State v. Hunt, 53732

• Decision Date: 07 October 1982
• Docket Number: No. 53732,53732
• Citation: 651 P.2d 967,8 Kan.App.2d 162
• Parties: STATE of Kansas, Appellee, v. Charles HUNT, Appellant.
• Court: Kansas Court of Appeals

Page 967

651 P.2d 967

8 Kan.App.2d 162

STATE of Kansas, Appellee, v. Charles HUNT, Appellant.

No. 53732.

Court of Appeals of Kansas.

Oct. 7, 1982.

Syllabus by the Court

1. When the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, when viewed in the light most favorable to the prosecution, convinces the appellate court that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.

2. When an information is dismissed by the State on its own motion after the defendant has been arraigned, and thereafter the State causes to be filed a new information charging the same offense, the State, when calculating the speedy trial time requirements of K.S.A. 22-3402, must include the time elapsed between arraignment and dismissal of the first prosecution together with the time elapsed between arraignment and trial of the second prosecution.

3. The State cannot avoid the statutory speedy trial time limits by dismissing an information and subsequently refiling the charges. The proper procedure for the State to follow is to obtain a continuance pursuant to K.S.A. 22-3402(3).

4. Each count in an information is to be regarded as if it were a separate information. Consequently, the presence of additional charges in a second information does not alter the K.S.A. 22-3402 time limits on the charges contained in both the first and second informations.

5. The conviction of a defendant who is not afforded his statutory right to a speedy trial must be reversed and the defendant must be discharged.

6. A one-year delay between arrest and trial did not deny defendant his constitutional right to a speedy trial when he neither timely asserted his right nor made efforts to alleviate any alleged prejudice.

Michael P. McKone, of McKone & Unruh, Junction City, for appellant.

Steven L. Opat, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before FOTH, C. J., and REES and SWINEHART, JJ.

SWINEHART, Judge:

This is a direct appeal by the defendant, Charles Hunt, from convictions of aggravated assault (K.S.A. 21-3410[a ] and unlawful use of weapons (K.S.A. 21-4201[b].

The facts need not be set forth in detail. Defendant, a soldier stationed at Fort Riley, was charged with placing a medical scalpel against the neck of Wannie Lee Frazier during a late-night altercation in a Junction City park on July 27, 1980. Defendant had been watching a fight in which a friend was involved, and placed the scalpel against Frazier's neck to prevent Frazier from intervening.

An information was filed, charging defendant with aggravated assault. On November 10, 1980, arraignment was conducted in case No. 80-CR-306. On March 31, 1981, the date on which trial was to take place, the State moved to dismiss the charges without prejudice as one of the State's witnesses could not be located.

Four days later, on April 3, 1981, a new information was filed in case No. 81-CR-157, charging defendant with aggravated battery (K.S.A. 21-3414[c ], unlawful use of weapons (K.S.A. 21-4201[b ], and making a terroristic threat (K.S.A. 21-3419). On May 13, 1981, the information was amended, altering the aggravated battery charge to aggravated assault, and dropping the terroristic threat charge. On that same date, defendant was arraigned for aggravated assault and unlawful use of weapons.

A jury trial was held on July 27, 1981, seventy-five days after arraignment in case No. 81-CR-157, but two hundred fifty-nine days after arraignment in case No. 80-CR-306. Defendant was found guilty on both counts. He was sentenced to concurrent sentences of one to five years on the aggravated assault charge, and six months on the weapons charge. Defendant appeals, claiming that he was denied a speedy trial, that there was insufficient evidence to support the jury verdicts, and that a new trial is required because the testimony of the State's rebuttal witness was not recorded and transcribed and hence is not available for appellate review.

We find defendant's last contention to be without merit. Supreme Court Rule 3.04, 228 Kan. xli-xlii, sets forth procedures which must be followed in the event a portion of a transcript is unavailable. As defendant failed to comply with such procedures, he is precluded from alleging any resulting prejudice. Further, that portion of the transcript which is available reflects substantial evidence in support of the verdict. See State v. Jefferson, 204 Kan. 50, 460 P.2d 610 (1969).

We also find that there was sufficient evidence to support the conviction for unlawful use of weapons. When a defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Douglas, 230 Kan. 744, Syl. p 2, 640 P.2d 1259 (1982). The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. 230 Kan. at 744, Syl. p 3, 640 P.2d 1259.

The unlawful use of weapons is defined by K.S.A. 21-4201(1)(b ):

"(1) Unlawful use of weapons is knowingly:

....

"(b ) carrying concealed on one's person, or possessing with intent to use the same unlawfully against another, a dagger, dirk, billy, blackjack, slung shot, dangerous knife, straight-edged razor, stiletto or any other dangerous or deadly weapon or instrument of like character, except that an ordinary pocket knife with no blade more than four inches in length shall not be construed to be a dangerous knife, or a dangerous or deadly weapon or instrument; "

Defendant was charged under that part of the statute making it unlawful to possess with an intent to use the weapon unlawfully; no allegation of concealment was involved.

We have reviewed the evidence and find it sufficient to allow a rational jury to find defendant guilty beyond a reasonable doubt. The scalpel was clearly a dangerous weapon within the meaning of the statute and was used unlawfully in defendant's assault upon Frazier. As defendant was the initial aggressor, his self-defense argument is without merit. See K.S.A. 21-3214.

Because of our resolution of defendant's speedy trial claim, we need not address the sufficiency of the evidence in support of the aggravated assault conviction.

Defendant's primary argument is that he was denied his right to a speedy trial. Prior to trial, defendant, who was free on bond, unsuccessfully moved to have both charges dismissed, alleging a violation of his statutory and constitutional rights to a speedy trial on the aggravated assault charge and a violation of his constitutional right on the weapons violation charge.

Defendant's statutory argument is based on K.S.A. 22-3402:

"(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3)."

Defendant contends that the time between the November 10, 1980, arraignment and the March 31, 1981, dismissal of case No. 80-CR-306, a total of 142 days, should be included in calculating the 180-day limit. As he was not brought to trial until July 27, 1981, 259 days following the initial arraignment, he alleges that his speedy trial right was violated.

The State, on the other hand, contends that case No. 81-CR-157 was a new, distinct prosecution. The State stresses the fact that additional charges and charges of greater severity were contained in the second information. As defendant was tried within seventy-five days of the arraignment in the new case, the State contends that the statutory requirement was met.

Among those states which have a statutory requirement that a defendant be brought to trial within a specified time period, there is a split of authority as to the effect of the dismissal of an original indictment or information and the filing of a subsequent indictment or information. See generally 21A Am.Jur.2d, Criminal Law § 852; 22A C.J.S., Criminal Law § 468; Annot., 30 A.L.R.2d 462. The two leading Kansas cases addressing this question under our speedy trial statute are State v. Fink, 217 Kan. 671, 538 P.2d 1390 (1975), and State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979).

In Fink, our Supreme Court stated:

"The time elapsing between the filing of the first information and the dismissal of the cause by the court is not to be counted in determining the time elapsed between the filing of the second information and trial. (State v. Rowland, 172 Kan. 224, 239 P.2d 949 [1952] ....) The charge is no longer pending against a prisoner, and therefore another indictment or complaint can be filed against him." (217 Kan. p. 675, 538 P.2d 1390.)

Fink is readily distinguishable from the present case, however, in that the dismissal of the first information occurred prior to arraignment and pursuant to defendant's own motion.

In Cuezze, a four-count information was filed against defendants Cuezze and Houston. Approximately three months after arraignment on the first information, a second information was filed, adding a third defendant and dropping one count of conspiracy. The first information was subsequently dismissed. After the statutory time limits for trial on the first information had elapsed, but within the time limits allowable under the second information, defendants Cuezze and Houston moved to dismiss the charges, alleging a speedy trial violation. The trial court granted the motion and the decision was affirmed by our Supreme...