[As Amended by House Committee of the
Whole]
As Amended by House Committee
Session of 2000
HOUSE BILL No. 2614
By Representative Campbell
1-11
11 AN ACT
concerning crimes and punishment; relating to eavesdropping;
12 amending K.S.A.
21-4001 [and K.S.A. 1999 Supp. 21-4704 and 21-
13 4716] and
repealing the existing
section[sections].
14
15 Be it enacted by the Legislature of the
State of Kansas:
16 Section
1. K.S.A. 21-4001 is hereby amended to read as follows:
21-
17 4001. (a) Eavesdropping is knowingly and
without lawful authority:
18 (1) Entering into
a private place with intent to listen surreptitiously
19 to private conversations or to observe the
personal conduct of any other
20 person or persons therein;
21 (2) Installing or
using outside a private place any device for hearing,
22 recording, amplifying or broadcasting
sounds originating in such place,
23 which sounds would not ordinarily be
audible or comprehensible outside,
24 without the consent of the person or
persons entitled to privacy therein;
25 or
26 (3) Installing or
using any device or equipment for the interception
27 of any telephone, telegraph or other wire
communication without the
28 consent of the person in possession or
control of the facilities for such
29 wire communication.;
or
30 (4) installing
or using a concealed camcorder, motion picture camera
31 or photographic camera of any type, to
secretly videotape, film, photo-
32 graph or record by electronic means,
another, identifiable person under
33 or through the clothing being worn by
that other person or another,
34 identifiable person who is nude or in a
state of undress, for the
35 purpose of viewing the body of, or the
undergarments worn by, that other
36 person, without the consent or knowledge
of that other person, with the
37 intent to invade the privacy of that
other person, under circumstances in
38 which the other person has a reasonable
expectation of privacy.
39 (b) A ``private
place'' within the meaning of this section is a place
40 where one may reasonably expect to be safe
from uninvited intrusion or
41 surveillance, but does not include a place
to which the public has lawful
42 access.
2
1 (c) It
shall not be unlawful for an operator of a switchboard, or any
2 officer, employee, or agent of any
public utility providing telephone com-
3 munications service, whose facilities
are used in the transmission of a
4 communication, to intercept, disclose
or use that communication in the
5 normal course of employment while
engaged in any activity which is in-
6 cident to the rendition of public
utility service or to the protection of the
7 rights of property of such public
utility.
8
(d) Eavesdropping is a class A nonperson
misdemeanor.
9 [Sec. 2. K.S.A.
1999 Supp. 21-4704 is hereby amended to
10 read as follows: 21-4704. (a) For
purposes of sentencing, the fol-
11 lowing sentencing guidelines grid for
nondrug crimes shall be ap-
12 plied in felony cases for crimes
committed on or after July 1, 1993:
3
1
2
4
1 [(b) The
provisions of this section shall be applicable to the
2 sentencing guidelines grid for
nondrug crimes. Sentences ex-
3 pressed in such grid represent
months of imprisonment.
4 [(c) The
sentencing guidelines grid is a two-dimensional crime
5 severity and criminal history
classification tool. The grid's vertical
6 axis is the crime severity scale
which classifies current crimes of
7 conviction. The grid's horizontal
axis is the criminal history scale
8 which classifies criminal
histories.
9 [(d) The
sentencing guidelines grid for nondrug crimes as pro-
10 vided in this section defines
presumptive punishments for felony
11 convictions, subject to judicial
discretion to deviate for substantial
12 and compelling reasons and impose a
different sentence in rec-
13 ognition of aggravating and mitigating
factors as provided in this
14 act. The appropriate punishment for a
felony conviction should
15 depend on the severity of the crime of
conviction when compared
16 to all other crimes and the offender's
criminal history.
17 [(e)
(1) The sentencing court has discretion to sentence at
any
18 place within the sentencing range. The
sentencing judge shall se-
19 lect the center of the range in the
usual case and reserve the upper
20 and lower limits for aggravating and
mitigating factors insufficient
21 to warrant a departure.
22 [(2) In
presumptive imprisonment cases, the sentencing court
23 shall pronounce the complete sentence
which shall include the
24 prison sentence, the maximum potential
reduction to such sen-
25 tence as a result of good time and the
period of postrelease su-
26 pervision at the sentencing hearing.
Failure to pronounce the pe-
27 riod of postrelease supervision shall
not negate the existence of
28 such period of postrelease
supervision.
29 [(3) In
presumptive nonprison cases, the sentencing court shall
30 pronounce the prison sentence as well as
the duration of the non-
31 prison sanction at the sentencing
hearing.
32 [(f) Each grid
block states the presumptive sentencing range
33 for an offender whose crime of
conviction and criminal history
34 place such offender in that grid block.
If an offense is classified in
35 a grid block below the dispositional
line, the presumptive dispo-
36 sition shall be nonimprisonment. If an
offense is classified in a grid
37 block above the dispositional line, the
presumptive disposition
38 shall be imprisonment. If an offense is
classified in grid blocks 5-
39 H, 5-I or 6-G, the court may impose an
optional nonprison sen-
40 tence upon making the following findings
on the record:
41 [(1) An
appropriate treatment program exists which is likely to
42 be more effective than the presumptive
prison term in reducing
43 the risk of offender recidivism;
and
5
1 [(2) the
recommended treatment program is available and the
2 offender can be admitted to such
program within a reasonable
3 period of time; or
4 [(3) the
nonprison sanction will serve community safety inter-
5 ests by promoting offender
reformation.
6 [Any decision
made by the court regarding the imposition of an
7 optional nonprison sentence if the
offense is classified in grid
8 blocks 5-H, 5-I or 6-G shall not
be considered a departure and
9 shall not be subject to
appeal.
10 [(g) The
sentence for the violation of K.S.A. 21-3411, aggra-
11 vated assault against a law enforcement
officer or K.S.A. 21-3415,
12 aggravated battery against a law
enforcement officer and amend-
13 ments thereto which places the
defendant's sentence in grid block
14 6-H or 6-I shall be presumed
imprisonment. The court may impose
15 an optional nonprison sentence upon
making a finding on the rec-
16 ord that the nonprison sanction will
serve community safety inter-
17 ests by promoting offender reformation.
Any decision made by the
18 court regarding the imposition of the
optional nonprison sentence,
19 if the offense is classified in grid
block 6-H or 6-I, shall not be
20 considered departure and shall not be
subject to appeal.
21 [(h) When a
firearm is used to commit any person felony, the
22 offender's sentence shall be presumed
imprisonment. The court
23 may impose an optional nonprison
sentence upon making a finding
24 on the record that the nonprison
sanction will serve community
25 safety interests by promoting offender
reformation. Any decision
26 made by the court regarding the
imposition of the optional non-
27 prison sentence shall not be considered
a departure and shall not
28 be subject to appeal.
29 [(i) The
sentence for the violation of the felony provision of
30 K.S.A. 8-1567 and subsection (c)(3) of
K.S.A. 21-3412 and amend-
31 ments thereto shall be as provided by
the specific mandatory sen-
32 tencing requirements of that section and
shall not be subject to
33 the provisions of this section or K.S.A.
21-4707 and amendments
34 thereto. Notwithstanding the provisions
of any other section, the
35 term of imprisonment imposed for the
violation of the felony pro-
36 vision of K.S.A. 8-1567 and subsection
(c)(3) of K.S.A. 21-3412 and
37 amendments thereto shall not be served
in a state facility in the
38 custody of the secretary of
corrections.
39 [(j) The
sentence for any persistent sex offender whose current
40 convicted crime carries a presumptive
term of imprisonment shall
41 be double the maximum duration of the
presumptive imprison-
42 ment term. The sentence for any
persistent sex offender whose
43 current conviction carries a presumptive
nonprison term shall be
6
1 presumed imprisonment and shall be
double the maximum dura-
2 tion of the presumptive
imprisonment term. Except as otherwise
3 provided in this subsection, as
used in this subsection, ''persistent
4 sex offender`` means a person who:
(1) Has been convicted in this
5 state of a sexually violent crime,
as defined in K.S.A. 22-3717 and
6 amendments thereto; and (2) at the
time of the conviction under
7 subsection (1) has at least one
conviction for a sexually violent
8 crime, as defined in K.S.A.
22-3717 and amendments thereto in
9 this state or comparable felony
under the laws of another state,
10 the federal government or a foreign
government. The provisions
11 of this subsection shall not apply to
any person whose current con-
12 victed crime is a severity level 1 or 2
felony.
13 [(k) If it is
shown at sentencing that the offender committed
14 any felony violation for the benefit of,
at the direction of, or in
15 association with any criminal street
gang, with the specific intent
16 to promote, further or assist in any
criminal conduct by gang mem-
17 bers, the offender's sentence shall be
presumed imprisonment.
18 Any decision made by the court regarding
the imposition of the
19 optional nonprison sentence shall not be
considered a departure
20 and shall not be subject to appeal. As
used in this subsection, ''cr-
21 iminal street gang`` means any
organization, association or group
22 of three or more persons, whether formal
or informal, having as
23 one of its primary activities the
commission of one or more person
24 felonies or felony violations of the
uniform controlled substances
25 act, K.S.A. 65-4101 et
seq., and amendments thereto, which has a
26 common name or common identifying sign
or symbol, whose mem-
27 bers, individually or collectively
engage in or have engaged in the
28 commission, attempted commission,
conspiracy to commit or so-
29 licitation of two or more person
felonies or felony violations of the
30 uniform controlled substances act,
K.S.A. 65-4101 et seq., and
31 amendments thereto, or any substantially
similar offense from an-
32 other jurisdiction.
33 [(l) The
sentence for a violation of subsection (a) of K.S.A. 21-
34 3715 and amendments thereto when such
person being sentenced
35 has a prior conviction for a violation
of subsection (a) or (b) of
36 K.S.A. 21-3715 or 21-3716 and amendments
thereto shall be pre-
37 sumed imprisonment.
38 [(m) If
the offender commits a felony and intentionally selects the
39 person against whom the felony is
committed or selects the property that
40 is damaged or otherwise affected by the
felony committed by the offender
41 in whole or in part because of the
offender's belief or perception regarding
42 the race, color, religion, disability,
sexual orientation, national origin, eth-
43 nicity or ancestry of that person or the
owner or occupant of that prop-
7
1 erty, whether or not the
offender's belief or perception was correct, the
2 offender's sentence shall be
presumed imprisonment and such sentence
3 shall be up to double the maximum
duration of the presumptive impris-
4 onment term for the underlying
felony.
5 [Sec.
3. K.S.A. 1999 Supp. 21-4716 is hereby amended to read
6 as follows: 21-4716. (a) The
sentencing judge shall impose the pre-
7 sumptive sentence provided by the
sentencing guidelines for
8 crimes committed on or after July
1, 1993, unless the judge finds
9 substantial and compelling reasons
to impose a departure. If the
10 sentencing judge departs from the
presumptive sentence, the
11 judge shall state on the record at the
time of sentencing the sub-
12 stantial and compelling reasons for the
departure.
13 [(b)
(1) Subject to the provisions of subsection (b)(3), the
fol-
14 lowing nonexclusive list of mitigating
factors may be considered in
15 determining whether substantial and
compelling reasons for a de-
16 parture exist:
17 [(A) The
victim was an aggressor or participant in the criminal
18 conduct associated with the crime of
conviction.
19 [(B) The
offender played a minor or passive role in the crime
20 or participated under circumstances of
duress or compulsion. This
21 factor is not sufficient as a complete
defense.
22 [(C) The
offender, because of physical or mental impairment,
23 lacked substantial capacity for judgment
when the offense was
24 committed. The voluntary use of
intoxicants, drugs or alcohol does
25 not fall within the purview of this
factor.
26 [(D) The
defendant, or the defendant's children, suffered a
27 continuing pattern of physical or sexual
abuse by the victim of the
28 offense and the offense is a response to
that abuse.
29 [(E) The
degree of harm or loss attributed to the current crime
30 of conviction was significantly less
than typical for such an offense.
31 [(2) Subject
to the provisions of subsection (b)(3), the following
32 nonexclusive list of aggravating factors
may be considered in de-
33 termining whether substantial and
compelling reasons for depar-
34 ture exist:
35 [(A) The
victim was particularly vulnerable due to age, infir-
36 mity, or reduced physical or mental
capacity which was known or
37 should have been known to the
offender.
38 [(B) The
defendant's conduct during the commission of the
39 current offense manifested excessive
brutality to the victim in a
40 manner not normally present in that
offense.
41
[(C) The offense was motivated entirely or in part
by the race, color,
42 religion, ethnicity, national
origin or sexual orientation of the victim.
43
[(D) The offense involved a
fiduciary relationship which ex-
8
1 isted between the defendant and
the victim.
2
[(E) (D) The defendant, 18 or
more years of age, employed,
3 hired, used, persuaded, induced,
enticed or coerced any individual
4 under 16 years of age to commit or
assist in avoiding detection or
5 apprehension for commission of any
person felony or any attempt,
6 conspiracy or solicitation as
defined in K.S.A. 21-3301, 21-3302 or
7 21-3303 and amendments thereto to
commit any person felony
8 regardless of whether the
defendant knew the age of the individual
9 under 16 years of age.
10
[(F) (E) The defendant's
current crime of conviction is a crime
11 of extreme sexual violence and the
defendant is a predatory sex
12 offender. As used in this
subsection:
13 [(i) ``Crime
of extreme sexual violence'' is a felony limited to
14 the following:
15 [(a) A crime
involving a nonconsensual act of sexual inter-
16 course or sodomy with any
person;
17 [(b) a crime
involving an act of sexual intercourse, sodomy or
18 lewd fondling and touching with any
child who is 14 or more years
19 of age but less than 16 years of age and
with whom a relationship
20 has been established or promoted for the
primary purpose of vic-
21 timization; or
22 [(c) a crime
involving an act of sexual intercourse, sodomy or
23 lewd fondling and touching with any
child who is less than 14 years
24 of age.
25
[(ii) ''Predatory sex offender`` is an offender who has been
con-
26 victed of a crime of extreme sexual
violence as the current crime
27 of conviction and who:
28 [(a) Has one
or more prior convictions of any crimes of extreme
29 sexual violence. Any prior conviction
used to establish the defend-
30 ant as a predatory sex offender pursuant
to this subsection shall
31 also be counted in determining the
criminal history category; or
32 [(b) suffers
from a mental condition or personality disorder
33 which makes the offender likely to
engage in additional acts con-
34 stituting crimes of extreme sexual
violence.
35
[(iii) ''Mental condition or personality disorder`` means
an
36 emotional, mental or physical illness,
disease, abnormality, disor-
37 der, pathology or condition which
motivates the person, affects the
38 predisposition or desires of the person,
or interferes with the ca-
39 pacity of the person to control impulses
to commit crimes of ex-
40 treme sexual violence.
41 [In determining
whether aggravating factors exist as provided
42 in this section, the court shall review
the victim impact statement.
43 [(3) If a
factual aspect of a crime is a statutory element of the
9
1 crime or is used to subclassify
the crime on the crime severity scale,
2 that aspect of the current crime
of conviction may be used as an
3 aggravating or mitigating factor
only if the criminal conduct con-
4 stituting that aspect of the
current crime of conviction is signifi-
5 cantly different from the usual
criminal conduct captured by the
6 aspect of the crime.
7 [(c) In
determining aggravating or mitigating circumstances,
8 the court shall consider:
9 [(1) Any
evidence received during the proceeding;
10 [(2) the
presentence report;
11 [(3) written
briefs and oral arguments of either the state or
12 counsel for the defendant; and
13 [(4) any other
evidence relevant to such aggravating or miti-
14 gating circumstances that the court
finds trustworthy and reliable.]
15 Sec. 2.
[4.] K.S.A. 21-4001 is [and K.S.A.
1999 Supp. 21-4704 and
16 21-4716 are] hereby repealed.
17 Sec. 3.
[5.] This act shall take effect and be in force from
and after
18 its publication in the statute book.