State v. Acheson

• Decision Date: 15 October 1979
• Docket Number: No. 50576,50576
• Citation: 601 P.2d 375,3 Kan.App.2d 705
• Parties: STATE of Kansas, Appellee, v. Danny D. ACHESON, Appellant.
• Court: Kansas Court of Appeals

Page 375

601 P.2d 375

3 Kan.App.2d 705

STATE of Kansas, Appellee, v. Danny D. ACHESON, Appellant.

No. 50576.

Court of Appeals of Kansas.

Oct. 15, 1979.

Review Denied Dec. 5, 1979.

Syllabus by the Court

1. When all of the offenses are of the same general character, require the same mode of trial, possess the same kind of evidence, and occur in the same jurisdiction, the defendant may be tried upon several counts of one information or, if separate informations have been filed, they may be consolidated in one trial.

2. Trial judges are vested with broad discretion in determining whether to consolidate criminal charges for trial and, absent an abuse of that discretion, a decision to consolidate will not be disturbed on appeal.

3. Whether a person who is charged with a crime is incapable of forming the necessary criminal intent to commit a specific crime due to voluntary intoxication is a question for the jury.

4. Intent is a state of mind existing at the time an offense is committed and may be shown by acts, circumstances and inferences reasonably deducible therefrom and need not be established by direct proof.

5. The sufficiency of the evidence to sustain a verdict of guilty when questioned on appeal is that the evidence is sufficient if a rational trier of facts could have found proof of guilt beyond a reasonable doubt.

6. An appellate court in reviewing instructions will consider them in their entirety, and if they properly and fairly state the law as applied to the facts in the case when considered as a whole, the instructions will be approved on appeal.

7. An instruction "that the law presumes that a person intends the ordinary consequences of his voluntary acts" violates the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt since (1) a jury might interpret the instruction as creating a conclusive presumption on the issue of intent once convinced of the facts triggering the presumption, or (2) a jury might view the instruction as shifting the burden of persuasion on the issue of intent to the defendant unless the defendant proves the contrary by some quantum of proof which may be considerably greater than "some" evidence.

8. PIK Crim. 54.01 is examined and although not found to be reversible error it is disapproved, all as more fully set out in the opinion; in the absence of directions otherwise from the Supreme Court, it will be found to be error if given in any proceeding tried more than fifteen days after the filing of this opinion.

9. On appeal from a conviction for two counts of aggravated burglary, the record is examined and it is Held : (1) The trial judge did not abuse his discretion in consolidating the charges for trial; and (2) the verdict of the jury was not contrary to the law and evidence.

Donald F. Hoffman of Dreiling, Bieker & Kelley, Hays, for appellant.

Larry D. Ehrlich, County Atty. and Robert T. Stephan, Atty. Gen., for appellee.

Before SWINEHART, P. J., and ABBOTT and PARKS, JJ.

ABBOTT, Judge.

This is a direct appeal from a conviction on two counts of aggravated burglary contrary to K.S.A. 21-3716.

In July and August of 1977, the defendant, Danny D. Acheson, was charged in three separate cases with various offenses arising on four different dates in Russell County. He was first charged on July 1, 1977, with one of the two aggravated burglary charges involved in this case that allegedly occurred on June 5, 1977. On August 24, 1977, he was charged with two counts of aggravated burglary (one of which is involved in this case), one count of aggravated sodomy and one count of criminal damage to property, all based upon separate incidents that occurred on August 7, 1976, and May 4, 1977. Also, on August 24, 1977, defendant was charged in a separate case with one count of rape, one count of aggravated burglary and one count of criminal damage to property based on an incident that occurred September 26, 1976. The State moved to consolidate all of the offenses for trial. The trial court agreed to consolidate the two aggravated burglary charges arising out of the incidents that occurred on August 7, 1976, and June 5, 1977. Trial was held to a jury and defendant was convicted on both counts. Defendant subsequently entered guilty pleas to the remaining aggravated burglary charge and to the rape charge. In turn, the State dismissed the remaining charges.

The defendant was sentenced, and after receiving a report from the Kansas Reception and Diagnostic Center the sentences were reduced on the defendant's motion to a minimum term of not less than two years and a maximum term of not more than twenty years on each count. The two aggravated burglary convictions were to run concurrently, and consecutively with the two plea convictions that were to run concurrently.

Defendant raises four issues on appeal which we will consider in the following order:

1. Did the trial court err in consolidating two of the aggravated burglary charges for trial?

2. Was the defendant so intoxicated that he could not form the "specific intent to commit a felony" necessary to sustain a conviction for aggravated burglary?

3. Does sufficient evidence exist to support the jury's guilty verdicts?

4. Does PIK Crim. 54.01 unconstitutionally shift to the defendant the burden of proof on the issue of intent?

The trial court did not abuse its discretion in consolidating the aggravated burglary counts. Defendant contends that intoxication was a defense in one count but not in the other, and that the consolidation effectively deprived him of his "legal advantage" (the intoxication defense) referred to in State v. Toelkes, 139 Kan. 682, 684, 33 P.2d 317 (1934). Whether a defendant may be tried on all separate charges at one trial rests in the sound discretion of the trial court, and its holding will not be disturbed on appeal absent a clear showing of abuse. State v. Ralls, 213 Kan. 249, 256-57, 515 P.2d 1205, 1211 (1973). The test to be applied is:

"When all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be tried upon several counts of one information or if separate informations have been filed they may be consolidated for trial at one and the same trial. (Citations omitted.)"

The first incident occurred on August 7, 1976. Police conducted an investigation and obtained a set of fingerprints off a drinking glass used by the intruder. Two days later, the complainant spotted the defendant in a local supermarket and informed the police. When defendant was confronted, he denied the accusation and offered an alibi; no charges were filed against him, his claimed alibi witnesses were not interviewed, and his fingerprints were not compared with those obtained from the drinking glass. When defendant was arrested after having been found in the second apartment, his fingerprints were taken and later compared with those taken the preceding summer from the drinking glass. When the fingerprints matched, charges were brought against defendant for the August 7, 1976, incident.

The evidence presented on both charges was separate, distinct, uncomplicated, and uninvolved. The evidence was readily referable to each count of the information. Both crimes, though ten months apart in time, occurred in the same duplex building during early morning hours, involving young female subjects who were alone in their apartments, and entry was gained through the same type of bedroom window. Both victims under the circumstances witnessed by them at the time feared that they were intended rape victims. There was evidence in both instances that the defendant apparently had been drinking, and identity of the defendant was not an issue in either case. Furthermore, defendant's position that his intoxication defense in the second incident was prejudiced by its consolidation with the first episode is untenable in light of State v. Hacker, 197 Kan. 712, 713-14, 421 P.2d 40 (1966). There, the Court approved the consolidation of five counts of robbery over the defendant's protests that the charges involved different defenses, different victims, and different witnesses. Likewise, in State v. Adams, 218 Kan. 495, 505-06, 545 P.2d 1134 (1976), the Court upheld the consolidation of three separate incidents at trial since in each incident an aggravated burglary occurred and sex was the underlying motivation. The trial judge here held a hearing on the State's motion to consolidate, took the matter under advisement and rendered his decision. Trial judges are vested with broad discretion in determining whether to consolidate criminal charges for trial, and absent an abuse of that discretion a trial judge's decision to consolidate will not be disturbed on appeal. No abuse of discretion sufficient to warrant reversal of the trial court is found within the record.

Defendant further claims that in the second burglary his state of voluntary intoxication prevented him from forming the requisite specific intent to rape. Defendant's intoxication claim is based on the evidence that defendant was discovered "passed out or sleeping" on the floor, partially beneath a bed. The young female occupant of the premises testified that she had been in that bed, but got up and went into another room, turned on the lights and watched television for an extended period of time. When she returned to her bedroom, she discovered the defendant, clad in dark socks, a blue T-shirt and a pair of white fishnet jockey shorts, lying beneath her bed and she called the police. Defendant was slow to respond to the police officers. He told them that he had been drinking and could not remember where he was, although he called Officer Gary Richey by name. The officers then carried him to the living room and later, outside the house after defendant said he felt sick. Once outside, defendant did not vomit, but he...