State v. Gray, 55897
| Decision Date | 08 June 1984 |
| Docket Number | No. 55897,55897 |
| Parties | STATE of Kansas, Appellee, v. Jerry B. GRAY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. While evidence of an independent offense may be admissible in a criminal case under the provisions of K.S.A. 60-455 for the limited purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, it may also possess evidential value to show the commission of the offense itself, in which case the evidence is admissible independently of the foregoing statute.
2. Acts done or declarations made before, during, or after the happening of the principal fact may be admissible as part of the res gestae where they are so closely connected with it as to form in reality a part of the occurrence. Evidence that does not constitute a portion of the crimes charged is admissible if there are some natural, necessary, or logical connections between them and the inference or result which they are designed to establish.
3. It is not error for the trial court to fail to give a limiting instruction on the purpose of evidence of other crimes when the challenged evidence is admissible independently of K.S.A. 60-455.
4. A litigant may not invite error and then complain of that error on appeal.
5. Where the trial court does not give a limiting instruction under K.S.A. 60-455 because defense counsel objects thereto, failure to give the instruction cannot be the basis for a claim of error by the defendant on appeal.
E. Roger Horsky, Leavenworth, argued the cause and was on the brief for the appellant.
Robert E. Davis, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for the appellee.
This is a direct appeal by the defendant, Jerry B. Gray, following his conviction of unlawful restraint (K.S.A. 21-3424) and rape (K.S.A. 1983 Supp. 21-3502). At the trial, the complaining witness, Tracie, testified in substance as follows: She was employed as a waitress at McDonald's restaurant in Leavenworth. Shortly after midnight on March 4, 1982, she left the restaurant with two coworkers following the closing of the business. It was cold and icy. After helping each other to clean car windows of ice, each employee left in a separate car. Tracie testified that, as she was stopped at a stoplight at an intersection, the defendant suddenly raised up out of the back seat of the vehicle and held a knife at her throat. The defendant forced her to drive to an isolated area near his apartment. He placed her coat over her head and forced her to walk to his apartment where he threatened her, told her to disrobe, and forced her to have sexual intercourse without her consent. Defendant kept her there until 11:30 a.m. the following morning when he took her to a friend's house. After the defendant had departed, the friend called the victim's family and the police, and the defendant was thereafter charged.
The defendant's story was much different. He testified that he talked to Tracie during the course of the evening at McDonald's and that she later showed up voluntarily at his apartment shortly after midnight. He let her in and they subsequently had consensual sexual intercourse. According to the defendant, the victim voluntarily stayed at his apartment until 11:30 a.m., when she went to the friend's house. Essentially, it was the defendant's word against that of the victim, since there were no other witnesses to the occurrence. The jury believed the complaining witness and convicted the defendant. Following his conviction, the defendant appealed.
The defendant's first point on the appeal is that the trial court erred in allowing the prosecution to introduce testimony as to a prior incident involving the defendant which occurred at 9:30 p.m. on March 2, 1982, approximately 26 hours prior to the commission of the offense in this case. Prior to trial, the State filed a motion requesting the court to determine the admissibility of the evidence under the provisions of K.S.A. 60-455. After considering the State's motion, the court ruled that the State could introduce the evidence at the trial. Thereafter, at the trial, the State offered the testimony of Mrs. C which was essentially as follows: At about 9:30 p.m. on March 2, 1982, in a parking lot directly across the street from the McDonald's restaurant involved in this case, Mrs. C and her husband and brother-in-law returned to Mrs. C's car following a period of shopping in the area. As Mrs. C approached her car, she saw the defendant crouching in the back seat with what appeared to her to be a knife. When the defendant saw that Mrs. C was accompanied by her husband and brother-in-law, he immediately exited the car holding what was later discovered to be a pair of scissors. The defendant did not actually threaten Mrs. C with the scissors, but he told Mrs. C that he was loaded and tired and was in the wrong car. Mrs C immediately reported the incident to the police. Defendant was then apprehended and identified as the individual that had been in the back seat of the automobile. At the trial, the defendant testified that he had ridden to the shopping center with a friend, and having been separated from his friend, went to what he thought was his friend's car to await the friend's return from the shopping center. The State introduced this evidence to corroborate the testimony of the victim on the basis that this evidence showed that 26 hours before the incident involving Tracie, the defendant was crouching in the back seat of an automobile with a sharp instrument in his hand and at a place across the street from where Tracie was assaulted. The court admitted the testimony of Mrs. C on the basis of K.S.A. 60-455 in order to show plan and preparation. It is the defendant's contention that the trial court erred in admitting the evidence of the prior incident because the resulting prejudice to the defendant far outweighed its probative value. The State contends that the evidence was not only admissible under K.S.A. 60-455 but was also...
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