State v. Rhone, 48080
| Decision Date | 10 April 1976 |
| Docket Number | No. 48080,48080 |
| Citation | 219 Kan. 542,548 P.2d 752 |
| Parties | STATE of Kansas, Appellee, v. Larry C. RHONE, Appellant. |
| Court | Kansas Supreme Court |
1. A trial court may in its discretion adjourn court to the home or residence of a sick witness for the purpose of taking his testimony if the illness prevents the witness from attending the trial. The validity of the proceedings is not affected by the place where the trial is held, so long as there is no abuse of discretion by the trial court and the parties' rights are not prejudiced.
2. Standards of appellate review of criminal convictions are stated and applied.
3. When two persons are acting jointly in the theft of property and one participant conceals from the other the fact that property of a value of fifty dollars or more has been stolen, the concealment or misrepresentation does not reduce such other's offense from felony to misdemeanor theft.
4. In a conviction of the offenses of aggravated burglary, felony theft and sodomy, the record is examined and it is held: The trial court did not abuse its discretion in taking the testimony of an ill witness for the prosecution at her residence or in denying a requested jury instruction in connection with such taking; further, the evidence sufficiently supported the convictions.
Curtis Irby of Moore & Irby, Wichita, argued the cause and was on the brief for appellant.
Stephen E. Robison, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.
HARMAN, Commissioner:
Larry C. Rhone was charged with the crimes of aggravated burglary, felony theft, aggravated sodomy and rape. He was convicted by a jury of the first two offenses and of misdemeanor sodomy. The jury was unable to agree on the rape charge and mistrial was declared as to it. Rhone was sentenced upon the offenses of which he was convicted and now appeals.
Evidence for the prosecution revealed the following: On July 2, 1974, Miss R, age eighteen years, lived in an apartment in Wichita with a Mrs. B, who was about fifty years of age. Around 11:30 p. m. of that day the two were sitting in the apartment bedroom when they heard a noise. Mrs. B went down the hall and saw appellant Rhone crawling through the bathroom window. Appellant grabbed Mrs. B's arm and forced her back into the bedroom. Miss R became alarmed, moved off the bed and stood near the wall.
Mrs. B attempted to reach for the telephone but appellant said, 'I wouldn't do that if I were you'. Appellant then began to unbutton his pants. Mrs. B asked if she could leave the room. Appellant replied, 'We don't want you, we want her', indicating Miss R. Appellant then called out 'Mark' and a juvenile male entered the bedroom. Mark grabbed Mrs. B and led her to the living room. There he searched through the women's purses and, according to Mrs. B's testimony, took $120.00 from her purse. Mrs. B had cashed her social security check that day and had taken home the $120.00 in cash. Mark told Mrs. B: .
Meanwhile appellant had closed the bedroom door and told Miss R to remove her clothes. When she refused appellant unsnapped her jump suit and again ordered her to remove her clothes and get into bed. She complied and made no attempt to cry for help because she was afraid. Then appellant placed his hand behind her head and forced his penis into her mouth. When Miss R refused to continue this act appellant moved on top of her and inserted his penis into her vagina. After ejaculating appellant got up, dressed and began opening dresser drawers in the bedroom. He took a watch from a shelf in the hall and left.
The next evening Miss R saw and recognized appellant at a club in Wichita to which she had gone to look for a friend. She called the police, who arrested appellant. Appellant made an oral and a written statement to the police admitting he and Mark broke into the apartment, through use of a screw driver on a window; he and Mark were 'regular burglars' and did not know anyone was at home, and that with her consent he and Miss R had engaged in oral and genital copulation; he also stated Mark told him he had found $40.00 in the apartment and that he, appellant, had taken a watch and a Canadian coin.
Appellant's first two contentions of error derive from the taking of the testimony of Mrs. B. At trial her physician testified she was suffering from advanced stages of cancer of the lung which had spread to most of her body systems, including the bones of the back and pelvic area; that she had recently undergone extensive rediation and chemotherapy treatment; she suffered from continuous pain which was more pronounced when she had to sit or stand; her life expectancy was believed to be about thirty days (she in fact died shortly after the trial concluded). The doctor further testified Mrs. B could not sit as a witness for an extended period of time and if she testified in court it would be necessary for her to remain on a stretcher. In his opinion it would be better for her health if her testimony was taken at her home. Following this presentation the state requested that the jury and the parties be taken to Mrs. B's residence to hear her testimony.
Appellant's counsel reluctantly agreed to this procedure but the following day apppellant personally objected to it. At this point the following dialogue occurred:
The judge, jury and all personnel connected with the trial, including app...
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State v. Williams
...appropriate, i.e., whether the facts of this case presented very unusual circumstances. The Baker court noted that State v. Rhone, 219 Kan. 542, 548 P.2d 752 (1976), was “the only case where this court has found sufficiently unusual circumstances to support a sympathy instruction.” Baker, 2......
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State v. Baker, 92,870.
...paraplegia, medical condition, extreme pain, and depression. He analogizes the facts in this case with those in State v. Rhone, 219 Kan. 542, 545, 548 P.2d 752 (1976), where this court found unusual circumstances to support a sympathy In Rhone, the defendant was charged with aggravated burg......
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State v. Pack
...removed from the Pattern Instructions for Kansas and is disapproved for general use. Baker, 281 Kan. at 1004–05 ; see State v. Rhone, 219 Kan. 542, 545, 548 P.2d 752 (1976). A district court should give the no-sympathy instruction only under very unusual circumstances where the court believ......
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State v. Jurgens
... ... with potentially prejudicial photographs). Jurgens attempts ... to analogize his case to State v. Rhone , 219 Kan ... 542, 545, 548 P.2d 752 (1976), where the court found ... sufficiently unusual circumstances to justify the sympathy ... ...
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The constitutional right to an implicit bias jury instruction
...or national origin, or his or any witness’ immigration status.” 64 57. State v. Williams, 329 P.3d 420, 425 (2014) (citing State v. Rhone 548 P.2d 752 (1976)). 58. 75A AM. JUR. 2D Trial § 1167, Westlaw (database updated 2019). 59. See State v. Pagan, No. 94-9-03084, 2009 WL 2743195, at *1 (......