State v. Burns, 73714

• Decision Date: 17 January 1997
• Docket Number: No. 73714,73714
• Citation: 931 P.2d 1258,23 Kan.App.2d 352
• Parties: STATE of Kansas, Appellee, v. James DeWayne BURNS, Appellant.
• Court: Kansas Court of Appeals

Page 1258

931 P.2d 1258

23 Kan.App.2d 352

STATE of Kansas, Appellee, v. James DeWayne BURNS, Appellant.

No. 73714.

Court of Appeals of Kansas.

Jan. 17, 1997.

Review Denied April 30, 1997.

Syllabus by the Court

When a trial court determines the evidence in a jury trial is insufficient to support the jury's verdict convicting a defendant of an offense, but that same evidence does support a conviction of a lesser included offense, the trial court may acquit the defendant of the greater offense and enter judgment convicting the defendant on the lesser included offense.

Michael J. Helvey, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Julie McKenna, County Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before RULON, P.J., MARQUARDT, J., and C. FRED LORENTZ, District Judge, Assigned.

C. FRED LORENTZ, District Judge, Assigned:

Following an earlier mistrial, defendant James DeWayne Burns was convicted of aggravated indecent liberties with a child. He appeals his conviction.

On the evening of July 16, 1993, Youlanda Young went out with defendant. During the course of the evening, Young and defendant separated, and defendant returned to Young's residence around 2 in the morning.

Richard Murry was baby-sitting Young's two children, including 10-year-old A.C. Murry testified that defendant offered to let him go home, but that Murry decided to stay with the children until Young returned because he did not know defendant very well. Murry fell asleep on the sofa in the living room. Murry awoke to A.C.'s screaming, "Get away from me." Murry proceeded to A.C.'s room and saw defendant standing there. Defendant had been in the living room with Murry before Murry fell asleep. Murry claimed A.C. appeared frightened, so he brought her into the living room and asked her if defendant had touched her. She told Murry that defendant touched her on her lower part and her chest. Murry asked defendant to leave, and Murry then called the police.

Officer Sean Furbeck of the Salina Police Department was sent to Young's residence. Furbeck testified he met Murry on the driveway and Murry told him he had been baby-sitting for Young and that defendant had touched A.C.'s private parts. Furbeck had Officer Cara Bell take defendant to the police station, and Furbeck then took A.C. to the hospital.

Bell testified that after defendant was given his Miranda warning, he waived his rights and told Bell he had gone inside Young's residence and laid down on the bed next to A.C. Defendant stated A.C. was under the sheet and he had laid down on top of the sheet. When asked if he had touched A.C., defendant responded he might have touched A.C. between the legs, but he could not remember because he had blacked out. Defendant said he then woke up to A.C.'s screaming. At trial, defendant denied telling Bell he might have touched A.C. between the legs.

Detective Irvin Augustine testified he interviewed defendant when he was brought to the police station. Defendant told Augustine he had been drinking earlier during the evening and that he had gone to Young's residence at around 2:30 in the morning, where she was supposed to meet him. Defendant also told Augustine he remembered falling asleep in a chair in the living room, and the next thing he recalled was A.C. screaming. Defendant told Augustine he remembered lying on the bed in A.C.'s bedroom and A.C. telling him to get out. When Augustine asked defendant whether he touched A.C., defendant first denied it, but then said he could have. At trial, defendant denied telling Augustine he had laid down in A.C.'s bed.

A.C. claimed she woke upthat night because she felt a man touching her breasts, legs, and vagina and that the man put his fingers inside her vagina. The man tried to get on top of her, and she tried to get away and yelled for her baby-sitter. She remembered the man had a mustache but was unable to identify defendant as the man who had touched her.

Dr. Mark Ohlde, the physician who examined A.C., could not find any evidence of penetration of A.C.'s vagina.

Defendant testified he never touched A.C. Defendant stated he met Young at her residence on the evening of July 16, 1993, the two went out, and during the evening he had about 10 to 12 beers. Defendant further testified he returned to Young's residence sometime after 2 in the morning with the understanding Young was going to meet him there. According to defendant, after arriving at Young's residence, he went to sleep on the recliner in the living room and awoke to A.C.'s screaming and went to her room. Defendant further testified that Murry came into the room and ordered defendant to get out.

Defendant was charged in a three-count complaint with rape, aggravated indecent liberties with a child, and aggravated burglary. The aggravated burglary charge was later dismissed, and the remaining charges were contained in an amended complaint.

Defendant's jury trial took place February 8-10, 1994. During the conference regarding the jury instructions, the trial court announced it was persuaded, based on the evidence, that the charges of rape and aggravated indecent liberties were multiplicitous and that aggravated indecent liberties should be instructed on as a lesser included offense of rape. The State objected; however, defendant did not. The trial court proceeded to give a lesser included offense instruction to the jury. After deliberating for a number of hours, the jury announced it could not reach a unanimous verdict and a mistrial was declared.

Affidavits from 5 jurors indicated the final vote of the jury prior to the declaration of mistrial was 11 to 1 in favor of not guilty on the aggravated indecent liberties with a child charge. There were no votes in favor of guilty on the rape charge.

Defendant filed a motion for judgment of acquittal on February 17, 1994, claiming the evidence failed to establish his guilt beyond a reasonable doubt on either charge. The motion was denied. On March 16, 1994, defendant filed a motion to dismiss the rape charge on the ground a retrial violated his right to be protected from double jeopardy. The motion was not heard until a post-trial setting after the second trial on September 19, 1994. The motion was ultimately denied.

The cause proceeded to a second trial beginning on March 22, 1994. The same jury instructions were given with neither party objecting. Ultimately, the jury found defendant guilty of rape.

A.C.'s testimony at the second trial was inconsistent with her testimony from the first trial. There were differences regarding when she awoke, whether she was awake when the man touched her vagina, and the order in which she was touched.

Following the second trial, defendant filed a motion for new trial and a motion for acquittal. In his motion for new trial, defendant claimed he was placed in double jeopardy by the trial court allowing a second trial on the rape charge. After argument on the two motions, the trial court denied the motion for new trial, finding the jury had been dismissed because of a failure to reach a verdict, and, therefore, double jeopardy didnot attach. The trial court then granted defendant's motion for acquittal, finding there was insufficient evidence to support the rape conviction. However, the trial court went on to rule there was overwhelming evidence to convict defendant of the lesser included offense of aggravated indecent liberties and that he should be convicted on that charge.

Defendant first argues his right to be protected from double jeopardy was violated when he was required to go to trial a second time on the charge of rape. Whether defendant's constitutional right was violated is a question of law. "An appellate court's review of a question of law is unlimited." Foulk v. Colonial Terrace, 20 Kan.App.2d 277, Syl. p 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against subsequent prosecutions for the same offense. K.S.A. 21-3108 codifies the rules relating to double jeopardy in Kansas. See State v. McKay, 217 Kan. 11, 13, 535 P.2d 945 (1975).

K.S.A. 21-3108 states in relevant part:

"(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:

....

(c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of: (i) The illness or death of an indispensable party; or (ii) the inability of the jury to agree; or (iii) the impossibility of the jury arriving at a verdict." (Emphasis added.)

K.S.A. 22-3423 states in part: "(1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because: ... (d) The jury is unable to agree upon a verdict."

Here, at the close of the first trial, the trial court declared a mistrial because the jury was unable to reach a unanimous verdict and ordered a new trial based on the same charges. Defendant asserts that because the affidavits of five jurors, obtained after the first trial, indicated there were no votes in favor of finding him guilty of rape, he was acquitted on that charge, and a new trial on rape violated his right to be protected from double jeopardy.

In State v. Blockyou, 195 Kan. 405, 408, 407 P.2d 519 (1965), our Supreme Court concluded: "A defendant has not been in [double] jeopardy where his first trial results in a mistrial because the jury cannot agree. [Citation omitted.]" Blockyou was followed in State v. McKay, 217 Kan. at 13, 535 P.2d 945, a case which involved facts similar to the present case.

In McKay, the defendant was tried twice for second-degree murder. At the conclusion of the first trial, the jury was unable to agree on a verdict, and the trial court declared a mistrial. The...