State v. Limon1/30/2004
Affirmed.
Matthew R. Limon was convicted of criminal sodomy, a severity level 3 person felony, in violation of K.S.A. 21-3505(a)(2). He was sentenced to 206 months' imprisonment and 60 months' supervised release. Limon argued that K.S.A. 2002 Supp. 21-3522(a)(2) was unconstitutional because it impermissibly discriminated between heterosexual and homosexual sodomy. Limon maintained that the classification limiting the applicability of K.S.A. 2002 Supp. 21-3522 to "members of the opposite sex" violated his right to equal protection because it criminalized heterosexual sodomy less severely than homosexual sodomy.
Limon appealed to this court. Relying primarily upon Bowers v. Hardwick, 478 U.S. 186, 92 L.Ed. 2d 140, 106 S.Ct. 2841 (1986), which refused to confer a fundamental right to engage in homosexual conduct, this court affirmed Limon's conviction. State v. Limon, Case No. 85,898, unpublished opinion filed February 1, 2002 (Limon I).
Our Supreme Court denied Limon's petition for review. See 274 Kan. ___. Limon then filed a petition for writ of certiorari with the United States Supreme Court. The Court deferred its ruling until the decision in Lawrence v. Texas, 539 U.S. __, 156 L.Ed. 2d 508, 123 S.Ct. 2472 (2003), was filed on June 26, 2003. The next day, the Court granted the petition for writ of certiorari, vacated the judgment, and "remanded to the Court of Appeals of Kansas for further consideration in light of Lawrence." Limon v. Kansas, 539 U.S. at ___ (2003).
Because the challenged classification has a rational basis, we affirm. In addition, as to Limon's contention that K.S.A. 2002 Supp. 21-3522 impermissibly discriminates on the basis of gender, we disagree and affirm.
Limon, an 18-year-old male adult, and M.A.R., a 14-year-old boy, both resided at a school for the developmentally disabled. M.A.R. told police that Limon had performed one instance of oral sex on him. M.A.R. further told the police that Limon performed oral sex on him until he asked Limon to stop.
Limon was later charged with criminal sodomy under K.S.A. 21-3505(a)(2). Limon moved to dismiss the complaint, arguing that he should have been charged with unlawful voluntary sexual relations under K.S.A. 2002 Supp. 21-3522. He further argued that because he could not be charged under K.S.A. 2002 Supp. 21-3522, as it applied only to heterosexual sex, this statute violated his right to equal protection.
The trial court rejected Limon's equal protection arguments. Limon was tried before the trial court based on stipulated facts. The trial court convicted Limon based on those stipulated facts. Because of Limon's prior two adjudications for aggravated criminal sodomy, the trial court sentenced Limon to 206 months' imprisonment.
Constitutionality and Construction of Statutes
It is a basic rule that every reasonable construction must be applied to save a statute from unconstitutionality. Rust v. Sullivan, 500 U.S. 173, 190, 114 L.Ed. 2d 233, 111 S.Ct. 1759 (1991), and NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 59 L.Ed. 2d 533, 99 S.Ct. 1313 (1979). "When the constitutionality of a statute is challenged, the statute comes before the court cloaked in a presumption of constitutionality." State v. Baker, 11 Kan. App. 2d 4, 6, 711 P.2d 759 (1985), rev. denied 238 Kan. 878 (1986) (citing State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 ). "Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and, if there is any reasonable way to construe the statute as co
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