State v. Sanford

• Citation: 250 Kan. 592,830 P.2d 14
• Decision Date: 10 April 1992
• Docket Number: No. 66255,66255
• Parties: STATE of Kansas, Appellee, v. Dennis L. SANFORD, Appellant.
• Court: United States State Supreme Court of Kansas

Page 14

830 P.2d 14

250 Kan. 592

STATE of Kansas, Appellee, v. Dennis L. SANFORD, Appellant.

No. 66255.

Supreme Court of Kansas.

April 10, 1992.

Syllabus by the Court

1. State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), is discussed and the rationale of the pre-Hall cases is applied to the effect that all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute. An information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed.

2. The proper post-trial procedure for a defendant to follow in asserting a contention that either an information does not charge a crime or that the trial court was without jurisdiction of the crime charged is to file a motion for arrest of judgment under K.S.A. 22-3502. If the court did not have jurisdiction, or if the information did not charge a crime for which the defendant was convicted, the defendant is entitled to a determination of that condition at the trial court level.

3. Intent to hold a person is an element of the crime of kidnapping. In K.S.A. 21-3420, the kidnapping statute, provides four types of intent for which the holding can be committed: "(a) for ransom, or as a shield or hostage; (b) to facilitate flight or the commission of any crime; (c) to inflict bodily injury or to terrorize the victim or another; or (d) to interfere with the performance of any governmental or political function. An allegation of one type of intent is essential to the charging of the crime.

4. A written amendment to an information filed after an earlier oral amendment controls. Oral amendments to an information (or complaint) must be detailed and specific and are to be memorialized.

5. Aggravated kidnapping, K.S.A. 21-3421, requires an allegation that bodily harm was inflicted.

6. The foundation to admit physical evidence is determined by the trial judge, who must be satisfied as to relevance.

7. The applicable standard of review for abuse of discretion is that no reasonable person would take the view adopted by the trial court.

8. Under the facts of this case in which defendant was convicted of the lesser included offense of kidnapping and other crimes, the record is examined and it is held: (1) The oral and written amendments to the information to charge aggravated kidnapping were defective and defendant's conviction of the lesser included offense of kidnapping is set aside as void; the trial court erred in failing to grant defendant's motion for arrest of judgment. and (2) The court did not abuse its discretion in (a) denying defense counsel's request for the jury to view bruises on the victim's leg as she stepped down from the witness stand or (b) admitting photocopies of documents seized in a valid search of defendant's residence as well as originals of the same documents obtained by court order from defendant's attorney.

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

M. Jennifer Brunetti, Asst. Dist. Atty., argued the cause, and Gene M. Olander, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

SIX, Justice:

The primary issue in this appeal relates to the sufficiency of the count in the information charging Dennis L. Sanford with aggravated kidnapping. If the information was not sufficient, the trial court had no jurisdiction over Sanford on the aggravated kidnapping charge.

Sanford filed a motion for arrest of judgment under K.S.A. 22-3502 after trial, challenging the information and jurisdiction. The motion was denied.

Additional issues relate to the trial court's refusal to: (1) suppress certain exhibits taken from Sanford's home and from an attorney representing Sanford in other matters; and (2) permit defense counsel to comment to the jury concerning the victim's bruises as she stepped down from the witness stand.

Sanford was charged, in separate counts, with aggravated kidnapping, K.S.A. 21-3421; attempted aggravated criminal sodomy, K.S.A.1991 Supp. 21-3301, K.S.A. 21-3506; and sexual battery, K.S.A. 21-3517. He was convicted of the lesser offense of kidnapping, K.S.A. 21-3420, and on the sodomy and sexual battery counts.

We apply the rationale of State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), and reverse on the kidnapping charge; the amended information charging aggravated kidnapping was defective. We find no error in the trial court's rulings in admitting the exhibits and in prohibiting Sanford from commenting upon the victim's bruises.

The convictions of attempted aggravated criminal sodomy and of sexual battery are affirmed.

Facts

Sanford's sister testified that she and her brother owned and lived together in a house in Topeka, which they were in the process of selling. They had discussed contacting real estate agents. Sanford made the contacts because his sister worked and had no time to do so.

The victim, S.S., a real estate agent, testified that she first met Sanford on a Sunday, having received a call earlier that day regarding the potential listing of his home. S.S. and her husband went to the residence and talked with Sanford for approximately 45 minutes. Learning that Sanford's only income was a social security check, S.S. determined that she needed to talk with Sanford's sister regarding the sister's financial circumstances. Later that evening, S.S. spoke to Sanford on the telephone and arranged to return to meet his sister the following day.

When S.S. arrived at the residence on Monday, the sister was not there. After waiting approximately 30 minutes, S.S. left. S.S. received a message to call Sanford later, and they set up an appointment for 10:00 a.m. the following day. S.S. stated that she never attempted to contact Sanford's sister.

S.S., who had written a sales contract on only one house before, was eager to complete Sanford's sale and skipped the agency's obligatory sales meeting and tour of homes in order to keep the appointment with Sanford. When she arrived, she was told that Sanford's sister had gone for cigarettes. Feeling comfortable, S.S. helped herself to coffee as she and Sanford discussed financial matters. S.S. stated that Sanford did not prevent her from leaving. Sanford wanted to look at houses for sale in the area to which he and his sister were hoping to move, so S.S. retrieved her briefcase and listing book from her car. They looked through the book for 10 to 15 minutes, S.S. sitting on the couch and Sanford sitting in a chair across the room. Sanford eventually sat on the arm of the couch in order to see the book. When he put his arm on the back of the couch, his fingertips brushed S.S.'s shoulder and she told him to "back off," that she was trying to help him find a house.

S.S. testified that Sanford then pushed her over onto the couch, placed his hand over her mouth, and told her they were going to have fun. At trial she stated she tried to bite his fingers but could not because his hand was clasped too tightly. She had previously reported that she could not bite him because he kept moving his fingers. S.S. stated she tried to talk Sanford into letting her go, but that he told her to shut up and insisted that they were going to have fun. Upon his demand, S.S. removed her blouse, and then her bra. She stated that Sanford was grasping and pulling on her breasts. S.S. ran to the front door before being pulled back and hurled to the couch.

According to S.S., Sanford then produced three pieces of yellow paper which looked like facsimiles of legal forms and told her to sign them. Refusing at first, S.S. said she signed and dated them after Sanford threatened to kill her. The three papers, as well as copies, were entered into evidence over a defense objection. The yellow paper documents were titled "Contract," "Affidavit," and "Advice of Rights."

Although S.S. could not remember the occurrence sequence, she stated she gave Sanford her husband's telephone number, telling Sanford she had another appointment. Sanford dialed the number four times; however, it was busy each time.

According to S.S., Sanford unzipped his pants and pulled out his penis, telling her to put it in her mouth. She replied that the act would make her vomit. She also refused his request that she remove her skirt, claiming she was menstruating. She stated that Sanford then placed her hands on his penis and forced her to masturbate him, assisting her with his hands. She licked his penis three times when threatened and stated that Sanford then ejaculated onto her hand and skirt. Sanford cleaned himself with a washcloth and offered it to her, leading her to the kitchen sink where she dabbed at her skirt with it. Sanford kissed S.S. in the kitchen, and S.S. promised Sanford she would go straight home.

S.S. returned to the living room and put on her blouse. She was permitted to look briefly at the papers she had signed earlier. One appeared to be a statement that she and Sanford were having an affair and that she would not tell the police or her husband. Another stated that she would be responsible for all his household expenses and bills. S.S. promised Sanford she would return the next day to continue the affair. She gathered her belongings and left the residence. S.S. drove to her husband's office, and the police were called.

S.S. was interviewed and taken to Stormont-Vail hospital where a partial rape kit was completed. Photographs were taken of a bruise on her arm and scratches on her hand. The next day she returned to the police station and photographs of additional bruises on her ankle and upper arm were taken. She claimed she received the bruises at Sanford's but had not reported them the day before.

A forensics examiner with the Kansas Bureau of Investigation (KBI) testified concerning tests conducted for...