State v. Nunn, No. 60996

• Court: United States State Supreme Court of Kansas
• Writing for the Court: HOLMES; C.P. and three of her friends, T.A.; The appellant contends that his right to present a defense was impaired by completely changing the time frame during which two of the alleged offenses occurred. He contends that the amendments essentially
• Citation: 768 P.2d 268,244 Kan. 207
• Parties: STATE of Kansas, Appellee, v. Donald L. NUNN, Appellant.
• Decision Date: 20 January 1989
• Docket Number: No. 60996

Page 268

768 P.2d 268 244 Kan. 207 STATE of Kansas, Appellee,
v.
Donald L. NUNN, Appellant. No. 60996. Supreme Court of Kansas. Jan. 20, 1989.

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Syllabus by the Court

1. In ruling upon the admissibility of evidence of a prior crime or civil wrong under K.S.A. 60-455, the trial court must: (1) determine it is relevant to prove one of the facts specified in the statute; (2) determine the fact is a disputed, material fact, and (3) balance the probative value of the prior crime or civil wrong evidence against its tendency to prejudice the jury.

2. Materiality, for the purposes of K.S.A. 60-455, contemplates a fact which has a legitimate and effective bearing on the decision of the case and is in dispute. If the fact is obvious from the mere doing of an act, or if the fact is conceded, evidence of other crimes to prove that fact should not be admitted because it serves no purpose to justify whatever prejudice it creates.

3. The crucial distinction in admitting other crimes evidence under K.S.A. 60-455 on the issue of intent is not whether the crime is a specific or general intent crime,

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but whether the defendant has claimed that his acts were innocent. Where criminal intent is obviously proved by the mere doing of an act, the introduction of other crimes evidence has no real probative value to prove intent.

4. Where a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. In other words, to show that the same person committed two offenses, it is not sufficient simply to show that the offenses were violations of the same or a similar statute. There should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses.

5. When a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue for appeal.

6. The limitation of time for arguments of counsel is within the sound discretion of the trial judge.

7. Statutes of limitation are measures of public policy entirely subject to the will of the legislature.

8. While it is a general rule of statutory construction that a statute will operate prospectively unless its language clearly indicates the contrary, the rule is [244 Kan. 208] modified where the statutory change is merely procedural or remedial in nature and does not affect the substantive rights of the parties.

9. As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is tried and punished.

10. Criminal statutes of limitation are remedial or procedural, not substantive, and may be applied retroactively.

11. Where a statute extends the period of limitation, the extension applies to offenses not barred on the effective date of the amendment so that a prosecution may be commenced at any time within the newly established period. Such an amendment, however, cannot operate to revive offenses that were barred at the time of its effective date, since that would make the statute ex post facto.

12. For a criminal or penal law to be ex post facto, two elements must be present: the law must be retroactive, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.

13. Application of an amended statute of limitations to a crime committed prior to the amendment does not violate the constitutional prohibition against ex post facto laws so long as the previous statute of limitations on the offense had not expired prior to the effective date of the amendment.

14. In a criminal action, when the 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. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained.

15. It is not the function of the appellate court to reweigh evidence or determine the credibility of witnesses.

16. K.S.A.1987 Supp. 22-3201(4) provides that the court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.

17. Where leave is granted to the prosecution to amend an information or complaint, the amendment may be made by (a) filing an amended complaint or information, (b) by interlineation upon the [244 Kan. 209] original instrument on file, or (c) by a written journal entry setting forth the amendment.

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18. Absent any showing of prejudice to the defendant, an oral amendment of an information or complaint granted by the court during trial is effective immediately, and the court's action is not invalidated because a written journal entry is not filed until after the trial has been completed.

19. Time is not an indispensable ingredient of the offenses of indecent liberties with a child or aggravated criminal sodomy.

20. Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.

Thomas Jacquinot, Asst. Appellate Defender, argued the cause and Benjamin C. Wood, Chief Appellate Defender, was with him on the brief for appellant.

Mona Furst, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with her on the brief for appellee.

HOLMES, Justice:

Donald L. Nunn appeals from his convictions of four counts of indecent liberties with a child, K.S.A.1987 Supp. 21-3503(1)(a), K.S.A.1984 Supp. 21-3503(1)(b); and three counts of aggravated criminal sodomy, K.S.A.1987 Supp. 21-3506(a). He raises seven issues in this appeal, none of which constitutes reversible error.

Donald L. Nunn and his wife Michelle were married on July 11, 1986, a few days after her eighteenth birthday. They had been living together since July 1984. Michelle's younger sister, C.P., often spent the night at the home of Michelle and the appellant. Young friends of C.P. and Michelle also frequently stayed the night there. The appellant supplied the girls with alcoholic beverages. C.P. and the other girls also took drugs while visiting there.

C.P. and three of her friends, T.A., J.P., and D.E., are the complaining witnesses in this case. Each girl testified at trial to various incidents of sexual abuse committed upon her by the appellant in his home. The four girls ranged in age from 10 to 14 [244 Kan. 210] at the time of the alleged offenses. Each testified that she had been awakened during the night to find the defendant touching her vaginal area with his finger, his mouth, his tongue, or his penis.

The State also presented two witnesses who, as children, had been the victims of indecent liberties perpetrated by the appellant in 1979. The State's motion in limine to present this evidence was granted by Judge Robert Watson on March 20, 1987, a few days before trial. On the first day of trial, the parties again argued the issue before Judge David Kennedy, the trial judge. The trial judge refused to alter Judge Watson's ruling and allowed the testimony for purposes of proving intent and identity, consistent with Judge Watson's decision.

The complaint/information charged appellant with indecent liberties with a child in Counts I, III, IV, and VI, alleging sexual intercourse with C.P., T.A., D.E., and J.P. Counts II, V, and VII charged appellant with aggravated criminal sodomy involving C.P., D.E., and J.P.

At the close of the State's evidence, the prosecuting attorney orally moved to amend the dates in the information as to Counts IV, V, VI, and VII to conform to the evidence and testimony of the witnesses. The district court granted the motion over the objection of defense counsel.

The appellant testified in his own behalf, denying each of the allegations and contending that the four alleged victims were lying. The defense presented other witnesses who lived at the Nunn residence at various times during the late spring and summer of 1986, each of whom testified that he or she had not seen or heard anything appearing to be acts of sexual molestation by the appellant.

The jury returned a verdict of guilty on each of the seven counts. Additional facts will be set forth as they become relevant in considering the various issues on appeal.

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The first issue challenges the ruling allowing evidence of defendant's prior incidents of sexual misconduct toward children. Questions regarding the admissibility of prior crimes evidence pursuant to K.S.A. 60-455 are within the discretion of the trial judge, whose ruling will not be interfered with on review unless that discretion was abused, or unless the trial judge [244 Kan. 211] admitted evidence that clearly had no bearing on any of the issues. State v. Riedel, 242 Kan. 834, 839, 752 P.2d 115 (1988).

K.S.A. 60-455 provides:

"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent,...