State v. Jackson
Decision Date | 13 June 1986 |
Docket Number | No. 58758,58758 |
Parties | STATE of Kansas, Appellee, v. David JACKSON, Appellant. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial.
2. A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of an information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal.
3. If the facts alleged in an information do not constitute an offense within the terms and meaning of the statute upon which it is based, the information is fatally defective. The evidence introduced at trial to show commission of the crime sought to have been charged, and the jury instruction thereon, have no bearing on this question.
4. In Kansas all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute.
5. An information which omits one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective, and convictions for those offenses must be reversed.
6. The procedure for admission of testimony under K.S.A. 1985 Supp. 60-460(dd) is stated, following State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985).
7. Under K.S.A. 60-456, the opinion testimony of experts on the ultimate issue or issues is not admissible without limitations. Such testimony is admissible only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.
8. An expert's opinion in a proper case is admissible up to the point where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence.
9. Where the statement of an unavailable child witness was admitted into evidence under K.S.A.1985 Supp. 60-460(dd), which statement was made by the child to experienced child abuse investigators, it is held that the trial court erred in permitting the investigators to testify that in their opinions the child was telling the truth and the defendant committed the crime for which he was charged.
10. The State need not prove the precise time a crime occurred unless it is an essential element of the offense.
11. The time of the offense is not an essential element of indecent liberties with a child.
12. In this state, all crimes are established by legislative act. There are no common-law crimes in Kansas, and there can be no conviction except for crimes defined by statute.
13. One cannot be convicted of a criminal offense under a statute not yet enacted and effective.
Melissa Kelly, Appellate Defender, argued, and Benjamin C. Wood, Chief Appellate Defender, was with her on brief, for appellant.
Richard M. Smith, Co. Atty., argued, and Robert T. Stephan, Atty. Gen., was with him on brief, for appellee.
Defendant David Jackson appeals from his conviction by jury trial in Linn County of two counts of indecent liberties with a child, K.S.A.1984 Supp. 21-3503, and one count of aggravated criminal sodomy, K.S.A.1985 Supp. 21-3506. As issues on appeal, defendant contends that the trial court lacked jurisdiction to convict him of the indecent liberties counts because the information was fatally defective in not alleging every essential element of those crimes. He also contends that the court erred in allowing two social workers to testify that, in their opinions, the child victim was telling the truth and had been sexually abused by the defendant; that the court erred in allowing the State to proceed to trial on the information which charged that the offenses occurred between September 1, 1983, and August 6, 1984, primarily for the reason that one of the crimes charged was not a statutory offense during that entire period of time; and, finally, that the court erred in denying his motion for amendment of judgment and erred in allowing him to be convicted of aggravated criminal sodomy, a class B felony, which had elements identical to the offense of indecent liberties with a child, a class C felony under the then-applicable statute, as he could be convicted only of the lesser offense.
We first consider the charges contained in counts Nos. 1 and 2 of the amended information upon which the case went to trial. Count No. 1 purports to charge the offense of indecent liberties with a child, based on alleged acts of sodomy. Count No. 2 purports to charge indecent liberties with a child, based on alleged acts of lewd fondling and touching of the person of the child.
Count No. 1 purports to charge indecent liberties with a child under K.S.A.1984 Supp. 21-3503(1)(b). That statute, which became effective July 1, 1984, only thirty- six days before the expiration of the time period alleged, defines indecent liberties with a child in part as follows:
"(1) Indecent liberties with a child is engaging in any of the following acts with a child who is not married to the offender and who is under 16 years of age:
....
"(b) sodomy...."
Under that statute, one of the elements of the offense is that the victim be under sixteen years of age. Count No. 1 names the victim but does not allege or charge that she was under sixteen years of age. An essential element of the offense is thus omitted from the information.
Count No. 2 of the information attempted to charge the offense of indecent liberties with a child under K.S.A.1983 Supp. 21-3503(1)(b) or K.S.A.1984 Supp. 21-3503(1)(c). Both statutes make it an offense to engage in the lewd fondling of the person of a child who is not married to the offender and who is under sixteen years of age, with certain specified intent. Under both statutes, two of the essential elements of the offense are (1) that the child is not married to the accused, and (2) that the child is under sixteen years of age. Neither element was alleged in count No. 2.
In State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985), we said:
The State points out that the evidence at trial clearly showed that the victim was not married to the defendant and the victim was under sixteen years of age, and argues that this corrects any omission in the information. However, in State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979), we stated our rule in Syl. p 2 as follows:
(Emphasis supplied.)
The State makes several other arguments as to why the information was not fatally defective. First, the State directs our attention to K.S.A.1985 Supp. 22-3201, which provides that allegations made in one count may be incorporated by reference in another count, and also provides that the information "shall state for each count the official or customary citation of the statute ... which the defendant is alleged to have violated." Counts Nos. 1 and 2 of the information did not attempt to incorporate other allegations by reference. We find no language of that nature in either count. The State argues that the statutory citations included in counts Nos. 1 and 2 should be sufficient to supply all of the elements of the offenses charged in each of the counts. We do not agree. Our cases have long held that the essential elements of a crime must be set forth in the information. Reference to the statute is not sufficient; following the State's argument, an information could simply charge that a named defendant violated a cited statute. Additionally, and though we do not consider it controlling of our decision on this issue, we note that the statutory citations of the sections violated, given in both counts Nos. 1 and 2 of the information, are incorrect. The citations given refer only to penalty sections of the statute, not to the substantive sections setting forth the crime of indecent liberties which each count attempts to charge. As Justice (now Chief Justice) Schroeder said for a unanimous court in State v. Minor, 197 Kan. 296, 299, 416 P.2d 724 (1966):
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... . Page 590 . 449 N.W.2d 590 . Bruce McCAFFERTY, Petitioner and Appellee, . v. . Herman SOLEM, Warden, South Dakota State Penitentiary, . Respondent and Appellant. . Nos. 16121, 16137. . Supreme Court of South Dakota. . Considered on Briefs Aug. 29, 1988. . Reassigned ... For other jurisdictions, supporting the dissents of Justice Sabers and this writer, in point, see: State v. Jackson, 239 Kan. 463, 721 P.2d 232, 238 (1986); People v. Reinhardt, 167 Mich.App. 584, 423 N.W.2d 275, 282 (1988); State v. Miller, 377 N.W.2d 506 . ......
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