State v. Everson, 52511
| Decision Date | 23 April 1981 |
| Docket Number | No. 52511,52511 |
| Citation | 229 Kan. 540,626 P.2d 1189 |
| Parties | STATE of Kansas, Appellee, v. Thomas E. EVERSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In an appeal in a criminal action from a conviction of rape and aggravated sodomy, the record is examined and it is held : (1) the trial court did not commit error in overruling a motion for mistrial; and (2) the victim's testimony was sufficient evidence to support a finding of guilty on each crime charged.
2. Where there is no evidence to support a finding on a lesser included offense, the trial court does not err in refusing to give an instruction on the lesser included offense.
W. Fredrick Zimmerman, Kansas City, for appellant.
John J. McNally, Asst. Dist. Atty. (argued), Robert T. Stephan, Atty. Gen., Nick A. Tomasic, Dist. Atty. and Philip L. Sieve, Chief Deputy Dist. Atty., on brief, for appellee.
This is an appeal in a criminal action from a jury verdict finding Thomas E. Everson (defendant-appellant) guilty of rape (K.S.A.1980 Supp. 21-3502) and aggravated sodomy (K.S.A. 21-3506). The appellant contends the trial court erred in failing to instruct on the lesser included offense of sodomy, and in overruling a motion for mistrial. The appellant also contends the evidence was not sufficient to support the verdict finding him guilty on each count.
The twenty-two-year-old victim testified that late in the evening of November 9, 1979, she met a man named Gary Singleton at the Cosmos Disco Bar in Riverside, Missouri. When the bar closed in the early hours of November 10, the victim accepted Gary's invitation to go to a party. They left in Gary's car, and were accompanied by two black males and two black females. Both the victim and Gary were white. The appellant, Thomas E. Everson, drove Gary's car as the group proceeded into Kansas City, Kansas. The two black females and one of the black males were taken to their residences. During the ensuing three to four hours the victim, Gary, and the appellant stopped at two to three residences, ostensibly in an effort to locate a party. The victim testified she was not afraid of Gary or the appellant, both of whom treated her nicely. She did become concerned as morning approached, and also because she heard the two men discussing a gun. When the victim thought she was finally being taken home, the appellant drove the car to a deserted area in Wyandotte County, known as Quindaro Park, or the Indian Cemetery. The victim testified that she was forced out of the front seat of the car at gunpoint, and ordered into the back seat. When she initially refused, the appellant fired a small pearl-handled gun toward her, but into the ground. She was forced to disrobe and was raped by the appellant. She was then forced to take the appellant's penis in her mouth as he held the gun to her head. Gary then forced her to engage in sexual intercourse with him. The victim testified that both men raped her twice. The victim was then returned to an area near her home where she got out of the car. The men left, and the victim called her mother, who took her to a local hospital where a rape examination was conducted. The victim provided the police with descriptions of the two men and details of the night's events. About one week later the victim picked Gary Singleton out of a police lineup. Four days later she picked the appellant out of a police lineup.
The appellant and Singleton were given separate trials. There were only two material disputed issues at the appellant's trial: (1) Whether the intercourse was consensual, and (2) whether the aggravated sodomy occurred. The appellant testified and admitted that both he and Gary Singleton engaged in sexual intercourse with the complaining witness. However, he claims that the intercourse was consensual and that neither he nor anyone else possessed a gun that evening. The appellant specifically denied sodomizing the complaining witness, either with consent or at gunpoint. The appellant testified the trio drove around and made several stops during the early morning hours. He claimed the trio smoked marijuana, ingested Valium, and drank alcohol much of that time. According to the appellant, the complaining witness engaged in sexual "petting" with Gary during most of the night; the purpose of the many stops was to locate a place for the complaining witness and Gary to spend the night. He testified the complaining witness was a willing participant with both men when they eventually arrived at the secluded Wyandotte County location.
The appellant first contends the trial court erred in failing to instruct the jury on the lesser included offense of sodomy. The trial court has an affirmative duty to instruct on all lesser included offenses required by the evidence even though not requested by the defendant. K.S.A. 21-3107(3). State v. Arney, 218 Kan. 369, Syl. P 6, 544 P.2d 334 (1975). The duty to instruct on lesser included crimes arises only when there is evidence under which the defendant might have reasonably been convicted of the lesser crime. State v. Prince, 227 Kan. 137, Syl. P 1, 605 P.2d 563 (...
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State v. Crawford, 63250
...to instruct on all lesser included offenses required by the evidence even when such instruction is not requested. State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 (1981). The trial court's duty arises, however, only when there is evidence upon which a defendant might reasonably be convict......
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State v. Wolf
...fact finder could have found the defendant guilty beyond a reasonable doubt as alleged in the bill of particulars. State v. Everson, 229 Kan. 540, 626 P.2d 1189 (1981). Finally, defendant maintains that the trial court erred when it granted a motion for a new trial as to the arson count but......
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