State v. Helms, 60576

• Decision Date: 15 January 1988
• Docket Number: No. 60576,60576
• Citation: 242 Kan. 511,748 P.2d 425
• Parties: STATE of Kansas, Appellee, v. Thomas HELMS, Appellant.
• Court: Kansas Supreme Court

Page 425

748 P.2d 425

242 Kan. 511

STATE of Kansas, Appellee, v. Thomas HELMS, Appellant.

No. 60576.

Supreme Court of Kansas.

Jan. 15, 1988.

Syllabus by the Court

1. The crimes of indecent liberties with a child, K.S.A. 1986 Supp. 21-3503, and rape, K.S.A. 1986 Supp. 21-3502, are not identical offenses.

2. Indecent liberties with a child, K.S.A. 1986 Supp. 21-3503, is not a more specific crime than rape, K.S.A. 1986 Supp. 21-3502, in dealing with an illicit act of sexual intercourse. Therefore, a complaint is not defective because it charges the defendant with the latter rather than the former.

3. The decision to declare a mistrial, discharge a juror, or select alternate or additional jurors lies within the sound discretion of the trial court and will not be reversed on appeal absent a showing of abuse of discretion. The defendant has the burden of proving he was substantially prejudiced.

4. Where a juror is excused for cause after the jury is empaneled but before opening statements, it is not, absent a showing of substantial prejudice, an abuse of discretion for the trial court to thereafter select alternate or additional jurors pursuant to K.S.A. 1986 Supp. 22-3412(3).

Martha J. Coffman, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on the briefs, for appellant.

Philip W. Unruh, Sp. Co. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

ALLEGRUCCI, Justice:

This is a criminal action in which the defendant, Thomas Helms, was charged with rape and aggravated battery. The defendant appeals his convictions by a jury of one count of rape (K.S.A. 1986 Supp. 21-3502) and one count of aggravated battery (K.S.A. 21-3414).

J.M. was twelve years old at the time this incident occurred and was living with her mother in Anthony, Kansas. J.M. testified that the defendant arrived at her mother's house either late in the evening on July 13 or early in the morning of July 14. The defendant forced his way into the house, pushed her down on the floor, pulled her nightgown up around her shoulders and rubbed her breasts, pulled her panties down, and played with her genitals by inserting his finger into her vagina. The defendant hit her at least one time. J.M.'s testimony was corroborated by Kenny Hodson, a lieutenant with the Anthony Police Department. Hodson testified that, between 12:30 a.m. and 2:00 a.m. on July 14, 1984, he saw a vehicle parked on the wrong side of the street in front of J.M.'s home. Hodson testified that he saw the vehicle pull away from the curb and that the driver was the defendant.

The defendant testified on his own behalf at trial, denying the charges against him and his presence at J.M.'s house on the night in question. In addition to the two offenses charged, the jury was instructed as to the lesser included offenses of indecent liberties with a child and battery. The defendant was sentenced to a term of imprisonment of ten to thirty-five years on the rape count, and a term of five to fifteen years on the aggravated battery count. The sentences for the two counts were set to run concurrently.

In the present appeal, the defendant presents two issues. He first contends that, in the present case, indecent liberties with a child (K.S.A. 1986 Supp. 21-3503) is a "more specific" statute than rape (K.S.A. 1986 Supp. 21-3502) and, therefore, indecent liberties with a child provides the exclusive basis upon which he may be charged, convicted, and punished. Thus, according to defendant's argument, the complaint was defective because it charged him with the more general crime of rape rather than a violation of the specific crime of indecent liberties with a child. Defendant cites no authority to support his contention, and we have found none.

It is true that a special statute prevails over a general statute unless the court finds that the legislature intended that the general act controls. Seltmann v. Board of County Commissioners, 212 Kan. 805, 811, 512 P.2d 334 (1973); State v. Wilson, 11 Kan.App.2d 504, 728 P.2d 1332 (1986). In Seltmann, the court defined the terms general and specific statutes: " 'A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.' " 212 Kan. at 810, 512 P.2d 334 (quoting 82 C.J.S., Statutes § 163, p. 277). We note that neither Seltmann nor Wilson is factually similar to the present case. In Seltmann, the issue was which of two statutes should be followed by the county in order to build a proposed medical clinic. In Wilson, the defendant was charged and convicted of two counts of presenting a false claim and presentment of claims not incurred. The convictions were based upon the same act of wrongdoing.

It is true, as defendant points out, that indecent liberties with a child contains an element not required to establish the crime of rape. In indecent liberties with a child, the State must prove that the victim was under sixteen years of age. But it is also true that the crime of rape contains elements not present within the crime of indecent liberties with a child. To establish rape, the State must establish that the victim did not consent to the act of sexual intercourse. The nonconsensual sexual intercourse must be shown to have occurred under specific, designated circumstances, among which is the overcoming of the victim by force or fear. K.S.A. 1986 Supp. 21-3502(1)(a). Rape is limited only to acts of sexual intercourse, while indecent liberties with a child includes a wide variety of sexual acts.

Thus, defendant's argument that indecent liberties with a child is a "more specific" crime within the general crime of rape is not persuasive. Although both crimes may be coincidentally present in the same set of factual events, the two crimes are directed at different actions. Indecent liberties with a child punishes sexual intercourse or lewd fondling with a victim under sixteen years of age. The crime of rape punishes persons committing an act of sexual intercourse with a nonconsenting victim whose resistance is overcome by force or fear. We conclude that indecent liberties with a child is not more specific than rape in dealing with an illicit act of sexual intercourse.

In addition, this court has implicitly rejected the argument now advanced by defendant Helms. In State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983), this court concluded that, in a given case, the crime of indecent liberties with a child might be a lesser included crime of the crime of rape. In such cases, the court held that the evidence might "support a conviction of either, but not both." 233 Kan. at 108, 661 P.2d 383. We rejected the defendant's argument that he could be punished only on the basis of indecent liberties with a child, and could not be convicted of rape, stating: "Here both crimes were charged and the jury was fully instructed concerning indecent liberties with a child and rape. The defendant was found guilty of both. There is no doubt the jury found the defendant guilty of the more serious crime of rape." 233 Kan. at 109, 661 P.2d 383. In Coberly, we found that, under the factual circumstances existing in the case, the crime of indecent liberties with a child was a lesser included offense of the crime of rape, and that the defendant could not be convicted of both crimes. However, while the defendant could not be convicted of both crimes, he could be punished under either the crime of rape or the crime of indecent liberties with a child. Because there was no doubt that the evidence in the case established that the defendant had committed the crime of rape, the court merely voided the defendant's conviction of indecent liberties with a child, and affirmed the defendant's conviction of rape. In so doing, this court implicitly rejected a view which treats indecent liberties with a child as a "more specific" crime than the crime of rape and the exclusive statute under which a defendant in such cases may be prosecuted. In the present case, the jury, as instructed by the court, could have found the defendant guilty of rape or the lesser included offense of indecent liberties with a child. That was a proper instruction based upon our holding in Coberly. The defendant was found guilty of rape, and that result was what this court approved in Coberly.

Finally, we note that the rule that a more specific statute should prevail over the general statute is merely a rule of interpretation which is used to determine which statute the legislature intended to be applied in a particular case and has no application in the present case. See Seltmann, 212 Kan. at 811, 512 P.2d 334. If it were to apply in the present case, the rule as a means of determining legislative intent must yield where there is a clear indication that the legislature did not intend for one statute to be the exclusive mechanism for punishing a given activity. The necessary result of the defendant's argument is that an individual who rapes a person under the age of sixteen years may not receive the punishment he would receive were he to have raped an adult. Such an interpretation accords to persons under the age of sixteen less protection than adults. The view that indecent liberties with a child provides the exclusive means of punishment for any individual who commits any sexual crime against a minor flies in the face of logic and reason. It requires an assumption that the legislature intended to afford less protection to the most vulnerable segment of our society.

As part of his first issue, defendant contends that, if we reject his argument that the complaint was defective, we must find, based upon our holding in Coberly, that the crimes of rape and indecent liberties with a child are identical. Therefore, he can be sentenced only under the lesser crime of indecent liberties with a child. The defendant cites State...