State v. Hanks

• Decision Date: 26 January 1985
• Docket Number: No. 56484,56484
• Citation: 236 Kan. 524,694 P.2d 407
• Parties: STATE of Kansas, Appellee, v. Steven L. HANKS, Appellant.
• Court: Kansas Supreme Court

Page 407

694 P.2d 407

236 Kan. 524

STATE of Kansas, Appellee, v. Steven L. HANKS, Appellant.

No. 56484.

Supreme Court of Kansas.

Jan. 26, 1985.

Syllabus by the Court

1. When there is a challenge to the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, when viewed in a light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. We look only to the evidence in favor of the verdict to determine if the essential elements of the charges are sustained.

2. It is not the function of the appellate court to reweigh the evidence or to pass upon the credibility of witnesses.

3. It is well established in this jurisdiction that a conviction of even the gravest offense may be sustained by circumstantial evidence.

4. A charge of attempted rape may be established without evidence of attempted penetration.

5. In ruling on the admissibility of evidence of a prior conviction under K.S.A. 60-455, a district court must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact--i.e., that it is substantially in issue, and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury.

6. K.S.A. 60-455 does not require the prior offense to be identical in nature to the offense for which defendant is on trial; it is sufficient if the offenses are similar.

7. The prosecutor is entitled to considerable latitude in arguing the case to a jury. There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel.

8. The court may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment.

9. Insofar as the speedy trial statute is concerned, the granting of a motion for a new trial in a criminal case has the same effect as the declaration of a mistrial, and thus the time limitations provided by K.S.A. 22-3402 commence to run from the date on which a new trial is granted.

10. A deadly weapon is an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.

Michael S. Holland, Russell, argued the cause and was on the briefs for appellant, Steven L. Hanks.

Richard E. Boeckman, of Turner & Boisseau, Chartered, Great Bend, argued the cause, and Casey R. Law and Lee Turner, Great Bend, of the same firm, and Robert T. Stephan, Atty. Gen., were with him on the briefs for appellee, State of Kansas.

MILLER, Justice:

This is an appeal by the defendant, Steven L. Hanks, following his conviction by jury trial in Barton County District Court of criminal trespass, K.S.A. 21-3721; battery, K.S.A. 21-3412; attempted rape, K.S.A. 21-3301, -3502; aggravated battery, K.S.A. 21-3414; aggravated burglary, K.S.A. 21-3716; and aggravated robbery, K.S.A. 21-3427. Defendant raises a number of issues, which we will separately state later in this opinion. These involve claims of error as to sufficiency of the evidence, argument of counsel, other crimes evidence, consolidation, mistrial, opinion evidence, double jeopardy, speedy trial, and jury instruction.

The charges of criminal trespass and battery arose out of an incident which took place July 6, 1981. The balance of the charges arose out of a separate incident occurring on November 26, 1981. The charges, originally filed as separate cases, were consolidated for trial on motion of the State. The first trial began December 20, 1982, and concluded three days later when the court declared a mistrial, the jury being unable to agree on a verdict. The second trial commenced on March 14, 1983, and concluded with the defendant's conviction on March 16, 1983. On motion of the defendant, that verdict was set aside and a new trial was granted. The third trial began on July 5, 1983, and concluded on July 8, with the defendant again being found guilty on all counts. This appeal followed the overruling of new trial motions and the imposition of sentence.

The defendant first contends that the trial court erred in overruling his motion for acquittal because the evidence was insufficient to sustain his conviction concerning the November 26 incident and the resulting charge. We therefore turn first to the facts established by the evidence. When there is a challenge to the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, when viewed in a light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. We look only to the evidence in favor of the verdict to determine if the essential elements of the charges are sustained. State v. Burton, 235 Kan. 472, 476, 681 P.2d 646 (1984); State v. Pham, 234 Kan. 649, 668, 675 P.2d 848 (1984); State v. Douglas, 230 Kan. 744, 640 P.2d 1259 (1982).

Miss B began working in the office of a manufacturing plant in Great Bend in April 1981. The defendant also worked in the plant. He began coming to her office anywhere from two to twenty times a day, asking her for a date, telling her she was pretty and had a nice smile, and that he would like to get to know her better. He also gave her notes asking her out. She continually refused him, stating that she did not believe in dating married men. Eventually she was moved to another office so that she might avoid the defendant. The defendant discussed Miss B with a coemployee, Thomas. He told Thomas that he would like to "get in her pants" and to have intercourse with Miss B.

On July 6, 1981, at about 7:00 o'clock a.m., Miss B was awakened by a noise, rolled over in bed, and saw the defendant standing in her bedroom doorway. She sat up in bed and the defendant came over and started kissing her and fondling her breasts. She immediately became angry, pushed him away, told him several times to leave, and finally threatened to call the police. Defendant left. Miss B had not invited him to her home. All of her windows and doors had been locked except the back door; she had opened it earlier that morning to let her dog out, at which time she left the back door open but thought she had locked the screen door. These facts form the basis for the criminal trespass and battery charges, the sufficiency of which evidence is not challenged. The defendant's advances to Miss B, during their hours at work, continued unabated.

On November 25, 1981, Miss B locked all of her doors and windows and retired about 11:00 o'clock p.m. About 3:00 o'clock the following morning, November 26, 1981, she was awakened by a rattling noise and the barking of her dog. She arose, turned on the light, put on her glasses, opened her bedroom door, and was confronted by a man wearing a ski mask and carrying a knife. The man came toward her, ripped her gown and then cut her gown and panties off of her with the knife. He came at her "like a raged animal," forced her onto the bed, threw her glasses away, and started to beat and choke her. He first said that all he wanted was her money, then he said that he ought to have intercourse with her. He continued to beat the left side of her face with his right hand, in which he held the knife. She received a cut on her head which bled profusely. He inserted his gloved finger into her vagina and moved it up and down, causing her pain. During this time, Miss B was able to raise the bottom of the ski mask sufficiently so that she could see that her attacker was a white male with stubble on his neck. This caused the man to increase the severity of his attack, to beat and choke her more violently. Finally, she said: "I rebuke you in the name of Jesus Christ." She then lost consciousness. When she awoke, she was on the floor and her attacker was gone. She crawled into the living room, and telephoned for help. Later, she discovered that the glass was broken out of the back door, and that her purse had been stolen. When she returned to work on the following Monday with her face all swollen, the defendant came to her office. He looked at her twice, she looked at him, his face turned red, his mouth dropped open, and he walked out without saying anything. He did not come to her office again for six weeks. Miss B testified that Steve Hanks was her attacker. This was her opinion.

I. SUFFICIENCY OF THE EVIDENCE

Defendant divides his attack on the sufficiency of the evidence into two categories. He first calls our attention to a number of inconsistencies or discrepancies in the evidence. Miss B gave what she characterized as a "guesstimate" of her assailant's height. She thought he was about five feet, eight inches tall. Defendant is six feet, one inch tall. The assailant was not wearing glasses (under or over his ski mask). Defendant wears glasses. Miss B did not smell alcohol on her assailant's breath; there was evidence that the defendant had been drinking some three or more hours prior to the assault. Miss B stated that she saw stubble on her assailant's neck; defendant offered evidence that he had a full beard at that time. The State offered evidence that he did not have a full beard in November 1981, but that he had often had two or three days' growth, or stubble. All of these matters, and other similar ones to which the defendant points, were no doubt argued to and considered by the jury, and rejected by that body when it arrived at its verdict. As we noted in State v. Douglas, 230 Kan. 744, 746, 640 P.2d 1259 (1982):

"It is not the function of the appellate court to reweigh the evidence or to pass upon the credibility of witnesses. State v. Fenton, 228 Kan. 658, 666, 620 P.2d 813 (1980); State v....