State v. Nelson

1

NOT DESIGNATED FOR PUBLICATION

No. 115,900

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JONATHAN S. NELSON,
Appellee.


MEMORANDUM OPINION

Appeal from Douglas District Court; ROBERT W. FAIRCHILD, judge. Opinion filed June 23, 2017.
Reversed and remanded.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellant.

Joshua D. Seiden, of Seiden Law Office, P.A., of Lawrence, for appellee.

Before STANDRIDGE, P.J., LEBEN, J., and PATRICIA MACKE DICK, District Judge,
Assigned.

LEBEN, J.: The State appeals the district court's dismissal of a criminal charge
against Jonathon S. Nelson for aggravated indecent solicitation of a child. The State had
charged him with aggravated indecent solicitation of a child after he approached a 10-
year old girl in a restaurant and asked her to accompany him to the men's restroom. As
charged, the State had to prove that Nelson had invited or attempted to persuade the girl
to join him in the bathroom with the intent to commit any one of eight unlawful sexual
acts listed in the statutes defining this offense, K.S.A. 2016 Supp. 21-5508(b)(2) and
2

K.S.A. 2016 Supp. 21-5501(d). The district court dismissed the charge after concluding
that the State had no evidence identifying which of the specific unlawful sexual acts
Nelson intended to commit, so the jury would be left merely to speculate on that
question.

But a lack of evidence on how many of the eight sexual acts Nelson intended to
commit on this 10-year-old girl doesn't leave the State unable to prosecute him for this
offense. Based on Nelson's actions and his past conviction for sexual exploitation of a
child, an ordinarily prudent person could reasonably believe that Nelson asked the girl to
join him in the bathroom with the intent to commit any or all of the enumerated unlawful
sexual acts. That establishes probable cause to believe Nelson committed this offense,
which is all the State must show to be able to proceed with a criminal prosecution. See
State v. Washington, 293 Kan. 732, 734, 268 P.3d 475 (2012). We therefore reverse the
district court's judgment and remand the case to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

We begin our more detailed review of the case with the facts as they were
presented in the district court. Most of the facts we include here were presented by the
State at an evidentiary preliminary hearing. At a preliminary hearing, the district court
views the evidence in the light most favorable to the State. 293 Kan. at 734. Accordingly,
in most cases, the defense doesn't present the defendant's testimony or present its case at
the preliminary hearing; that was true here too. As a result, the evidence set out here is
generally taken in a light favorable to the State's case.

A 10-year-old girl was standing at the drink station in a Lawrence restaurant
getting orange slices when a man she didn't know, later identified as Nelson, approached
her. Nelson put his left hand on her right shoulder, leaned down next to her ear, and
asked, "Will you go to the male's restroom with me?" He then stepped back a few feet
3

and stared at her with body language that she interpreted to mean "'come on.'" At that
point, the girl's mother started walking towards them, and Nelson headed to the back of
the restaurant where the restrooms were located. The girl then rejoined her mother at their
table and told her mother what Nelson had said. The girl's mother told a restaurant
employee what had happened, and the employee called the police.

When police arrived, they found Nelson sitting with a woman and her young
grandson. The woman told officers that she didn't know Nelson and that he had sat down
uninvited after staring at her for some time. She reported that Nelson had made
comments about her grandson being "'very handsome,'" "'a fine-looking young man,'" and
"'cute.'" The restaurant employee told police that Nelson had been at the restaurant for
about 2 hours and had drunk two pitchers of beer before starting on a third. The officer
who interviewed Nelson described him as "very intoxicated."

Police took Nelson to the police station for questioning. Nelson told police that he
had gone to the restaurant to celebrate his recent release from parole or probation. Police
learned that Nelson had a previous conviction for sexual exploitation of a child stemming
from possession of child pornography. Nelson initially told police that he had not spoken
to anyone inside the restaurant but later recalled that he had asked a child whether she
was enjoying her soda. He then claimed that he could not remember to whom he had
spoken or what he had said.

The State charged Nelson with a single count of aggravated indecent solicitation
of a child. The charging document alleged that Nelson had unlawfully "entice[d],
command[ed], invite[d], persuade[d] or attempt[ed] to persuade a child under the age of
14 . . . to enter any vehicle, building, room or secluded place with the intent to commit an
unlawful sexual act upon or with the child." See K.S.A. 2016 Supp. 21-5508(b)(2).
Kansas law defines "unlawful sexual act" to include eight specific offenses: "any rape,
indecent liberties with a child, aggravated indecent liberties with a child, criminal
4

sodomy, aggravated criminal sodomy, lewd and lascivious behavior, sexual battery or
aggravated sexual battery." K.S.A. 2016 Supp. 21-5501(d).

In August 2015, the district court held a preliminary hearing. At such a hearing,
the court determines whether the evidence showed a felony had been committed and
whether there was probable cause to believe Nelson had committed it. See K.S.A. 2016
Supp. 22-2902(3). If so, the case can proceed. After the State presented its evidence at the
preliminary hearing, Nelson's attorney asked the district court to dismiss the case for lack
of probable cause due to a lack of evidence. The district court denied the request after
finding there was sufficient evidence to meet the probable-cause standard; the case
against Nelson would proceed toward trial.

But later developments brought the issue back before the court. Nelson's attorney
withdrew, and a new attorney came on to represent him. The new attorney filed a motion
asking the State to provide additional information about the charged crime so that he
could prepare a defense. In particular, Nelson requested the State identify what specific
unlawful sexual act it was alleging he intended to commit when he supposedly asked the
girl to join him in the men's restroom. In his motion, Nelson noted that the Kansas pattern
jury instructions require the State to identify a specific unlawful sexual act that the
defendant intended to commit so that the elements of that act may be stated as part of the
jury instruction for aggravated solicitation of a child. See PIK Crim. 4th 55.160 (2014
Supp.).

During a pretrial hearing on several motions, Nelson's new attorney made an oral
motion to dismiss the charge because the State had failed to provide evidence of Nelson's
intent to commit any specific unlawful sexual act. The State responded that Nelson's
asking a young girl unfamiliar to him to join him in the bathroom was sufficient
"circumstantial evidence of his intent to commit a sex crime in the bathroom." The State
5

also argued that it should be allowed to identify multiple possible unlawful sexual acts
and let the jury decide what unlawful sexual act or acts Nelson intended to commit.

The district court asked the parties to submit written responses, noting that there
was sufficient evidence of enticement, so the issue was whether the State had to identify
and prove intent to commit a specific unlawful sexual act.

In its written submission to the court, the State argued that the evidence of
Nelson's intent was sufficient to proceed to trial. The State argued that aggravated
indecent solicitation of a child criminalizes conduct that could be perfectly innocent or
legal—inviting a child to another room or secluded area—when that conduct is done with
the intent to commit an unlawful sexual act. The State contended that there was sufficient
evidence of Nelson's intent because, while intoxicated, he approached a young girl he did
not know, placed his hand on her shoulder, put his face close to hers, whispered in her
ear, and asked her to join him in the men's bathroom. The State emphasized that there
could be no innocent explanation for those actions or why he walked off when the girl's
mother approached. The State added that the claimed requirement to identify a specific
unlawful sexual act was not imposed by statute but was instead artificially imposed by a
Kansas pattern jury instruction. The State theorized that Nelson had asked the girl to meet
him in the restroom "to commit any sex crime he could pull off" and said it would likely
request that the jury instruction on aggravated indecent solicitation of a child include the
underlying unlawful sexual acts of aggravated indecent liberties with a child and lewd
and lascivious behavior.

In Nelson's written submission, he emphasized that there was no evidence of his
intent to commit any of the specific unlawful sexual acts set out in the statute, so the jury
would have to "engag[e] in pure speculation as to which enumerated sexual act or acts
would satisfy the element at issue." He maintained that granting the motion to dismiss
would be proper given the lack of sufficient evidence to proceed to trial.
6

On April 27, 2016, the district court issued a memorandum decision denying
Nelson's motion to dismiss. The district court concluded that the State did not have to
prove a specific unlawful sexual act and that the jury could simply consider the common
meaning of "unlawful sexual act" in determining whether Nelson acted with intent to
commit an unlawful sexual act.

But the next day, the district court reversed itself. In a new memorandum decision,
the district court said that the State had conceded that it had to identify a specific
unlawful sexual act that Nelson intended to commit and that "unlawful sexual act" was
statutorily defined to include eight specific sexual crimes. The court summarized that the
State intended to rely on Nelson's earlier conviction for sexual exploitation of a child and
statements made during the investigation of that earlier crime to prove Nelson's intent to
commit an unlawful sexual act. The court concluded that none of the evidence helped to
determine which specific unlawful sexual act Nelson intended to commit.

The State then appealed the dismissal to our court.

ANALYSIS

I. As a Preliminary Matter, We Conclude the District Court Had Jurisdiction to
Consider the Defendant's Motion to Dismiss.

Before we consider the merits of the State's appeal, we must first consider a
jurisdictional issue the State has raised. Although it didn't raise this issue before the
district court, the State now argues that the district court did not have jurisdiction to
consider Nelson's motion to dismiss because the motion was untimely and the district
court did not make required findings to extend the time limit. If the district court lacked
jurisdiction to consider the motion, we too would lack jurisdiction over the issue on
appeal.
7

We can consider the issue on appeal, even though the matter wasn't raised in the
district court, because jurisdictional issues may be raised at any time. State v. Ernesti, 291
Kan. 54, 60, 239 P.3d 40 (2010). Whether a court has jurisdiction is a question of law, so
we review that question independently. State v. Rizo, 304 Kan. 974, 984, 377 P.3d 419
(2016).

A defendant may raise any defense or objection that can be resolved without trial
in a motion before trial. K.S.A. 2016 Supp. 22-3208(2). One such objection is a motion to
dismiss, in which a party asks the court to dismiss the case without proceeding to trial or
ruling on the merits. Defendants often raise motions to dismiss at the close of the
preliminary hearing, arguing that the case should be dismissed because the State had
failed to show probable cause that the defendant committed the charged crime. As a
general matter, the sufficiency of the preliminary hearing may only be challenged by a
motion to dismiss filed in the district court, and failure to do so amounts to a waiver of
the issue. Washington, 293 Kan. at 734.

There's also a timing component provided by statute. K.S.A. 2016 Supp. 22-
3208(4) provides that a motion to dismiss must be filed before the defendant is arraigned
or within 21 days after the defendant enters a plea. The court can extend the period to file
"when it shall find that the grounds [for the motion] were not known to the defendant and
could not with reasonable diligence have been discovered by the defendant within the
period specified herein." K.S.A. 2016 Supp. 22-3208(4).

Here, Nelson's second attorney made an oral motion to dismiss 8 months after
Nelson pled not guilty, far outside the 21-day time limit. The State never raised the
timeliness issue before the district court, and the district court did not make any special
findings why it was extending the time period. On appeal, the State argues that because
the motion was untimely and there were no grounds to justify extending the time limit,
the district court lacked jurisdiction to consider the motion. The State's first argument,
8

based on jurisdiction, is simply a claim that the district court had no jurisdiction to
consider the motion to dismiss because it wasn't timely.

There is some caselaw support for the State's argument that suggests a district
court should not consider or entertain untimely motions to dismiss unless it makes the
required special findings. In State v. Seabury, 267 Kan. 431, 434, 985 P.2d 1162 (1999),
for example, the Kansas Supreme Court noted that if Seabury's motion was a motion to
dismiss challenging the sufficiency of the preliminary hearing under K.S.A. 22-3208(4),
it was untimely and "should not have been entertained by the district court (absent a
special finding by the court that the grounds for the motion were unknown to Seabury)."
In Seabury, the State had actually raised the timeliness of the motion before the district
court, but the court did not rule on the issue and instead invited the State to dismiss the
case. The Seabury court ultimately concluded that the motion was actually challenging
the sufficiency of the complaint and was timely under that corresponding statutory
provision. 267 Kan. at 435; see also State v. Moore, 35 Kan. App. 2d 274, 282, 129 P.3d
630 (2006) (noting that it was improper for the district court to consider an untimely
motion to dismiss based on the sufficiency of the preliminary hearing without making
necessary findings to expand the time limit to file).

In contrast to Seabury, though, the State did not raise the timeliness issue before
the district court and did not object to the district court's failure to make the required
finding to expand the time limit to file.

That's important. Since the State made no timeliness objection in the district court,
no one brought the need for special findings to the district court's attention. Generally,
litigants bear the responsibility for objecting to inadequate findings of fact and
conclusions of law so that the district court has an opportunity to correct any inadequacy.
See O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062
(2012); Supreme Court Rule 165 (2017 Kan. S. Ct. R. 214). If a litigant fails to object, we
9

usually do not consider omissions in findings on appeal and instead presume that the
district court found all the facts necessary to support its judgment. State v. Dern, 303
Kan. 384, 394, 362 P.3d 566 (2015).

The Kansas Supreme Court faced a similar issue in McIntyre v. State, 305 Kan.
616, 617-18, 385 P.3d 930 (2016), where the court applied the rule requiring a party
object to inadequate findings to a district court's consideration of an untimely K.S.A. 60-
1507 motion. McIntyre had filed his motion more than 1 year after his direct appeal was
final, but K.S.A. 2016 Supp. 60-1507(f) required him to file within 1 year unless the
district court extended the time period in order "to prevent a manifest injustice." The
district court denied the motion on the merits without making an explicit finding of
manifest injustice; the State did not object or move for reconsideration. Our court
affirmed the district court's denial because the motion was untimely and did not address
the merits. 305 Kan. at 617. The Kansas Supreme Court concluded that given the State's
failure to object or request adequate findings, it would presume that the district court had
properly found an essential fact to support its judgment—that it was necessary to expand
the 1-year time limit to prevent a manifest injustice—and remanded the case to our court
to address the merits. 305 Kan. at 618.

Here, the State never raised the timeliness issue or objected to inadequate findings.
So we will presume that the district court made all necessary findings to support its
judgment—that the grounds of the motion to dismiss were unknown by Nelson, so the
time period to file the motion could be expanded. See 305 Kan. at 618.

Anticipating this potential problem, the State notes that the motion turned on the
sufficiency of the evidence presented at the preliminary hearing, which normally
wouldn't be new or undiscoverable grounds. But the district court was also aware that
Nelson's first attorney was retained only for the purpose of the preliminary hearing and
withdrew immediately after it. Nelson's second attorney was appointed 2 months after he
10

pled not guilty, so the second attorney could not have filed the motion to dismiss within
the 21-day period. And the new attorney had to wait to receive a transcript of the
preliminary hearing before figuring out how to proceed. Under these circumstances and
given the State's failure to request adequate findings, we presume that the district court
made all necessary findings to support its judgment and, therefore, that it had jurisdiction
to consider the merits of the motion to dismiss.

II. The District Court Erred in Dismissing the Charge Against Nelson for Lack of
Probable Cause.

On the merits, the State argues that sufficient circumstantial evidence established
that Nelson had asked the girl to join him in the restroom with the intent to commit some
unlawful sexual act. The State maintains that the jury can simply be instructed on some or
all of the possible unlawful sexual acts and decide which act Nelson had intended. In
response, Nelson argues that dismissal was proper because the State failed to present any
evidence of what specific unlawful sexual act he intended to commit. He maintains that
the State shouldn't be allowed to have the jury instructed on every possible unlawful
sexual act, which would amount to a "'throw it at the wall and see what sticks' approach."

Because the district court's decision turned on the sufficiency of the evidence to
establish probable cause, the parties agree that the standard of review applied at the
preliminary hearing applies to this case. At a preliminary hearing, the judge "examines
the evidence to determine (1) whether a crime has been committed and (2) whether there
is probable cause to believe that the accused committed the crime." Washington, 293
Kan. at 733; see K.S.A. 2016 Supp. 22-2902(3). Probable cause at a preliminary hearing
requires the evidence be sufficient "'to cause a person of ordinary prudence and caution to
conscientiously entertain a reasonable belief of the accused's guilt.'" 293 Kan. at 734
(quoting State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 [2000]). In making its
determinations, the district court must view all of the evidence in the light most favorable
11

to the State. Washington, 293 Kan. at 734. Even if the evidence is weak, if some evidence
tends to show the charged offense was committed by the accused, the case should
proceed to trial. Berg, 270 Kan. at 238. On appeal, this court reviews whether the
evidence was sufficient to establish probable cause independently, with no required
deference to the district court's conclusion. Washington, 293 Kan. at 734; State v. Horton,
283 Kan. 44, 56, 151 P.3d 9 (2007).

As charged, the State had to prove that Nelson invited, persuaded, or attempted to
persuade the girl to accompany him to the men's bathroom with the intent to commit an
unlawful sexual act. See K.S.A. 2016 Supp. 21-5508(b)(2). As discussed above,
"unlawful sexual act" can refer to any of eight specific offenses: "rape, indecent liberties
with a child, aggravated indecent liberties with a child, criminal sodomy, aggravated
criminal sodomy, lewd and lascivious behavior, sexual battery or aggravated sexual
battery." K.S.A. 2016 Supp. 21-5501(d).

Kansas cases involving indecent solicitation of a child or aggravated indecent
solicitation have generally involved either solicitations that were explicitly sexual or
potentially innocent statements followed by actions that underscored the defendant's
intent to commit a specific unlawful sexual act. See, e.g., State v. Stout, No. 103,202,
2011 WL 6942926, at *2-3 (Kan. App. 2011) (unpublished opinion) (finding sufficient
evidence to convict the defendant of aggravated indecent solicitation when he asked a girl
for the time, drove by her twice, and was caught masturbating in his car at a school less
than 20 minutes later; his masturbating was compelling evidence of his intent to engage
in lewd and lascivious behavior); State v. Reed, No. 95,130, 2006 WL 3353772, at *1
(Kan. App. 2006) (unpublished opinion) (defendant convicted of aggravated indecent
solicitation of a child after he said to a girl, "'[G]et your ass in my car so I can rape
you.'").

12

What makes this case unique is that neither Nelson's statement nor his actions
provide proof of what specific unlawful sexual act he intended to commit. Fortunately,
the girl's mother intervened, so nothing further happened. Even so, establishing probable
cause only requires providing sufficient evidence for a prudent person to entertain a
reasonable belief of the defendant's guilt. See Washington, 293 Kan. at 734. The
circumstantial evidence certainly supports a reasonable person concluding that Nelson
intended to commit some unlawful sexual act in inviting the girl to the bathroom. An
adult man does not approach a young preteen girl he does not know, place his hand on
her shoulder, put his face close to hers, invite her to join him in the men's restroom, and
then give a look indicating she should follow him without some nefarious intent.

Nelson had a previous conviction for sexual exploitation of a child, evidence that
would be admissible at trial to prove that he had a predisposition to commit a child sex
offense. See K.S.A. 2016 Supp. 60-455(d). And, of course, a jury can infer intent from
the circumstances of the case so long as the inferences are reasonable. State v. Killings,
301 Kan. 214, 223, 340 P.3d 1186 (2015); State v. Martinez, 290 Kan. 992, 1004, 236
P.3d 481 (2010).

The essence of the crime of aggravated indecent solicitation is not committing the
enumerated unlawful sexual act, but rather, inviting or attempting to persuade a child to
enter a place with the intent to commit an unlawful sexual act. See State v. Derango, 236
Wis. 2d 721, 733-34, 613 N.W.2d 833 (2000). It's not necessary that the evidence point to
any one specific unlawful sexual act, so long as a jury could reasonably conclude that the
defendant had intent to commit one or more of the prohibited sexual acts. Because there
is probable cause to believe that Nelson committed aggravated indecent solicitation of a
child, the district court erred in dismissing the charge.

In claiming that the State must identify a specific unlawful sexual act that he
intended to commit, Nelson has focused extensively on the pattern jury instructions of
13

Kansas (PIK). The PIK instructions are developed by a special committee to promote
clarity, accuracy, and uniformity in jury instructions. State v. Appleby, 289 Kan. 1017,
1061, 221 P.3d 525 (2009). While courts aren't required to use them, it is strongly
advised that they do. 289 Kan. at 1060. The PIK instruction for aggravated indecent
solicitation of a child requires the court to identify a specific unlawful sexual act that the
defendant intended to commit and to provide the elements and definitions of that
specified unlawful sexual act in the instruction. PIK Crim. 4th 55.160; PIK Crim. 4th
55.020 (2012 Supp.). Before the district court, the State challenged the appropriateness of
the PIK instruction on aggravated indecent solicitation requiring a specific unlawful
sexual act be identified but has abandoned that argument on appeal.

On appeal, the State argues that it should be allowed to instruct the jury on some
or all of the possible unlawful sexual acts and let the jury decide which act or acts Nelson
intended to commit. It's not unprecedented to instruct the jury on multiple unlawful
sexual acts the defendant may have intended to commit in aggravated-indecent-
solicitation cases. See State v. Pena-Gonzales, No. 112,174, 2016 WL 1614025, at *8
(Kan. App. 2016) (unpublished opinion) (instruction on aggravated indecent solicitation
of a child provided that defendant had intent to commit either rape or aggravated indecent
liberties with a child), rev. denied April 17, 2017. Based on the circumstantial evidence, a
jury could reasonably believe that in inviting the girl to the bathroom, Nelson had the
intent to commit any unlawful sexual acts that he could get away with—rape, lewd
touching or fondling, criminal sodomy, or lewd and lascivious behavior. (The other
unlawful sexual acts listed in K.S.A. 2016 Supp. 21-5501(d), sexual battery and
aggravated sexual battery, apply only when the victim is at least 16 years old, so they
don't apply here. See K.S.A. 2016 Supp. 21-5505[a], [b].) Because the evidence was
sufficient to establish probable cause to believe that Nelson committed the crime, the
district court erred in dismissing the charge.

14

We reverse the district court's judgment and remand the case to the district court
for further proceedings.