State v. Coberly

• Decision Date: 26 March 1983
• Docket Number: No. 54538,54538
• Citation: 661 P.2d 383,233 Kan. 100
• Parties: STATE of Kansas, Appellee, v. Tanney Thomas COBERLY, Appellant.
• Court: Kansas Supreme Court

Page 383

661 P.2d 383

233 Kan. 100

STATE of Kansas, Appellee, v. Tanney Thomas COBERLY, Appellant.

No. 54538.

Supreme Court of Kansas.

March 26, 1983.

Syllabus by the Court

1. In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard on review is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt?

2. If a taking or confining of a person is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement: (a) must not be slight, inconsequential and merely incidental to the other crime; (b) must not be of a kind inherent in the nature of the other crime; and (c) must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

3. An offense is considered a lesser included offense under K.S.A. 21-3107(2)(d ) when all elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged.

4. Under K.S.A. 21-3107(2)(d ) the crime of indecent liberties with a child is a lesser included offense of rape where the evidence presented by the State establishes that the defendant forcibly raped a female under sixteen years of age.

5. A sentence imposed by a trial court will not be disturbed on appeal provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive.

Gene F. Anderson, of Kent, Wichman & Anderson, Hays, argued the cause and was on the brief, for appellant.

S. Philip Stover, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief, for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Tanney Thomas Coberly (defendant-appellant) guilty of aggravated kidnapping (K.S.A. 21-3421), indecent liberties with a child (K.S.A. 21-3503) and rape (K.S.A. 21-3502).

On October 17, 1981, the defendant telephoned Ms. A., a fifteen-year-old girl, and asked if she could babysit for him for a few hours that evening. Having previously performed this service for the defendant and his wife, Ms. A. obtained permission from her mother and agreed to babysit. Shortly thereafter, around 6:00 p.m., the defendant picked Ms. A. up at her home in Healey, Gove County, Kansas, in his small pickup truck.

After driving for a while the defendant told Ms. A. he did not want her to babysit, but wanted her to ride around with him to look at duck ponds. The defendant told Ms. A. he would take her home if she didn't want to ride around. Not knowing how to explain to her mother that the defendant didn't want her to babysit after all, Ms. A. continued to ride with the defendant.

The defendant drove around in the country, sometimes stopping to look at farm ponds. Ms. A. testified she did not recognize any of the roads they were driving on, and became confused and disoriented as to her location. The defendant tried to kiss her and began touching her. Becoming frightened, Ms. A. told the defendant if he would not take her home she would walk. The defendant told Ms. A., in essence, that if she could find the road to get back home he would take her, or if she would have sex with him he would take her home. Ms. A. replied that she would find her own way home, but found that she couldn't locate any familiar road signs and was disoriented. Ms. A. testified that once she tried to get out of the truck, but the defendant reached over and shut the door, preventing her escape.

The defendant pulled the truck over to the side of the road and stopped. He told Ms. A. to take her clothes off, and when she refused he pulled out a knife and threatened to "run it across [her] throat" if she did not comply with his requests. The defendant then had Ms. A. lie down across the seats of the truck and raped her. He ceased when a car approached from the opposite direction, and walked around the truck to get in the driver's side. Ms. A. testified she thought about trying to drive the truck off at this time but did not know where the keys were and didn't know how to drive with a stick shift. The defendant drove to a tavern in Utica where he bought Ms. A. a soft drink and got change. He then drove to Healey, where, at Ms. A.'s request, he dropped her off at a friend's house. He gave Ms. A. $5 so that she could say she had been babysitting. It was approximately 10:00 p.m. at this time.

Her friend testified Ms. A. appeared scared and shocked, and her eyes were red. After some coaxing Ms. A. said she had been raped by the defendant. Her friend convinced Ms. A. to talk to the sheriff, whereupon they drove to Dighton and contacted the Lane County Sheriff's office. Ms. A. told the sheriff she had been raped by the defendant and was taken to the Lane County hospital where she underwent a physical examination by a doctor who prepared a rape examination kit. This doctor testified at trial there was no evidence of bruising of the victim or trauma to the entrance of the vagina, but the cervix was swollen and cracked, which might have been caused by recent sexual intercourse.

Larry Morris, a criminologist with the Kansas Bureau of Investigation who conducted the analysis of the rape kit, testified the fluid taken from Ms. A.'s vagina contained a large number of sperm, indicating she had engaged in intercourse within twelve hours of when the physical examination was conducted. Morris further testified that based upon blood typing tests the defendant could not be excluded as the possible donor of the sperm.

The defendant testified he called Ms. A. to babysit for him but remembered after he picked her up that his wife didn't like her, so he told her she could either go home or look at duck ponds with him. He denied that Ms. A. ever said she wanted to go home or get out of the truck, or that he had tried to kiss her or make any sexual advances toward her.

The defendant raises two challenges to the sufficiency of the evidence to sustain a conviction of aggravated kidnapping. Aggravated kidnapping is defined by K.S.A. 21-3421 as kidnapping when bodily harm is inflicted on the person kidnapped. K.S.A. 21-3420 defines the crime of kidnapping as follows:

"Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:

"(a ) For ransom, or as a shield or hostage; or

"(b ) To facilitate flight or the commission of any crime; or

"(c ) To inflict bodily injury or to terrorize the victim or another; or

"(d ) To interfere with the performance of any governmental or political function."

The defendant first maintains there was no evidence from which the jury could have concluded the defendant used any "force, threat or deception" on Ms. A. As to the element of deception the appellant contends it ended when the defendant told her shortly after he picked her up that he didn't want her to babysit and offered to take her home but Ms. A. elected to continue to ride with the appellant in his truck. The appellant further contends the record is barren of any evidence that he used force or threat to confine Ms. A. in his truck.

In a criminal action where a defendant contends the evidence at trial was insufficient to sustain a conviction, the standard on review 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. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980). See also State v. Williams, 229 Kan. 290, 623 P.2d 1334, reh. denied 229 Kan. 646, 630 P.2d 694 (1981). Count five of the amended information specifically charged the defendant with confining Ms. A. by force, threat or deception with the intent to hold her to facilitate the crime of indecent liberties with a minor and to inflict bodily harm upon her. The instruction to the jury on this charge was substantially the same.

Deception is defined in K.S.A. 21-3110(5) as knowingly and willfully making a false statement or representation, express or implied, pertaining to a present or past existing fact. Here the evidence shows the defendant called Ms. A. and asked her to babysit, but after he picked her up and started driving told her he really didn't need her to babysit and instead wanted her to ride around with him and look at duck ponds. Arguably the deception ended when Ms. A. in the absence of any plausible reason to tell her parents why the defendant didn't need her to babysit after all, elected to continue riding with the defendant. It is not necessary to further pursue this issue, because the defendant was charged with confining Ms. A. by force, threat or deception.

Ms. A. testified that after the defendant began to make unwelcome advances toward her while they were still driving around she told him several times she wanted him to take her home, she would walk if he wouldn't take her, and when she tried to get out of the truck he shut the door, preventing her from leaving. Further, when the defendant offered to take her home in exchange for sex, Ms. A. replied she would find her own way home, but because she was unfamiliar with the area was unable to do so. In State v. Tillery, 227 Kan. 342, 345, 606 P.2d 1031 (1980), this court noted that kidnapping a child may be accomplished by using minimal force, each case depending on the particular facts of the taking or confining. Sufficient evidence was presented by the evidence from which the jury could have found the defendant confined Ms. A. by force.

Next, the defendant maintains the...