State v. Clements ( 1987 )

Herd, J.

dissenting: The majority reverses the defendant’s aggravated criminal sodomy conviction and remands for a new trial on the ground the State failed to lay a proper foundation for the admission of Clements’ prior convictions, and thus did not comply with K.S.A. 60-455. I disagree with this conclusion and would hold that the nature of the prior offenses makes them relevant and material to the determination of this case and proof of a prima facie case by the State was the only foundation required for admission.

Refore discussing K.S.A. 60-455 and its applicability here, it is first necessary to comment upon the many common traits and methods of adults who sexually abuse children.

The defendant is alleged to have committed aggravated sodomy on an eleven-year-old boy. If those allegations are true, the defendant is a homosexual pedophile. Pedophilia is defined as the act or fantasy of engaging in sexual activity with prepubertal children as a repeatedly preferred or exclusive method of achieving sexual excitement. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 271 (3d ed. 1980). A homosexual pedophile is one who is sexually aroused by a child of his own sex. Such conduct is psychologically deviant sexual behavior and is a mental illness.

Male homosexual child sexual abusers have a pattern or method of operation they usually follow. They seek out activities where young boys gather, such as boy scout and cub scout groups, Sunday School classes, little league baseball, convenience stores, fast-food restaurants, and retail stores specializing in juvenile items. There, they make the child’s acquaintance and bribe the child to leave the group and go with the abuser.

There are a number of traits common to all pedophiles. They are sexually aroused by children. The accosting of children is a compulsion driven by a strong sexual urge. They attempt to minimize or rationalize their conduct. Some of these rationalizations are enumerated by John Conte, Ph.D, in his article, Clinical Dimensions of Adult Sexual Abuse of Children, 3 Behavioral Sciences & the Law 341, 350 (1985):

“The cognitive distortions or rationalizations common to adults who have sex with children are frequently discussed in clinical settings. Abel, Becker, and Cunningham-Rather (1984) identify seven distortions common to child molesters they’ve seen in their practice:

“A child who does not physically resist really wants sex;

“Having sex with a child is a good way to teach a child about sex;

“Children don’t tell about sex with an adult because they really enjoy it;

“Sometime in the future our society will realize that sex with children is really all right;

“An adult who feels a child’s genitals is not really being sexual with the child so no harm is really being done;

“When a child asks about sex it means that the child wants to see the adult’s sex organs or have sex with the adult;

“A relationship with a child is enhanced by having sex with him/her.

“These distortions make it possible to deny, minimize or rationalize the behavior of having sex with a child. It is assumed that they develop after the adult has sexually abused a child as a way of dealing with the behavior, guilt, or other pain the offender feels over what he has done.”

Adults who sexually abuse children are repeat offenders. They can be cured only by intervention. Arrest and conviction is one method of intervention. If intervention is not effected, they continue on from one victim to another until they are caught. They usually do not want to quit their illicit activity since they obtain sexual satisfaction from it.

Such behavior is explained by psychologists as follows:

“A critical factor in all sexual anomalies is the reluctance of clients to admit their sexual preferences and, even in admitting them, to want to let go of urges that are so powerful and rewarding, that they are willing to risk everything including family, friends, careers and incarceration to satisfy them.” Langevin & Lang, Psychological Treatment of Pedophiles, 3 Behavioral Sciences & the Law 405 (1985).

Langevin and Lang further comment:

“[O]ne must recognize that the pedophile will be reluctant to give up his sexual behavior which he perceives as positive and rewarding, just as conventional heterosexuals perceive their sexuality ....

“It is well known that sex offenders are notoriously difficult to treat. As such, they are hard-pressed to admit the full extent or frequency of occurrence of their sexually anomalous behavior. Distrust and secretiveness pervade their orientation toward significant others or outsiders; most are manipulative and exploitative.

“Pedophiles are also highly resistant to any treatment process because their behaviors with children fulfill sexual needs. Much of their sexual behavior is egosyntonic, so pedophiles experience less guilt or awareness of the emotional impact of their intrusive sexuality on children.” pp. 410-11.

For additional background information on this subject, see Fortune, Sexual Violence — The Unmentionable Sin 176 (1983); Mohr, Turner, & Jerry, Pedophilia and Exhibitionism 75 (1964); Money, Paraphilias: Phenomenology and Classification, 38 American Journal of Psychotherapy 164 (April 1984).

In this case Clements associated himself with a group of young boys in a baseball card shop, singled out his victim, got him alone, and performed sodomy on him. The child was sworn to secrecy and became increasingly introverted and ashamed, necessitating psychiatric counseling.

Clements is a repeat offender. He was convicted of child sexual molestation in Alaska while he was in the Navy and received a bad conduct discharge. In Alaska, as in the present case, Clements first associated himself with a group of young boys. He became a scout master and molested five young Boy Scouts. He will continue such conduct unless he is forced to take psychiatric treatment. He has left a trail of disturbed children and he will leave many more before he is stopped.

The trial court admitted evidence of the defendant’s prior convictions of child sexual abuse in this case on the theory of plan or scheme. The majority has reversed, finding the prior convictions inadmissible under K.S.A. 60-455.

Let us examine K.S.A. 60-455 and our cases construing it as it pertains to deviant sexual offenses. K.S.A. 60-455 was enacted in 1963 and is essentially a codification of Kansas common law. The rule of evidence in K.S.A. 60-455 as applied to criminal law did not materially change prior case law. State v. Wright, 194 Kan. 271, 274, 398 P.2d 339 (1965).

As early as the turn of the century, we recognized that evidence of the commission of a crime not connected with a crime charged is inadmissible in a criminal case as prejudicial. State v. Kirby, 62 Kan. 436, 63 Pac. 752 (1901). However, exceptions to the rule were consistently recognized, one of which permitted admission of evidence of similar acts where a defendant was charged with a sexual offense. The evidence was admitted to show the “lustful disposition” and nature of the defendant. We discussed this exception in State v. Stitz, 111 Kan. 275, 276, 206 Pac. 10 (1922):

“While the general rule is that one crime cannot be established by proof of other independent crimes, there are well recognized exceptions to the rule, and one of them is that in sexual offenses proof of prior and subsequent acts of intercourse are admissible to show the lustful disposition, the existence and continuance of the illicit relation, as these tend to explain the act charged and corroborate other testimony of the prosecution. The exception has been so frequently and thoroughly considered that there is no occasion for further consideration or comment.”

There is another interesting discussion of the exception in State v. Waldron, 118 Kan. 641, 236 Pac. 855 (1925). There, the defendant, a pastor of a leading Protestant church in Great Bend, was charged with statutory rape on the person of a girl under eighteen years of age. During cross-examination of the defendant, letters he had written to another young woman were admitted. The defendant objected, but this court ruled admission of the letters was not error because it disclosed the defendant’s “grossly indelicate attitude towards young women of his congregation” and discredited his avowed innocence. 118 Kan. at 649. For other common-law cases where similar exceptions were applied, see State v. Smit, 184 Kan. 582, 585, 337 P.2d 680 (1959), holding that in cases involving sexual offenses, such as lewd and lascivious conduct, evidence of similar acts is admissible to show tendencies and lustful disposition; State v. Whiting, 173 Kan. 711, 713, 252 P.2d 884 (1953), holding that a defendant charged with sexual offenses is subject to introduction of evidence of similar offenses for the purpose of showing the lustful disposition or nature of the defendant; State v. Allen, 163 Kan. 374, 183 P.2d 458 (1947), where evidence of two previous similar offenses against other women was competent in a prosecution for attempted rape; State v. Funk, 154 Kan. 300, 118 P.2d 562 (1941), where evidence of recent conduct of defendant toward other young girls was competent to show lustful disposition and system of operation; State v. Jenks, 126 Kan. 493, 268 Pac. 850 (1928), holding that evidence a defendant had taken indecent liberties with other girls was admissible in a prosecution for statutory rape; and State v. Borchert, 68 Kan. 360, 361-62, 74 Pac. 1108 (1904), where, in a prosecution for statutory rape, this court allowed the admittance of evidence of other similar acts, not to prove offenses, but “in spite of that fact.”

The foregoing cases occurred prior to the enactment of K.S.A. 60-455. Other than some refinements placed on the exception to the rule in State v. Taylor, 198 Kan. 290, 292-93, 424 P.2d 612 (1967), and subsequent cases, the prior sexual conduct exception has not been overruled.

K.S.A. 60-455 provides:

“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”

It is interesting to note that the legislature left plenty of leeway for exceptions to the rule in the statute. It lists eight specific exceptions but precedes the statutory exceptions by the term “including.” This indicates that the eight listed exceptions are not a complete list, but rather are only examples among which others might be included, depending upon “relevancy” and “materiality.”

Let us now examine State v. Taylor, 198 Kan. 290. There, the defendant’s conviction of molesting a child under the age of fifteen years was reversed, not because the statute was violated, but because the “lustful disposition” exception was defined too broadly in the instructions. Justice Fontron, speaking for the court, construed K.S.A. 60-455, stating:

“We view his admission of the conviction on child molestation charges as being properly presented as part of the state’s case in chief provided, of course, that the jury was correctly charged as to the purpose for which such evidence was admitted and might be considered. This court has long held that evidence of similar offenses is admissible where it tends to show intent, motive, scienter, plan, identity, scheme or method of operation. [Citations omitted.] ....

“But the defendant maintains that the trial court improperly instructed the jury as to the purpose for which the evidence was received. The instruction, as given by the court, reads:

“ ‘Evidence of prior and independent sexual offenses may be considered as evidence tending to show a lustful disposition, the existence or continuance of the relation, as such acts tend to explain the act charged and corroborate other testimony relating to the present charge.’

“It must be conceded that this instruction is couched in language used by this court in State v. Stitz, 111 Kan. 275, 206 Pac. 910, and later quoted with approval in State v. Allen, 163 Kan. 374, 183 P. 2d 458. Nonetheless, we are not inclined to approve its use today in view of the subsequent enactment of K.S.A. 60-455. . . .

“This statute defines the purposes for which evidence of similar offenses may be admitted. Neither explanation of the act charged nor corroboration of other testimony relating to the charge is comprehended within the language or the import of the act. In our opinion, a trial court should limit its instructions concerning the purposes for which similar offenses may be considered to those purposes set out in the statute and purposes analogous thereto. Accordingly, we are constrained to disapprove that part of the instruction which follows the words ‘lustful disposition as well as the language in the Stitz and Allen cases from which that portion of the instruction was taken.” (Emphasis added.)

Clearly Taylor overruled Stitz and Allen, but it did not mention the numerous other cases with similar holdings, did not disturb the common-law “lustful disposition” exception, and added “scienter” and “method of operation” to the list of exceptions. Justice Fontron was objecting to the holding in Stitz and Allen, where it was stated that admission of the commission of other crimes in addition to showing lustful disposition also “tend[s] to explain the act charged and corroborate other testimony of the prosecution.”

Without overruling Taylor, we have gradually narrowed the exceptions. In State v. Hampton, 215 Kan. 907, 529 P.2d 127 (1974), we held evidence of prior similar offenses was admissible to show intent in a forcible rape prosecution. State v. Gonzales, 217 Kan. 159, 535 P.2d 988 (1975), followed Hampton.

A few years later, in State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977), we held in an indecent liberties with a child case that prior similar criminal acts are admissible under K.S.A. 60-455 to show intent. Indecent liberties with a child is a specific intent crime.

State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981), held that prior acts of illicit sexual relations between an adult and a child are admissible independent of K.S.A. 60-455 to establish the relationship of the parties’ continuing course of conduct and to corroborate the testimony of the complainant. This case is significant to show we permit exceptions to the rule against non-admissibility other than the eight exceptions specifically listed in K.S.A. 60-455.

State v. Cantrell, 234 Kan. 426, 673 P.2d 1147 (1983), overruled both Hampton and Gonzales because those cases permitted evidence of prior sex crimes to be admitted to show “intent.” This court held that rape is not a specific intent crime; therefore, evidence of intent need not be proved and the use of prior crimes to show intent is irrelevant. Cantrell is technically correct but illogical in its effect. (To illustrate, lewd and lascivious behavior [K.S.A. 1986 Supp. 21-3508(1)(b) and enticement of a child [K.S.A. 21-3509] are both specific intent crimes, thus prior commission of such crimes is admissible to show intent.)

We have our greatest difficulty with K.S.A. 60-455 in cases involving psychologically deviant sexual behavior, which includes child sexual abuse, incest, and forcible rape. Some types of child molestation, such as lewd and lascivious conduct and enticement, require a specific intent, while other types of the same criminal behavior involving sodomy and rape are not specific intent crimes. Thus, we admit evidence of prior similar offenses in some cases under the identity of intent and disallow it in other cases even though the same relevancy and materiality exists in each case. The difficulty lies more with semantics than substance.

While our previous definitions of “plan or scheme” do not fit the behavior of a person prone to commit compulsive, repetitive, sexually deviant crimes, I suggest that the term “method of operation” adopted in State v. Taylor, 198 Kan. 290, fits all of the deviant cases equally. In the present case, Clements used the same method in the Alaska sodomy convictions as was used in this case. The evidence of the previous psychiatric deviation is relevant and material to show Clements is impelled by his uncontrolled sex drive to abuse children. A determination of mental illness such as homosexual pedophilia requires evidence of the offender’s method of operation and sexual compulsion. Prior offenses evidencing these traits are essential for a jury to be rational factfinders. We have approved evidence of such traits independent of K.S.A. 60-455. I would hold Clements’ prior convictions for sodomy and lewd acts involving five boys was properly admitted by the trial court.

There is a presumption of validity to the actions of a trial court and, even though the trial court has correctly ruled, but for the wrong reason, we are obligated to affirm. Here, the evidence of the prior similar crimes was technically not evidence of a plan as determined by the trial court, but it was evidence of pedophilia with its method of operation and sexual compulsion. Such evidence of mental illness is relevant and material to the issue on this case. It does not require foundation evidence other than proof of a prima facie case by the State showing the accused is a pedophile. Here, the State made a prima facie case. I would affirm the trial court.