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21-3504.

History: L. 1969, ch. 180, § 21-3504; L. 1975, ch. 193, § 2; L. 1983, ch. 109, § 4; L. 1984, ch. 112, § 3; L. 1984, ch. 118, § 2; L. 1992, ch. 298, § 22; L. 1993, ch. 253, § 5; L. 1993, ch. 291, § 271; L. 2006, ch. 212, § 11; L. 2010, ch. 109, § 8; Repealed, L. 2011, ch. 30, § 288; July 1.

Source or Prior Law:

21-909.

Law Review and Bar Journal References:

"Criminal Procedure Survey," 56 K.L.R. 798 (2008).

Attorney General's Opinions:

Code for care of children; definition of sexual abuse and exploitation in code; conformity with federal regulations. 83-186.

Family planning centers; state funding of contraceptives for minors. 92-71.

Reporting abuse or neglect of children; persons reporting; duty to report; confidentiality. 94-67.

CASE ANNOTATIONS

1. Conviction hereunder upheld; victim was defendant's ward although not placed in his custody by department of social welfare. State v. Dunham, 213 Kan. 469, 470, 472, 475, 476, 517 P.2d 150.

2. Expert witness (K.S.A. 60-456); may not testify as to whether defendant molested alleged victim. State v. Lash, 237 Kan. 384, 699 P.2d 49 (1985).

3. Amendment of information, denial of bill of particulars, jury instructions, changes in statutes discussed. State v. Armstrong, 238 Kan. 559, 712 P.2d 1258 (1986).

4. Ineffective assistance of counsel-remand procedure amended complaint, reclassification of crime, sentencing discussed. State v. Van Cleave, 239 Kan. 117, 118, 716 P.2d 580 (1986).

5. Preexisting psychologist-client privilege in K.S.A. 38-1514(c)(2), question of new trial based on newly discovered evidence examined. State v. Munyon, 240 Kan. 53, 726 P.2d 1333 (1986).

6. Prior law and related statutes examined. State v. Ramos, 240 Kan. 485, 731 P.2d 837 (1987).

7. Cited; aggravated sexual battery (K.S.A. 21-3518) as lesser included offense of indecent liberties with child (K.S.A. 21-3503) examined. State v. Hutchcraft, 242 Kan. 55, 59, 744 P.2d 849 (1987).

8. Whether court erred by converting attempt to engage in indecent liberties with a child to severity level 5 examined. State v. Ward, 20 Kan. App. 2d 238, 240, 886 P.2d 890 (1994).

9. Whether defendant sentenced after KSGA (K.S.A. 21-4701 et seq.) enactment for crimes committed before enactment is denied equal protection by preclusion of sentencing guideline retroactivity examined. State v. Fierro, 257 Kan. 639, 641, 653, 895 P.2d 186 (1995).

10. Whether judge erred by converting indecent liberties with a child to a severity level 3 crime for sentencing guidelines purpose examined. Baker v. State, 20 Kan. App. 2d 807, 812, 894 P.2d 221 (1995).

11. Trial court did not err in converting defendant's aggravated incest conviction to a severity level 4 offense under KSGA (K.S.A. 21-4701 et seq.). State v. Chronister, 21 Kan. App. 2d 589, 595, 903 P.2d 1345 (1995).

12. KDOC use of all records available in making retroactivity determination does not violate offenders' rights to due process. Farris v. McKune, 259 Kan. 181, 183, 193, 911 P.2d 177 (1996).

13. Aggravated indecent liberties with a child is a lesser included offense of rape. State v. Burns, 23 Kan. App. 2d 352, 358, 931 P.2d 1258 (1997).

14. Failure to instruct on general criminal intent not clearly erroneous; proof of knowledge of age not required. State v. Isley, 262 Kan. 281, 282, 291, 292, 936 P.2d 275 (1997).

15. Vulnerability of victim based on age improper aggravating factor for sentence departure since age already element of crime. State v. Salcido-Corral 262 Kan. 392, 414, 940 P.2d 11 (1997).

16. No abuse of judicial discretion in denying defendant's request for psychological examination of victim, his daughter. State v. Rucker, 267 Kan. 816, 822, 987 P.2d 1080 (1999).

17. Twelve-year old boy convicted of aggravated indecent liberties; evidence sufficient to show sexual gratification; section mentions only age of victim, not offender. In re A.C.W., 26 Kan. App. 2d 468, 472, 988 P.2d 742 (1999).

18. Trial court imposition of upward departure based on fiduciary relationship of defendant and victim upheld. State v. Ippert, 268 Kan. 254, 255, 259, 995 P.2d 858 (2000).

19. Trial court imposition of downward departure remanded for resentencing based on judge's partiality towards defendant. State v. Sampsel, 268 Kan. 264, 281, 997 P.2d 664 (2000).

20. Aggravated indecent liberties with a child is not a lesser included offense of rape. Decision in State v. Burns, 23 Kan. App. 2d 352, 931, P.2d 1258, is disapproved. State v. Belcher, 269 Kan. 2, 4 P.3d 1137 (2000).

21. Licensed specialist clinical social workers are qualified to diagnose and treat mental disorder; Willis, 256 Kan. 837, clarified. Welch v. State, 270 Kan. 229, 13 P.3d 882 (2000).

22. Convictions for rape, aggravated indecent liberties with a child and aggravated indecent solicitation of a child are affirmed; charges are not multiplicitous. State v. Hill, 28 Kan. App. 2d 28, 11 P.3d 506 (2000).

23. Not all elements of aggravated indecent liberties are included in elements of rape. State v. Hill, 271 Kan. 929, 26 P.3d 1267 (2001).

24. Evidence of other similar illicit sexual acts with child is admissible whether such occurred before or after act charged. State v. Bliss, 28 Kan. App. 2d 591, 18 P.3d 979 (2001).

25. Absent objection at trial, no error for court to hold hearing as to voluntariness of confession simultaneously with trial. State v. Blackshire, 29 Kan. App. 2d 493, 28 P.3d 440 (2001).

26. Convictions based on circumstantial evidence of first-degree murder, aggravated kidnapping and aggravated indecent liberties affirmed. State v. Bledsoe, 272 Kan. 1350, 39 P.3d 38 (2002).

27. Evidence of drug transactions do not constitute res gestae in prosecution of aggravated indecent liberties with a child. State v. Ward, 31 Kan. App. 2d 284, 64 P.3d 972 (2003).

28. No violation of Apprendi and Gould in court's increase of period of postrelease supervision as fact relied upon was found by jury beyond reasonable doubt. State v. Anthony, 273 Kan. 726, 45 P.3d 852 (2002).

29. No Miranda warning required when defendant turned himself in at police station and responded to initial questions of officer; interviewing detective gave proper warning. State v. Vandervort, 276 Kan. 164, 72 P.3d 925 (2003).

30. Upward durational departure reversed for noncompliance with Apprendi and Gould. State v. Kessler, 276 Kan. 202, 73 P.3d 761 (2003).

31. Court's order preventing defense counsel from lodging contemporaneous objections during state's closing argument was prejudicial error. State v. Jeffrey, 31 Kan. App. 2d 873, 75 P.3d 284 (2003).

32. Clear error to instruct on defendant's consciousness of guilt by flight. State v. Coburn, 32 Kan. App. 2d 657, 87 P.3d 348 (2004).

33. Section is constitutional; state has legitimate interest in protecting children from adult sexual predators. State v. Taylor, 33 Kan. App. 2d 284, 101 P.3d 1283 (2004).

34. Insufficient evidence to convict under subsection (a)(3)(B) does not affect jurisdiction of court to convict for lesser included offense. State v. Johnson, 34 Kan. App. 2d 612, 122 P.3d 397 (2005).

35. Subsection (a)(3)(B)'s language regarding "person of another" refers to a third party not the offender. State v. Johnson, 283 Kan. 649, 653, 654, 156 P.3d 596 (2007).

36. Conviction hereunder reversed; evidence improperly admitted and witness may have been influenced by bystander. State v. Dayhuff, 37 Kan. App. 2d 779, 781, 783, 158 P.3d 330 (2007).

37. Conviction hereunder reversed on grounds of misjoinder error in prosecutions under K.S.A. 21-3504 and 21-3516. State v. Coburn, 38 Kan. App. 2d 1036, 1038, 176 P.3d 203 (2008).

38. Cited; trial court had jurisdiction to correct illegal sentence that favored defendant. State v. McCarley, 287 Kan. 167, 170, 171, 173 to 175, 195 P.3d 230 (2008).

39. Convictions hereunder reversed; prosecutor's arguments, questions and presentation of evidence alleging defendant's homosexuality improper. State v. Bloomquist, 39 Kan. App. 2d 101, 102, 109, 178 P.3d 42 (2008).

40. Conviction hereunder; discussion on "lewd touching" and proof of "intent to arouse." State v. Rutherford, 39 Kan. App. 2d 767, 768, 774, 775, 184 P.3d 959 (2008).

41. Cited; K.S.A. 21-3502 and 21-3504 do not violate due process or equal protection clauses. State v. Reed, 40 Kan. App. 2d 269, 270, 278, 279, 191 P.3d 341 (2008).

42. Cited; upward departure sentence for conviction hereunder based on fiduciary relationship between defendant and victim. State v. Horn, 40 Kan. App. 2d 687, 689, 196 P.3d 379 (2008).

43. Conviction under K.S.A. 21-3504, habeas corpus proceedings alleging violations of 5 th , 6 th and 14 th Amendments fail; petition denied. Dorsey v. McKune, 553 F. Supp. 2d 1287, 1292 (2008).

44. Cited in discussion of intent involving certain sexual crimes and evidence of prior sexual conduct. State v. Prine, 287 Kan. 713, 727, 200 P.3d 1 (2009).

45. Denial of downward departure sentence upheld; principles relating to cruel or unusual punishment discussed. State v. Thomas, 288 Kan. 157, 199 P.3d 1265 (2009).

46. Conviction under K.S.A. 21-3504; mitigating circumstances permit downward departure from mandatory minimum imprisonment term set out in K.S.A. 21-4643. State v. Gracey, 288 Kan. 252, 200 P.3d 1275 (2009).

47. Conviction hereunder affirmed but sentence under K.S.A. 21-4643 vacated because defendant's age not proven. State v. Bello, 289 Kan. 191, 211 P.3d 139 (2009).

48. Appellate court orders case remanded for further proceedings on motion to withdraw plea. State v. White, 289 Kan. 279, 211 P.3d 805 (2009).

49. Defendant's age must be proven in order to sentence for an off-grid severity level offense under K.S.A. 21-2643. State v. Gonzales, 289 Kan. 351, 212 P.3d 215 (2009).

50. When defendant is charged with off-grid severity level of rape under K.S.A. 21-3502(a)(2), age must be proven to jury. State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009).

51. Conviction hereunder upheld but sentencing reversed and remanded for resentencing. State v. Trautloff, 289 Kan. 793, 217 P.3d 15 (2009).

52. Evidence insufficient for conviction; phrase "person of another" construed. State v. Herrera, 41 Kan. App. 2d 215, 202 P.3d 68 (2009).

53. Error in omission of defendant's age in charging document harmless error and did not preclude retrial on more serious off-grid version of the offense. State v. Kemble, 291 Kan. 109, 238 P.3d 251 (2010).

54. Defendant's age at time of offense an element of crime if state seeks to convict on more serious off-grid offense. State v. Kemble, 291 Kan. 109, 238 P.3d 251 (2010).

55. Failure of trial court to instruct jury to find defendant over age of 18 did not invalidate conviction. State v. Huerta-Alvarez, 291 Kan. 247, 243 P.3d 326 (2010).

56. Defendant's age not presented to the jury as an element of crime; sentence vacated and remanded. State v. Brown, 291 Kan. 646, 244 P.3d 267 (2011).

57. Trial court's error in failing to instruct jury on element of defendant's age as required to prove the off-grid felonies of aggravated indecent liberties with a child and attempted aggravated indecent liberties with a child under Jessica's Law was harmless, as evidence that defendant was older than 18 at the time of the offenses was confirmed by several witnesses and uncontested. State v. Inkelaar, 293 Kan. 414, 264 P.3d 81 (2011).

58. In prosecution for rape of a child under the age of 14, aggravated criminal sodomy and aggravated indecent liberties with a child, trial court's failure to instruct jury that defendant was 18 years of age or older at the time the offenses were committed was harmless, as defendant had testified that he was well over the age of 18 at the time of the charged offenses. State v. Race, 293 Kan. 69, 259 P.3d 707 (2011).

59. Alternative means of committing a crime are not created by the phrase "of the offender or another" or "of either the child or the offender." State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012).

60. The phrase "either the child or the offender, or both" in subsection (a)(3)(A) is not a material element of the crime rather a secondary matter of the offender's intent. State v. Britt, 295 Kan. 1018, 287 P.3d 905 (2012).

61. The phrase "either the child or the offender or both" does not create alternative means for the crime. State v. Waggoner, 297 Kan. 94, 298 P.3d 333 (2013).

62. Legislature did not restrict the prohibited conduct by identifying body parts as to determine whether a touch is lewd. State v. Reed, 300 Kan. 494, 499, 332 P.3d 172 (2014).

63. The class of offenders sentenced under Jessica's Law for aggravated indecent liberties with a child under the age of 14, are similarly situated to offenders sentenced for rape or aggravated criminal sodomy and serving hard 25 life sentences. State v. Kelsey, 51 Kan. App. 2d 819, 827, 356 P.3d 414 (2015).


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