State v. Sampsel, No. 79,143.

• Decision Date: 28 January 2000
• Docket Number: No. 79,143.
• Parties: STATE OF KANSAS, Appellee/Cross-appellant, v. OMAR JASON SAMPSEL, Appellant/Cross-appellee.
• Court: Kansas Supreme Court

268 Kan. 264

997 P.2d 664

STATE OF KANSAS, Appellee/Cross-appellant, v. OMAR JASON SAMPSEL, Appellant/Cross-appellee.

No. 79,143.

Supreme Court of Kansas.

Opinion filed January 28, 2000.

Rebecca E. Woodman, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the briefs for appellant.

Joe E. Lee, county attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

Omar Jason Sampsel was convicted by a jury of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(1), a severity level 3, person felony; battery against a law enforcement officer, K.S.A. 1996 Supp. 21-3413(a)(1), a class A person misdemeanor; and furnishing alcoholic liquor to a minor, K.S.A. 21-3610, a class B person misdemeanor.

In this appeal, Sampsel challenges only the liquor conviction, contending (1) his age of 19 years makes him also a minor who cannot be convicted under the liquor laws, and (2) the trial court erred in failing to instruct the jury on possession of an alcoholic beverage by a minor under K.S.A. 1995 Supp. 41-727 as a lesser included offense of furnishing alcohol to a minor.

The State cross-appeals the trial court's granting of a downward durational departure from 60 months to 40 months, contending (1) the sentencing court did not state substantial and compelling reasons that were supported by the record and (2) the departure was a result of partiality, prejudice, oppression, or corrupt motive.

Facts

In November 1996, in the early evening hours, 14-year-old S.R. and 13-year-old A.C., both inexperienced in the consumption of alcohol, entered a home in Emporia occupied by Randall Ricketts, Chrysanne Tatman (18 years old), Kelly Minor (23 years old), and Omar Sampsel (19 years old).

Tatman testified that while at the residence in the early evening, and while drinking a beer, S.R. asked her if she could have sex with Sampsel. Tatman told S.R. Sampsel was not her boyfriend and she could do whatever she wanted. Tatman testified that before S.R. left the house at 8:30, the girls "were begging for sex, I can tell you that."

Evidence at the trial showed that S.R. and A.C. returned to S.R.'s house for approximately one-half hour but left around 9 p.m. after being told to be home by 11 p.m. After returning to the Ricketts residence, the same individuals were there with the exception of Minor. Trial testimony showed S.R. drank another beer followed by shots of bourbon, two being offered by Tatman, three by Sampsel, and two by S.R., who also drank from an open bottle. S.R. testified this was the first time she had met Sampsel and the first time she had drunk bourbon. She had drunk alcohol on one prior occasion. She remembered kissing Sampsel and that they touched each other. She became dizzy and nauseated.

Tatman testified to seeing S.R. either naked or only wearing her underpants, in the bathroom being assisted by Sampsel, although S.R. had no recall of it. Sampsel advised Tatman that he had had sexual relations with S.R.

S.R.'s next recall was waking up on Tatman's bed with A.C. beside her and vomit on the bed. S.R. had her outer clothes on but later discovered her underwear was missing. She was taken home by two young women.

S.R. and A.C. arrived home at approximately 1:55 a.m. S.R.'s mother and her husband had been out looking for the girls since 11:30 p.m. S.R.'s mother testified that S.R. was giggling and using profanity and that she took her to a hospital where rape tests were performed. The examining physician testified that as a result of his observation of S.R.'s vaginal area, he told police he believed she had been raped.

Officer Paccapaniccia was dispatched to the hospital to investigate the matter. He testified S.R. and A.C. were obviously intoxicated. He informed Detective Schondelmaier of a possible rape and that the girls were under the influence of alcohol.

A search warrant for Ricketts' residence was executed around 8 a.m. the following morning, where S.R.'s undergarments were located. Sampsel was awakened and obviously still intoxicated. After being advised of his rights, Sampsel admitted to consensual sex with a girl whose name he did not remember. Officer Paccapaniccia testified defendant said: "he couldn't even remember the drunk bitch he fucked last night but it's nothing but a chicken wing"; "sex, drugs, and rock and roll"; when a detective picked up the bottle of Virgin Whiskey: "Virgin Whiskey, give that to a virgin and they're not a virgin much longer" (laughing); "If they are old enough to grow hair and bleed, they're old enough to breed and have sex."

Sampsel said a discussion had been held concerning his using protection but the girl was too drunk to know he had not done so. He said she actively participated in sexual intercourse. He said Ricketts had told him that S.R. was 16 years old but he was not sure of her age. Sampsel made a written statement of his version of the events.

Sampsel was charged with aggravated indecent liberties with a child and furnishing alcohol to a minor. The battery against a law enforcement officer charge was precipitated by Sampsel spitting at and on an officer while on the way to incarceration.

After a jury trial, Sampsel was found guilty of all charges.

Sampsel's counsel moved for downward dispositional and durational departures from the Kansas Sentencing Guidelines Act (KSGA), requesting probation because the complainant was a voluntary participant and because the degree of harm was less than typical for such an offense, with medical attention being only necessitated by complainant's voluntary actions. The durational departure was requested to a presumptive sentence of not more than 24 months for the same reasons as made in the request for the dispositional departure.

Sampsel's issues

Can a minor be guilty of furnishing alcohol to another minor under K.S.A. 21-3610?

Sampsel's first contention is that because he is 19 years old and therefore a minor, as defined under K.S.A. 41-102(p), he is among the class of persons intended to be protected by K.S.A. 21-3610 and not subject to punishment thereunder.

This question involves the interpretation of K.S.A. 21-3610, which is a question of law over which our review is de novo. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). Our criminal statutes are construed against the State. State v. Sexton, 232 Kan. 539, 543, 657 P.2d 43 (1983).

The applicable portion of K.S.A. 21-3610 relating to furnishing liquor to a minor states:

"(a) Furnishing alcoholic liquor to a minor is directly or indirectly, selling to, buying for, giving or furnishing any alcoholic liquor to any minor.

....

"(c) As used in this section, terms have the meanings provided by K.S.A. 41-102 and amendments thereto."

Sampsel is correct that for purposes of the alcoholic liquor laws in Chapter 41 of the Kansas Statutes he is a minor. From this premise he makes the broad leap to argue that because such provisions were designed to prohibit adults from supplying alcohol to minors, it excludes him from the class of parties that can be prosecuted.

This argument and the cases Sampsel cites relating to the public policy against furnishing alcohol to minors fails to recognize the State's much more logical contention that K.S.A. 21-3610 makes it a criminal offense for anyone to furnish alcoholic liquor to a minor. K.S.A. 21-3610(d) does provide defenses to liability for licensed retailers, clubs, drinking establishments or caterers, or other parties with temporary permits who are furnished identification by individuals purporting to be 21 years or older, but there is no mention of limiting the scope of the statute to adults and excluding everyone under the age of 21 years.

There are no cases on this issue, probably because Sampsel's contention is simply erroneous. The language of this statute is clear that anyone serving alcoholic liquor to a minor can be charged with the violation of K.S.A. 21-3610. Sampsel furnished alcoholic liquor to S.R. He was found guilty of doing so by the jury. This argument has no merit.

Sampsel also argues the evidence did not sufficiently show the alcoholic liquor was actually furnished to S.R. by him. The evidence is clear that he poured S.R. several shots of bourbon. Under our standard of review, after we reviewed all the evidence, viewed in the light most favorable to the prosecution, we are convinced that the jury was clearly justified in finding Sampsel guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).

The trial court did not err in failing to instruct the jury on possession or obtaining alcoholic beverages by a minor under K.S.A. 1995 Supp. 41-727 as a lesser included offense of furnishing alcoholic liquor to a minor.

The trial court's duty to instruct on lesser included offenses is based on a view of the evidence in the light most favorable to the defendant's theory if it would justify a jury verdict and the evidence does not exclude a theory of guilt on the lesser offense. State v. Moncla, 262 Kan. 58, 73-74, 936 P.2d 727 (1997).

Sampsel makes a State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988) argument, contending the two-pronged test under K.S.A. 21-3107(2)(d) applies. Under that test, where the elements of the crime charged and the lesser crime are compared, and the statutory elements of the lesser crime are automatically proved if the State establishes the elements of the crime charged, then the lesser crime is a lesser included crime. If a lesser crime does not satisfy the first prong of Fike, it can still be a lesser included crime if the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence that must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime. Fike, 243 Kan. at 368.

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