State v. Blackburn

• Court: Kansas Supreme Court
• Writing for the Court: SIX
• Citation: State v. Blackburn, 251 Kan. 787, 840 P.2d 497 (Kan. 1992)
• Decision Date: 30 October 1992
• Docket Number: No. 67012,67012
• Parties: STATE of Kansas, Appellee, v. Scott A. BLACKBURN, Appellant.

Page 497

840 P.2d 497

251 Kan. 787

STATE of Kansas, Appellee, v. Scott A. BLACKBURN, Appellant.

No. 67012.

Supreme Court of Kansas.

Oct. 30, 1992.

Syllabus by the Court

1. The standard of review when the sufficiency of evidence is challenged in a criminal case is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. A defendant, by introducing evidence of his or her good character, foregoes the protection offered in K.S.A. 60-447. K.S.A. 60-447 allows the prosecution to introduce evidence of a trait of an accused's character as tending to prove guilt of the offense charged to rebut evidence of good character first introduced by the defense.

3. Aggravated kidnapping and rape do not share the same elements. Each offense requires proof of a fact not required in proving the other. Rape is not a lesser included offense of aggravated kidnapping.

Steven R. Zinn, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, and Elizabeth Sterns, Asst. Appellate Defender, were on the brief, for appellant.

Thomas J. Bath, Asst. Dist. Atty., argued the cause, and Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

SIX, Justice:

Scott A. Blackburn appeals his convictions of aggravated kidnapping, kidnapping, and rape.

Blackburn raises three issues: (1) the propriety of the admission of Blackburn's prior convictions on cross-examination under K.S.A. 60-447; (2) the sufficiency of the evidence of aggravated kidnapping and kidnapping; and (3) whether his convictions of aggravated kidnapping and rape are multiplicitous.

Our jurisdiction is under K.S.A.1991 Supp. 22-3601(b)(1) (an appeal from a conviction of a class A felony).

In affirming, we review the prior conviction issue by applying the abuse of discretion standard, see State v. Martin, 237 Kan. 285, Syl. p 1, 699 P.2d 486 (1985), and the harmless error rule, see State v. Freeman, 216 Kan. 653, 656-57, 533 P.2d 1236 (1975). The standard of review when the sufficiency of evidence is challenged is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found Blackburn guilty beyond a reasonable doubt. State v. Zimmerman, 251 Kan. 54, Syl. p 1, 833 P.2d 925 (1992).

Facts

The testimony is uncontroverted that in June 1990, in Independence, Missouri, S.M., a 21-year-old woman, voluntarily accepted Blackburn's offer for her and her four-year-old daughter, A.B., to ride in his pickup. The testimony differs as to what occurred after S.M. and A.B. entered the pickup.

S.M.'s Testimony

On the evening in question, S.M. and A.B. were "kicked out" of a car by S.M.'s boyfriend. After accepting the ride from Blackburn, S.M. requested that he drive her to her apartment. Blackburn did not exit the interstate highway at the ramp pointed out by S.M. He drove into a field and stopped the vehicle in order to urinate. S.M. was worried and considered leaving, but concluded the interstate was too far away for her to succeed in escaping.

After re-entering the interstate Blackburn reached over and grabbed S.M.'s breast. S.M. told him to stop. He did not. Blackburn yelled at her to take her shirt off. S.M. asked Blackburn to let her and A.B. go. The request was ignored. Blackburn related to S.M. that he had always fantasized about having sex with a hitchhiker. He exposed himself and began to masturbate. He later grabbed S.M.'s hair and pulled her head toward his lap. S.M. began to scream and then to cry. A.B. woke up. S.M. struggled with Blackburn and begged him to stop. He stated that he would let them go if she did what he told her to do. Blackburn then forced S.M. to engage in oral sex. S.M. was afraid that Blackburn would either kill or rape her or A.B. if she did not perform as requested. These incidents occurred in Missouri.

Blackburn continued to drive west on the interstate and eventually crossed into Kansas. He then drove the pickup off on the side of the road, telling S.M. to remove her pants. S.M. continued to resist and to request that he release them. Blackburn became violent. S.M. attempted to calm him. Blackburn pulled back onto the interstate and told S.M. that if she did not remove her pants by the time he stopped again, he would kill her. A.B. was awake and crying.

Subsequently, while on the shoulder of the interstate, Blackburn forced S.M. to have intercourse with him. During intercourse, Blackburn inquired, "How do you like getting fucked in your daughter's lap?" He put his hands around S.M.'s throat and commenced to strangle her. While freeing herself, S.M. bit Blackburn on his nose. She opened the pickup door, grabbed her daughter, and ran toward oncoming traffic. S.M. flagged down a motorist.

S.M.'s identification card, as well as bows and ribbons with which A.B. had been playing, were found in the ditch at the rape location. Prior to trial, S.M. and A.B. identified Blackburn from a photo lineup.

Blackburn's Testimony

Blackburn was driving in Independence, Missouri, in June 1990. S.M. and A.B. stepped in front of his pickup when he was not looking. Blackburn slammed on the brakes, apologized, and asked if they needed a ride. S.M. accepted.

Blackburn asked S.M. where she was headed and why she and A.B. were walking. After S.M. told Blackburn the direction of her home, she explained they had been walking because her boyfriend had thrown her out of the car. Blackburn missed the interstate exit because he was distracted by conversation and was attempting to reach for a beer. He turned off at the next exit and stopped to relieve himself.

After Blackburn drove the pickup back onto the interstate going the opposite direction, S.M. asked Blackburn if he would stop somewhere so that she could use the telephone. He then inquired whether she had to go straight home. She did not tell him to turn off when they reached her exit. Blackburn spoke with S.M. about his fight with his ex-wife, with whom he still lived. He told S.M. that things would be better with her boyfriend and gave her a comforting pat near her shoulder or breast. He touched her on her leg and asked if he could kiss her. S.M. did not answer, but when he pulled the pickup over and kissed her, she kissed him back. S.M. then consented to have sexual intercourse. During intercourse, Blackburn asked S.M. how she liked having intercourse in her daughter's lap. S.M. became angry and told Blackburn to stop. When he did not, she bit him on the nose. He retaliated by grabbing her hair and then her throat. A.B. woke up crying. Blackburn then realized he was choking S.M. He let go of S.M., opened the passenger door, pushed them out, and drove off.

Additional Trial Evidence

The State introduced into evidence a photo of Blackburn taken the morning after his arrest. S.M. testified that the photo showed where she bit Blackburn on his nose. A photo of S.M., depicting the strangulation marks on her neck, was also introduced. A.B. testified that bad things had happened when her mother accepted a ride with Blackburn. A.B. said that her mother had cried in Blackburn's lap and that Blackburn had said everything would be okay. The first police officer to talk with S.M. and A.B. testified that A.B. told him a man had grabbed her mother's hair and hurt her mother.

Character Evidence, K.S.A. 60-447

Blackburn asserts error in the trial court's allowing the State to introduce evidence of his prior convictions as character evidence contrary to a previous ruling granting Blackburn's motion in limine. Blackburn reasons that the prior convictions had no relevancy or probative value in relation to the statements he made about his "moral character" during direct examination.

The purpose of K.S.A. 60-447, in combination with K.S.A. 60-421, is to permit a defendant to testify in his or her own behalf without having a history of past misconduct paraded before the jury. State v. Stokes, 215 Kan. 5, 7, 523 P.2d 364 (1974).

K.S.A. 60-447 provides:

"Subject to K.S.A. 60-448 when a trait of a person's character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible, and (b) in a criminal action evidence of a trait of an accused's character as tending to prove guilt or innocence of the offense charged, (i) may not be excluded by the judge under K.S.A. 60-445 if offered by the accused to prove innocence, and (ii) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character." (Emphasis added.)

Blackburn was asked, during direct examination, how he felt about grabbing S.M. around the throat. He responded:

"A. Pretty shitty.

"Q. Why?

"A. Because I've probably broken everything moral that I've ever--I just ain't like that.

"Q. What do you mean by that?

"A. I'm human. I consider myself a gentleman, and I didn't--no matter what--I shouldn't have been there with her and her daughter. I shouldn't have been with her at all. I should have been home with [my ex-wife]."

At the conclusion of Blackburn's direct testimony, the prosecutor approached the bench and commented:

"Judge, it is the State's position that the defendant's testimony in the last couple minutes has put his character in issue, ... he said he felt bad because it broke every moral code he has.... I think it is clear that he has opened up his character at this point."

The trial judge agreed, stating:

"Well, my recollection was that his testimony was that he had 'broken every moral code that I have. I...