State v. Lora

• Decision Date: 03 November 1973
• Docket Number: No. 47013,47013
• Citation: 515 P.2d 1086,213 Kan. 184
• Parties: STATE of Kansas, Appellee, v. George G. LORA, Appellant.
• Court: Kansas Supreme Court

Page 1086

515 P.2d 1086

213 Kan. 184

STATE of Kansas, Appellee, v. George G. LORA, Appellant.

No. 47013.

Supreme Court of Kansas.

Nov. 3, 1973.

Syllabus by the Court

1. Where the sufficiency of the evidence is being reviewed on appeal in a criminal case the function of the appellate court is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt.

2. An information charging burglary is defective in form unless it specifies the ulterior felony intended by an accused in making the unauthorized entry.

3. If the ulterior felony intended in a burglary is made clear at the preliminary hearing or by the context of the other charge or charges in the information the failure to allege the specific intended felony does not constitute reversible error.

4. When two offenses are charged in separate counts of one information the test to be applied in determining duplicity is not whether the facts proved at trial are actually used to support the conviction of both offenses, it is whether the necessary elements of proof of the one crime are included in the other.

5. The necessary elements to prove a burglary with the intent to commit rape are not included in the elements to prove an attempt to commit a rape even though the intent to commit rape is a common element of both crimes.

6. In-court identifications may be found capable of standing on their own feet even though preceded by deficient pretrial confrontations.

7. The granting or denial of a motion for new trial on the ground of newly discovered evidence rests largely in the sound discretion of the trial court. It must be shown to the trial court's satisfaction that the alleged newly discovered evidence was not within the knowledge of the defendant at the time of his trial.

8. The statement of evaluation of a defendant in a report from the Kansas State Reception and Diagnostic Center obtained by the district judge after conviction and before sentencing is examined and held not to be newly discovered evidence which would entitle defendant to a new trial.

9. Failure to instruct the jury on some lesser degree of the crime charged is not ground for reversal if the evidence at the trial excludes a theory of guilt on the lesser offense.

Russell Shultz, Wichita, argued the cause and was on the brief for appellant.

Larry Kirby, Deputy Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Wichita, of counsel, were with him on the brief for appellee.

FROMME, Justice:

The defendant George G. Lora in one information was charged with four burglaries, one rape, one battery and one attempted rape. The jury returned a verdict of guilty on each of these seven counts. The charges arose from a series of four burglaries occurring between October 9, 1970, and March 25, 1971, in one neighborhood in Wichita, Kansas. The burglaries occurred at the Young residence at 263 Bonnie Brae, the Shrum residence at 407 Oakwood Drive, the Cozine residence at 801 Brookfield and the Abderholden residence at 1020 North Harding.

Because of the number of charges arising from these four burglaries and because of the nature of the points raised on appeal we feel the following chart may be helpful in the discussion that follows.

PLACE OF CRIME

COUNT DATE OCCURRENCE CHARGED

1 Oct. 9, 1970 Young Residence Aggravated burglary

2 " " Rape of Mrs. Young

3 " " Battery of Mrs. Young

4 Jan. 5, 1971 Shrum Residence Burglary

5 March 18, 1971 Cozine Residence Burglary

6 March 25, 1971 Abderholden Aggravated burglary

Residence

7 " " Attempted rape of

Mrs. Abderholden

Defendant received consecutive sentences totalling not less than 22 years and not more than 85 years. He appeals and contends the evidence was insufficient to sustain the verdicts. It is therefore necessary for us to examine some of the evidence introduced.

As to the charges contained in Counts 1, 2 and 3 involving the Young residence there was testimony that on the morning of October 9, 1970, a man was observed in the neighborhood attempting to gain unauthorized entry through a terrace door at 407 Oakwood Drive. He was described by an eye witness as being five feet ten inches in height, weighing 185 to 190 pounds, having dark, short, curly hair and wearing an olive green hip-length coat. When discovered by Mrs. Shrum he ran from the premises. No charge was filed in connection with this incident.

Approximately three hours later in this same neighborhood Mrs. Young returned to her home at 263 Bonnie Brae. When she unlocked the front door and stepped inside she was grabbed by a man wearing gloves and a mask. When she cried out the man knocked her to the floor, stomped and kicked her. He took Mrs. Young into the bedroom, tied her arms behind her back, threw her on the bed and raped her. He prepared to leave the house but before leaving he returned to Mrs. Young and tied her ankles with panty hose. Mrs. Young described her assailant as being five feet ten inches in height, having black, curly hair, weighing 190 to 200 pounds, wearing a green corduroy car coat, black shoes, dark trousers and speaking with an accent. She noticed that her assailant had rather plump hands and was wearing a yellow gold weeding ring with a raised, consistent, engraved design and a narrow edge around it. The mask which he was wearing had been cut from her daughter's red leotards. An examination of her house after the incident disclosed several things out of place including family pictures, cold cream and scissors.

Two months after this incident Mrs. Young received a telephone call at her home. She described the voice of the caller as being in a tenor range, very soft, articulate, a tender-type voice with an accent, probably of Spanish extraction. She recognized the voice as being that of her former assailant. The caller asked for her husband, identified himself as Bill Kirby of the First National Bank, and attempted to learn when she expected her husband to return home. No one by the name of Bill Kirby worked at the First National Bank. Nothing further came of this call. The testimony was introduced to show the pattern of conduct followed by the burglar in the Young and the Abderholden burglaries.

Around the first of May, 1971, Mrs. Young picked out George G. Lora's picture from among six or eight photographs of individuals. She identified Lora as being her assailant on October 9, 1970. One week later Mrs. Young identified Lora in a police lineup. After the lineup the police had Lora display his left hand through a small passwindow in a door. Mrs. Young recognized the ring worn on the ring finger as being the same ring worn by her assailant on October 9, 1970. During defendant's trial a wedding ring was removed by the defendant from his finger. It was identified during the trial by Mrs. Young as the ring worn by her assailant on October 9, 1970.

Where the sufficiency of the evidence is being reviewed on appeal in a criminal case the function of the appellate court is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt. If such an inference appears the verdict of the jury approved by the trial court must stand. (State v. Shaw, 195 Kan. 677, 408 P.2d 650; State v. Chuning, 201 Kan. 784, 443 P.2d 248, cert. den. 393 U.S. 1069, 89 S.Ct. 726, 21 L.Ed.2d 712; State v. Wade, 203 Kan. 811, 813, 457 P.2d 158; State v. Kliewer, 210 Kan. 820, Syl. 5, 504 P.2d 580.)

The evidence is clearly sufficient in this case to support the first three counts under the above rule. We will discuss the sufficiency of the evidence on the balance of the counts later.

Defendant's next point of error is directed to the wording in those counts of the information which charged the defendant with burglary. In each of these four counts the district attorney merely alleged the defendant did on a certain day 'unlawfully, wilfully, knowingly and without authority enter into and remain within a building . . . with the intent to commit a felony'. The nature of the felony intended was not specified in the particular count. It is argued that the information was fatally defective, for without specifying the felony intended an accused has no way of knowing what evidence the state will present. Defendant argues that because of this failure it was impossible for him to disprove the element of intent to commit a felony. The defendant further contends that as a result of the trial court's refusal to compel the state to specify the intended felony his substantial rights were prejudiced on the four burglary counts.

Burglary is defined in K.S.A. 1972 Supp. 21-3715 and 21-3716. The latter statute relates to aggravated burglary which differs only in the added requirement that the place of the burglary be occupied by a human being during the course of the burglary. The four burglary counts were framed in the words of the statute without specifying the nature of the felony intended.

An information charging burglary is defective in form unless it specifies the ulterior felony intended by an accused in making the unauthorized entry. (Champlain v. State, 53 Wis.2d 751, 193 N.W.2d 868, 872; People v. Burd, No. 1, 13 Mich.App. 307, 164 N.W.2d 392, 397; Gomez v. People, 162 Colo. 77, 424 P.2d 387, 388-389; Adkins v. State, (Alaska) 389 P.2d 915; Bays v. State, 240 Ind. 37, 159 N.E.2d 393, 397-398, cert. den. 361 U.S. 972, 80 S.Ct. 605, 4 L.Ed.2d 551; State v. Minnick et al., 3 Storey 261, 53 Del. 261, 168 A.2d 93, 95-97; State v. Allen, 186 N.C. 302, 119 S.E. 504, 505-506; 2 Wharton, Criminal Law, § 1039 (12th ed. 1932); 13 Am.Jur.2d, Burglary, § 36, p. 341; 12 C.J.S. Burglary § 32 b, p. 691.)

Such a defect does not, however, automatically result in prejudicial error. In State v. Sargent, 126 Kan. 200, 268 P. 98, the accused was charged with burglary but the ulterior felony intended was not included in the burglary charge. The accused was charged in the...