State v. Robinson, 52080
| Decision Date | 28 February 1981 |
| Docket Number | No. 52080,52080 |
| Citation | 624 P.2d 964,229 Kan. 301 |
| Parties | STATE of Kansas, Appellee, v. Willie Clyde ROBINSON, Ricky D. Lloyd and Steven Clark, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void.
2. An information is fatally defective where the allegations fail to constitute an offense in the language or meaning of the applicable statute.
3. The standard of review on appeal to judge the sufficiency of evidence to support a conviction is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt?
4. We approve the use of PIK Crim. 54.01 (1979 Supp.), which states:
This instruction, a revision of PIK Crim. 54.01, which was approved in State v. Egbert, 227 Kan. 266, 267, 606 P.2d 1022, cert. denied --- U.S. ----, 101 S.Ct. 379, 66 L.Ed.2d 232 (1980), establishes only a permissive inference and does not create a burden-shifting presumption in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
5. Lewd and lascivious behavior (K.S.A. 21-3508) is not a lesser included offense of aggravated sodomy (K.S.A. 21-3506).
6. When charges in the information are clarified by facts brought out at the preliminary hearing there is no need for amplification by a bill of particulars, absent a showing of surprise or prejudice.
7. Drug offenses per se do not involve dishonesty or false statement in their commission; hence, K.S.A. 60-421 renders convictions for those offenses inadmissible for the purpose of impairing the credibility of a witness.
8. In a criminal appeal, the record is examined and it is held the trial court did not err in: 1) denying the motions for judgment of acquittal and a new trial based on insufficient evidence to support Clark and Lloyd's convictions of attempted aggravated sodomy; 2) denying the motions for judgment of acquittal and a new trial based upon insufficient evidence to support Robinson's convictions of aggravated sodomy and robbery; 3) giving P.I.K. Crim. 54.01 (1979 Supp.); 4) refusing to admonish the jury to disregard the actions of Robinson; 6) refusing to grant Robinson a separate trial; 7) denying Robinson's motion for a bill of particulars; 8) excluding evidence of the victim's drug-related conviction. The trial court erred in failing to find count IV of the information fatally defective, thereby voiding Clark and Lloyd's conviction of aiding and abetting aggravated sodomy.
Jeffrey A. Chubb, County Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Paul D. Oakleaf, Former County Atty., were on the brief for appellee.
Stanley L. Basler, Cherryvale, argued the cause and was on the brief for appellant Willie Clyde Robinson, Robert C. Claus, of Crossan & Claus, Independence, argued the cause and was on the brief for appellant Ricky D. Lloyd, and Bruce E. Borders, Independence, argued the cause and was on the brief for appellant Steven Clark.
Willie Clyde Robinson appeals his jury conviction of aggravated sodomy (K.S.A. 21-3506) and robbery (K.S.A. 21-3426). Steven Clark and Ricky D. Lloyd appeal their convictions of aiding and abetting aggravated sodomy (K.S.A. 21-3205 and K.S.A. 21-3506) and attempted aggravated sodomy (K.S.A. 21-3301 and K.S.A. 21-3506). Their convictions resulted from accusations of Kenneth Finkle while the four were prisoners in the Montgomery County Jail.
On September 14, 1979, and during the early morning hours of September 15, 1979, five prisoners were confined in the east cell block of the Montgomery County Jail in Independence. They were Finkle, the three defendants, Robinson, Lloyd and Clark, and one Kenneth Cresswell, a male weighing over 200 pounds. This area of the jail has a "tank" or open area available to all inmates which contains a table and the toilet and shower facilities. The east cell block which opens into the "tank" contains four cells with two or more bunks. Cresswell occupied cell four, with Finkle in cell three and the three defendants in cells one and two. The cells were all unlocked, open and available to all the inmates.
Finkle testified that while he was lying in his bunk, Robinson entered his cell and made sexual overtures to him. He remained in his bunk, ignoring Robinson. Robinson persisted, describing the amount of money a prisoner could make as a homosexual and asked Finkle if he would submit to his requests for sex or be unnecessarily beaten. Obtaining no response from Finkle, Robinson left the cell and returned a few minutes later with Clark and Lloyd. He then repeated his earlier statements with threats to beat Finkle up or kick in his ribs and gave him five minutes for a decision. Neither Clark nor Lloyd made any comment during Robinson's conversation. The three then left Finkle's cell. Finkle went next door to Cresswell's cell; Clark was there also. Finkle asked Clark if they were really serious with their threats. Clark did not answer the question. Finkle made no attempt to awaken Cresswell, who was asleep in his bunk. While Finkle was standing in the doorway of Cresswell's cell, Robinson and Lloyd returned. Robinson asked him if he had made up his mind. Upon Finkle's negative response, Robinson said, "(D)on't make me ask you again." Finkle then acceded to Robinson's demands because of his threats, menacing gestures and aggressive appearance. Finkle testified he was not frightened by Lloyd. The four went to Finkle's cell where Finkle changed his mind and again refused to cooperate. Clark kicked him in the chest and Robinson slapped his face. Lloyd didn't say or do anything. Clark and Lloyd left the cell and Robinson remained. When Finkle removed his trousers, Robinson demanded his money, amounting to about $9, which was later returned. He also took some of Finkle's candy bars. Robinson had anal intercourse with Finkle and later put on his clothes and departed. Finkle took a shower. When he returned to his cell, Robinson, Clark and Lloyd walked toward him. He heard one of them say, "These two haven't had a chance." Both Clark and Lloyd made attempts at anal intercourse with Finkle but failed to consummate the acts and left. Lloyd had said something about "faking" it. In the morning, Finkle notified the jailer what had happened. This prosecution followed.
The appeals of Clark and Lloyd will be disposed of first. These defendants challenge the sufficiency of count IV of the information under which they were charged and convicted of aiding and abetting aggravated sodomy. Count IV of the information is the challenged count; it provides:
"THAT heretofore and to-wit on or about the 15th day of September, 1979, at and within the County of Montgomery and State of Kansas, the above named defendants RICKY LLOYD and STEVEN CLARK jointly and together then and there being, did then and there wilfully, wrongfully, unlawfully, feloniously, knowingly and intentionally, aid and abet Willie Robinson in the commission of a felony as defined by K.S.A. 21-3506 all contrary to K.S.A. 21-3205 and K.S.A. 21-3506 and against the peace and dignity of the State of Kansas."
Clark and Lloyd contend the information is defective because it does not contain the elements of the offense of aggravated sodomy; the specific acts upon which the charge is based are not stated; the defendants are not sufficiently apprised of the charges which each must be prepared to meet; the charge is not detailed enough to assure against double jeopardy.
This is a crucial issue to the prosecution of Clark and Lloyd because we have held on numerous occasions that in a prosecution for a felony, the indictment or information is the jurisdictional instrument upon which an accused stands trial. A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. See State v. Howell & Taylor, 226 Kan. 511, 513-514, 601 P.2d 1141 (1979); State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977); State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966).
We have also held if the allegations in an information fail to constitute an offense in the language or meaning of the applicable statute, the information is fatally defective. State v. Doyen, 224 Kan. 482, 580 P.2d 1351 (1978); State v. Bishop, 215 Kan. 481, 524 P.2d 712 (1974). In determining the sufficiency of an information, it is not necessary to allege the exact words of the statute but the meaning must be clear as determined by the guidelines of K.S.A. 22-3201(2), which states:
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