State v. Rasch, No. 61067
| Court | United States State Supreme Court of Kansas |
| Writing for the Court | LOCKETT |
| Citation | 758 P.2d 214,243 Kan. 495 |
| Decision Date | 08 July 1988 |
| Docket Number | No. 61067 |
| Parties | STATE of Kansas, Appellee, v. Kenneth RASCH, Appellant. |
Page 214
v.
Kenneth RASCH, Appellant.
Page 215
1. 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.
2. Lack of jurisdiction or the failure of the complaint, information, or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.
3. When the defendant and his attorney are present and permission is obtained from the judge, the State may orally amend the complaint or information any time before the verdict or finding, if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.
4. When the jury has been properly instructed on the elements of the crime, a complaint or information which the State has orally amended to correct a deficiency is valid unless the substantial rights of the defendant are prejudiced. The amendment to the complaint or information may be shown by interlineation on the complaint or information, by the filing of an amended complaint or information, or by a journal entry stating the amendment to the complaint or information.
Shannon Crane, Asst. Appellate Defender, argued the cause, and Brad L. Keil, Asst. Appellate Defender, and Benjamin C. Wood, Chief Appellate Defender, were on the brief for appellant.
Ty Kaufman, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.
LOCKETT, Justice:
Kenneth Rasch appeals convictions of four counts of aggravated robbery, K.S.A. 21-3427, one count of attempted aggravated robbery, K.S.A. 21-3427 and K.S.A. 1987 Supp. 21-3301, and two counts of aggravated battery, K.S.A. 21-3414. Rasch contends (1) that his convictions for aggravated robbery should be reversed because the State did not amend the jurisdictionally defective complaint by interlineation or by filing an [243 Kan. 496] amended complaint; and (2) that the trial court erred by admitting Rasch's incriminating statements.
On September 11, 1986, a man and woman, later identified as the defendant Kenneth Rasch and his companion Glenna Preston, entered the State Street Club in Lindsborg, Kansas. After having drinks, the couple left the club. Shortly thereafter, Rasch re-entered the club and ordered the bartender to give him the money from the cash drawer. When the bartender hesitated, Rasch held a loaded pistol to the bartender's neck. The bartender placed approximately $118.00 from the cash register on the bar.
When one of the six Bethany College students in the establishment approached the bar, the defendant pointed the gun at him and demanded and received the student's money. Rasch then struck one of the female students with the gun. When one of her male companions attempted to assist her, Rasch struck him with the gun. Rasch then ordered everyone to stand behind the bar, place their money on the bar, and lie down. One of the students grabbed Rasch and wrestled him to the floor while others summoned the police. After the police arrived, Rasch was taken to the hospital and treated for lacerations he received while being apprehended.
As police interviewed witnesses, Glenna Preston drove up in front of the bar and told an officer that she had been there earlier "with someone else." The officer
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took Preston to the hospital to see if she could identify the robber. At the hospital emergency room, Preston initially denied knowing Rasch. Feeling Preston was lying, the officer arrested her as an accomplice to the crime, and then handcuffed her. When Preston stated that she should take another look to see if she could identify the robber, the officer took her back into the emergency room. Preston walked over to Rasch and stated, "Look what you've got me into." Rasch answered, "Sorry I got you into this mess." At trial, Rasch's incriminating statement was admitted. All eight persons present at the bar positively identified Rasch as the robber. Rasch was convicted of all counts.Rasch first contends that the complaint was jurisdictionally defective and his conviction for aggravated robbery void because in each of the four aggravated robbery counts the complaint failed to allege an essential element: that the taking was by force or threat of harm. Robbery is defined as the taking of property [243 Kan. 497] from the person or presence of another by threat of bodily harm to his person or the person of another or by force. K.S.A. 21-3426. Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3427.
Each of the counts filed against defendant stated:
"Count I: ... feloniously and willfully take property, to wit: [$5.00] in cash from the person of [John M. Paulsen] while the said Kenneth Rasch was armed with a dangerous weapon, to-wit: a .32 caliber handgun, contrary to K.S.A. 21-3427 the penalty sections being K.S.A. 21-4501(b) and 21-4503(1)(a) a Class B Felony."
Nearly two months before trial, the prosecutor recognized the omission in the complaint and orally moved to amend the charges. Without objection from defendant, a journal entry was filed which stated:
"NOW ON THIS 1st day of December, 1986, this matter comes on upon the oral motion of the State of Kansas to amend the complaints in Count I of 86 CR 2233 and Counts I, II and III in 86 CR 2239 by adding the language 'by force' after the word property in the first sentence of each count and to amend Count IV of 86 CR 2239 by adding the language 'by force' after the word crime in the fourth sentence of said count. The State of Kansas appears by Ty Kaufman, McPherson County Attorney; the defendant appears in person and with his counsel, John B. Klenda.
"THEREUPON, the State makes its argument and the defendant indicates that he has no objection to the amendments as proposed by the State and the Court having heard the arguments and statements of counsel ORDERS that the complaints in 86 CR 2233 and 86 CR 2239 be amended by adding the language 'by force' at the places indicated herein.
"IT IS SO ORDERED."
Conceding that the complaints as originally filed lacked the statutory language "[b]y threat of bodily harm ... or by force," the State argues that the journal entry cured the defective complaint.
Historically, the purpose of the information or complaint was twofold: (1) to disclose sufficient factual information to enable a magistrate to make an intelligent and impartial finding that there is probable cause to believe that...
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State v. Hayden, No. 88,650.
...be found only if the defendant's substantial rights are prejudiced." Woods, 250 Kan. at 114-15, 825 P.2d 514; see also State v. Rasch, 243 Kan. 495, 499, 758 P.2d 214 (1988) (error in citation not grounds for dismissal of charging document, reversal of conviction if error did not prejudice ......
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State v. Hall, No. 61955
...as expressed in State v. Switzer, 244 Kan. 449, 769 P.2d 645 (1989), State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and State v. Rasch, 243 Kan. 495, 497, 758 P.2d 214 (1988), as that reasoning relates to jurisdiction and the substantial rights of the defendant; (2) the "common-sense" te......
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State v. Nunn, No. 60996
...argues that the State is bound by the original written information. The State, in response, relies upon the recent case of State v. Rasch, 243 Kan. 495, Syl. pp 3, 4, 758 P.2d 214 (1988), in which this court held that an information may be orally amended under certain In State v. Wilson, 24......
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State v. Dunn, 106,586
...to the existence of district court subject matter jurisdiction. See Minor , 197 Kan. at 299, 416 P.2d 724 ; see also State v. Rasch , 243 Kan. 495, 498, 758 P.2d 214 (1988) (discussing the effect of Minor ). These two shifts removed any possibility that many charging document errors or omis......
-
State v. Hayden, No. 88,650.
...be found only if the defendant's substantial rights are prejudiced." Woods, 250 Kan. at 114-15, 825 P.2d 514; see also State v. Rasch, 243 Kan. 495, 499, 758 P.2d 214 (1988) (error in citation not grounds for dismissal of charging document, reversal of conviction if error did not prejudice ......
-
State v. Hall, No. 61955
...as expressed in State v. Switzer, 244 Kan. 449, 769 P.2d 645 (1989), State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and State v. Rasch, 243 Kan. 495, 497, 758 P.2d 214 (1988), as that reasoning relates to jurisdiction and the substantial rights of the defendant; (2) the "common-sense" te......
-
State v. Nunn, No. 60996
...argues that the State is bound by the original written information. The State, in response, relies upon the recent case of State v. Rasch, 243 Kan. 495, Syl. pp 3, 4, 758 P.2d 214 (1988), in which this court held that an information may be orally amended under certain In State v. Wilson, 24......
-
State v. Dunn, 106,586
...to the existence of district court subject matter jurisdiction. See Minor , 197 Kan. at 299, 416 P.2d 724 ; see also State v. Rasch , 243 Kan. 495, 498, 758 P.2d 214 (1988) (discussing the effect of Minor ). These two shifts removed any possibility that many charging document errors or omis......