State v. Galloway, 58068
| Decision Date | 06 December 1985 |
| Docket Number | No. 58068,58068 |
| Citation | 238 Kan. 415,710 P.2d 1320 |
| Parties | STATE of Kansas, Appellee, v. Devin T. GALLOWAY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The duty of the trial court to instruct the jury on lesser crimes arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge. Following State v. Royal, 234 Kan. 218, Syl. p 4, 670 P.2d 1337 (1983).
2. An offense is considered a lesser included offense under K.S.A.1984 Supp. 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.
3. The crimes of sexual battery (K.S.A.1984 Supp. 21-3517) and aggravated sexual battery (K.S.A.1984 Supp. 21-3518) are not lesser included crimes of the crime of rape (K.S.A.1984 Supp. 21-3502).
4. The granting or denial of a continuance in a criminal case is a matter which rests in the sound discretion of the trial court. Absent a showing of prejudice to the defendant, and an abuse of the court's discretion, the ruling of the trial court will not be disturbed on appeal.
5. Discretion is abused only when no reasonable man would take the view adopted by the trial court; if reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said the court abused its discretion.
John C. Chappell, Lawrence, argued the cause and was on brief for appellant.
Frank D. Diehl, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and James E. Flory, Dist. Atty. were with him on brief for appellee.
Devin T. Galloway appeals from his convictions by a jury of one count of rape (K.S.A.1984 Supp. 21-3502) and one count of kidnapping (K.S.A. 21-3420).
On the morning of March 23, 1984, Miss F., a Kansas University student, was in her apartment in Lawrence. Devin T. Galloway lived across the hall in the same apartment building, but the two were not acquainted. Galloway gained entrance to the apartment to use the telephone. After using the telephone he departed but returned shortly and was again admitted to the apartment. Miss F. testified that he was armed with a knife; he took her to a bedroom and forced her to disrobe; he bound her arms and legs and then raped her. Following the rape, Galloway strangled Miss F. and threatened to kill her. She lost consciousness on two occasions and, in addition, he attempted to smother her by placing a plastic bag over her head. She was finally able to convince Galloway to let her go upon payment of $400.00. The two then went to a local bank where Miss F. cashed a $400.00 check she had received that morning from her father. Galloway took the money and departed.
The appellant had a different story as to what happened on his second visit to the apartment. He testified Miss F. attempted to seduce him and, although some sexual contact took place, he could not get an erection and no sexual intercourse occurred. He contended that Miss F. offered him money in an attempt to arouse his interest and make him forget about his wife and kids. He thought money might help but as she did not have enough cash, he insisted they go to the bank and obtain $50.00 cash. He told her they could then return to the apartment and make love. The two proceeded to the bank where she cashed a $400.00 check and he then decided he would rather have all the money than the loving. He took her $400.00 and departed.
Appellant's first point on appeal is that the court erred in not instructing the jury on the lesser included offense of attempted rape. In State v. Royal, 234 Kan. 218, Syl. p 4, 670 P.2d 1337 (1983), the court held:
"The duty of the trial court to instruct the jury on lesser crimes arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge."
In the present case the victim testified that she was raped by the appellant. He testified that while she wanted sexual intercourse, all that took place was some kissing and "fooling around." Either Miss F. was raped or there was only consensual sexual contact. There was no evidence of an attempted rape and there was no error in not giving the instruction. See State v. Everson, 229 Kan. 540, 626 P.2d 1189 (1981).
Next, appellant asserts error in the failure of the trial court to instruct on sexual battery (K.S.A.1984 Supp. 21-3517) and aggravated sexual battery (K.S.A. 1984 Supp. 21-3518) as lesser included offenses of rape. This court has not previously addressed the issue of whether these two crimes are lesser included crimes of rape. K.S.A.1984 Supp. 21-3107(2)(d) defines an included crime as a "crime necessarily proved if the crime charged were proved." In State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983), the court held that "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." 233 Kan. at 107, 661 P.2d 383. Put differently, if the lesser offense requires an element to be proven that is not required of the greater offense, it is not a lesser included offense. State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977).
K.S.A.1984 Supp. 21-3502 provides:
"(1) Rape is sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances:
(a) When the victim is overcome by force or fear;
(b) when the victim is unconscious or physically powerless;
(c) when the victim is incapable of giving consent because of mental deficiency or disease, which condition was known by the offender or was reasonably apparent to the offender; or
(d) when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance administered to the victim by the offender, or by another person with the offender's knowledge, unless the victim voluntarily consumes or allows the administration of the substance with knowledge of its nature.
(2) Rape is a class B felony."
K.S.A. 1984 Supp. 21-3517(1) provides:
"(1) Sexual battery is the unlawful, intentional touching of the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another."
K.S.A.1984 Supp. 21-3518 provides:
"(1) Aggravated sexual battery is:
(a) The unlawful, intentional application of force to the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another;
(b) sexual battery, as defined in K.S.A.1983 Supp. 21-3517 and amendments thereto, against a person under 16 years of age;
(c) sexual battery, as defined in K.S.A.1983 Supp. 21-3517 and amendments thereto, committed in another's dwelling by one who entered into or remained in the dwelling without authority;
(d) sexual battery, as defined in K.S.A.1983 Supp. 21-3517 and amendments thereto, of a person who is unconscious or physically powerless; or
(e) sexual battery, as defined in K.S.A.1983 Supp. 21-3517 and amendments thereto, of a person who is incapable of giving consent because of mental deficiency or disease, which condition was known by, or was reasonably apparent to, the offender.
(2) Aggravated sexual battery is a class D felony.
(3) This section shall be part of and supplemental to the Kansas criminal code."
The crime of rape requires proof the defendant had sexual intercourse with a person who does not consent, which was committed by force or fear, or under the other circumstances set forth in the statute. The elements of sexual battery require the State to prove, among other things, that the victim is not the spouse of the offender and that the act is done with the intent to arouse or satisfy the sexual desires of the offender or another. The same elements are required in the crime of aggravated sexual battery. Obviously, these elements required in sexual battery and aggravated sexual battery are not necessary elements in the proof of rape. We hold that the crimes of sexual battery as set forth in K.S.A.1984 Supp. 21-3517 and aggravated sexual...
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