State v. Peltier

• Decision Date: 25 October 1991
• Docket Number: No. 65463,65463
• Citation: 249 Kan. 415,819 P.2d 628
• Parties: STATE of Kansas, Appellee, v. Clayton P. PELTIER, Appellant.
• Court: Kansas Supreme Court

Page 628

819 P.2d 628

249 Kan. 415

STATE of Kansas, Appellee, v. Clayton P. PELTIER, Appellant.

No. 65463.

Supreme Court of Kansas.

Oct. 25, 1991.

Syllabus by the Court

1. Because of the variety of conduct that can constitute indecent liberties with a child, including solicitation, the jury should not be instructed that, as a matter of law, indecent liberties with a child constitutes bodily injury necessary to establish this element of aggravated kidnapping.

2. On appeal of a criminal case, the standard in considering the sufficiency of the evidence is whether after a review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

3. Under the facts of this case, the evidence is sufficient to establish the element of "bodily harm" to support a conviction of aggravated kidnapping under K.S.A. 21-3421.

4. Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done.

5. An error of constitutional magnitude cannot be held to be harmless unless the appellate court can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the results of the trial.

6. Undeveloped photographic film does come within the meaning of "any film" as set out in K.S.A.1990 Supp. 21-3516(1)(b).

Lucille Marino, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

Jeffrey E. Goering, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

ALLEGRUCCI, Justice:

This is a direct appeal by the defendant from convictions of aggravated kidnapping, K.S.A. 21-3421; indecent liberties with a child, K.S.A.1990 Supp. 21-3503; and sexual exploitation of a child, K.S.A.1990 Supp. 21-3516(1)(b). The defendant contends the district court erred in instructing the jury as to aggravated kidnapping and that the evidence was insufficient to support the convictions of aggravated kidnapping and sexual exploitation of a child.

Shortly before 6:30 p.m. on October 23, 1989, seven-year-old K.T. left home to "see some puppies down the street." She took her dog, Rusty, with her. About 10 minutes later, Rusty returned alone. The police were called and arrived about 7:00 p.m. For the next 24 hours, the police, with many volunteers, looked for K.T.

On October 24, 1989, Officer Fortune, of the Wichita Police Department, was involved in the search for K.T. At approximately 6:30 p.m., he noticed her walking toward her house from the alley. When he questioned her, K.T. told Fortune that she had been with a man called "Clay" or "Blue" close to her home. Assuming she had been driven to the area and left by someone, Fortune asked what color car the individual had. K.T. told him the man had a blue car. Fortune then ran towards the alley to ask if anyone had heard or seen anything. A neighbor told him that he had heard a door slam to the north. Fortune heard a car start to the north in the alley. When he ran into the alley, he saw a blue car backing out. He yelled, "Police. Hold on." The second time he yelled, the vehicle stopped, and the driver got out.

The individual driving the car produced an Indian reservation identification card with the name Clayton Peltier. Fortune recalled that K.T. had given the name "Clay," which he suspected was a variation of the name Clayton. Peltier claimed he had been looking for a job all day. Because Peltier was acting "too nervous," Fortune placed him in handcuffs.

Although K.T. was normally a talkative child, her mother testified that when K.T. first returned home she was very quiet and hesitant. K.T. told her mother and the police that Clay said he would kill her mother if K.T. said anything. After being assured that nothing would happen to her mother, K.T. told her mother and the police that she had been in a house in the alley with a man she called Clay and Blue. K.T. told them he had taken pictures of her but did not mention that he had touched her. She also described tattoo marks on the person's hands and body. One of the officers went into the alley where Fortune was holding defendant. When the officer saw similar tattoo marks on defendant's hands, defendant was taken into custody as a suspect.

K.T. testified at trial that when she left her house she went to the alley. There she spoke to Clay, who offered her some dog food for her dog. She told him she would wait outside, but he led her inside and told her to watch television while he got the dog food. Clay got something from a box. Then he sat with K.T. on the couch and watched television. During this time she sat on his lap, and he rubbed her "private" underneath her dress and panties.

He later took her to a bed and got on top of her, telling her she could go home after taking a nap. Her testimony was conflicting as to whether Clay was wearing any clothes when he touched his "private" to her "private." Neither of them said anything and, when he got off her, she said that she wanted her mother. He told her that if she did not quit crying and asking for her mother, he would not let her go. At one point, Clay kissed K.T., putting his tongue in her mouth, and told her he was doing it so she would know how when she grew up. She stated he did not touch her while he kissed her.

While in the bedroom, Clay put different pairs of his girlfriends' panties on K.T. He licked her "private" with his tongue and took pictures of K.T. in her dress and in his girlfriends' underwear, but K.T. did not see the pictures. He then let her go home.

K.T. testified that, during her stay at defendant's house, she heard knocking at the door three times. Each time he told her to be quiet, one time tying a white cloth over her mouth. She did not sleep at all, but he slept some of the time.

K.T. testified that before letting her go, defendant told her that if she came back and saw him every day after school, he would give her $100 but that he would kill her mother if K.T. told anyone the truth.

Following his arrest, a search was conducted of defendant's house. Four pairs of women's panties were retrieved, as well as a camera bag with a 35 millimeter camera containing a roll of film with 23 exposures. A police officer unloaded the undeveloped film from the camera and gave it to a laboratory technician, who developed the negatives. These negatives were later printed into photographs. Eleven of these photographs were introduced at trial.

The parties stipulated that the photographs of K.T. were taken in defendant's bedroom and were developed from film that was removed from a camera found in defendant's house. Defendant testified that he recognized K.T. and that he had never touched or fondled her.

The defendant first challenges the sufficiency of the evidence to support the element of bodily harm needed for aggravated kidnapping. This was the major issue argued in the district court and in this appeal. On appeal, the standard in considering the sufficiency of the evidence is whether after a review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).

Defendant argues that the State failed to establish beyond a reasonable doubt that bodily harm was inflicted upon K.T. Defendant recognizes that permanent injury is not necessary to establish the infliction of bodily harm but argues that some act of physical force, committed in "an intentional, hostile and aggravated manner" is necessary. State v. Sanders, 225 Kan. 156, 158-59, 587 P.2d 906 (1978). Thus, to elevate a simple kidnapping to a class A felony of aggravated kidnapping, which requires a life sentence, defendant asserts that some bodily harm must be inflicted. Defendant urges this court to reject the State's "extreme position that [in] any case in which a child is fondled, bodily harm has been established." The defendant points out that if the legislature had intended the penalty for indecent liberties with a child to be a class A felony, it would have made it one, instead of a class C felony. Therefore, defendant argues that not every indecent liberties offense committed in connection with a simple kidnapping should automatically sustain an increased charge of aggravated kidnapping.

This court has consistently held that rape as a matter of law constitutes bodily harm sufficient to support an aggravated kidnapping conviction. State v. Brown, 181 Kan. 375, 312 P.2d 832 (1957). In analyzing the history behind aggravated kidnapping, the court in Brown pointed out that the statute in effect grew out of the Lindbergh kidnapping case, where ransom was the motive and the victim was taken from one state to another. 181 Kan. at 385, 312 P.2d 832. The court concluded that the Kansas statute denounced two acts of kidnapping in the first degree: (1) kidnapping with the intent to exact ransom or reward, and (2) kidnapping if bodily harm is inflicted upon the person kidnapped. 181 Kan. at 388, 312 P.2d 832. The court then turned to consider the definition of "bodily harm" required to establish kidnapping. The court examined recent decisions by the California courts that generally defined bodily harm to include any touching of the person of another " 'against his will with physical force in an intentional, hostile and aggravated manner, or projecting of such force against' " that person. Brown, 181 Kan. at 389, 312 P.2d 832 (quoting People v. Tanner, 3 Cal.2d 279, 44 P.2d 324 [1935]. Thus, a forcible rape constituted bodily harm...