Keim v. State, 62855
| Decision Date | 21 July 1989 |
| Docket Number | No. 62855,62855 |
| Citation | 13 Kan.App.2d 604,777 P.2d 278 |
| Parties | Roy A. KEIM, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The test to determine whether a criminal statute is unconstitutionally vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.
2. K.S.A. 21-3502(1)(c) is not so vague and indefinite that persons of ordinary intelligence must necessarily guess at its meaning and, therefore, is not unconstitutional.
Thomas Jacquinot, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.
Ty Kaufman, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before ABBOTT, C.J., and BRAZIL and LEWIS, JJ.
Roy A. Keim appeals from the trial court's denial of his K.S.A. 60-1507 motion, in which he alleged K.S.A. 21-3502(1)(c) is unconstitutionally vague.
On June 14, 1987, Keim attempted to have sexual intercourse with D.C., a thirty-year-old woman with Down's Syndrome. Psychological testing indicates D.C. has a functional age of between four and six years. D.C. and her roommate, J.G., also a mentally retarded adult, lived semi-independently in an apartment in McPherson.
In a statement to her "Independent Living Coordinator" after the incident, D.C. reported that Keim came to the women's apartment at approximately 9 p.m. D.C. recognized Keim as a man who had "scared" her in the laundromat on two separate occasions. D.C. reported she repeatedly asked Keim to leave and, when he would not do so, she and J.G. became frightened and went into their bedroom. Keim followed the women into their bedroom, took off his clothes, got on the bed with D.C., and then took off her clothes. D.C. reported that Keim pulled her hair, squeezed her shoulder and her leg, bit her breast, and hurt her in the vaginal area.
After D.C. reported the incident, Keim voluntarily went with police investigators and gave a statement. Keim reported he had met D.C. and her roommate at the Tidy Laundry in McPherson and admitted he knew they were mentally retarded. Keim told the police that, on the afternoon of June 14, he and D.C. arranged to watch TV at her apartment that evening. Keim reported he had watched TV for about fifteen minutes before noticing D.C. touching her roommate's leg. Keim got down on the floor with the women and began to rub their backs and play around. Keim stated he asked the women if they would go to the bedroom, and they did.
According to Keim, once in the bedroom, Keim took off his clothes. Keim continued to rub D.C.'s back, and she took off her shirt. This frightened D.C.'s roommate, who first put a blanket over her head and then left the room. Keim removed D.C.'s panties and reported she "was letting him do anything he wanted to her." When Keim attempted to penetrate D.C.'s vagina, she appeared to feel pain and said, "No, no, no." At that point, it occurred to Keim that D.C. might be a virgin, so he stopped, got dressed, and left.
K.S.A. 21-3502 provides:
"(1) Rape is sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances:
....
"(c) when the victim is incapable of giving consent because of mental deficiency or disease, which condition was known by the offender or was reasonably apparent to the offender."
Keim contends the words "incapable of giving consent because of mental deficiency or disease" are unconstitutionally vague; consequently, K.S.A. 21-3502(1)(c) violates due process of law as guaranteed by the United States Constitution. An appellate court's review of the constitutionality of a statute is well established:
State v. Huffman, 228 Kan. 186, Syl. p 1, 612 P.2d 630 (1980).
The test to determine whether a criminal statute is unconstitutionally vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.
Keim argues that, under K.S.A. 21-3502(1)(c), a known or apparent mental defect must cause an inability to give consent. Because a nonprofessional cannot judge when a mental defect or deficiency creates a situation where consent is not possible, there is no clear standard by which a defendant can determine whether an individual with a mental handicap has capacity to consent. Keim argues that, although a defendant may "sense potential danger," there is not a clear line between criminality and noncriminality.
The Kansas Supreme Court has previously addressed the constitutionality of the rape statute. In State v. Cantrell, 234 Kan. 426, 434-35, 673 P.2d 1147 (1983), cert. denied 469 U.S. 817, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984), the defendant challenged the constitutionality of K.S.A. 21-3502(1)(a), arguing that men of ordinary intelligence might well differ as to the meaning and application of "when a woman's resistance is overcome by force or fear." Thus, an argument similar to the argument in this case was made concerning an offender's ability to judge a victim's "resistance," "force," and "fear." Without discussion the Supreme Court held, "The statute is clear, readily understandable by persons of common intelligence and as such was constitutional." 234 Kan. at 435, 673 P.2d 1147.
In State v. Lile, 237 Kan. 210, 699 P.2d 456 (1985), the defendant argued that the rape statute focuses on the victim's intent, and "it is not always possible to determine a potential sex partner's state of mind and, therefore, the statute as presently construed fails to give a person of ordinary intelligence fair notice his contemplated conduct is...
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