State v. Sisson

• Decision Date: 14 June 1975
• Docket Number: No. 47743,47743
• Citation: 536 P.2d 1369,217 Kan. 475
• Parties: STATE of Kansas, Appellee, v. Billy G. SISSON, Appellant.
• Court: Kansas Supreme Court

Page 1369

536 P.2d 1369

217 Kan. 475

STATE of Kansas, Appellee, v. Billy G. SISSON, Appellant.

No. 47743.

Supreme Court of Kansas.

June 14, 1975.

Syllabus by the Court

1. The precise time of the commission of an offense need not be stated in an indictment or information; it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense (K.S.A. 22-3201(2)).

2. Time is not an indispensable ingredient of the offense of indecent liberties with a child as defined by K.S.A. 21-3503(1)(a).

3. Where a defendant is not misled or prejudiced in making his defense by the allegation concerning the date of the crime charged, that date is unimportant, and a conviction may properly follow upon sufficient proof of the commission of the offense at any time within the provisions of the statute of limitations.

4. In a prosecution for the offense of indecent liberties with a child, it is held: (1) The trial court did not improperly instruct the jury as to the date of the offense alleged so as to deprive defendant of his right to testify or to present witnesses in his behalf; (2) it did not abuse its discretion in admitting evidence of other similar offenses; and (3) defendant was not prejudiced by the reception of rebuttal prosecution evidence.

Tyce S. Smith, Chicago, Ill., argued the cause, and David J. Waxse, of Payne & Jones, Chartered, Olathe, was with him on the briefs for appellant.

G. Joseph Pierron, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Margaret Jordan, Dist. Atty., were with him on the briefs for appellee.

HARMAN, Commissioner:

Billy G. Sisson was convicted by a jury on two counts of indecent liberties with a child. His motion for new trial was denied, he was sentenced and now appeals.

Count one of the amended information under which defendant was convicted charged that on or about May 26, 1971, he feloniously engaged in the fondling or touching of the person of a female child under the age of sixteen years with the intent to arouse or satisfy his sexual desires in violation of K.S.A. 21-3503(1)(b). The second count charged that on or about March 13, 1972, the defendant feloniously engaged in an act of sexual intercourse with the same child who was then under the age of sixteen years and who was not his spouse, in violation of K.S.A. 21-3503(1)(a).

Since a preliminary question of statutory constitutionality presents itself we first quote in its entirety the statute under which defendant was convicted:

'Indecent liberties with a child. (1) Indecent liberties with a child is engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender:

'(a) The act of sexual intercourse;

'(b) Any fondling or touching of the person of either the child or the offender done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.

'(2) Indecent liberties with a child is a class C felony.' (K.S.A. 21-3503.)

In a case of first impression this court recently ruled that the provisions of (1)(b) are so vague and uncertain that they fail to establish reasonably definite standards of guilt in accord with constitutional requirements of due process (State v. Conley, 216 Kan. 66, 531 P.2d 36). This means the judgment and sentence as to count one cannot stand and must be vacated and it is so ordered. However, since the defect found in Conley lay only in the indefiniteness in the language of subsection (b) it is readily apparent that the provisions of (1)(a), under which defendant here was charged and convicted in count two, are completely severable from those in subsection (b) so that the judgment as to that count is not to be set aside upon the ground stated in Conley. It may be further noted that the phrase 'act of sexual intercourse' mentioned in subsection (a) is considerably more specific and unmistakable to persons of ordinary intelligence than the language used in subsection (b), and as well is statutorily defined. K.S.A. 21-3501 provides:

'Definitions. The following definitions apply in this article unless a different meaning is plainly required:

'(1) 'Sexual intercourse' means any penetration of the female sex organ by the male sex organ . . ..'

Upon appeal defendant-appellant does not challenge the sufficiency of the evidence to sustain his conviction as to count two and consequently our recitation of the evidence will be somewhat limited. The victim in each of the two offenses, whom we shall refer to only as the prosecutrix, was thirteen years of age at the time of the first offense and was the stepdaughter of appellant. During the time in question she lived in the same home with her stepfather, her natural mother and her five brothers and sisters.

The prosecutrix testified that on the morning of March 13, 1972, she stayed home from school at appellant's request in order to soak her sprained wrist; while she and appellant were alone in the house the alleged act of sexual intercourse occurred after appellant had first inserted his finger in her vagina. One of her sisters who returned home shortly after the incident testified she found the prosecutrix crying, with 'sperm' on her robe, and that the prosecutrix related what had happened. School records introduced by the state indicated the prosecutrix was absent from school on March 13, 1972.

Appellant took the witness stand and denied all charges against him. Upon cross-examination he was asked by the prosecuting attorney whether he had had the family participate in a nude dance for him and whether he had taken pictures of his stepdaughters in the nude. Appellant denied that any such incidents had occurred.

On rebuttal the five brothers and sisters testified, over appellant's objection, that the nude dancing occurred; one of them testified appellant took pictures of the girls in the nude; one brother testified he saw polaroid pictures of his two sisters 'without their clothes on or in funny positions'; further that he saw these pictures burned by his mother while appellant was in jail.

Appellant groups his specifications of error under two headings. He first asserts that, over his objection, the trial court instructed the jury in such a manner that appellant was deprived of his sixth amendment right to testify in his own behalf and to present witnesses in his own behalf. The basis of this alleged error was instruction No. 11 which stated:

'You are instructed that the phrase 'on or about the 26th day of May, 1971' under Count I of the Information and the phrase 'on or about the 13th day of March, 1972' under Count II of the Information mean that the alleged criminal act under either count must have occurred at a time within the statute of limitations.

'You are further instructed that the laws of Kansas provide that the statute of limitations shall be for a period of two years from the date of the commencement of an action against a defendant for an alleged criminal act.

'You are further instructed that the action in this case was commenced on the 25th day of July, 1972.'

Appellant's argument is this: During the course of this proceeding, as reflected in the complaint, an amended complaint, the information and an amended information filed therein, four different dates were stated for the times of each of the two offenses; at trial appellant impeaced the prosecutrix by producing evidence at variance with the date fixed by her as the time of the fondling offense and also evidence to the effect she had at one time admitted her initial complaint as to that offense was a lie; in its case in chief the state offered evidence as to specific dates and appellant's testimony directly repudiated that evidence; the prosecutrix was thus impeached; however, instruction eleven...