the offender
and who has not consented thereto, with intent to arouse or gratify the sexual desires of
the offender or another." [Emphasis added.]).

Further, even if the State had proved an intentional touching under the aggravated
indecent liberties statute, that evidence would nevertheless have been insufficient to
prove that charge for a third reason—i.e., the evidence did not support the elements of the
charge as outlined in the jury instruction.

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The trial court instructed the jury on aggravated indecent liberties as follows:

"To establish this charge [of aggravated indecent liberties with a child], the following
claims must be proved:

1. That the defendant submitted to lewd fondling or touching of his person by
removing his penis from his pajama, with intent to arouse or satisfy the sexual
desires of either E.W. or the defendant, or both.

2. That at the time of the act the defendant was over the age of 18; and

3. That at the time of the act E.W. was a child under the age of 14; and

4. That this act occurred on or about the 15th day of November, 2008, in Seward
County, Kansas."

The State presented no evidence that Warren "submitted to" any lewd fondling or
touching, and it seems elementary that one cannot "submit to" one's own actions.
Merriam-Webster defines "submit" as "1(a): to bow to the will or authority of another:
. . . (b) to allow oneself to become subjected." Webster's Third New International
Dictionary 2277 (1993).

Finally, while not raised on appeal, for instructional purposes we note another
apparent misapplication of the pattern instruction for aggravated indecent liberties. That
instruction contains blanks that anticipate inclusion of the victim's name or initials. See
PIK Crim. 3d 57.06 ("That the defendant submitted to lewd fondling or touching of
(his)(her) person by ____________, with intent . . . ."). But here, instead of inserting the
victim's initials, the district court filled in the blank with the phrase "remov[ing] his penis
from his pajamas." Thus, as the pattern instruction was given to the jury, it improperly
permitted the jury to find that Warren "submitted to" lewd fondling or touching of
himself by taking his penis out of his pajamas.
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Because the State failed to present evidence that Warren engaged in any lewd
fondling or touching of E.W. or himself, done or submitted to with the intent to arouse or
satisfy the sexual desires of E.W., Warren, or both, we reverse his conviction for
aggravated indecent liberties with a child.

Reversed.