State v. Fike

• Decision Date: 14 June 1988
• Docket Number: No. 60301,60301
• Citation: 757 P.2d 724,243 Kan. 365
• Parties: STATE of Kansas, Appellee, v. James G. FIKE, Appellant.
• Court: Kansas Supreme Court

Page 724

757 P.2d 724

243 Kan. 365

STATE of Kansas, Appellee, v. James G. FIKE, Appellant.

No. 60301.

Supreme Court of Kansas.

June 14, 1988.

Syllabus by the Court

1. In determining whether a lesser crime is a lesser included crime or offense under K.S.A.1987 Supp. 21-3107(2)(d), a two-step analysis or two-pronged test has been adopted. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime under K.S.A.1987 Supp. 21-3107(2)(d) if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime.

2. In determining whether a lesser crime is a lesser included crime under K.S.A.1987 Supp. 21-3107(2)(d), the first step relies solely on the statutory elements of the crime charged and the crime which is asserted to be a lesser included crime thereof. If the statutory elements of the two crimes do not meet the statutory elements analysis, then the second step requires the facts as alleged in the charging document and as must be proven at trial to be considered.

3. Aggravated sexual battery requires, as a statutory element under K.S.A.1987 Supp. 21-3518(1)(b), a lack of consent, which is a statutory element not required to prove indecent liberties with a child under K.S.A.1987 Supp. 21-3503(1)(b) and, therefore, aggravated sexual battery is not a lesser included offense of indecent liberties with a child under the statutory elements analysis of the two statutes. Neither is aggravated sexual battery a lesser included offense of indecent liberties with a child even though the charging document alleges a lack of actual consent, as proof of lack of consent would not be required in any event to prove the greater offense of indecent liberties with a child.

4. Aggravated sexual battery as defined in K.S.A.1987 Supp. 21-3518(1)(b) is not a lesser included offense of indecent liberties with a child as defined by K.S.A.1987 Supp. 21-3503(1)(b).

Steven R. Zinn, Supervising Atty., Kansas Appellate Practice Clinic, Lawrence, argued the cause, and John W. Leighty, legal intern, and Benjamin C. Wood, Chief Appellate Defender, Topeka, were with him on the brief for appellant.

Jean M. Schmidt, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Gene M. Olander, Dist. Atty., were with her on the brief for appellee.

HOLMES, Justice:

James G. Fike appeals his conviction by a jury of one count of indecent liberties with a child, K.S.A.1987 Supp. 21-3503(1)(b), a class C felony. His conviction was affirmed by the Court of Appeals in an unpublished opinion dated October 22, 1987. We granted appellant's petition for review which alleged a conflict between recent opinions of this court and the Court of Appeals on the question of lesser included offenses.

In his appeal to the Court of Appeals, appellant asserted it was error for the trial court not to instruct the jury on the alleged lesser included offense of aggravated sexual battery, K.S.A.1987 Supp. 21-3518(1)(b), a class D felony. In the recent case of State v. Fulcher, 12 Kan.App.2d 169, 737 P.2d 61, rev. denied 241 Kan. XXII (July 1, 1987), the Court of Appeals held that aggravated sexual battery was not a lesser included offense of indecent liberties with a child. In reliance on Fulcher, the Court of Appeals found no merit to appellant's argument in this case. This court, in the recent case of State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987), held that aggravated sexual battery was a lesser included offense of indecent liberties with a child under the charge and the facts of that case. The holding in Fulcher was not mentioned in the Hutchcraft opinion.

At this point the facts need be stated only briefly. During the summer of 1985, Fike was visiting at the home of a friend, J.V., who lived with his four small children, two boys and two girls. The girls were S.V., age seven, and P.V., age six. Mr. and Mrs. V. were separated and Mrs. V. was not living with the rest of the family. S.V. testified that during the night, Fike entered the girls' bedroom, undressed, climbed in bed with P.V., and fondled her while she lay sleeping. Fike was charged and convicted of one count of indecent liberties with a child.

There are very few areas of the criminal law which have given the appellate courts more difficulty than the problem of lesser offenses under K.S.A.1987 Supp. 21-3107. See annotations following the statute. A lesser offense is a crime which carries a lesser penalty than the penalty for the crime charged. A class E felony is a lesser crime than felonies designated as class A through class D; a class D felony is a lesser crime than felonies designated class A through C, and so on. When a lesser crime falls within the statutory definitions of an included crime under K.S.A.1987 Supp. 21-3107(2), it is an included crime of the crime charged. K.S.A.1987 Supp. 21-3107 provides in part:

"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

(a) A lesser degree of the same crime;

(b) an attempt to commit the crime charged;

(c) an attempt to commit a lesser degree of the crime charged; or

(d) a crime necessarily proved if the crime charged were proved.

"(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal."

Subsection (2)(d) of the statute has proved to be the most troublesome to interpret and apply. While the statute does not use the term "lesser included offense," it does refer to lesser crimes and included crimes. If a lesser crime is included in the crime charged, it is commonly referred to as a lesser included offense under 21-3107. In State v. Adams, 242 Kan. 20, 744 P.2d 833 (1987), Justice Allegrucci, writing for a unanimous court, made it clear that the test to apply in determining in any particular case whether a lesser included offense exists under the statutory language "a crime necessarily proved if the crime charged were proved" requires a twofold or two-pronged approach. Unfortunately, many of the appellate decisions have failed to recognize the two-step analysis. The writer of this opinion fell into the same trap, in discussing the predecessors to the statutes now before the court, in the dissent in State v. Ramos, 240 Kan. 485, 490, 731 P.2d 837 (1987).

The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. This approach is ordinarily fairly straightforward, and requires a jury instruction on a particular lesser offense whenever all of its statutory elements will automatically be proved if the State establishes the elements of the crime as charged. For example, where the crime charged is aggravated burglary, the crime of burglary is clearly a lesser included offense, because every one of the statutory elements of burglary must of necessity be proved in establishing the elements of aggravated burglary.

The result of the first step of the analysis, however, is not necessarily conclusive. Even if the statutory elements of the lesser offense are not all included in the statutory elements of the crime charged, a particular crime may nevertheless meet the statutory definition in 21-3107(2)(d) of an included crime under the second step of the analysis. This approach requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence which must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime, the latter is an "included crime" under the definition in 21-3107(2)(d).

Adams is a prime example of the application of the second prong of the test. Adams was charged with involuntary manslaughter (K.S.A.1987 Supp. 21-3404) based upon allegations in the complaint that he was driving under the influence of alcohol, a misdemeanor. Involuntary manslaughter under the statute provides, inter alia, that "involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony." In Adams, the unlawful act was driving under the influence. Obviously, the statutory elements of involuntary manslaughter and driving under the influence are different and it is not always necessary to prove the crime of driving under the influence to prove the crime of involuntary manslaughter. Those two crimes do not meet the statutory elements approach. However, in Adams, the misdemeanor violation of driving under the influence that was included in the complaint as the basis for the involuntary manslaughter charge was a lesser included offense under the second approach. In order to prove the crime charged, driving under the influence had to be proved and...