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Kansas Appeals Court Vacates Prison Dentist’s Conviction for Sexually Abusing Prisoner, Says Touching Wasn’t “Lewd”

by Mark Wilson

“Not all touching is lewd, even when committed with sexual intent,” the Kansas Court of Appeals declared on December 23, 2021, vacating a former prison dentist’s conviction for sexually abusing a female prisoner.

As previously reported by PLN, the former dentist, Dr. Tomas Co, worked for a company that contracts with the state Department of Corrections (DOC) to run a dental lab at the Topeka Correctional Facility (TCF), where Co taught denture fabrication to female prisoners who considered work in the lab a coveted position.

“It was the closest I could get to the medical field,” one prisoner noted. “So, I did what I had to do,” including suffering Co’s alleged sexual harassment and abuse. Beginning in 2011, at least nine prisoners complained of sexually inappropriate behavior by the 73-year-old. Finally, after a complaint by a prison employee who was assigned to the lab in 2018, Co was arrested and fired in 2019. In 2020, he was convicted of unlawful sexual relations with an inmate and sentenced to 32 years in prison. [See: PLN, Oct. 2021, p.1.]

Co then took his case to the Court of Appeals, which vacated his conviction, finding that although his touching of a prisoner identified as R.H. was unprofessional and inappropriate, it did not meet the legal definition of “lewd.”

In her testimony at his trial, R.H. testified that Co “would touch the inside of my knee and thigh.” Co argued that this didn’t rise to the level of conduct barred by the statute under which he was convicted, K.S.A. § 21-5512, which prohibits “lewd fondling or touching” of an offender.

Reviewing this history, the Court allowed that the dentist “frequently touched her in ways that made her feel uncomfortable.” But it concluded nevertheless that he did so at a location on her body “akin to where a person might pat a seated person’s leg.”

The state argued there was “contextual evidence of his sexual desire or intent toward R.H. to conclude that sufficient evidence supported the jury’s verdict,” the Court noted. But it disagreed with that line of reasoning because the statute “does not prohibit him from physically touching inmates even if he has sexual intent or desire toward the inmate.”

Moreover, the Court said, “non-lewd touching does not necessarily become ‘lewd’ touching merely through repetition.”

Even “viewing ‘all the evidence in the light most favorable to the prosecution,’” as required by State v. Chandler, 307 Kan. 657, 414 P.3d 713 (2018), the Court said it had “a duty to enter a judgment of acquittal if the State has failed in its burden to put forth sufficient evidence to sustain a conviction,” citing also State v. Ta, 296 Kan. 230 (2012).

Co’s attorneys applauded the ruling. “The Court of Appeals is correct,” said Chris Joseph, one of those lawyers. “Even if true, the touching was innocuous and cannot constitute ‘lewd fondling or touching.’” Shawnee County District Attorney Mike Kagay disagreed, vowing to appeal to the Kansas Supreme Court. Kagay also said he would seek a legislative amendment of the statute if the high court doesn’t overturn this ruling. See: State v. Tomas Co, 2021 Kan. App. Unpub. LEXIS 787 (Ct. App.).  

Additional sources: Topeka Capital-Journal, Salina Post

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Related legal case

State v. Tomas Co