State v. Hutchcraft
| Decision Date | 30 October 1987 |
| Docket Number | No. 59645,59645 |
| Parties | STATE of Kansas, Appellee, v. Robert HUTCHCRAFT, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The offenses of indecent liberties with a child, K.S.A.1983 Supp. 21-3503; rape, K.S.A.1983 Supp. 21-3502; and aggravated criminal sodomy, K.S.A.1983 Supp. 21-3506, are not identical offenses with the offense of aggravated incest, K.S.A.1984 Supp. 21-3603.
2. The "age of consent" in Kansas is fixed by statute at sixteen years. A person under that age cannot legally consent to sexual acts.
3. The duty of the trial court to instruct the jury on a lesser crime arises only where there is evidence upon which a defendant might reasonably be convicted of the lesser crime.
4. A lesser offense is considered a lesser included offense when all of the elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged.
5. If the lesser offense requires proof of an element not necessary in the greater, it is not a lesser included offense and the trial court should not give an instruction on the lesser offense.
6. Under present Kansas law, a sex crime by a parent against a child is not a more serious offense than a sex crime by a stranger against a child.
7. Under the facts of this case, aggravated sexual battery, K.S.A.1983 Supp. 21-3518(1)(b), is a lesser included offense of indecent liberties with a child, K.S.A.1983 Supp. 21-3503, and the trial court erred in failing to instruct the jury as to that lesser offense with reference to Count V of the information.
8. A judge assigned to hear any portion of a case is a "trial judge," as that term is used in K.S.A. 60-460(dd).
Brad L. Keil, Asst. Appellate Defender, and Benjamin C. Wood, Chief Appellate Defender, was with him on brief, for appellant.
Wesley K. Griffin, Asst. Dist. Atty., and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on brief, for appellee.
Robert Hutchcraft, charged with various offenses involving six minor children, was convicted by jury trial in the District Court of Wyandotte County of five counts of indecent liberties with a child, two counts of aggravated criminal sodomy, and one count of rape, all committed between July 12, 1983, and July 12, 1985. He was acquitted of one additional count of indecent liberties with a child. He was sentenced as a habitual criminal to concurrent terms of 30 years to life for rape and the two counts of aggravated criminal sodomy, and concurrent terms of 5 to 20 years for the five counts of indecent liberties with a child, the latter to be consecutive to the 30 years to life sentences. He appeals, contending that the offenses of indecent liberties with a child contained in certain of the counts, rape, and aggravated criminal sodomy are identical to the offense of aggravated incest; that the trial court erred in failing to instruct the jury as to the lesser included offense of aggravated sexual battery relating to Count V which charged him with committing indecent liberties; and that the court committed error in its application of K.S.A. 60-460(dd). Since the points raised are questions of law, we need not detail the facts.
We turn first to the defendant's claim that the offense of indecent liberties with a child, as defined by K.S.A.1983 Supp. 21-3503, is identical with the offense of aggravated incest, as defined by K.S.A. 1984 Supp. 21-3603. Both sections of the statute were originally enacted as a part of the comprehensive Kansas Criminal Code in 1969. See L.1969, ch. 180. K.S.A. 21-3503, defining indecent liberties with a child, is a part of article 35, defining sex offenses; K.S.A. 21-3603, defining aggravated incest, is a part of article 36, defining crimes affecting family relationships and children.
K.S.A.1983 Supp. 21-3503, which became effective on July 1, 1983, reads as follows:
That statute was amended in 1984 to include sodomy as one of the prohibited acts; it was again amended in 1985 to delete sodomy. For the present discussion, the inclusion of sodomy as one of the prohibited acts for the one-year period is not important.
K.S.A.1984 Supp. 21-3603 defines aggravated incest, as follows:
All of the alleged victims were step-grandchildren of the defendant. Thus, he contends that aggravated incest is an identical offense to that of indecent liberties with a child, under the particular circumstances of this case. We do not agree. Indecent liberties with a child requires the State to prove that the child is not married to the offender and that the child is under sixteen years of age. Aggravated incest requires the State to prove that the child is under eighteen years of age; that the child is related to the offender as a biological, step, or adoptive relative; and that the defendant, knowing of that relationship, either married the child or committed certain prohibited acts with the child. It is clear that the offense of indecent liberties with a child is not identical with the offense of aggravated incest. The identity of offenses which we found in State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), and State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986), is lacking here. Nowhere in the indecent liberties with a child statutes do we find that the State must prove that the victim was, and was known to the offender to be, a biological, step, or adoptive relative. Thus, the offenses charged in Counts I, VI, VII, and IX, indecent liberties with a child, were not identical with the offenses which might have been charged under the aggravated incest statute, and the trial court did not err in submitting to the jury instructions relating to indecent liberties with a child on those counts, and, upon defendant's conviction by the jury, in sentencing him for Class C felonies.
Defendant was convicted of raping one of the victims under a charge contained within Count II of the information. Defendant contends on appeal that the offense of rape is identical to the offense of aggravated incest. We do not agree. Rape, as defined by K.S.A.1983 Supp. 21-3502, is sexual intercourse with a person who does not consent to the intercourse, under any of certain circumstances. The State must prove either that the victim was overcome by force or fear, or was unconscious or physically powerless, or was incapable of giving consent because of mental deficiency or disease which condition was known by the offender or was reasonably apparent to the offender, or that the victim was incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug, or other substances under certain circumstances. To establish the offense of aggravated incest, as defined by K.S.A.1984 Supp. 21-3603, the State was required to prove that the child victim was under eighteen years of age and was related to the offender in certain biological, step, or adoptive relationships and that the defendant, knowing of that relationship, either married the child or committed certain prohibited acts with the child. The prohibited acts include sexual intercourse, sodomy, certain other unlawful sexual acts, or any lewd fondling or touching under certain circumstances. The elements of the two offenses are not the same, and the trial court did not err in instructing the jury on the offense of rape, and in proceeding to sentence the defendant for a Class B felony upon his conviction thereof.
Finally, in this regard, the defendant contends that the offense of aggravated criminal sodomy, as defined by K.S.A.1983 Supp. 21-3506, is an identical offense to that of aggravated incest, K.S.A.1984 Supp. 21-3603. Aggravated criminal sodomy, as defined by K.S.A.1983 Supp. 21-3506, requires the State to prove that the defendant engaged in sodomy with a child who is not married to the offender and who is under sixteen years of age. Aggravated incest, on the other hand, requires the State to establish that the defendant married or engaged in certain prohibited acts with a person who was under eighteen years of age and who was, and who was known to the offender to be, related to the offender as any of certain biological, step, or adoptive relatives. While sodomy with such a person is a prohibited act under the aggravated incest statute, the age of the children involved varies from one statute to the other. The aggravated incest statute requires proof of biological, step, or adoptive relationships between the accused and the victim, and knowledge by the accused of that relationship--elements not found in the aggravated criminal sodomy statute. W...
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State v. Dinh Loc Ta
...was sufficient evidence to show the touching was lewd), superseded by statute on other grounds as stated in State v. Hutchcraft, 242 Kan. 55, 59–61, 744 P.2d 849 (1987). Again, the defendant's intent was not a factor in the determination. We have also cautioned against collapsing the separa......
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State v. Singleton, No. 92,638.
...incest, even when the defendant was within the degree of relationship set out in K.S.A. 21-3603 pursuant to State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987). While Hutchcraft was overruled in part by State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992),Willliams was not decided until 1......
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Bryant v. State
...charged, it was legally permissible to charge petitioner with indecent liberties rather than aggravated incest, see State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987), overruled in relevant part by Williams, 829 P.2d at 897, and thus petitioner's plea was not an unlawful plea. See Broce,......
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Hunt v. Daily
...or aggravated incest, even when the defendant was related to the victim in the degree set out in K.S.A. 21-3063. See State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987), overruled in part by Williams; see also Baker, 20 Kan.App.2d 807, 894 P.2d 221. Williams, which changed Kansas law, was......