State v. Cantrell

• Decision Date: 02 December 1983
• Docket Number: No. 55375,55375
• Citation: 234 Kan. 426,673 P.2d 1147
• Parties: STATE of Kansas, Appellee, v. Joseph William CANTRELL, Appellant.
• Court: Kansas Supreme Court

Page 1147

673 P.2d 1147

234 Kan. 426

STATE of Kansas, Appellee, v. Joseph William CANTRELL, Appellant.

No. 55375.

Supreme Court of Kansas.

Dec. 2, 1983.

Syllabus by the Court

1. In considering the sufficiency of the evidence the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt?

2. The testimony of the prosecutrix need not be corroborated to sustain a conviction for rape in this state; there may be a conviction on the uncorroborated evidence of the prosecutrix if it is believed by the jury. (Following State v. Sanders, 227 Kan. 892, Syl. p 2, 610 P.2d 633 [1980].)

3. Violation of a court order separating witnesses does not of itself disqualify a witness from testifying, and the trial court in its discretion may permit the witness to testify.

4. It is the duty of trial counsel to advise their witnesses of any order of separation, sequestration, or other restrictions that the court has seen fit to impose upon the witnesses' conduct.

5. Punishment for contempt of court may, in a proper case, be appropriate for a witness who has violated a separation or sequestration order of the court and in certain instances for an attorney who has failed to advise his or her witnesses of the court's orders.

6. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction is clearly erroneous.

7. The distinction between a general intent crime and a crime of specific intent is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.

8. The elements of intent required for various statutory crimes vary according to the particular crime. Where intent is a required element of the crime it must be included in the charge and in the instructions of the court covering the separate elements of that particular crime. (Following State v. Clingerman, 213 Kan. 525, 516 P.2d 1022 [1973].)

9. Rate as defined in K.S.A. 21-3502 does not require, as one of the statutory elements of the offense, a specific intent on the part of the defendant to commit rape and therefore there is no necessity to instruct the jury on such a specific intent. Language to the contrary in State v. Carr, 230 Kan. 322, 634 P.2d 1104 (1981), and in State v. Hampton, 215 Kan. 907, 529 P.2d 127 (1974), is overruled.

10. This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. (Following State v. Huffman, 228 Kan. 186, Syl. p 1, 612 P.2d 630 [1980].)

11. The test to determine whether a criminal statute is unconstitutionally vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. (Following State v. Huffman, 228 Kan. 186, Syl. p 5, 612 P.2d 630 [1980].)

12. K.S.A. 21-3502 (as it existed prior to L.1983, ch. 109 § 2) was not so vague and indefinite that persons of common intelligence must necessarily guess at its meaning and therefore was not unconstitutional on the asserted grounds.

Randolph G. Austin and Mary Stuckey Cofran of Speer, Austin, Holliday, Lane & Ruddick, Olathe, argued the cause and were on the brief for appellant.

Larry McClain, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Dennis W. Moore, Dist. Atty., were with him on the brief for appellee.

HOLMES, Justice:

Joseph William Cantrell appeals from his conviction by a jury of one count of rape. K.S.A. 21-3502. The appellant raises several points of alleged error in the trial court proceedings and also asserts there was insufficient evidence to support the conviction. After carefully considering all points we affirm the conviction.

The first point to be considered is whether there was sufficient evidence to support the conviction. Appellant did not deny that he had sexual intercourse with the victim, Mrs. B., on the night of April 26, 1982. Mrs. B., a divorcee and a resident of Colorado had been visiting a friend, Jackie Larson, in Kansas City, Missouri. On Sunday, April 26, 1982, they went shopping in the Plaza area of Kansas City and late in the afternoon started visiting various restaurants and bars. Early in the evening they met John Mullane, an acquaintance of Miss Larson, at the Bristol Bar and Grill. Mullane introduced the two ladies to several people including Joseph Cantrell. Mrs. B. had some conversation with Cantrell at that time although he left the bar shortly thereafter. Later in the evening Mrs. B., Jackie Larson and John Mullane left the Bristol to go to Plaza III, another bar in the area. On the way they encountered Joseph Cantrell who was walking to his car to go home. Jackie Larson asked him to join them and he did. The group stayed at Plaza III until closing time which was around 11:45 p.m. and then decided to go to the Clarette Club in Johnson County, Kansas, to continue their evening of drinking and dancing. It was decided that Mrs. B. would ride with Cantrell and Larson would ride with Mullane, and they would then meet at the Johnson County club.

On the way to the Clarette Club, Cantrell pulled off onto a side street where the alleged rape took place in the front seat of his El Camino truck. Appellant contends the sexual intercourse was consensual while Mrs. B. contends it was rape. It would serve no useful purpose to detail the two versions of the event. Suffice it to say Mrs. B. testified that she resisted and struggled with the defendant; that she was crying; and that she begged the defendant to stop, although she admitted that he made no threats, did not strike her, had no weapon and did not curse her or raise his voice. Her clothes were not ripped or torn and she suffered no bruises or other evidence of trauma. She made no attempt to scream, honk the horn or leave the vehicle. Upon completion of the act, the two proceeded on to the Clarette Club where they joined John Mullane and Jackie Larson. Mrs. B. told Jackie Larson that she had been raped by defendant. Mrs. B., Larson and Mullane then left the club and Mrs. B. and Larson returned to Larson's home at which time they contacted the police.

K.S.A. 21-3502 (amended L.1983, ch. 109, § 2) provided:

"(1) Rape is the act of sexual intercourse committed by a man with a woman not his wife, and without her consent when committed under any of the following circumstances:

(a) When a woman's resistance is overcome by force or fear;

(b) When the woman is unconscious or physically powerless to resist; or

(c) When the woman is incapable of giving her consent because of mental deficiency or disease, which condition was known by the man or was reasonably apparent to him; or

(d) When the woman's resistance is prevented by the effect of any alcoholic liquor, narcotic, drug or other substance administered to the woman by the man or another for the purpose of preventing the woman's resistance, unless the woman voluntarily consumes or allows the administration of the substance with knowledge of its nature.

(2) Rape is a class B felony." (Emphasis added.)

In the instant case the charging instrument stated "when her resistance was overcome by force and fear" rather than force or fear. As a result the trial court instructed the jury that they must find the victim's resistance was overcome by both "force and fear."

In considering the sufficiency of the evidence, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Matlock, 233 Kan. 1, 660 P.2d 945 (1983). In State v. Sanders, 227 Kan. 892, 610 P.2d 633 (1980), we held:

"The testimony of the prosecutrix need not be corroborated to sustain a conviction for rape in this state; there may be a conviction on the uncorroborated evidence of the prosecutrix if it is believed by the jury." Syl. p 2.

While the evidence in this case is not strong on the element of overcoming the resistance of the victim, we have concluded that the testimony of Mrs. B. was sufficient to meet the test set forth in Matlock. Her testimony that she physically resisted the defendant is clear and the jury could have concluded from her actions that her resistance was also overcome by fear. See State v. Hacker, 197 Kan. 712, 421 P.2d 40 (1966), cert. denied, 386 U.S. 967, 87 S.Ct. 1050, 18 L.Ed.2d 119 (1967). The jury had the opportunity to view the witnesses and to hear the evidence and evidently believed the testimony of Mrs. B. rather than that of the defendant.

Appellant's next point on appeal is that the trial court erred in refusing to strike the testimony of Mrs. B. as she had violated the court's sequestration order. The court, at defendant's request, had entered a sequestration order which the prosecutor failed to relay to his witnesses. During the evening, after the first day of trial, Mrs. B., who had not yet testified,...