State v. Schriner, 47319

• Decision Date: 15 June 1974
• Docket Number: No. 47319,47319
• Citation: 523 P.2d 703,215 Kan. 86
• Parties: STATE of Kansas, Appellee, v. Dale E. SCHRINER, Appellant.
• Court: Kansas Supreme Court

Page 703

523 P.2d 703

215 Kan. 86

STATE of Kansas, Appellee, v. Dale E. SCHRINER, Appellant.

No. 47319.

Supreme Court of Kansas.

June 15, 1974.

Syllabus by the Court

1. In a criminal action the defendant was charged with two counts of kidnapping in the first degree with bodily harm inflicted, and two counts of kidnapping in the second degree. There was testimony that the defendant aided and abetted in the commission of these offenses. On appeal the record is examined and it is held: The trial court's instruction, which permitted the jury to find the defendant guilty of kidnapping in the first degree on counts one and two, if he counsels, aids or abets in the commission of the offense, if bodily harm was in any way inflicted upon the two victims 'by any one' while they were so kidnapped, 'regardless of whether the kidnapping and harm was intentional, or unintentional, and regardless of the participation of the defendant. . . .' is clearly erroneous. It was prejudicial to the defendant in the trial of the case and requires the granting of a new trial.

2. Assault is not a lesser included offense of kidnapping in the dirst degree.

3. Rape is not a lesser included offense of kidnapping in the first degree.

4. An instruction on first degree kidnapping only is proper where there is no evidence to support an instruction on second degree kidnapping, which is a lesser included offense.

5. In charging a jury in a criminal case it is the duty of the trial judge to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate words of his own

6. To be guilty of aiding and abetting in the commission of a crime the defendant must wilfully and knowingly associate himself with the unlawful venture and wilfully participate in it as he would in something he wishes to bring about or to make succeed.

Hal H. Lockett, Wichita, argued the cause, and was on the brief for appellant.

Clifford L. Bertholf, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.

SCHROEDER, Justice:

This is a criminal action in which Dale E. Schriner (defendant-appellant) was convicted by a jury on two counts of first degree kidnapping with bodily harm inflicted (K.S.A. 21-449), and two counts of kidnapping in the second degree (K.S.A. 21-450). In accordance with the verdicts returned by the jury, the defendant was sentenced to life imprisonment on each of the first degree kidnapping counts, and he was further sentenced to imprisonment not to exceed 30 years on each of the second degree counts. The sentences were ordered to run consecutively. Appeal has been duly perfected.

Our decision to reverse the conviction is compelled by the giving of instructions to the jury which are clearly erroneous. Other points will be considered summarily.

On June 13, 1970, a fourteen year old girl and four fifteen year old boys, all of whom resided in Haysville, Kansas, drove to Wichita for the evening. Shortly before midnight the group stopped in the parking lot of a tavern while the driver of their vehicle entered the tavern to speak with a friend. The tavern closed at midnight and several older young men exiting the tavern collected around the Haysville vehicle, exchanging words with one of its occupants. This Wichita group included Paul L. Lassley, John Berry, Charles Brantley, Gary W. Kelley, and the appellant Schriner. When the operator of the Haysville vehicle returned to it from the tavern and attempted to drive it away, the Wichita group blocked the departure by parking their vehicle behind the Haysville vehicle. Lassley approached the Haysville automobile and insisted that the appellant be permitted to drive the vehicle. When the operator and owner of the Haysville vehicle protested, Lassley grabbed him by the hair and shoved him over to the passenger side and gave the appellant the key to the vehicle. Berry and Kelley also joined the appellant with the Haysville group in their vehicle. They departed from the tavern's parking lot and followed Lassley and Brantley, who were in another vehicle, to a sparsely populated area on the outskirts of Wichita. One of the Haysville boys escaped by jumping from the automobile as it was leaving the parking lot. This youth reported the abduction to the Wichita police.

After arriving at the area on the western fringes of Wichita, two of the Haysville boys were taken by Brantley and Berry to a nearby, unoccupied house, where an attempt was made to confine them (though they later escaped and contacted the police).

At that time two of the Haysville youths remained in the backseat of the vehicle, the fourteen year old girl and her date. Lassley asked the boy if he had ever had sexual intercourse with the girl, and he replied in the negative. Lassley told the boy to either have intercourse with the girl, or the Wichita group would. The Haysville youth refused, stating that nobody was going to have intercourse with the girl, and refused to get out of the car. According to the state's evidence the appellant placed a sharp object at the Haysville boy's back and ordered him out of the vehicle. At the same time another member of the Wichita group pulled the youth out of the car, where he was rendered unconscious by either striking him on the head or choking him.

Kelley then removed the girl's clothing and, together with someone else, dragged her from the vehicle and forced her to the ground where Lassley and another member of the Wichita group attempted unsuccessfully to have intercourse with her. The girl testified that at this time the appellant 'yelled, 'Come on, guys, let's go', like he was scared.' She was picked up and dragged backwards to the automobile belonging to the Wichita group, where she was forced into the backseat. The group drove for some time, stopping at a vacant lot in a residential area. Enroute Kelley had intercourse with the girl. He stopped when she screamed and told him he was hurting her.

When they arrived at the vacant lot, the girl was dragged to the middle of the field and subjected to further sexual abuse by Lassley and Kelley. Her clothing was returned to her and she was abandoned in the vacant lot. She contacted the police from the nearest residence shortly thereafter.

The appellant took the stand on his own behalf and testified he did not actively participate in the rape or volence with any of the Haysville group; he was present during the events solely out of fear for his own safety from the members of the Wichita group; if he had anticipated the occurrence of these events when they departed from the tavern, he would never have left; his thought processes were impaired at that time due to drunkenness; and the only reason he did not attempt to help the girl was because he 'was as scared as she was'.

The offenses with which the appellant is here charged were committed prior to the new criminal code and the new code of criminal procedure, which became effective July 1, 1970.

While the appellant had retained counsel at and prior to the trial of this action, he nevertheless contends in his first point that he had by the totality of the circumstances of the trial, incompetent counsel.

He argues at the pretrial stages of this proceeding no motions were filed by counsel of record to aid the defendant with his trial; that retained counsel did not attempt to cross-examine five very damaging witnesses testifying on behalf of the state; there was very little cross-examination of another state witness; that due to failure to object the trial court permitted the prosecuting attorney to introduce hearsay testimony, opinionated testimony and conclusionary testimony by numerous state witnesses; that counsel's lack of preparation for trial was indicated when counsel disclosed that he was unaware of a statement made by the appellant to the Wichita police department; and that he made no objection to instructions given by the trial court to the jury. His counsel did request instructions at the trial for the lesser included offenses of second degree kidnapping for counts one and two.

At the preliminary hearing the appellant's retained counsel was vigorous in cross-examining the witnesses and in attempting to ascertain the facts in the case. It is logical to assume as a result of efforts made by retained counsel for the appellant at the preliminary hearing, that as a matter of trial tactics retained counsel felt it best to avoid emphasizing damaging testimony against the appellant at the trial of the action by the cross-examination of state witnesses or by the making of objections.

In view of our disposition of the case we now consider this point immaterial.

In counts one and two the appellant was charged with kidnapping in the first degree.

By Instruction No. 4 the trial court instructed the jury:

'In Court 1 of this case, the defendant is charged with the crime of kidnapping in the first degree. The defendant pleads not guilty.

'To establish this charge, each of the following claims must be proved:

'1. That the defendant did wilfully, without lawful authority, seize, confine, inveigle, decoy, kidnap or take or carry away by any means whatever Wayna Paula Patten;

'2. That bodily harm was inflicted upon Wayna Paula Patten by any one while she was so kidnapped; and

'3. That his act occurred on or about the 14th day of June, 1970, in Sedgwick County, Kansas.' (Emphasis added.)

Instruction No. 5 was identical but pertained to count two wherein Robert J. Vannoy was named as the victim.

By Instructions No. 6 and 7 the jury was instructed on kidnapping in the second degree pertaining to counts three and four, which named the victims Dale E. Valentine and Paul E. Woody.

Instruction No. 8 was an aiding and abetting instruction. (See, K.S.A. 62-1016.)

The trial court then gave Instruction No. 9 which reads:

'If you find from...