State v. Sims, 68,409

• Decision Date: 17 November 1993
• Docket Number: No. 68,409,68,409
• Parties: STATE of Kansas, Appellant, v. Robert SIMS, Appellee.
• Court: Kansas Supreme Court

Page 359

862 P.2d 359

254 Kan. 1

STATE of Kansas, Appellant, v. Robert SIMS, Appellee.

No. 68,409.

Supreme Court of Kansas.

Nov. 17, 1993.

Syllabus by the Court

1. Pursuant to K.S.A. 20-203 and K.S.A. 60-2106(b), a syllabus of the points of law decided by the Supreme Court in any case shall be stated in writing by the judge delivering the opinion of the court, which shall be confined to points of law arising from the facts in the case.

2. Where a defendant is charged in a complaint with a general sexual offense (rape, sodomy, indecent liberties with a child, etc.) and, at the conclusion of the preliminary examination moves to dismiss the complaint on the basis that the evidence has established that the alleged victim is within that degree of kinship to the defendant as would render the offense to be within the definition of the specific offense of aggravated incest, the State may either proceed to arraign the defendant on an information charging the crime of aggravated incest or dismiss the complaint. (Clarifying State v. Williams, 250 Kan. 730, 829 P.2d 892 [1992].)

3. The court on motion of a defendant shall arrest judgment if the complaint, information, or indictment does not charge a crime or if the court was without jurisdiction of the crime charged. The motion for arrest of judgment shall be made within 10 days after the verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within such further time as the court may fix during the 10-day period. K.S.A. 22-3502. If the court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be granted, if filed, the court may arrest the judgment without motion. K.S.A. 22-3503.

4. In order for a trial court to grant a motion to arrest judgment, the charging document in some respect must be fatally defective and legally insufficient to support a judgment or the court must lack jurisdiction. Jurisdiction is the power of a court to hear and decide a matter. Jurisdiction is not limited to the power to decide a matter rightly but includes the power to decide the matter wrongly.

5. A motion for arrest of judgment does not test the sufficiency of the evidence to convict a defendant of the crime. It is fundamental that no valid judgment may be entered where no crime is charged in the complaint, information, or indictment.

6. The sufficiency of the charging document is measured by whether (1) it contains the elements of the offense intended to be charged; (2) it sufficiently apprises the defendant of what he or she must be prepared to meet; and (3) it is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import.

7. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Legislative intent is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.

8. K.S.A. 22-3503 provides that whenever the court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be granted, if filed, the court may arrest the judgment without motion. K.S.A. 22-3502 requires the defendant to file a motion to arrest judgment within 10 days after the verdict or finding of guilty. Therefore, the motion for arrest of judgment must be filed by the defendant, and a court's arrest of judgment without motion must be ordered, within 10 days after the verdict or finding of guilty.

9. Where the evidence adduced at trial does not support the crime alleged in the charging document but supports a separate crime, the defendant cannot challenge the verdict on grounds of insufficiency of the evidence by a motion to arrest judgment. A motion to arrest judgment is a challenge to the charging instrument and the jurisdiction of the court to try the offense alleged in the charging document, whereas an insufficiency argument is a challenge to the verdict. Other statutory procedures are available to challenge the sufficiency of the evidence.

Michael A. Russell, Asst. Dist. Atty., argued the cause, and Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the briefs for appellant.

Jessica R. Kunen, Chief Appellate Defender, argued the cause and was on the briefs for appellee.

LOCKETT, Justice.

Defendant Robert Sims, the 67-year-old grandfather of the 17-year-old female victim, was convicted of rape, aggravated criminal sodomy, and aggravated incest. Seven months after the defendant had been convicted, the district court on defendant's motion arrested judgment on the rape and aggravated criminal sodomy convictions because of this court's decision in State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992).

The victim, F.S., testified that on July 29, 1990, she was living with her grandparents in Kansas City, Kansas. She was sleeping in her bedroom when she was awakened by Sims, who was getting on top of her. When she resisted, Sims retrieved a shotgun, laid it on the side of the bed, and told F.S. that he would shoot her if she did not do what he said. The victim testified that she felt helpless and believed her grandfather would shoot her if she did not cooperate. Sims ordered F.S. to remove her clothes. He then had oral and vaginal sex with her.

Robert Sims was charged with the crimes of rape, in violation of K.S.A. 21-3502, aggravated criminal sodomy, in violation of K.S.A. 21-3506, and aggravated incest, in violation of K.S.A. 21-3603. On December 17, 1991, a jury found defendant guilty of all three crimes alleged in the information. On June 19, 1992, defendant filed with the district court a motion to arrest judgment on his convictions of rape and aggravated criminal sodomy, citing State v. Williams, 250 Kan. 730, 829 P.2d 892, as authority. The motion was heard by the district court on July 2, 1992. On July 14, 1992, the district court filed its order arresting judgment on those two convictions.

The district judge granted Sims' motion to arrest judgment and set aside the rape and aggravated criminal sodomy convictions. Based on Williams, the district judge reasoned that the legislature intended aggravated incest, a crime committed by a person related to the victim, to be a less serious offense than when a similar prohibited act is engaged in with a victim with whom the defendant had no family relationship.

The State appealed, pursuant to K.S.A. 22-3602(b)(2), from the order arresting judgment, claiming that the trial court erred in arresting judgment on appellee's convictions for rape and aggravated criminal sodomy. On appeal, the State argues that Williams applies only to indecent liberties with a child and not to the crimes of rape or aggravated criminal sodomy.

K.S.A.1992 Supp. 22-3208(3) provides:

"Defenses and objections based on defects in the institution of the prosecution or in the complaint, information or indictment other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding."

K.S.A. 22-3502 provides "The court on motion of a defendant shall arrest judgment if the complaint, information or indictment does not charge a crime or if the court was without jurisdiction of the crime charged. The motion for arrest of judgment shall be made within 10 days after the verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within such further time as the court may fix during the 10-day period."

K.S.A. 22-3502 allows a defendant 10 days after a verdict or finding of guilty to file a motion for arrest of judgment. The verdict of guilty in this case was rendered on December 17, 1991. Under K.S.A. 22-3502, Sims had 10 days after December 17, 1991, to file his motion to arrest judgment. Sims' motion to arrest judgment was filed in June 1992, more than 180 days after the verdict of guilty, thus raising the issue of the district court's jurisdiction to arrest judgment.

The parties were directed to brief this question:

Did the district court have jurisdiction to arrest judgment in this case on the basis of defendant's motion to arrest judgment which was filed later than the time authorized by K.S.A. 22-3502?

Sims answers that K.S.A. 22-2103 sets forth legislative intent concerning the resolution of criminal law issues: "The code [of criminal procedure] is intended to provide for the just determination of every criminal proceeding. Its provisions shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay." State v. Hall, 246 Kan. 728, 756, 793 P.2d 737 (1990).

Sims' attorney filed the motion to arrest judgment under K.S.A. 22-3503, which on its face permits a trial court to arrest judgment, even without a motion, at any time during the pendency of the proceedings. The trial court explicitly accepted jurisdiction over the motion, noting that it was brought to its attention via K.S.A. 22-3503, not K.S.A. 22-3502. Sims asserts (1) the trial court had statutory authority to hear and decide the motion to arrest judgment, and (2) the court has inherent...