State v. Bishop
| Citation | 732 P.2d 765,240 Kan. 647 |
| Decision Date | 20 February 1987 |
| Docket Number | No. 59176,59176 |
| Parties | STATE of Kansas, Appellee, v. Stephen T. BISHOP, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. The information is the jurisdictional instrument on which the accused stands trial.
2. An information must allege each essential element of the offense charged.
3. A conviction based on an information which does not sufficiently charge the offense is void.
4. An information which charges an offense in the language of the statute is sufficient; however, the exact statutory words need not be used in the information if the meaning is clear.
5. An information charging the defendant with intentionally threatening or attempting to do bodily harm to another with a deadly weapon, a .12 gauge shotgun, which resulted in the immediate apprehension of bodily harm to the person of the alleged victim, is held to reasonably include and charge the element of apparent ability, an element of aggravated assault under K.S.A. 21-3408 and -3410(a).
6. The offenses of aggravated assault, aggravated kidnapping, and rape, under the facts of this case, are held to be separate and distinct, not part of a single continuous act, and not multiplicitous.
7. The trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. This duty arises, however, only when there is evidence under which the defendant may reasonably be convicted of the lesser offense.
8. The Fourth Amendment of the United States Constitution and Section 15 of the Bill of Rights of the Kansas Constitution are identical for all practical purposes. If conduct is prohibited by the one, it is prohibited by the other.
9. One whose right of privacy of person or premises has not been invaded by the seizure of property has no right to object to that property as evidence.
10. A judgment may not be reversed by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of the objection.
Jessica R. Kunen, Deputy Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on the brief, for the appellant.
Daniel F. Meara, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for the appellee.
Stephen T. Bishop was convicted by jury trial in the district court of Bourbon County of two counts of aggravated assault, K.S.A. 21-3410; and one count each of aggravated burglary, K.S.A. 21-3716; rape, K.S.A. 1986 Supp. 21-3502; and aggravated kidnapping, K.S.A. 21-3421. He was sentenced to serve concurrent terms of three to five years for each count of aggravated assault, five to ten years for aggravated burglary, six to twenty years for rape, and life imprisonment for aggravated kidnapping. Since a firearm was used, sentence was imposed pursuant to K.S.A. 21-4618. The seven points raised on appeal challenge the sufficiency of the information to charge aggravated assault; multiplicity of the rape and aggravated assault charges; failure to instruct the jury on the lesser included offense of attempted rape; the sufficiency of the evidence to support the aggravated kidnapping conviction; the legality of the seizure of a shotgun which was received in evidence; and the propriety of the admission of certain expert testimony and testimony by the victim.
We turn to the pertinent facts of the incident giving rise to these charges. Additional facts will be discussed later as necessary to the issues raised. Gary Johnson and Ms. D lived together in a mobile home in Fort Scott, Kansas, with two minor children. Juanita Puckett is the children's mother; Johnson is the father of the younger child.
Johnson and Ms. D testified that at about 5 o'clock a.m. on March 2, 1985, they were awakened by two men, armed with shotguns, who entered their bedroom and turned on the light. The men told Johnson and Ms. D not to move or they would be shot. One of the men disconnected the telephone and a CB radio. The men instructed the victims to turn over on their stomachs, and then bound their arms and legs with duct tape. Johnson and Ms. D had never seen either man before.
After the victims were bound, a woman the victims recognized as Juanita Puckett came into the room and struck Ms. D in the head, accusing her of trying to be a mother to Puckett's children. Next, one of the men, later identified as defendant Bishop, stated that they should separate the victims. He instructed the other man, later identified as Buckley Brice, to take Ms. D into the bathroom. She was taken to the bathroom, clad only in her underpants, with her knees, ankles, and wrists bound with tape.
While she was in the bathroom, each of the men came in once in a while and fondled her breasts. At one point, Bishop came in and stayed. He fondled her breasts, made her bend over, and unsuccessfully attempted sexual intercourse. She felt the shotgun against the back of her leg. When Brice came to the door, Bishop zipped up his pants before answering the door. Later, Bishop again attempted to penetrate her and succeeded, penetrating her vagina "a little bit," but he had trouble maintaining the penetration. He ultimately achieved an orgasm outside of the vagina, and ejaculated "all over her." During this time, Puckett banged on the door, shouting, "How does it feel to be raped, Bitch?" Ultimately, Bishop, Brice, and Puckett left. Ms. D freed herself and then freed Johnson. The tires on their van had been slashed and their telephone lines severed. Johnson rewired the CB and called for help. When the police arrived, one officer took Ms. D to the hospital, where a rape kit was administered. Other officers remained at the mobile home and interviewed Johnson and collected evidence. The children were missing.
A warrant was issued for Puckett's arrest. On March 15, 1985, the police were able to trace a phone call made by Puckett to Johnson, to the residence of Janis Monett in Fontana, California. The Bourbon County sheriff's office notified the Fontana police that they had an arrest warrant for Puckett, and that she was at Monett's address in Fontana. The sheriff's office also related the circumstances of the crime and the involvement of two white males who were as yet unidentified.
On March 15, Puckett was arrested at Monett's apartment in Fontana and was later extradited. Bishop was also arrested at the same time, but was released by the Fontana police since no warrant had been issued for his arrest. On April 4, Ms. D identified Bishop as the man who raped her. On May 16, an interview with Puckett confirmed Bishop's involvement, and a warrant was issued for his arrest. Bishop was later arrested in the State of Washington, and Brice was arrested in Orange, California. All three were charged separately in Bourbon County. Puckett pled guilty to aggravated burglary, and Brice was tried on related charges.
Puckett, Bishop, and Brice all testified at Bishop's trial. Their accounts differ one from the other, and they differ materially from the victim's accounts. Puckett testified that she asked Brice and Bishop to come with her from California to Kansas to get her children. This was not in dispute. Prior to leaving, they purchased two shotguns; there was considerable conflict regarding who participated in the purchase. Bishop testified that they took one gun to Kansas, but no one took it into the house. He testified that he saw Brice and Puckett enter the home, and that he followed, but remained in the kitchen. According to Bishop, when Puckett emerged with two bags of the children's clothing, he took the bags to the car at her request. Puckett and Brice then emerged with the children, and they all left. Bishop denied ever seeing Johnson or Ms. D. Brice testified that only Bishop and Puckett entered the residence; he did not. To his knowledge, neither Bishop nor Puckett had any guns with them when they went in. He did not see any guns at all that night. Puckett testified that she and Bishop entered the residence, and Brice followed later. She did not remember any guns being taken into the house. She wrapped each child in a blanket and took them to the car, then packed their clothing and toys in trash bags and carried them out to the car. She did not know what went on in the back of the house.
Janis Monett recalled Bishop giving her a different account of the events. She testified that when Puckett, Brice, Bishop, and the children returned from Kansas, Bishop was "all excited" and related to her how they went in the bedroom, held a gun on the victims, and threatened to blow their heads off. Monett also said that Bishop told her that they tied up Johnson and his girlfriend and put tape over their eyes and their mouths so that they couldn't make any noises, and that he had separated them by putting the girlfriend in the bathroom.
Apparently the jury accepted the testimony of the victims over that of Puckett, Bishop, and Brice. It convicted Bishop on all counts.
As his first issue, defendant contends that the district court lacked jurisdiction to convict him of aggravated assault because the information was insufficient to charge that offense. K.S.A. 21-3408 defines assault. It reads:
Aggravated assault is defined by K.S.A. 21-3410. That statute reads as follows:
The two paragraphs of the information charging...
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