State v. Carr, 52691
| Citation | 634 P.2d 1104,230 Kan. 322 |
| Decision Date | 23 October 1981 |
| Docket Number | No. 52691,52691 |
| Parties | STATE of Kansas, Appellee, v. Thomas B. CARR, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. The basis for admission of expert testimony is the need to assist the trier of fact. Admissibility lies within the discretionary power of the trial court, and the trial court will not be reversed on appeal absent a showing of abuse of the exercise of that discretionary power.
2. The scope of cross-examination is a matter within the discretionary power of the trial court and, absent a showing of clear abuse of the exercise of that power of discretion, there is no prejudicial error.
3. The standard of review on appeal for determining whether evidence is sufficient to support a criminal conviction 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?
4. In an appeal in a criminal action from convictions for aggravated burglary and attempted rape, the record is examined and it is held : (1) The trial court did not abuse the exercise of its power of discretion in allowing a police officer to offer an expert opinion on whether the defendant was intoxicated at the time he was apprehended; (2) the trial court did not abuse the exercise of its power of discretion in limiting cross-examination to events within a witness's personal knowledge; and (3) there was insufficient evidence of the specific intent to rape to support the convictions.
Ted L. Peters, Wichita, argued the cause and was on the brief for appellant.
Cris Senseman, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty., and Beverly Dempsey, Asst. Dist. Atty., were on the brief for appellee.
This is an appeal in a criminal action tried to the court in the District Court of Sedgwick County in which Thomas B. Carr (defendant-appellant) was found guilty of aggravated burglary (K.S.A. 21-3716) and attempted rape (K.S.A. 21-3301 and K.S.A. 1980 Supp. 21-3502).
The appellant raises three issues on appeal. He contends that (1) the trial court erred in allowing a police officer to offer an expert opinion on whether defendant Carr was intoxicated at the time he was apprehended, (2) the trial court erred in sustaining the State's objections to cross-examination of an officer as to the extent of his investigation, and (3) there was insufficient evidence to sustain the State's burden of proof that defendant had the specific intent to commit the crimes of aggravated burglary and attempted rape.
On the evening of January 3, 1980, Thomas Carr went to the apartment of Michael Sloan to join Sloan and another friend Rick Zwak for a night on the town to celebrate Carr's impending marriage. According to the three, Carr had two very stiff drinks of Jack Daniels and Coke at Sloan's apartment before the group embarked on their rounds of Wichita night spots. During the course of the evening, they visited three drinking establishments and, according to Zwak and Sloan, each consumed in the neighborhood of twenty to twenty-five drinks of Jack Daniels and Coke. In the early morning hours of January 4, 1980, the trio made their way back to Sloan's apartment. Carr had fallen asleep in the car on the way home but awakened on arrival and went into Sloan's apartment. Carr became ill and vomited several times before leaving for his own apartment around 3:15 a. m.
Divergence in testimony occurs as to events occurring after Carr's arrival at his own apartment complex. Defendant Carr remembered little about the events of the evening but did testify he opened an unlocked door, thinking he was home. When he heard a male voice say "Who is it," he realized he was in the dining room/kitchen area of the wrong apartment, one later shown to be that of Pamela Wolfe. Carr then ran to his own apartment, couldn't get in, and continued on to the leasing agent's apartment to telephone his friends that he had arrived home as he had promised them he would do. Carr testified that he had never seen Pamela Wolfe before that evening and did not enter her apartment to commit rape or any crime.
Pamela Wolfe and her boyfriend Thomas Masters both testified they were asleep in Ms. Wolfe's bedroom when awakened around 3:15 a. m. Pamela Wolfe was awakened by a cold hand on her left breast, and Thomas Masters awoke to see Carr with his hand on Pamela's breast. According to both, Carr leaned forward, looked closely at them, and then fled the apartment. Pamela Wolfe watched Carr from the window of her apartment as he ran first to Building 7 then to Building 9. Meanwhile, Masters, a Wichita police officer who moonlighted as a security guard at the apartment complex, had dressed and taken up the chase. Masters, arriving on the scene as Carr knocked on the leasing agent's door, placed Carr under arrest. Carr told Masters he lived in apartment 711. Shortly thereafter, Officers Mathews, Moorehouse, Marceau, and Easter arrived, and Masters and Easter proceeded to apartment 711. There, they met Carr's girlfriend Carolyn Baty (now Carr) who, during the interview, said "Did he (Carr) try to rape somebody?" The context in which she asked the question is in dispute.
In due course, Carr was tried to the court and convicted on charges of aggravated burglary and attempted rape. He appeals.
Carr's first contention on appeal is that the trial court erred in allowing Wichita Police Officer Thomas Masters to offer an expert opinion on whether defendant Carr was intoxicated at the time he was apprehended. K.S.A. 60-456(b) governs admission of expert testimony and provides:
"If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness."
Subsection (d ) further provides:
"Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact."
The appellant relies on Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978), which recognizes the general requirements of subsection (b) but limits the admission of opinion testimony on the ultimate issue under subsection (d ) to opinions which aid the jury. In Lollis, a highway patrolman was not allowed to state an opinion as to which party caused a motorcycle/truck collision or which actions contributed to the accident. No proper foundation had been laid, and the conclusions were not the proper subject of expert testimony. We do not find Lollis persuasive in the instant action.
Officer Masters had an opportunity to observe Thomas Carr briefly in the bedroom and at some length during the arrest procedure. Masters' qualifications as an expert were established. He had been with the police department a number of years and, in the course of his work, had had an opportunity to observe intoxicated persons. In allowing Masters to testify, the trial judge observed, "Police officers soon become experts on intoxication and the degrees and level thereof."
Masters testified that upon initial contact Carr had an odor of alcohol on his breath but was not intoxicated to the state he didn't realize what he was doing or where he was. The trial court allowed similar expert testimony from Officer Marceau and received lay opinions reaching a contrary conclusion as to Carr's intoxication.
The basis for admission of expert testimony is the need to assist the trier of fact. State v. Reed, 226 Kan. 519, 521, 601 P.2d 1125 (1979); Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978). In allowing Masters' expert testimony, the court as trier of fact apparently felt the testimony would be of assistance. This court has often held the admissibility of expert testimony lies within the power of discretion of the trial court, and the trial court will not...
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