State v. Boyd

• Decision Date: 10 March 2000
• Docket Number: No. 79,079.,79,079.
• Citation: 268 Kan. 600,999 P.2d 265
• Parties: STATE OF KANSAS, Appellee, v. FRANKIE BOYD, Appellant.
• Court: Kansas Supreme Court

268 Kan. 600

999 P.2d 265

STATE OF KANSAS, Appellee, v. FRANKIE BOYD, Appellant.

No. 79,079.

Supreme Court of Kansas.

Opinion filed March 10, 2000.

Daniel C. Estes, assistant appellate defender, argued the cause, and Mary D. Prewitt, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were on the brief for appellant. Sheryl L. Lidtke, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

This is a direct appeal by the defendant, Frankie Boyd, from his convictions by a jury of four counts of aggravated indecent liberties with a child, two counts of aggravated criminal sodomy, and one count of sexual battery. The Court of Appeals held there was sufficient evidence to affirm Boyd's conviction for aggravated criminal sodomy and held it did not have jurisdiction to consider Boyd's remaining four issues. We granted Boyd's petition for review.

The unpublished Court of Appeals' opinion sufficiently sets forth the facts of this case. The Court of Appeals stated:

"Boyd was charged with numerous sex crimes. P.M., Boyd's niece, stated that Boyd's inappropriate touching started when she was approximately 12 years old while Boyd was living at her mother's house. Boyd would touch her breast when he was hugging her, poke her with his `private parts,' and do other things that made her feel `uncomfortable.' Boyd later moved out and the touching stopped.

"During summer vacation in 1996, P.M. went to live with her sister. Boyd also began staying there. P.M. stated that shortly after Boyd moved in, he entered her bedroom while she was asleep and `got on top' of her. P.M. awoke to feel Boyd `rubbing on [her] behind' with his hands. P.M. testified that events like this happened almost every morning. She stated that as time passed, Boyd began touching her breasts and genitals beneath her clothing. Boyd placed his mouth on her vagina, pulled at her skin with his teeth, and made growling noises. P.M. stated that she `wrestl[ed]' with Boyd to try to make him stop; however, Boyd pinned her arms down with his hands.

"P.M. testified that she was scared to tell her family about what was happening. P.M. finally told her friend D.T. that Boyd had been `messing' with her. D.T. told P.M.'s brother about the abuse. P.M.'s sister was told and she called the police. Boyd was then apprehended.

"At trial, the State introduced evidence showing that in 1982, Boyd was charged with having sexual intercourse with a 14-year-old niece in Wyoming. Boyd objected, stating that the documents from Wyoming were not properly authenticated. The judge allowed testimony about the incident and allowed the documents to be entered into evidence.

"During the trial, Judge Burdette became ill. Judge Sieve stepped in and presided over the trial. Boyd objected and moved for a mistrial. The motion was denied. Judge Sieve stated that if the need arose, he would have the court reporter read back testimony, that was relevant to any contested legal issues. After the close of testimony but before the closing arguments and jury instructions were given, Judge Burdette returned to preside over the trial."

Boyd raised five issues before the Court of Appeals: (1) sufficiency of the evidence of "force or fear" to support a conviction of aggravated criminal sodomy; (2) failure to instruct the jury on indecent liberties with a child; (3) violation of his Sixth Amendment right to assistance of counsel; (4) violation of his Sixth Amendment right to a fair trial and due process; and (5) error in admitting evidence of a previous Wyoming conviction for a similar crime. The Court of Appeals addressed the sufficiency of the evidence issue and affirmed it. The Court of Appeals dismissed the remaining four issues, holding that Boyd's notice of appeal was not sufficient to confer jurisdiction.

I. JURISDICTION

Boyd's notice of appeal states: "Comes now the defendant and appeals from his conviction in the above captioned matter."

The Court of Appeals held that the "conviction" language was not broad enough to include procedural or evidentiary errors claimed by Boyd and dismissed the portion of his case which concerned those issues. The Court of Appeals stated:

"Boyd's appellate brief, in addition to the sufficiency of evidence issue, raises two 6th Amendment issues, an evidentiary issue, the trial court's failure to give an instruction, and the trial court's failure to rule on a motion. Boyd's notice of appeal only states that he `appeals from his conviction.' Boyd does not even give the name of the court to which he is appealing as required by K.S.A. 1998 Supp. 60-2103(b). Boyd's notice of appeal was specific. Boyd's notice contains no general reference which could be liberally construed to include the admission of evidence, jury instruction, and motion issues addressed in his appellate brief. This court has no jurisdiction over these issues and they are dismissed."

Prior to the codification of the rules of appellate procedure in 1963, the General Statutes of Kansas required parties wishing to appeal to the Supreme Court to file a notice of appeal and an abstract. The notice of appeal statute required that

"the party filing the same appeals from the judgment, order or decision complained of to the supreme court, and if the appeal is taken from only a part of the judgment, or from a particular order or decision, then by stating from what part of the judgment, or from what particular order or decision the appeal is taken." G.S. 1949, 60-3306.

The appellate statutes also required that appellants file an abstract which would "include a specification of the errors complained of, separately set forth and numbered." G.S. 1949, 60-3826. The Supreme Court, at the time, vigorously enforced the requirement that an appellant specify all of the rulings appealed from in his or her notice of appeal. See State v. Aeby, 191 Kan. 333, 335, 381 P.2d 356 (1963) (the court had no jurisdiction to consider the appellant's specifications of error as appellant had failed to specifically set forth the errors in his notice of appeal); State v. Burnett, 189 Kan. 31, 33, 367 P.2d 67 (1961) (an appellant is not "entitled to a review of every matter involved in his trial and sentence without complying with the well-established rules of procedure relating to appellate review"); State v. Jones, 187 Kan. 318, 319, 356 P.2d 843 (1960) (the court had no jurisdiction to hear the defendant's appeal concerning his motion for a new trial as his notice of appeal only stated that he was appealing from the "`decision and judgment'"); State v. Lewis, 187 Kan. 221, 222, 356 P.2d 845 (1960) (a notice of appeal was insufficient to contest the trial court's denial of the defendant's motion for a new trial where the notice of appeal merely stated that the defendant appeals "`from the verdict and Judgment rendered in the above entitled case'" and "[i]t is an established rule of appellate procedure that matters specified as error are not reviewable unless they are within the purview of those matters contained in the notice of appeal"); State v. Trinkle, 186 Kan. 809, 810-11, 352 P.2d 937 (1960) (the defendant's notice of appeal was insufficient to contest the denial of his motion for a new trial as it merely stated that the defendant "`wishes to appeal his case to the Kansas Supreme Court'"); and State v. Turner, 183 Kan. 496, 499-500, 328 P.2d 733 (1958) (the defendant's notice of appeal was insufficient to contest his nine specifications of error as the notice only stated that he was appealing the "`judgment rendered on a verdict returned by a jury in the above entitled action'"). See also Carrick v. McFadden, 216 Kan. 683, 690, 533 P.2d 1249 (1975) (prior to the enactment of K.S.A. 60-2103 this court consistently held that rulings which had not been specified in the notice of appeal "presented nothing for appellate review").

In 1963, the Kansas Legislature codified the rules of civil and appellate procedure. The current rules do not require a party to specify the errors complained of. K.S.A. 1999 Supp. 60-2103(b) addresses the notice of appeal and sets forth:

"The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken. The appealing party shall cause notice of the appeal to be served upon all other parties to the judgment as provided in K.S.A. 60-205, and amendments thereto, but such party's failure so to do does not affect the validity of the appeal." (Emphasis added.)

Supreme Court Rule 2.02 (1999 Kan. Ct. R. Annot. 8) addresses the "Form of Notice of Appeal" for the Court of Appeals. The rule requires that parties "substantially" follow the form: "Notice is hereby given that (specify the party or parties taking the appeal) appeals(s) from (designate the judgement or part thereof appealed from) to the Court of Appeals of the State of Kansas." (Emphasis added.)

As with the advent of notice pleading, the appellate process was greatly simplified in 1963. It is clear that by the legislative changes in 1963, the legislature intended it to be easier to take an appeal to an appellate court in Kansas. The process was simplified, with the goal being to afford every criminal defendant at least one appeal. K.S.A. 1999 Supp. 60-2103 was originally drafted, and remains virtually the same today, to only require an appellant to "designate the judgment or part thereof appealed from." There is no statute or court rule which expressly requires an appellant to set forth all of the errors that will be contested on appeal in the notice of appeal. When the legislature repealed G.S. 1949, 60-3306, and 60-3826 and enacted K.S.A. 60-2103, it was a signal that it is no longer necessary to specify each and every issue to be...