State v. Weeks

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NOT DESIGNATED FOR PUBLICATION

No. 117,475

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SEAN G. WEEKS,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed September 21, 2018.
Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

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

Before STANDRIDGE, P.J., BRUNS and GARDNER, JJ.

PER CURIAM: In 2016, a jury convicted Sean G. Weeks of three counts of
aggravated indecent liberties with a child for acts committed with his daughter between
2006 and 2011. He was sentenced under Jessica's Law. He timely appeals, raising three
issues: that the statute of limitations had run on Count 1; that the evidence was
insufficient to prove his intent; and that the district court erred in denying him a
downward departure from the Jessica's Law sentence. For the reasons stated below, we
affirm.

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Factual and Procedural Background

In 2014, just before turning 14 years old, K.W. disclosed to her best friend that
Weeks had repeatedly touched her inappropriately when she was ages 6 to 10. The best
friend told her own mother, who discussed it with K.W. and ultimately told K.W.'s
mother, Weeks' wife. While the mothers met, K.W. called Weeks to inform him that she
had told others about his abuse. She testified that Weeks responded, "'I'll match my story
to whatever you pick if you decide not to tell the truth.'"

At the preliminary hearing, K.W. detailed four incidents in Douglas County,
which became the bases for Counts 1 through 4:

1. When she was around seven years old, Weeks entered her bedroom and
started tickling her butt then began touching her chest. He moved his hand
down and rubbed and slid it over her vagina for 5 to 10 minutes. All of the
touching was done over her clothes.

2. When she was eight or nine years old, she was laying on the couch with
Weeks, watching a movie, when he "started touching my butt and then
moving his hand to my vagina." He was "rubbing and sliding his hand"
there for 5 to 15 minutes. All of the touching was done over her clothes.

3. When she was seven or eight years old, Weeks was helping her with her
bath. After she was fully dressed, Weeks took off his pants and told K.W.
to rub his penis. She testified that something white came out.

4. When she was 10 years old, she was camping in a tent in the backyard with
Weeks and watching movies. Weeks then "started to touch my vagina and
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then my boobs and then my butt" with his hands. All of the touching was
done over her clothes.

A law enforcement officer suggested that K.W. and her mother make recorded
phone calls to Weeks to try to get an admission from him. They did so. The jury heard the
recordings and saw a recording of the officer's interview with Weeks. The jury also heard
K.W. testify that Weeks raped her in a hotel in Johnson County when she was eight or
nine years old, but Weeks was not charged for that event.

At trial, the jury heard testimony from K.W. and people to whom she had
disclosed the abuse—her older brother, her best friend, her best friend's mother, her own
mother, and a law enforcement officer who interviewed Weeks as part of the
investigation. The jury convicted Weeks on Counts 1 through 3, corresponding to the first
three incidents above, but acquitted him on Count 4, the tent incident. The district court
sentenced Weeks according to Jessica's Law—life imprisonment with no opportunity for
parole for 25 years.

Weeks raises three issues on appeal:

 Count 1 was time-barred and the district court erred in refusing to dismiss it;
 Insufficient evidence supported the convictions in Counts 1 and 2; and
 The district court erred in denying his motion for a departure sentence.

Statute of Limitations on Count 1

Weeks first contends that Count 1, which alleged crimes committed as early as
September 2006, is barred by the statute of limitations.


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Standard of Review

Resolution of this issue requires us to examine the relevant statute and the district
court's factual findings. Statutory interpretation is a matter of law that we review de novo.
State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). But we review factual
findings of the district court to determine whether they are supported by substantial
competent evidence. Substantial competent evidence is generally any legal and relevant
evidence that a reasonable person might accept as sufficient to support a conclusion. State
v. Gonzalez, 290 Kan. 747, 756-57, 234 P.3d 1 (2010).

Discussion

At the time of the crimes, the statute of limitations required prosecutions for child
sex crimes to be "commenced within five years" after the crime was committed, unless
some exception applied to toll the limitations period. K.S.A. 2006 Supp. 21-3106(4) (re-
codified in 2011 to K.S.A. 21-5107[d]). The State filed its first information in December
2014, alleging acts occurring during 2010—all within the five-year period. But K.W.
testified at the preliminary hearing that the touching occurred as early as 2006, so the
district court allowed the State to amend the information. Count 1 of the amended
information alleged crimes committed from September 2006 through September 2011—
some outside the five-year period. The State moved the district court to find that the
statute of limitations did not bar prosecution of Count 1. The district court agreed, finding
that a statutory exception applied to toll the start of the limitations period and that the
prosecution had timely begun. Weeks argues that the district court erred in this ruling.

The district court applied the exception in K.S.A. 2006 Supp. 21-3106(5)(f), which
tolls the limitations period if, at the time of the crime, the victim was under the age of 15
and "was of such age or intelligence that the victim was unable to determine that the acts
constituted a crime." Under that exception, the statute of limitations begins to run when
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the victim becomes able to determine the criminal nature of the conduct. The burden is on
the State to prove by substantial competent evidence that an exception applies. K.S.A.
2006 Supp. 21-3106(5)(f) (re-codified in 2011 to K.S.A. 21-5107[e][6]). It is undisputed
that K.W. was under 15 years old, thus the parties dispute only whether she was "unable
to determine" that the acts were criminal.

K.W. testified at the preliminary hearing that she did not know Weeks' actions
were illegal when the bedroom incident occurred, as charged in Count 1, when she was
six or seven years old. She testified that she did not at first know that the touching by her
father was illegal, but started realizing that around the age of 9 or 10.

Weeks argues that this testimony, which shows only K.W.'s personal knowledge,
fails to show that K.W. did not have the ability to determine that the acts were criminal,
as required by the statute.

Both parties cite State v. Anderson, No. 108,415, 2013 WL 6331600 (Kan. App.
2013) (unpublished opinion), the only case focusing on the victim's ability to understand
that the defendant's action constituted a crime. There, a panel of this court found that the
distinction between being unable to determine that an act was wrong and that an act
constituted a crime was legally significant. 2013 WL 6331600, at *15. The issue was
whether the victim's telling a friend, when she was in sixth grade, that she did not think
the defendant's conduct "was right" constituted substantial competent evidence to show
that the victim "had the ability . . . to understand that [defendant's] conduct constituted a
crime." 2013 WL 6331600, at *15. But the panel chose not to answer that question
because other evidence showed the charges had been filed within the five-year period of
limitations. 2013 WL 6331600, at *16. Thus, Anderson does not inform our analysis here
or suggest a different conclusion.

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Weeks' argument fails on the facts—the State did introduce evidence of K.W.'s
ability to determine criminality. K.W. testified that when she was six, seven, and eight
years old, she did not know that it was illegal for someone to try to touch her sexually.
She also testified that she first figured out that the touching by her father was illegal when
she was 9 or 10 years old. "Figure out" is defined as to "discover, determine" and as "to
understand; reason out." Merriam-Webster's Collegiate Dictionary 467 (11th ed. 2014);
Webster's New World College Dictionary 540 (5th ed. 2016). The reasonable inference is
that if she had been able to discover, determine, understand, or reason out the criminality
of Weeks' acts earlier, she would have. K.W.'s uncontroverted testimony constitutes
substantial competent evidence that the exception in K.S.A. 2006 Supp. 21-3106(5)(f)
applied to toll the start of the limitations period to September 2009, when K.W. turned
nine years old and was first able to determine the criminal nature of Weeks' acts.

That five-year statute of limitations period thus began in September 2009 and
expired in September 2014. The State's information was not filed until December 2014,
so it is outside that limitations period. But a change in the law applies to extend the
limitations period. In 2012, the Legislature passed an amendment providing that the five-
year limitations period for sex crimes against children would begin not at the time of the
crime but when the child turned 18. K.S.A. 2012 Supp. 21-5107(f). That amendment
applies retroactively to crimes for which the five-year statute of limitations had not
expired by its effective date of July 1, 2012. See State v. Nunn, 244 Kan. 207, 218, 768
P.2d 268 (1989). Thus, any child sex crimes committed after July 1, 2007 are subject to
this extended tolling. Child sex crimes committed before July 1, 2007 cannot be
prosecuted unless an existing tolling exception applies to extend the limitations period
until at least July 1, 2007. See Nunn, 244 Kan. at 218.

As discussed above, an exception applied here to toll the start of the limitations
period until September 2009. See K.S.A. 2006 Supp. 21-3106(5)(f). Because this date is
after July 1, 2007, the case was not time-barred as of July 1, 2012, and thus comes within
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the reach of K.S.A. 2012 Supp. 21-5107(f). That statute extends the start date of the
limitations period to the day after K.W.'s eighteenth birthday in September 2018.
Prosecution on Weeks' crimes against her could be timely started until 2023. The district
court did not err in allowing prosecution on Count 1.

Sufficiency of the Evidence for Counts 1 and 2

Standard of Review

In cases challenging the sufficiency of the evidence, we review the evidence in the
light most favorable to the State to determine whether the evidence was sufficient for a
rational fact-finder to find the defendant guilty beyond a reasonable doubt. State v. Frye,
294 Kan. 364, 374-75, 277 P.3d 1091 (2012). In making that determination, we cannot
reweigh evidence, assess witness credibility, or resolve conflicting evidence. State v.
Betancourt, 301 Kan. 282, 290, 342 P.3d 916 (2015).

Discussion

Weeks argues that the State failed to prove the intent element of the crimes
charged. Before a person may be convicted of a criminal offense, the State must prove
guilt beyond a reasonable doubt as to every element of the crime. State v. Flinchpaugh,
232 Kan. 831, 835, 659 P.2d 208 (1983). The jury may draw reasonable inferences from
basic facts to ultimate facts. State v. Wimberly, 246 Kan. 200, 207, 787 P.2d 729 (1990).

In Counts 1 and 2, Weeks was convicted of aggravated indecent liberties with a
child under K.S.A. 2006 Supp. 21-3504(a)(3)(A) (re-codified in 2011 to K.S.A. 21-
5506[b][3][A]). That crime includes a physical action element—lewd fondling or
touching of a child—and a specific intent element. The State must prove the defendant
acted "with the intent to arouse or to satisfy the sexual desires of either the child or the
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offender, or both." K.S.A. 2006 Supp. 21-3504(a)(3)(A). Weeks argues that the State
failed to meet its burden of proof by not introducing direct evidence of intent.

Direct evidence of sexual intent is unnecessary, however, in this type of case—
circumstantial evidence may be enough. State v. Clark, 298 Kan. 843, 849-50, 317 P.3d
776 (2014). 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, 502-03, 322 P.3d 172 (2014) (evaluating
evidence of these factors). This list is not exclusive or exhaustive.

Weeks argues that some indicia applied in Reed were not proved here. First, as to
pattern of conduct, he argues that K.W.'s testimony was too vague to establish a pattern
of conduct and that her testimony about the frequency of the touching was inconsistent.
Weeks highlights her testimony that he touched her "[o]nce a week or once or twice
every other week, something like that." But K.W. also testified that Weeks was a truck
driver and that the touching occurred "[w]henever he was home." From this testimony, a
rational fact-finder could conclude that Weeks exhibited a pattern of touching K.W.
which would support a finding of sexual intent.

As to the second and third indicia—the places touched and the nature of the
touching—K.W.'s testimony shows that Weeks' touching of her body as alleged in
Counts 1 and 2 was not inadvertent or accidental. Count 1 concerned the incident of
inappropriate touching in her bedroom, which started out as tickling her on the stomach, a
type of touching that could be innocent. But Weeks then moved to touching her chest and
vagina over her clothes, "moving" his hand there for 5 to 10 minutes. K.W. testified that
"[i]t was obviously on purpose and not on accident." During the incident on the couch,
the subject of Count 2, Weeks touched her vagina over her clothes by "rubbing and
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sliding his hand" there for 5 to 15 minutes. This evidence supports a reasonable inference
that Weeks acted with sexual intent.

As to the fourth indicia—the defendant's consciousness of guilt—Weeks points to
the recorded phone calls with his wife and with K.W. in which Weeks acknowledged the
touching but denied that it was sexual. But the jury also heard K.W. testify that Weeks
told her he stopped touching her because he realized it was wrong. It is not our role to
resolve conflicting testimony or make credibility determinations. Viewing the evidence in
the light most favorable to the State, we find it could support an inference that Weeks
showed guilt over his conduct.

Evidence of the fifth indicia—the defendant's desire to keep the acts secret—was
also presented. Weeks told K.W. when she was six years old that if she told anyone about
the touching, the family might lose their house because they were financially unstable.
Weeks repeated this to K.W. when she was 10 or 11 years old, and she believed him. A
defendant's desire to keep his actions secret also suggests consciousness of guilt under the
fourth indicia.

The sixth indicia of sexual intent is that the defendant isolated the victim during
the incidents. This factor is met because the acts in K.W.'s bedroom were behind a closed
door, as were, apparently, the acts in the bathroom after K.W. bathed.

Weeks' final argument is that his acquittal on Count 4, which alleged touching
over the clothes in a tent in Eudora, shows that K.W.'s testimony was insufficient to
support his conviction of Counts 1 and 2, which also alleged touching over her clothes.
But the relevance of the acquittal on this one charge is not apparent and Weeks did not
elaborate on this argument in his brief. Failure to brief constitutes waiver and
abandonment of the issue. State v. Torres, 280 Kan. 309, Syl. ¶ 7, 121 P.3d 429 (2005).
As a result, we reject this argument.
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The evidence above, viewed in the light most favorable to the State, constitutes
substantial competent evidence from which a rational fact-finder could conclude that
Weeks acted with the intent to arouse or satisfy his sexual desires. Thus, the State
produced sufficient evidence for conviction under K.S.A. 2006 Supp. 21-3504(a)(3)(A).

Mitigating Factors for a Durational Departure

Weeks' final claim of error is that the district court abused its discretion by
denying his motion for a departure from the sentence prescribed for aggravated indecent
liberties with a child.

Standard of Review

We review a district court's decision denying a motion to depart from a Jessica's
Law sentence for an abuse of discretion. State v. Jolly, 301 Kan. 313, Syl. ¶ 7, 342 P.3d
935 (2015). A court abuses its discretion if it bases its decision on an error of law or an
error of fact or if no reasonable person would have adopted the view taken by the district
court. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

Discussion

A first-time offender who is over 18 years old and is convicted of aggravated
indecent liberties with a child must be sentenced to life imprisonment with a mandatory
minimum term of imprisonment of 25 years. K.S.A. 2006 Supp. 21-4643(a)(1)(c) (re-
codified in 2011 to K.S.A. 21-6627[a][1][C]). But the court may impose a departure
sentence if it "finds substantial and compelling reasons, following a review of mitigating
circumstances." K.S.A. 2006 Supp. 21-4643(d) (re-codified in 2011 to K.S.A. 21-
6627[d][1]).

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Weeks moved for a departure from the Jessica's Law sentence, claiming mitigating
circumstances, but the district court denied the motion. Weeks asserts that two statutory
factors warrant a departure: the lack of "significant history of prior criminal activity" and
"[t]he crime was committed while the defendant was under the influence of extreme
mental or emotional disturbances." K.S.A. 2006 Supp. 4643(d)(1), (2) (re-codified in
2011 to K.S.A. 21-6627[d][2][A], [B]).

The district court recognized that the strongest mitigating factor was that Weeks
had no significant criminal history. It did not grant relief on this basis, however, and did
not explain its reasons. Yet Weeks has shown no reversible error because a district court
is not obligated to grant a departure sentence simply because mitigating factors exist. See
Jolly, 301 Kan. at 323-24.

Weeks also argues that the district court erred in not finding that his mental health
history constituted a mitigating circumstance under K.S.A. 2017 Supp. 21-6627(d)(2)(B).
At trial, K.W. testified that her father had posttraumatic stress disorder, dealt with bouts
of depression, and would not remember periods of time. She said she would watch him
be "here" one minute and then he would just get lost "in a different world." She testified
that "his aggression and everything gets worse whenever he goes into that spell." At
sentencing, Weeks' counsel argued that there were large periods of Weeks' life that he
could not remember and that he suffered from extreme anger issues after his discharge
from the military. Weeks had received treatment and medication for his conditions for a
period of time, which improved his condition.

The district court found this evidence of a "lifetime of mental illness or
disturbances" did not meet the statutory requirement of K.S.A. 2017 Supp. 21-6627 that
"[t]he crime was committed while the defendant was under the influence of extreme
mental or emotional disturbances." It reasoned that the statute required that the defendant
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was experiencing such disturbances at the moment of the crime. The temporal specificity
of the statute's language supports that conclusion.

Weeks neither challenges that interpretation nor cites evidence that he was
suffering an extreme mental or emotional disturbance at the times of any of his crimes.
We find the district court did not abuse its discretion in finding that Weeks failed to show
substantial and compelling reasons to justify a departure sentence.

For the reasons stated above, we affirm Weeks' convictions and sentences.