IS A VIOLATION OF A FIDUCIARY RELATIONSHIP A STATUTORY COMPELLING REASON FOR UPWARD DEPARTURE?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Horn, 238 P.3d 238 (Kan. 2010).

This case answers the following question:

Is a violation of a fiduciary relationship a statutory compelling reason for upward departure?

Is a fiduciary relationship an appropriate upward departure factor? Kansas state law has a nonexclusive list of aggravating factors that the judge may consider in determining the existence of substantial and compelling reasons to depart, including: the offense involved a fiduciary relationship which existed between the defendant and the victim.

In this case, Horn became quite close to the victim, C.T.P. and his family. On a regular basis, Horn transported C.T.P. and his twin brother to music lessons and church classes, and he often took the boys on adventures for the weekends, such as water skiing. At some point, a teacher learned of C.T.P.’s allegations that Horn had touched him inappropriately, and a complaint was filed. Horn was charged with three counts of aggravated sodomy, three counts of aggravated indecent liberties with a child, and one count of sexual exploitation of a child under age 18. Horn pled guilty as charged, without the benefit of a plea bargain. During a departure hearing, the jury unanimously found the existence of a fiduciary relationship between Horn and C.T.P. The trial court used this finding by the jury to enact an upward departure on the presumptive sentencing guideline. The Court of Appeals affirmed the trial court’s decision.

Kansas state law has a nonexclusive list of aggravating factors that the judge may consider in determining the existence of substantial and compelling reasons to depart, including: the offense involved a fiduciary relationship which existed between the defendant and the victim. The trial court found that Horn was very close with the victim, to the point where the victim’s mother even described Horn as being a part of their family. The court found it compelling that Horn spent a substantial amount of time with the victim and his twin brother; including a lot of time spent alone with just the three of them. This time included multiple weekend excursions and activities. The court allowed the State to present evidence of the sexual acts to the jury, holding that the sexual acts could not be separated from the question of the character of the relationship between the defendant and the victim. Therefore, the jury had access to the evidence on the record of the sexual acts, and the jury was also given knowledge of the charges that Horn had pleaded guilty to. The Court of Appeals of Kansas reasoned that an instruction to the jury specifying that the information about the sexual acts should only be considered for the purpose of deciding whether a fiduciary relationship existed should have been included, but the court did not find the omission of the instruction to be erroneous giving the overwhelming evidence that there was in fact a fiduciary relationship.

In this case, the Supreme Court of Kansas found that a fiduciary relationship did in fact exist between the defendant and the victim. However, the decision was later reversed and remanded by the Supreme Court of Kansas for procedural matters. Due to the procedural issues, the Supreme Court of Kansas did not analyze whether the evidence to support the fiduciary relationship was substantial and compelling.