State v. Howard, 61345

• Decision Date: 28 October 1988
• Docket Number: No. 61345,61345
• Citation: 763 P.2d 607,243 Kan. 699
• Parties: STATE of Kansas, Appellee, v. Carl E. HOWARD, Appellant.
• Court: Kansas Supreme Court

Page 607

763 P.2d 607

243 Kan. 699

STATE of Kansas, Appellee, v. Carl E. HOWARD, Appellant.

No. 61345.

Supreme Court of Kansas.

Oct. 28, 1988.

Syllabus by the Court

1. The defendant was properly charged with aggravated kidnapping, K.S.A. 21-3421, under the facts of this case where he overcame and confined the victim to facilitate the commission of sexual crimes against her.

2. Counts are not multiplicitous under the facts of this case where the acts were separated from each other by other sexual acts and occurred at different times in different locations within a house.

3. Sufficient evidence is found under the facts of this case to support convictions of rape, K.S.A.1987 Supp. 21-3502, and aggravated criminal sodomy, K.S.A.1987 Supp. 21-3506.

Karen E. Mayberry, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on the brief, for appellant.

Debra L. Barnett, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with her on the brief, for appellee.

HERD, Justice:

This is a criminal action. Carl Howard appeals his jury convictions of one count of aggravated kidnapping, K.S.A. 21-3421; two counts of rape, K.S.A.1987 Supp. 21-3502; and six counts of aggravated criminal sodomy, K.S.A.1987 Supp. 21-3506.

Howard was sentenced under the Habitual Criminal Act to serve a term of life for aggravated kidnapping, 20 years to life for each rape conviction, and 15 years to life for each count of aggravated criminal sodomy. The sentences for the rape convictions run concurrent with each other, but consecutive to the sentence for aggravated kidnapping. The sentences for the aggravated sodomy convictions run concurrent with each other but consecutive to the sentences for the rape convictions.

The facts out of which this case arose are sordid but must be recited in some detail because they control the issues raised. On March 5, 1987, Howard went to the home of his former girlfriend, M, who was nine months pregnant, and told her he was leaving town. He told her she could have his furniture if she would come and get it. She indicated she would not be able to do so because of her condition. M's sister, R, overheard the conversation and offered to go get the furniture for her sister.

R went with Howard on the short walk to his apartment around 12:30. Upon entering the apartment, Howard made several telephone calls. He then told R to help him with the furniture in the bedroom. As R was packing up the stereo, she felt a sharp pain behind her right ear and fell onto the bed, where Howard beat her, bit her, and demanded she undress. When R was unclothed, Howard forced his penis into her vagina while she begged him to stop. Howard told her to shut up and rolled her on her stomach, beat her on the back of her head, and inserted his penis into her anus. He then forced his penis into her mouth. As R continued to struggle and try to escape, Howard tried unsuccessfully to tie her hands with cord and a shoestring from R's shoe. He repeatedly threatened to kill her, broke a glass behind her head, and shoved her head toward the broken pieces.

R then tried to escape by telling Howard she needed to use the bathroom. Howard grabbed her arm and accompanied her. In the bathroom, he again forced his penis into her mouth. He then leaned her over the tub and again forced his penis into her anus. He then shoved her down the hallway and against the bedroom door, where he again forced his penis into her anus. R attempted to flee down the hall but was overcome by Howard and forced to reenter the bedroom.

Howard put her on the bed and again pushed his penis into her mouth. At this point R, who was having difficulty breathing, vomited on the bed. Howard removed his penis from R's mouth and repeatedly inserted it in her vagina while attempting to insert it in her anus.

Finally, Howard stopped his physical abuse and said he should kill R, as he had nothing to lose. He said he was possessed and could read her mind. R tried to stay calm and asked if he would like her to get some tarot cards she had seen in the living room and read his future. He refused, saying she would escape. She told him she would not be able to leave without her clothes. He thought this sounded reasonable and let her leave the bedroom. R seized the opportunity, ran wildly out of the house, and pounded on a stranger's door. A woman answered and let her in. She gave R a robe and let her call her mother and the police, who clocked the call at 3:20 p.m.

R's mother found R vomiting in the woman's bathroom and saw semen on R's neck. The police took R to the hospital, where she was found to have an abrasion to her right labia, two tears in the perirectal tissue, and swelling in the rectal area. There was a whitish liquid material in the vaginal bulb and around the rectum. R's face was swollen, she had abrasions on her hip, abdomen, and buttocks, and a bite mark on her left arm.

When the police went to Howard's apartment, he pretended he had been asleep and denied any knowledge of a rape. Pursuant to a search warrant, the police discovered R's clothing in Howard's bedroom and her tennis shoes with a shoestring removed. There was vomit on the pillowcase on the bed and broken glass on the floor. A chemical examination of the sheets revealed the presence of seminal material.

At trial, Howard testified R consented to oral sex but interrupted his attempt at vaginal intercourse to tell him she had gonorrhea. He said he became enraged at this news and beat her until she ran out the front door. He had no explanation for the vomit found on the pillow, the bite mark on R's arm, or the tears in her rectal area.

The first issue on appeal is whether the trial court erred in overruling Howard's motion to dismiss the count of aggravated kidnapping as it was merely incidental to the other charges and did not facilitate the commission of a crime.

K.S.A. 21-3421 defines aggravated kidnapping as kidnapping where bodily harm is inflicted. Kidnapping is defined by K.S.A. 21-3420 in relevant part as "the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person ... (b) [t]o facilitate flight or the commission of any crime."

This statute was analyzed in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), where we noted our legislature had rejected the rationale of courts which construe their statutes to require substantial movement of the victim. We held: "Under our present statute it is still the fact, not the distance, of a taking (or the fact, not the time or place, of confinement) that supplies a necessary element of kidnapping." 219 Kan. at 214, 547 P.2d 720.

We then analyzed the specific intent requirement of K.S.A. 21-3420(b), holding:

"[T]o facilitate ... means something more than just to make more convenient....

....

"[T]he ... movement or confinement:

"(a) Must not be slight, inconsequential and merely incidental to the other crime;

"(b) Must not be of the kind inherent in the nature of the other crime; and

"(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection." 219 Kan. at 215-16, 547 P.2d 720.

Under this rule, we upheld a kidnapping conviction where the appellant had accosted a woman outside her store "where they were subject to public view," and forced her inside the store to rape and rob her. "That movement, slight though it was, substantially reduced the risk of detection...." 219...