The Prosecutor Didn't Prove I Was Over 18, Says Father of 13-Year-Old

From State v. Presley, decided Dec. 26 by the Kansas Court of Appeals (opinion by District Judge Sean Hatfield, joined by Court of Appeals Judges Thomas Malone and Angela Coble):

In The Adventure of the Noble Bachelor, quoting Henry David Thoreau, Sherlock Holmes observed that “[c]ircumstantial evidence is occasionally very convincing, as when you find a trout in the milk.” The days of furtively diluting milk with river water may be behind us, but that turn of phrase is still synonymous with the power of a fact proved with strongly convincing circumstantial evidence….

In March 2010, Presley was charged with three counts of aggravated indecent liberties with a child all occurring between June 1, 2009, and August 31, 2009. Each charge involved the same 13-year-old victim—referred to here under the pseudonym Jane—who was Presley’s biological daughter…. [N]one of the counts alleged Presley was over the age of 18 at the time of the offenses…. {[Under the relevant statute, a]ggravated indecent liberties with a child under 14 years of age … [would lead to a presumptive sentence of 55 to 61 months] except when the offender is 18 years of age or older which statutorily makes the offense … [punishable by] life with a mandatory minimum of not less than 25 years before the possibility of parole. The fact that a defendant is 18 or older is an element of the offense ….}

Ultimately, the parties reached a plea agreement which was summarized by the trial court and confirmed by the parties. The State would seek a 25-year Jessica’s Law sentence and agreed not to seek more than 25 years….

Some 13 years later, Presley filed back-to-back pro se motions to correct illegal sentence …. Presley argues that his no contest plea to one count of aggravated indecent liberties [should have led to a lower sentence] because the State omitted his age as an element from the complaint….

[T]he complaint did not explicitly include his age as an element. Yet … the district court could only accept his no contest plea if it was satisfied of the factual basis…. Any offense can be proved by circumstantial evidence if such evidence allows a fact-finder to draw a reasonable inference regarding the fact in issue….

Presley admitted to officers that he had inappropriately touched his daughter both at home and while she accompanied him on the road. Jane’s statements to the investigating officers and preliminary hearing testimony corroborated this confession and established that at least one of the incidents occurred when Jane was 13 years old. As a matter of mathematics and biology, it was reasonable for the district court to infer that Presley was at least 18 years old at the time of the offense because he had a 13-year-old child.

Even further, Presley’s job required him to hold a commercial driver’s license. By statute, that license is not available to individuals under 18. We presume trial courts know the law. See So, it was reasonable for the district court to infer Presley’s age at the time of the offense based on his employment as a truck driver during the relevant timeframe….

Kristafer R. Ailslieger, deputy solicitor general, represents the state.

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