State v. Sanders

• Decision Date: 09 December 1978
• Docket Number: No. 49867,49867
• Citation: 587 P.2d 906,225 Kan. 156
• Parties: STATE of Kansas, Appellee, v. Larry D. SANDERS, Appellant.
• Court: Kansas Supreme Court

Page 906

587 P.2d 906

225 Kan. 156

STATE of Kansas, Appellee, v. Larry D. SANDERS, Appellant.

No. 49867.

Supreme Court of Kansas.

Dec. 9, 1978.

Syllabus by the Court

1. Acts of physical violence against the person of the kidnapping victim which amount to an aggravated battery constitute "bodily harm" and make the kidnapping "aggravated" under K.S.A. 21-3421 even though no permanent injury results.

2. The provisions of K.S.A.1977 Supp. 21-3431 are held to be so vague and uncertain they fail to establish reasonably definite standards of guilt in accord with constitutional requirements of due process of law. (Following State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977).)

3. In an appeal from convictions of criminal injury to persons (K.S.A.1977 Supp. 21-3431); aggravated kidnapping (K.S.A. 21-3421); aggravated burglary (K.S.A. 21-3716); obstructing official duty (K.S.A. 21-3808); and two counts of aggravated battery (K.S.A. 21-3414) the record is examined and it is Held : (1) The trial court did not err in instructing the jury on aggravated kidnapping; (2) the evidence was sufficient to support the conviction of aggravated kidnapping; (3) the conviction of criminal injury to persons is void and is reversed; (4) the remarks of the prosecutor did not constitute prejudicial error; and (5) the testimony elicited as to defendant's prior violent acts, which was struck with an admonition to the jury, did not constitute reversible error.

Frank J. Yeoman, Jr., Asst. Dist. Atty., argued the cause and Curt T. Schneider, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief for appellee.

Camille A. Nohe, Topeka, argued the cause and Hugh R. McCullough, Topeka, was with her on the brief for appellant.

McFARLAND, Justice:

This is a direct appeal from convictions of criminal injury to persons (K.S.A.1977 Supp. 21-3431); aggravated burglary (K.S.A. 21-3716); aggravated kidnapping (K.S.A. 21-3421); obstructing official duty in a felony case (K.S.A. 21-3808); and two counts of aggravated battery (K.S.A. 21-3414).

There was no question of identity in the case. The defendant testified that he had been drinking and remembered nothing of the events of the evening in question other than being in the location where the events occurred. We therefore have the situation that the only version of the events is that of the State's witnesses. The question at trial was what crimes did the defendant's actions constitute. Due to the questions raised on appeal, a rather detailed statement of the facts is necessary.

All of the charges arose from the defendant's activities in the early morning of August 14, 1976. For approximately seven months prior to that date, the defendant had been living with Garnett Orr. Shortly before that date, Ms. Orr had taken up residence with Larry Brown who was, apparently, the father of her 11-month-old child, Lawrence Brown. The defendant entered the residence of Larry Brown through the window and observed Garnett Orr in bed with Larry Brown. He awakened Larry Brown by kicking him in the head. A scuffle followed and during the scuffle Garnett Orr hid in a closet. The defendant picked up the baby, Lawrence Brown, and left the premises yelling to Larry Brown, "Larry, if you come after me, I'm going to kill your baby." Still carrying the baby, the defendant went to the home of Catherine Orr, the mother of Garnett Orr. The defendant kicked down the door of Catherine Orr's house, found Catherine Orr in bed, and began beating her with some type of stick. Numerous lacerations were received to the face and body of Catherine Orr. The defendant continued to carry the baby throughout this period of time, sometimes holding it by an arm and sometimes by a leg. The defendant left Catherine Orr's house and was observed by Larry Brown who had arrived at the scene along with several police officers. At that time, the defendant raised the baby over his head, holding it by one arm and one leg, and threw the baby in the direction of Larry Brown. The baby was thrown a distance of 25 to 30 feet and struck Larry Brown on his collarbone. Blood was observed around the baby's mouth, apparently from a split lip which was incurred as a result of the impact of the baby with Larry Brown's chest. The baby also had a scratch on its back. The defendant then ran from the porch and was forcibly subdued by police officers.

The defendant's first point on appeal is that his actions in regard to the baby, Lawrence Brown, were insufficient to constitute the crime of aggravated kidnapping. This contention is based on the premise that insufficient bodily harm occurred to the child to constitute aggravated kidnapping and that, at most, the activity should constitute simple kidnapping. The defendant notes that the legislative intent of the crime is to discourage the infliction of harm on a victim and to encourage the victim's release unharmed. The court instructed on both aggravated kidnapping and simple kidnapping.

Bodily injury was discussed in detail in State v. Taylor, 217 Kan. 706, 538 P. 1375 (1975). In Taylor, the victim was a seven-year-old girl wearing a heavy coat. She was thrown into a swollen stream, but the current carried her back to the shore. She was again thrown into the stream and was carried to safety on the other side by the current. Miraculously the victim did not suffer permanent injury from her ordeal. If the kidnapping in Taylor was to be "aggravated" kidnapping, the "bodily harm" had to be the throwing her into the stream. In determining that the requisite "bodily harm" was present, we held:

" 'Bodily harm' has been defined by this court. In a kidnap-rape case we held that 'any touching of a victim against (the victim's) will, with physical force, in an intentional, hostile and aggravated manner, or the projecting of such force against the victim by the kidnapper is "bodily harm" within the meaning of the statute.' (State v. Brown, 181 Kan. 375, 389, 312 P.2d 832, 844.) The definition was derived from People v. Tanner, 3 Cal.2d 279, 44 P.2d 324. We have in subsequent cases followed Brown in holding that rape constitutes sufficient 'bodily harm' to support a conviction of aggravated kidnapping. State v. Ayers, 198 Kan. 467, 426 P.2d 21; Sharp v. State, 203 Kan. 937, 457 P.2d 14, and State v. Barry, 216 Kan. 609, 533 P.2d 1308. This construction has also been followed in California's People v. Brown, 29 Cal.2d 555, 176 P.2d 929 and People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001.

"The California court has significantly narrowed the definition of 'bodily harm' set forth in Tanner, and followed by this court in Brown. That court now recognizes that some 'trivial' injuries are likely to result from any forcible kidnapping by the very nature of the act. It concludes that insignificant bruises or impressions resulting from the act itself are not what the legislature had in mind when it made 'bodily harm' the factor which subjects one kidnapper to a more severe penalty than another. A significant policy reason for making the distinction is to deter a kidnapper from inflicting harm upon his victim, and to encourage the victim's release unharmed. It was, in that court's view, only unnecessary acts of violence upon the victim, and those occurring after the initial abduction which the legislature was attempting to deter. Therefore, only injuries resulting from such acts would constitute 'bodily harm.' See People v. Jackson, 44 Cal.2d 511, 282 P.2d 898; People v. Gilbert, 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365.

"This refinement of the meaning of 'bodily harm' fits within the limits of our own prior cases. The rapes in Brown, Ayers, Sharp And Barry cases were acts of violence unnecessary to and not a part of the kidnapping itself. There was bodily harm or injury even though it may have been, at least in some of the cases, only temporary.

"The act of throwing Kimberly into the Walnut River was an act of physical force committed in 'an intentional, hostile and aggravated manner.' (State v. Brown, supra.) It was unnecessary and outside the required scope of a forcible kidnapping; it was just the type of attack on the victim that our 'aggravated' kidnapping statute was designed to deter. The river was swollen and fast; Kimberly couldn't swim and was wearing a heavy corduroy coat. Only good fortune saved her from drowning. Throwing her in the river was a felony in itself; I. e., it was an unlawful application of force to her person with an obvious intent to injure her, done in a manner whereby death could have been inflicted. It thus had all the elements of...