State v. Coman (Supreme Court)

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,494

STATE OF KANSAS,
Appellee,

v.

JOSHUA B. COMAN,
Appellant.


SYLLABUS BY THE COURT

1.
Under Kansas appellate procedure, the appellate court has authority to review only
those rulings reasonably identified in the notice of appeal.

2.
A defendant who pleads guilty waives any prior irregularities in the proceedings
and such a defendant may not directly appeal his or her conviction without first filing a
motion to withdraw plea in the district court.

3.
To challenge the constitutionality of a statute, the appellant must have been
directly affected by the alleged defect, and he or she does not have standing to argue that
a statute is unconstitutional as applied to third parties in hypothetical situations.

4.
An ambiguity can arise in a statutory provision because it conflicts with another
statute or with another provision of the same statute, and in that event the canons of
statutory construction must be applied and legislative history may be consulted for
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indications of legislative intent. A reviewing court must consider the various provisions
of an act in pari materia with a view to reconciling and bringing the provisions into
workable harmony, if possible.

5.
Under the rule of lenity, criminal statutes must be strictly construed in favor of the
defendant. Any reasonable doubt as to the meaning of a criminal statute is decided in
favor of the accused, subject to the rule that judicial interpretation must be reasonable and
sensible to effect legislative design and intent.

6.
A person who commits misdemeanor criminal sodomy, as defined in K.S.A. 21-
3505(a)(1), is not required to register as a sex offender under the provisions of either
K.S.A. 22-4902(c)(4) or (c)(14). Rather, the provisions of K.S.A. 22-4902(a)(5)(B)
govern when a person who has violated K.S.A. 21-3505(a)(1) must register under Kansas
Offender Registration Act.

Review of the judgment of the Court of Appeals in 42 Kan. App. 2d 592, 214 P.3d 1198 (2009).
Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, judge. Opinion filed March 30, 2012.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed.

Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, argued the cause, and Carl F.A.
Maughan, of the same firm, was with her on the briefs for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Steve Six, were with him on the brief for appellee.

The opinion of the court was delivered by
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JOHNSON, J.: Joshua Coman pled guilty to misdemeanor criminal sodomy, as
defined in K.S.A. 21-3505(a)(1), based upon an incident with a dog. The Kansas
Offender Registration Act (KORA), K.S.A. 22-4901 et seq., requires registration for
those who commit sexually violent crimes. KORA's definition provision, K.S.A. 22-
4902, includes a list of crimes that are per se "sexually violent crimes," i.e., crimes which
always require KORA registration. But the list, under K.S.A. 22-4902(c)(4), only
includes felony criminal sodomy as defined in K.S.A. 22-4902(a)(2) and (3), and omits
the misdemeanor criminal sodomy for which Coman was convicted. Nevertheless, in
addition to specifically named crimes, the list includes a catch-all provision under K.S.A.
22-4902(c)(14), which requires registration for those committing sexually motivated acts.
The district court found that Coman was required to register because the act giving rise to
his conviction for the unlisted version of criminal sodomy was sexually motivated.
Coman appealed, and a divided Court of Appeals panel affirmed the district court's
registration order. State v. Coman, 42 Kan. App. 2d 592, 214 P.3d 1198 (2009). We
granted review. Construing the applicable statute as a whole, we hold that the legislature
did not intend to include the acts constituting the sex crime defined in K.S.A. 21-
3505(a)(1) to be included within the catch-all provisions of K.S.A. 22-4902(c)(14).
Accordingly, we reverse both the Court of Appeals and the district court.

FACTUAL AND PROCEDURAL OVERVIEW

Coman had previously been a roommate of Diana Sells, who had a Rottweiler dog.
Sells discovered Coman in her garage with the dog in a compromising position. Coman
told Sells that he loved the dog and wanted to see it one more time. Sells called the
police, who discovered personal lubricant in Coman's pocket. Coman admitted to the
officers that he used the lubricant to penetrate the dog's vagina with his finger.

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Ultimately, Coman pled guilty to one count of criminal sodomy as defined in
K.S.A. 21-3505(a)(1), a class B misdemeanor. In the process of sentencing Coman, the
district court found that Coman's acts supporting the conviction were sexually motivated
and that, pursuant to K.S.A. 22-4902(c)(14), Coman was required to register under
KORA.

Coman appealed to the Court of Appeals, stating in his notice of appeal that he
was appealing "from the sentence imposed" and specifically describing the subject matter
of the appeal as being "that part of the Sentence which requires this Defendant to register
as a sex offender, pursuant to the Kansas Sex Offender Registration Act." But in briefing
the case, Coman raised two issues: (1) The KORA should not be construed to require
him to register as a sexually violent offender; and (2) the crime of criminal sodomy
described in K.S.A. 21-3505(a)(1) violates both the United States and the Kansas
Constitutions.

The Court of Appeals declined to consider the merits of Coman's constitutional
challenge to K.S.A. 21-3505(a)(1) because of multiple procedural bars. The panel pointed
out that the notice of appeal stated that Coman was only appealing his sentence, not his
conviction. Further, Coman pled guilty to the crime, which waives any defects or
irregularities in the proceedings, including those of constitutional dimension. Finally, the
panel opined that Coman's failure to move to withdraw his guilty plea precluded him
from seeking relief from his conviction for the first time on appeal. Coman, 42 Kan. App.
2d at 594.

With respect to the registration issue, a majority of the Court of Appeals panel
found no ambiguity in K.S.A. 22-4902. Rather, it construed the catch-all provision of
subsection (c)(14) to mean that any sexually motivated act may render a crime sexually
violent, regardless of whether the committed crime has been specifically omitted from the
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list of per se sexually violent crimes in another subsection of the statute. The majority
believed that omitting a crime from the per se list simply meant that no registration was
required for the omitted crime without the additional showing of sexual motivation.
Moreover, the majority opined that to hold otherwise and exclude unlisted sex crimes
from the provisions of subsection (c)(14) would render that catch-all provision
meaningless. 42 Kan. App. 2d at 597-99.

Even though the majority found no ambiguity in the registration statute, it
discussed the rule of lenity. That rule provides that any reasonable doubt as to the
meaning of a criminal statute is resolved in favor of the accused. But the majority
declared that the rule of lenity may not be invoked where there is a reasonable and
sensible judicial interpretation of the statutory provision that will effect legislative design.
42 Kan. App. 2d at 597.

The dissent agreed that the language of subsection (c)(14) could be read, as the
majority did, to include Coman's conduct because it was a sexually motivated act. But the
dissent noted that reading subsection (c)(14) to include sex crimes that were not listed as
automatically requiring registration would render the list superfluous. The apparent
suggestion is that, given that all sex crimes are sexually motivated, applying the sexually
motivated act definition of subsection (c)(14) to all sex crimes renders the per se list
meaningless because registration will always be required for sex crimes, whether listed or
unlisted. The dissent pointed out that, in applying canons of statutory construction, courts
should read each section of a statute as adding new meaning, rather than reading a
subsequent provision as being redundant to a prior provision. 42 Kan. App. 2d at 603
(Leben, J., dissenting).

Further, the dissent noted that the maxim, expressio unius est exclusio alterius,
should be applied to the text of the registration statute. Courts apply that maxim to
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presume that when the legislature includes specific items in a statutory list, it intends to
exclude similar items not expressly listed. In this instance, the dissent opined that the
legislature meant something when it included two of the three subsections of the sodomy
statute in the per se list, but excluded the third version of the crime. The dissent bolstered
that view by observing that one manner in which to commit the crime that was omitted
from the list of sexually violent crimes, i.e., K.S.A. 21-3505(a)(1), is to engage in
consensual gay sex which is in no way inherently violent. Likewise, the dissent noted that
no other subsection in the K.S.A. 22-4902(c) list of per se sexually violent crimes divided
a crime between included and omitted ways in which to commit the crime, i.e., criminal
sodomy was singled out for special treatment. 42 Kan. App. 2d at 603-04 (Leben, J.,
dissenting).

The dissent then embarked on an extensive review of the lengthy and sometimes
convoluted legislative history of the registration statute, concluding that the legislature
might well have intended the catch-all provision to apply only to nonsex crimes. Its
review of case precedent uncovered nothing to refute that interpretation. Ultimately, the
dissent determined that the legislature specifically intended to exclude the K.S.A. 21-
3505(a)(1) version of criminal sodomy from the registration requirement of K.S.A. 22-
4902(c)(4) and that the rule of lenity will not permit the general catch-all provision of
subsection (c)(14) to override that exclusion. 42 Kan. App. 2d at 604-07 (Leben, J.,
dissenting).

Coman petitioned for review, ostensibly raising three issues: (1) whether the court
erred in requiring Coman to register as a sex offender; (2) whether the court erred in
applying the rule of lenity and the rules of statutory construction; and (3) whether the
court erred in determining the appellant's constitutional challenge. We take the liberty of
consolidating the first two issues and considering the third issue first.

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CONSTITUTIONALITY OF CRIMINAL SODOMY STATUTE

Sodomy is defined in K.S.A. 21-3501(2) to mean oral contact with genitalia; anal
penetration by any body part or object; or "oral or anal copulation or sexual intercourse
between a person and an animal." Sexual intercourse is defined as "any penetration of the
female sex organ by a finger, the male sex organ or any object." K.S.A. 21-3501(1).
Under K.S.A. 3505(a)(1), the misdemeanor version of criminal sodomy is defined as
"[s]odomy between persons who are 16 or more years of age and members of the same
sex or between a person and an animal." In other words, the statutory provision under
which Coman was convicted proscribes consensual homosexual conduct, as well as
bestiality.

In Lawrence v. Texas, 539 U.S. 558, 574, 123 S. Ct. 2472, 156 L. Ed. 2d 508
(2003), the United States Supreme Court struck down a sodomy law as unconstitutional
under the Equal Protection Clause, finding that a state cannot criminalize sexual practices
between two mutually consenting adults conducted in private, even if those practices are
common to a homosexual lifestyle. The Lawrence Court explicitly narrowed its holding
and warned against any broader interpretation. 539 U.S. at 578. Nevertheless, Coman
would have us read Lawrence as prohibiting states from legislating for moral purposes,
which he believes includes prohibition of bestiality.

As noted, the Court of Appeals declined to reach the merits of the constitutional
argument because of procedural bars. Coman's review petition does not address the
panel's decision on the procedural matters, opting instead to argue the merits of the
undecided issue. We will review the issue as it was decided by the Court of Appeals, i.e.,
whether the statute's constitutionality is properly before the appellate courts.

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Standard of Review

Ordinarily, constitutional grounds for reversal asserted for the first time on appeal
are not properly before the appellate court for review. State v. Gaudina, 284 Kan. 354,
372, 160 P.3d 854 (2007). More fundamentally, the existence of jurisdiction is a question
of law over which this court's scope of review is unlimited. State v. Denney, 283 Kan.
781, 787, 156 P.3d 1275 (2007).

Analysis

In his petition for review, Coman identifies the remedy he seeks for the
unconstitutionality of K.S.A. 21-3505(a)(1) as being the reversal of his conviction. But
Coman's notice of appeal did not even suggest that he was challenging his conviction. To
the contrary, the notice identified the subject matter of the appeal as the sentence
imposed, and more specifically, that part of the sentence requiring him to register under
KORA.

"It is a fundamental proposition of Kansas appellate procedure that an appellate
court obtains jurisdiction over the rulings identified in the notice of appeal." State v. Huff,
278 Kan. 214, Syl. ¶ 2, 92 P.3d 604 (2004); see also K.S.A. 60-2103(b) (notice of appeal
"shall designate the judgment or part thereof appealed from"). Although our appellate
courts have, at times, liberally construed a notice of appeal to retain jurisdiction, one
simply cannot construe a notice that appellant is appealing his or her sentence to mean
that he or she is appealing the conviction.

Coman is likewise harnessed with the consequences of having pled guilty to
violating the statute that he now wants to invalidate. A defendant who enters into a guilty
plea "'is deemed to have waived any irregularities which may have occurred in the
proceedings prior thereto.'" State v. Woodward, 288 Kan. 297, 304, 202 P.3d 15 (2009)
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(quoting Jones v. State, 207 Kan. 622, 625, 485 P.2d 1349 [1971]). The waiver exists
even if such defects "may reach constitutional dimensions." State v. Melton, 207 Kan.
700, 713, 486 P.2d 1361 (1971). More generally, K.S.A. 22-3602(a) specifically prohibits
any direct appeal "by the defendant from a judgment of conviction before a district judge
upon a plea of guilty." Moreover, we recently held that a guilty plea without a subsequent
motion to withdraw the plea in the district court deprives Kansas appellate courts of
jurisdiction. State v. Hall, 292 Kan. 862, 868, 257 P.3d 263 (2011).

Finally, to the extent that K.S.A. 21-3505(a)(1) may be unconstitutional under the
narrow holding in Lawrence because it makes private homosexual conduct by two
consenting adults a crime, Coman lacks standing to make that argument. He was charged
under that portion of the statute proscribing bestiality, i.e., having sex with an animal that
is arguably incapable of giving consent, rather than under that portion of the statute
criminalizing human homosexual conduct. See Ulster County Court v. Allen, 442 U.S.
140, 155, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979) ("if there is no constitutional defect in
the application of the statute to a litigant, he does not have standing to argue that it would
be unconstitutional if applied to third parties in hypothetical situations"); State v.
Thompson, 221 Kan. 165, 172, 558 P.2d 1079 (1976) (holding that "unconstitutional
governmental action can only be challenged by a person directly affected and such a
challenge cannot be made by invoking the rights of others").

In short, the Court of Appeals appropriately declined to consider Coman's first-
time-on-appeal challenge to the constitutionality of K.S.A. 21-3505(a)(1) as applied to
the bestiality charges leveled against him. We likewise refuse to reach the merits.

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KORA REGISTRATION FOR MISDEMEANOR CRIMINAL SODOMY

Pursuant to K.S.A. 22-4904, a provision of KORA, an offender has a duty to
register with the county sheriff under specified circumstances. To determine what
"offender" means for KORA registration purposes, one looks to the definitions in K.S.A.
22-4902. Accordingly, our task is to determine whether Coman fits within the statutory
definition of "offender," which will, by necessity, require us to interpret and reconcile the
applicable statutory provisions of K.S.A. 22-4902.

Standard of Review

Interpretation of a statute is a question of law over which appellate courts have
unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

Analysis

As we have indicated, K.S.A. 21-3505 lists three forms of criminal sodomy:

"(a) Criminal sodomy is:
(1) Sodomy between persons who are 16 or more years of age and members of
the same sex or between a person and an animal;
(2) Sodomy with a child who is 14 or more years of age but less than 16 years of
age; or
(3) causing a child 14 or more years of age but less than 16 years of age to
engage in sodomy with any person or animal." (Emphasis added.)

Coman was convicted under the above-emphasized bestiality proscription of
subsection (a)(1), albeit for registration purposes, KORA does not differentiate between
the two ways in which a person can commit criminal sodomy under that subsection. The
KORA does, however, specifically differentiate between persons who are convicted of
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subsection (a)(1) criminal sodomy and those who violate the other two subsections of
K.S.A. 21-3505. Accordingly, we begin by reciting the relevant portions of K.S.A. 22-
4902:

"(a) 'Offender' means: (1) A sex offender as defined in subsection (b);
. . . .
(5) any person convicted of any of the following criminal sexual conduct if one
of the parties involved is less than 18 years of age:
. . . .
(B) criminal sodomy as defined by subsection (a)(1) of K.S.A. 21-3505, and
amendments thereto;
. . . .
"(b) 'Sex offender' includes any person who, after the effective date of this act, is
convicted of any sexual violent crime set forth in subsection (c) . . . .
"(c) 'Sexually violent crime' means:
. . . .
(4) criminal sodomy as defined in subsection (a)(2) and (a)(3) of K.S.A. 21-3505
and amendments thereto;
. . . .
(14) any act which at the time of sentencing for the offense has been determined
beyond a reasonable doubt to have been sexually motivated. As used in this
subparagraph, 'sexually motivated' means that one of the purposes for which the
defendant committed the crime was for the purpose of the defendant's sexual
gratification."

We frequently declare that the most fundamental rule of statutory construction is
that the intent of the legislature governs if that intent can be ascertained. Arnett, 290 Kan.
at 47. An appellate court's first attempt to ascertain legislative intent is through an
analysis of the language employed, giving ordinary words their ordinary meaning. State
v. Urban, 291 Kan. 214, 216, 239 P.2d 837 (2010). If a statute is plain and unambiguous,
an appellate court does not need to speculate further about legislative intent and, likewise,
12



the court need not resort to canons of statutory construction or legislative history. 291
Kan. at 216.

The Court of Appeals majority found no ambiguity in the language the legislature
used in the catch-all provision of subsection (c)(14). It points to the provision's plain
language requiring KORA registration if the court, at sentencing, finds beyond a
reasonable doubt that any act by the defendant in committing the crime had as one of its
purposes the sexual gratification of the defendant. There is no stated exception, such as
an exemption for sex crimes omitted from the list of per se sexually violent crimes.
Coman, 42 Kan. App. 2d at 597. We agree with that assessment of the statutory language.

Yet, even crystal clear language cannot always save a statutory provision from the
specter of ambiguity. See State v. Horn, 288 Kan. 690, 692, 206 P.3d 526 (2009)
(conundrum arising not from lack of clarity in statutory language, but from existence of
two apparently controlling but conflicting statutes). Even the Court of Appeals majority,
citing to State v. Valladarez, 288 Kan. 671, 678-79, 206 P.3d 879 (2009), acknowledged
that ambiguity can arise because "various statutes are in conflict," and that in such an
event "the canons of statutory construction must be applied and legislative history may be
consulted for indications of legislative intent." Coman, 42 Kan. App. 2d at 595.

Here, the potential conflict is contained within the same statute, triggering the
concept that, when construing a legislative act to determine the legislature's intent, courts
should avoid isolating any particular provision. Rather, an act should be construed as a
whole. In that vein, the reviewing court must consider the various provisions of an act in
pari materia with a view to reconciling and bringing the provisions into workable
harmony, if possible. See State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115
(2008).

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All concerned in this case have concentrated their attention on the possible conflict
between subsection (c)(4) and (c)(14) of K.S.A. 22-4902. Subsection (c)(4) defines
sexually violent crime as including criminal sodomy as set forth in K.S.A. 21-3505(a)(2)
and (a)(3). Conspicuously absent from that definition of a sexually violent crime is the
misdemeanor version of criminal sodomy defined in K.S.A. 21-3505(a)(1). As the Court
of Appeals dissent noted, criminal sodomy is the only crime in K.S.A. 22-4902(c)'s list of
sexually violent crimes that omits a version of the offense. Considering that special
treatment, the general statutory structure, and the maxim, expressio unius est exclusio
alterius, one is left with no reasonable doubt that the legislature intentionally omitted
misdemeanor criminal sodomy from subsection (c)(4). See Coman, 42 Kan. App. 2d at
604 (Leben, J., dissenting). What may be unclear is the reason for the omission.

The panel majority believes that the legislative intent in omitting misdemeanor
criminal sodomy from subsection (c)(4) "reflects the belief that not every violation of
K.S.A. 21-3505(a)(1) should be considered sexually violent, but that a violation of that
statute could be considered to be sexually violent if the facts of the offense meet the
general definition in subsection (c)(14)." 42 Kan. App. 2d at 597. That facially seductive
argument quickly evaporates when one attempts to construct a scenario in which a person
could commit criminal sodomy under K.S.A. 21-3505(a)(1) without falling within the
sexually motivated catch-all provision. As subsection (c)(14) is written, an offense is
sexually violent if only one of the purposes for the defendant's acts, not necessarily the
principal purpose, is for the defendant's sexual gratification. It is counterintuitive to
believe that the legislature went to the trouble of constructing a unique, bifurcated
provision in subsection (c)(4) simply to eliminate the registration requirement for the
rare, if not nonexistent, circumstance where a person has sex with an animal or with a
person of the same sex without at least one of the purposes being sexual self-gratification.

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When viewed in that light, it is not the catch-all provision that is emasculated, as
the panel majority suggests. That provision remains viable and useful for unlisted, nonsex
crimes. Rather, the majority's interpretation renders the omission of misdemeanor
criminal sodomy in subsection (c)(4) virtually meaningless and useless, because the very
act of committing the omitted crime brings the actor within the broadly cast net of the
(c)(14) catch-all. See Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132
P.3d 870 (2006) (courts presume legislature does not intend to enact useless or
meaningless legislation).

Although the Court of Appeals only discussed the legislature's omission of
misdemeanor criminal sodomy from the list of per se sexually violent crimes in
subsection (c), the legislature also specifically listed misdemeanor criminal sodomy in
another subsection of K.S.A. 22-4902. We have already discussed that an "offender" who
must register includes a "sex offender as defined in subsection (b)," and that subsection
(b) sends us to subsection (c) to determine the meaning of "sexually violent crime."
However, subsection (a) also defines other persons who must register as an "offender."
Specifically, K.S.A. 22-4902(a)(5) requires registration for any person convicted of
certain listed criminal sexual conduct if one of the parties involved is less than 18 years
of age, and one of those listed crimes is "criminal sodomy as defined by subsection (a)(1)
of K.S.A. 21-3505." K.S.A. 22-4902(a)(5)(B).

In other words, when the legislature directly addressed misdemeanor criminal
sodomy, it made registration dependent upon the age of the participants, rather than upon
the sexual motivation of the defendant. Adopting the panel majority's interpretation that a
defendant committing misdemeanor criminal sodomy must register under subsection
(c)(14) upon a finding of sexual motivation would truly render superfluous the explicit
provisions of K.S.A. 22-4902(a)(5)(B). Why carve out a registration requirement where
15



the victim is age 16 or 17, if the catch-all provision is intended to pull in all sexually
motivated defendants anyway?

As evidenced by the extensive discussion in the Court of Appeals dissent, the
legislative history of the registration statute does not resolve the ambiguities. On the one
hand, the fact that the legislature deleted a list of nonsex crimes and added the catch-all
provision could indicate that the legislature intended the catch-all to apply only to nonsex
crimes. Coman, 42 Kan. App. 2d at 606 (Leben, J., dissenting). That is the use to which it
has been employed by the precedent the majority found persuasive. See State v.
Chambers, 36 Kan. App. 2d 228, 240, 138 P.3d 405, rev. denied 282 Kan. 792 (2006)
(theft and burglary sexually motivated); State v. Patterson, 25 Kan. App. 2d 245, 251,
963 P.2d 436, rev. denied 265 Kan. 888 (1998) (burglary and theft of woman's underwear
sexually motivated); State v. Lopez, 25 Kan. App. 2d 777, 778, 973 P.2d 802 (1998), rev.
denied 266 Kan. 1113 (1999) (attempted aggravated burglary with intent to commit
sexual battery sexually motivated); State v. Stenger, No. 96,182, 2007 WL 1530118, at
*4 (Kan. App. 2007) (unpublished opinion) (furnishing alcoholic beverages to minor for
illicit purposes sexually motivated); State v. Ward, No. 89,659, 2004 WL 324214, at *2-3
(Kan. App. 2004) (unpublished opinion) (criminal threat sexually motivated); State v.
Saunders, No. 91,136, 2004 WL 2160942, at *3 (Kan. App. 2004) (unpublished opinion)
(criminal threat, child endangerment, and battery sexually motivated).

On the other hand, the legislature also removed all misdemeanors from the list of
crimes, at the same time as the catch-all provision was added to the precursor of the
Registration Act. Minutes of the House Judiciary Committee, Feb. 26, 1993. The dissent
views this as an intent to require registration only for the more serious, felony crimes.
Another explanation is that the catch-all provision was to apply to the misdemeanors, as
well as the deleted nonsex crimes. But the point is that the legislative history does not
16



inform us as to the legislature's intent with respect to the interaction between subsections
(c)(4) and (c)(14). Accordingly, we turn to the rule of lenity for further guidance.

As a general rule, criminal statutes must be strictly construed in favor of the
defendant. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008). Any reasonable doubt
as to the meaning of the statute is decided in favor of the accused, subject to the rule that
judicial interpretation must be reasonable and sensible to effect legislative design and
intent. State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010). See also State v. Bonner,
290 Kan. 290, 296, 227 P.3d 1 (2010) (stating that strict construction "simply means that
the court reads words with their ordinary meaning," and then decides any reasonable
doubt in favor of the accused).

The Court of Appeals majority cites to Paul's caveat that the rule of strict
construction of criminal statutes "is subordinate to the rule that judicial interpretation
must be reasonable and sensible to effect legislative design and intent." Coman, 42 Kan.
App. 2d at 596 (citing Paul, 285 Kan. at 662). It interprets that constraint as meaning that
"[t]here is no cause to apply the rule of lenity where there is a reasonable and sensible
judicial interpretation that effects legislative design." Coman, 42 Kan. App. 2d at 597.
We disagree with that summary dismissal of the rule of lenity in this case for two
reasons.

First, the majority presumes that its interpretation is the one that will effect
legislative design. If, in fact, the legislature really intended that the provisions in K.S.A.
22-4902(a)(5)(B) and (c)(4) meant that there would be no registration requirement for
two consenting adults over age 18 who were involved in a homosexual relationship, then
the majority's interpretation does not comport with Paul's requirement "to effect
legislative design and intent." 285 Kan. at 662.

17



Next, the majority misconstrues the constraint on the rule of lenity. The caveat
simply means that the statutory interpretation favoring the accused cannot be
unreasonable or nonsensical. In other words, there must be a reasonable doubt as to a
criminal statute's meaning before the rule of lenity comes into play. The majority appears
to suggest that if its interpretation of the statute is reasonable and sensible, then it can
ignore the rule of lenity, even if the accused's statutory interpretation is also reasonable
and sensible. That application of the rule directly contradicts the whole concept of lenity,
and we unequivocally reject it. If, as here, there are two reasonable and sensible
interpretations of a criminal statute, the rule of lenity requires the court to interpret its
meaning in favor of the accused.

To summarize, we hold that a person who commits misdemeanor criminal sodomy
as defined in K.S.A. 21-3505(a)(1) is not required to register as a sex offender under the
provisions of either K.S.A. 22-4902(c)(4) or (c)(14). Rather, the provisions of K.S.A. 22-
4902(a)(5)(B) govern when a person who has violated K.S.A. 21-3505(a)(1) must register
under KORA. Here, the defendant was not required to register, and the district court erred
in so ordering.

Reversed.

MORITZ, J., not participating.
DONALD R. NOLAND, District Judge, assigned.
1

1
REPORTER'S NOTE: District Judge Noland was appointed to hear case No. 100,494
vice Justice Moritz pursuant to the authority vested in the Supreme Court by Art. 3, § 6(f)
of the Kansas Constitution.