State v. Craig
| Decision Date | 21 January 1994 |
| Docket Number | No. 69978,69978 |
| Citation | 867 P.2d 1013,254 Kan. 575 |
| Parties | , 34 A.L.R.5th 929 STATE of Kansas, Appellant, v. Billy Joe CRAIG, Jr., Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. We do not entertain a question reserved merely to demonstrate errors of a trial court in rulings adverse to the State. Questions reserved presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases.
2. K.S.A. 21-3603, the aggravated incest statute, does not apply to a half-blood uncle, as an offender, in a prohibited act relationship with a victim who is the minor daughter of a half-brother.
3. On appeal on a question reserved by the State under K.S.A. 22-3602(b)(3), it is held that the aggravated incest statute, K.S.A. 21-3603, is not applicable to the sexual relationship between a half-blood uncle and the minor daughter of a half-brother. (Overruling State v. Reedy, 44 Kan. 190, 24 Pac. 66 [1890].)
Keith E. Schroeder, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellant.
Stanley R. Juhnke, Hutchinson, argued the cause and was on the brief, for appellee.
This case considers whether a half-blood uncle is subject to prosecution under K.S.A. 21-3603, the aggravated incest statute.
Our jurisdiction is under K.S.A. 22-3602(b)(3), an appeal upon a question reserved by the prosecution. The State indicates in its notice of appeal that jurisdiction is under K.S.A. 22-3602(b)(1), an appeal from an order dismissing the complaint, information, or indictment. However, we are informed by the State's docketing statement, Rule 2.041 (1993 Kan.Ct.R.Annot. 10), that the instant appeal is upon a question reserved by the prosecution. Three proposed issues are reserved and were briefed by the parties: 1) whether the half-blood relationship meant that defendant could be subject to prosecution under K.S.A. 21-3603; 2) whether the State should have been allowed to amend the information from aggravated incest to indecent liberties with a child after it rested its case; and 3) whether indecent liberties with a child is an included offense of aggravated incest under K.S.A. 21-3107(2)(d). We shall consider the half-blood uncle relationship question, which involves an interpretation of K.S.A. 21-3603, as an issue before us on a question reserved. The other two issues we need not entertain.
An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. We do not entertain a question reserved merely to demonstrate errors of a trial court in rulings adverse to the State. Questions reserved presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases. State v. Ruff, 252 Kan. 625, 630, 847 P.2d 1258 (1993). Our disposition of the half-blood uncle issue characterizes the remaining two issues as matters of asserted trial error which lack statewide interest.
We agree with the trial court. The sexual relationship between a half-blood uncle and the victim, a minor daughter of a half-brother, is not contemplated under K.S.A. 21-3603. The State's appeal is denied.
Defendant, Billy Joe Craig, Jr., was charged with aggravated incest, a class D felony, under K.S.A. 21-3603. The original complaint was amended during the preliminary hearing to reflect that the alleged crime occurred between May 1988 and December 1990. The complaint, at the request of the prosecutor, also was amended to include an alternative charge of indecent liberties with a child, a class C felony, under K.S.A.1992 Supp. 21-3503.
The victim testified at the preliminary hearing that her date of birth was December 5, 1972. She explained that Craig was her half-uncle because her natural father and Craig had the same mother. The victim testified that she had never been married to Craig and began having sexual intercourse with him in the summer of 1988, when she was 15. The sexual intercourse continued 4 to 5 times a month until she was 18, resulting in the birth of a son.
The district court bound Craig over only on the aggravated incest charge. The court determined that the victim and Craig were related as niece and uncle and that this relationship was one the legislature intended to include under K.S.A. 21-3603.
A formal information was filed charging Craig with aggravated incest. Craig's case was assigned to a different district judge for trial. Craig entered a plea of not guilty and waived his right to a jury trial. Craig's counsel stipulated to identification and to the admission of a blood test result which established with a 99.48 percent certainty that Craig was the father of the victim's child.
A bench trial began with the State calling the victim as its first witness. She provided the same information that she had testified to at the preliminary hearing. As the State conducted its direct examination, Craig interrupted and informed the trial judge that he would stipulate that sexual intercourse occurred in Reno County between May 1988 and December 1990. The trial court accepted the stipulation. The State rested.
Craig immediately requested that the case be dismissed on the basis that sexual intercourse between a half-niece and half-uncle was not prohibited by K.S.A. 21-3603. Craig also called the trial court's attention to the fact that K.S.A. 23-102 () does not prohibit marriage between a half-niece and half-uncle. Craig based his K.S.A. 21-3603 argument on People v. Baker, 69 Cal.2d 44, 69 Cal.Rptr. 595, 442 P.2d 675 (1968). Baker held that the California incest statute condemned sexual relations between persons related by half-blood only when they were brothers and sisters. Sexual relations between an uncle and a niece of half-blood were not prohibited.
The State, in the case at bar, argued that a half-blood uncle is a classification under K.S.A. 21-3603 as determined by the district judge who presided at the preliminary hearing. In the alternative, the State requested that the trial court amend the complaint to charge the crime of indecent liberties with a child because the sexual intercourse stipulated to by Craig occurred, in part, during a time period when the victim was under 16 years of age.
The judge presiding at trial determined that K.S.A. 21-3603 was "very specific" as to the acts prohibited, concluded that the relationship between Craig and the victim was not proscribed under the aggravated incest statute, and dismissed the charge. The trial judge denied the State's request to amend the complaint because indecent liberties is a higher class of felony than aggravated incest. He reasoned that another preliminary hearing on the new crime was required and that The State argued that the complaint could be amended at any time before a verdict or finding.
The district court's interpretation of K.S.A. 21-3603 is a determination of law which frames the issues on appeal; consequently, our standard of review is unlimited. Gillespie v. Seymour, 250 Kan. 123, Syl. p 2, 823 P.2d 782 (1991).
Half-Blood Uncle
Craig was charged with aggravated incest under K.S.A. 21-3603:
"(1) Aggravated incest is marriage to or engaging in any prohibited act enumerated in subsection (2) with a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece. (2) The following are prohibited acts under subsection (1):
(a) Sexual intercourse, sodomy or any unlawful sex act, as defined by K.S.A. 21-3501 and amendments thereto; or
(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.
(3) Aggravated incest is a class D felony."
K.S.A.1992 Supp. 21-3503, indecent liberties with a child, states:
"(1) Indecent liberties with a child is engaging in any of the following acts with a child who is under 16 years of age:
(a) Sexual intercourse; or
(b) any lewd...
To continue reading
Request your trial
-
Tapscott v. State
...should be construed to apply to both. Compare People v. Baker, 69 Cal.2d 44, 69 Cal.Rptr. 595, 442 P.2d 675 (1968) and State v. Craig, 254 Kan. 575, 867 P.2d 1013 (1994) (where the statute at issue explicitly prohibits marriages between certain, specified persons related by the half blood (......
-
State v. Berreth
...used by the appellate courts “to determine jurisdiction.” This inactivity contrasts with the State's actions in State v. Craig, 254 Kan. 575, 867 P.2d 1013 (1994). There, in an apparent direct appeal to the Supreme Court by the State, its notice of appeal's alleged jurisdictional basis was ......
-
Tapscott v. State
...in § 2-202, we must construe § 2-202 to exclude such relationships. To support his contention, Tapscott cites State v. Craig, 254 Kan. 575, 867 P.2d 1013 (1994), People v. Baker, 69 Cal.2d 44, 69 Cal.Rptr. 595, 442 P.2d 675, 676 (1968), and State v. Bartley, 304 Mo. 58, 263 S.W. 95, 95 (192......
-
State v. Mathis, No. 87,763.
...The court will decline to entertain questions reserved by the State that have insufficient statewide importance. State v. Craig, 254 Kan. 575, 576, 867 P.2d 1013 (1994). The question here hinges on the peculiar factual circumstances in this case and not a question of statewide importance so......