State v. Gregg, 50511
| Decision Date | 27 October 1979 |
| Docket Number | No. 50511,50511 |
| Parties | STATE of Kansas, Appellee, v. Rick F. GREGG, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Indecent solicitation of a child (K.S.A. 21-3510 is not a lesser included offense of aggravated indecent solicitation of a child (K.S.A. 21-3511) unless there is a dispute as to whether the child is under twelve years of age.
2. Lewd and lascivious behavior (K.S.A. 21-3508) is not a lesser included offense of aggravated sodomy (K.S.A. 21-3506) or indecent liberties with a child (K.S.A.1978 Supp. 21-3503).
3. A trial judge has discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination.
4. The record on convictions of aggravated sodomy and aggravated indecent solicitation of a child is examined and it is Held : (1) The trial court did not err in refusing to instruct on lewd and lascivious behavior or indecent solicitation of a child as lesser included offenses of either count; (2) the trial court did not abuse its discretion in denying defendant's motion for a psychiatric examination of the complaining witness; and (3) the trial court did not err in denying defendant's motion for a new trial.
Charles M. Tuley, Atchison, argued the cause and was on the brief for appellant.
Samuel L. Schuetz, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and John L. Weingart, Asst. County Atty., were on the brief for appellee.
This is a direct appeal by Rick F. Gregg from his convictions by jury trial of aggravated sodomy (K.S.A. 21-3506) and aggravated indecent solicitation of a child (K.S.A. 21-3511), as a lesser included offense of the charged crime, indecent liberties with a child (K.S.A.1978 Supp. 21-3503).
The charges herein arise from two separate incidents involving defendant and an eight-year-old girl, Michelle. The household in question included two women and their five children. Various male acquaintances of the women visited or resided in the home on varying bases. Defendant was one of these individuals, although he was married and had a residence of his own. Defendant assisted in caring for the children.
The aggravated sodomy charge arose from the December 13, 1977, occurrence, and may be designated as the "bathroom incident." The victim stated that defendant forced her to commit fellatio with him. Defendant's version was that he was high on drugs and liquor and that the little girl had, on her own initiative, committed the act before he was aware of what was occurring.
The indecent liberties with a child charge (conviction of aggravated indecent solicitation of a child as a lesser included offense) arose from the occurrence on December 9, 1977, and may be designated as the "nosebleed incident." The victim had received a nosebleed from a facial blow inflicted by one of the other children. Defendant then took the child upstairs to a bedroom.
The victim's version of what occurred in the bedroom was that defendant shut the door, told her to pull down her pants, pulled down his pants, "got on top" of her, hurt her in the genital area, and told her not to tell anyone. Defendant denied that anything untoward had occurred in the bedroom.
Defendant claims error in the refusal of the trial court to instruct on lewd and lascivious behavior (K.S.A. 21-3508) and indecent solicitation of a child (K.S.A. 21-3510) as lesser included offenses on both counts.
A lesser 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 to establish the elements of the greater offense. State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978).
The following chart shows the charges, the lesser included instructions given, and those denied:
Convicted: Aggravated Indecent Solicitation of a Child The elements of the offenses concerned herein are as follows:
K.S.A.1978 Supp. 21-3503. Indecent liberties with a child.
K.S.A. 21-3508. Lewd and lascivious behavior.
K.S.A. 21-3510. Indecent solicitation of a child.
"Indecent solicitation of a child is the accosting, enticing or soliciting of a child under the age of sixteen (16) years to commit or to submit to an unlawful sexual act."
K.S.A. 21-3511. Aggravated indecent solicitation of a child.
"Aggravated indecent solicitation of a child is the accosting, enticing or soliciting of a child under the age of twelve (12) years to commit or to submit to an unlawful sexual act."
Indecent solicitation of a child makes certain acts with a child under sixteen years of age illegal. Aggravated indecent solicitation of a child makes the same acts with a child under twelve years of age illegal also, but with a greater penalty (class E felony as opposed to a class A misdemeanor).
Although defendant's position is not too clear on this point, apparently he is contending that indecent solicitation of a child is an automatic lesser included offense of aggravated indecent solicitation of a child since a child under twelve years of age must of necessity be a child under sixteen years of age. Defendant cites no authority in support of this contention.
Clearly, the legislature has seen fit to affix a greater penalty to certain acts committed with a young child than with an older child. There was no dispute as to the child's age. Under aggravated indecent solicitation of a child it was incumbent upon the State to prove the child was under twelve years of age. No error is shown in refusing to instruct on indecent solicitation of a child.
Defendant further complains that instructions on both counts should have been given on the lesser included offense of lewd and lascivious behavior (K.S.A. 21-3508). A reading of the statute shows the gist of the proscribed behavior is the exhibitionist aspect of the sexual behavior. This, accordingly, is not an offense necessarily proven on a prosecution of indecent liberties with a child or aggravated sodomy, nor is there an identity of elements. For illustration, both the latter offenses could transpire in total darkness; whereas, it would be virtually impossible to commit lewd and lascivious behavior under such circumstances.
This precise issue as to aggravated sodomy was decided in State v. Crawford, 223 Kan. 127, 573 P.2d 982 (1977), Cert. denied 435 U.S. 930, 98 S.Ct. 1504, 55 L.Ed.2d 527 (1978), wherein this court said at 128, 573 P.2d at 984:
Crawford is equally good authority for the proposition that lewd and lascivious behavior is not a lesser offense of indecent liberties with a child.
No error is shown by the trial court on either count in refusing to instruct on indecent solicitation of a child or lewd and lascivious behavior.
Defendant's next point of claimed error is the trial court's denial of defendant's motion for a psychiatric examination of Michelle, the complaining witness.
The day before the trial commenced court and counsel had a pretrial conference. At that time defense counsel stated:
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