State v. Moore

• Decision Date: 17 July 1987
• Docket Number: No. 59476,59476
• Citation: 748 P.2d 833,242 Kan. 1
• Parties: STATE of Kansas, Appellee, v. Gary MOORE, Appellant.
• Court: Kansas Supreme Court

Page 833

748 P.2d 833

242 Kan. 1

STATE of Kansas, Appellee, v. Gary MOORE, Appellant.

No. 59476.

Supreme Court of Kansas.

July 17, 1987.

Syllabus by the Court

1. An offense is a lesser included offense under K.S.A. 21-3107(2)(d) when all of the elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense.

2. The crime of aggravated incest (K.S.A.1986 Supp. 21-3603) is not a lesser included offense of the crime of rape (K.S.A.1986 Supp. 21-3502).

3. In an appeal from conviction of one count of rape and one count of aggravated incest, the record is examined and it is held: The district court did not err in (1) admitting evidence of prior sexual conduct between the defendant and victim; (2) failing to give a limiting instruction as requested by the defendant; and (3) denying the defendant's motion for a mistrial and a new trial.

Bruce C. Barry, of Bengtson, Waters & Barry, Chartered, of Junction City, argued the cause and was on the brief for appellant.

Edwin A. Van Petten, Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

ALLEGRUCCI, Justice:

Gary Moore was convicted by a jury of one count of rape, K.S.A.1986 Supp. 21-3502, and one count of aggravated incest, K.S.A.1986 Supp. 21-3603. He was sentenced to five to twenty years' and two to five years' imprisonment, respectively, to run concurrently. Defendant appeals, contending that the trial court erred in admitting into evidence prior sexual relations between him and the victim without a limiting instruction and in denying defendant's motion for mistrial and new trial based on statements by the prosecuting attorney in closing argument. Defendant also contends that aggravated incest is a lesser included offense of rape.

The basic facts are not in dispute. B.M. is the daughter of the defendant. B.M. testified that, from the time she was six to when she was twelve years old, the defendant had frequently engaged in sexual intercourse and oral sex with her. The defendant ceased this activity when B.M. threatened to tell her mother. The defendant and B.M.'s mother later separated.

In July 1984, the defendant indicated to B.M. that he was sorry that the prior sexual activities had occurred, and B.M. moved into the defendant's house in Alta Vista, Kansas. In August, 1984, the defendant took B.M. to a beer keg party in Wabaunsee County. After they returned home, B.M. went to her bedroom and fell asleep. B.M. testified that she was awakened later in the night by the defendant, who entered her room and engaged in sexual intercourse with her, to which she did not consent and against which she did not resist out of fear. In August 1984, B.M. was sixteen years old.

We first consider defendant's contention that the crime of aggravated incest (K.S.A.1986 Supp. 21-3603) is a lesser included crime of rape (K.S.A.1986 Supp. 21-3502) and that, therefore, while he might be convicted of either aggravated incest or rape, he could not be convicted of both. K.S.A.1986 Supp. 21-3107(2) provides:

"Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

"(a) A lesser degree of the same crime;

"(b) an attempt to commit the crime charged;

"(c) an attempt to commit a lesser degree of the crime charged; or

"(d) a crime necessarily proved if the crime charged were proved."

K.S.A.1986 Supp. 21-3107(2)(a) was discussed in State v. Long, 234 Kan. 580, 675 P.2d 832 (1984). In Long, this court held that theft (K.S.A.1986 Supp. 21-3701) is a lesser included offense of robbery (K.S.A. 21-3426), even though the two crimes contain separate and distinct elements, and thus would not fall under clause (d) of 21-3107. 234 Kan. at 587-92, 675 P.2d 832. This court found that robbery and theft were traditionally considered to be different degrees of the same generic crime of larceny, and that theft would therefore be an included crime of robbery under clause (a) of 21-3107. 234 Kan. at 590-92, 675 P.2d 832.

For purposes of K.S.A.1986 Supp. 21-3107(2)(d), on the other hand, an offense is considered an included crime when "all [of the] elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense." State v. Coberly, 233 Kan. 100, 107, 661 P.2d 383 (1983). If the lesser offense requires proof of an element which is not required of the greater offense, it is not a lesser included offense. State v. Galloway, 238 Kan. 415, 710 P.2d 1320 (1985); State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977). Under this test, the crime of rape has been held to include as lesser included offenses the crimes of aggravated assault (K.S.A. 21-3410), State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976); and indecent liberties with a child (K.S.A.1986 Supp. 21-3503), State v. Coberly, 233 Kan. 100, 661 P.2d 383. The crimes of adultery (K.S.A.1986 Supp. 21-3507), State v. Platz, 214 Kan. 74, 519 P.2d 1097 (1974); lewd and lascivious behavior (K.S.A.1986 Supp. 21-3508), State v. Davis, 236 Kan. 538, 694 P.2d 418 (1985); and aggravated sexual battery (K.S.A.1986 Supp. 21-3518), State v. Galloway, 238 Kan. 415, 710 P.2d 1320, are not lesser included offenses of the crime of rape.

K.S.A.1986 Supp. 21-3603 defines aggravated incest:

"(1) Aggravated incest is marriage to or engaging in any prohibited act enumerated in subsection (2) with a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.

"(2) The following are prohibited acts under subsection (1):

"(a) Sexual intercourse, sodomy or any unlawful sex act, as defined by K.S.A. 21-3501 and amendments thereto; or

"(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both."

Rape is defined by K.S.A.1986 Supp. 21-3502:

"(1) Rape is sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances:

"(a) When the victim is overcome by force or fear;

"(b) when the victim is unconscious or physically powerless;

"(c) when the victim is 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

"(d) when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance administered to the victim by the offender, or by another person with the offender's knowledge, unless the victim voluntarily consumes or allows the administration of the substance with knowledge of its nature."

The two crimes may both arise from an act of sexual intercourse. However, each of the crimes requires additional elements which are not required by the other crime. Aggravated incest requires that the prohibited sex act be performed with a victim under 18 years of age who is within the required degree of kinship, and that the offender is aware of the relationship. These elements are not required to convict a defendant of rape. Rape requires that the act of sexual intercourse be performed without the consent of the victim and that the victim's resistance has been overcome by force, fear, or another designated circumstance. These elements are not required to convict a defendant of aggravated incest. Aggravated incest is not a crime which is necessarily proved if the crime of rape is charged and proved.

Nor have incest and rape been traditionally considered to be different degrees of the same generic offense for purposes of K.S.A.1986 Supp. 21-3107(2)(a). Rather, the crimes of incest and rape in Kansas and other states have been considered to be separate and independent crimes. In State v. Learned, 73 Kan. 328, 85 P. 293 (1906), the defendant was charged with six counts of incest. The defendant contended that the prosecution was barred since he had previously been convicted of charges of statutory rape arising from the same act of sexual intercourse. This court disagreed, stating:

"The distinctive ingredient of the crime of incest is the relationship of the parties, while the distinctive ingredient of the crime of statutory rape is the youthfulness of the female. The evidence necessary to convict of incest would not be sufficient to convict of statutory rape, as there need be no evidence as to the age of the female. On the other hand, evidence that would convict of statutory rape would not suffice to convict of incest, as the relationship is wanting. Hence the crimes, although committed by the same act, are different crimes; and a prosecution for one is no bar to a prosecution for the other. ( The State v. Patterson, 66 Kan. 447, 71 Pac. 860.)" 73 Kan. at 331.

In Wiebe v. Hudspeth, 163 Kan. 30, 32, 180 P.2d 315 (1947), this court again addressed the same issue of "whether one act of intercourse could be the basis of two charges--statutory rape and incest--providing the other elements of each offense were present." Relying upon Learned, the court held that the defendant could be charged in the same information with statutory rape and incest, even where the charges arose from a single act of sexual intercourse, and affirmed the defendant's convictions on both charges.

42 C.J.S., Incest § 1(c) states: "Rape and incest have been recognized as wholly different or independent offenses. The crime of incest is not a lower degree of the crime of rape, and is not included therein." State v. Learned, 73 Kan. 328, 85 P. 293, is one of the authorities cited for this statement. This work continues, stating that, in jurisdictions where mutual...