State v. Switzer, No. 61909

• Court: United States State Supreme Court of Kansas
• Writing for the Court: HERD
• Citation: 769 P.2d 645,244 Kan. 449
• Parties: STATE of Kansas, Appellee, v. Ronald E. SWITZER, Appellant.
• Decision Date: 03 March 1989
• Docket Number: No. 61909

Page 645

769 P.2d 645 244 Kan. 449 STATE of Kansas, Appellee,
v.
Ronald E. SWITZER, Appellant. No. 61909. Supreme Court of Kansas. March 3, 1989.

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Syllabus by the Court

1. Where defendant claims insufficiency of the evidence in a criminal case, an appellate court is required to review all the evidence in the light most favorable to the prosecution in determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. K.S.A. 21-3501(2) defines sodomy in three separate alternatives. The first phrase of the statute, which prohibits oral or anal copulation, prohibits nonconsensual penetration by the male sex organ into a mouth or anus. The third phrase prohibits nonconsensual penetration of the anus by any object or body part other than the male sex organ. Evidence that shows penetration of an anus was accomplished with something other than the male sex organ is insufficient to sustain a complaint charging a defendant with sodomy by anal copulation.

3. Where an oral motion to amend a complaint is sustained on the record before the verdict is rendered, the amendment is effective, absent prejudice to the defendant, at the time of the oral amendment.

4. Where leave is granted by the court for the prosecution to amend a complaint, the prosecution has the duty to memorialize the amendment by filing an amended complaint, by interlineation upon the original document, or by journal entry stating the amendment to the complaint.

5. The failure of the prosecution to memorialize an oral amendment to a complaint made on the record is not grounds for reversible error in the absence of prejudice to the defendant.

Shannon S. Crane, Asst. Appellate Defender, argued the cause and Benjamin C. Wood, Chief Appellate Defender, was with her on the brief, for appellant.

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

HERD, Justice:

Ronald E. Switzer appeals his jury convictions of one count of rape and two counts of aggravated criminal sodomy. He [244 Kan. 450] was sentenced to fifteen years to life imprisonment

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for each count, to run concurrently.

Switzer contends his convictions should be reversed because there was not sufficient evidence at trial to convince a rational factfinder of his guilt beyond a reasonable doubt. Under the Due Process clause of the 14th Amendment, no person may be convicted of a crime unless every fact necessary to establish the crime with which he is charged is proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1074-75, 25 L.Ed.2d 368 (1970).

In State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979), we adopted the scope of appellate review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh. denied 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979). Under this scope of review, we are required to review all the evidence in the light most favorable to the prosecution in order to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

The facts are as follows. The victim was attacked as she was returning to her apartment at approximately 8:00 p.m. on November 18, 1986. Her assailant put his hand over her mouth and pushed her into a back bedroom. The assailant struck the victim and forced her to perform oral sex. He raped her, rolled her over and inserted his fingers into her vagina and anus, raped her a second time, and again forced her to have oral sex with him. The victim estimated the entire ordeal lasted about an hour. The room was not directly lit, but she could see the man because lights were on in the living room and another bedroom. She saw his face at least half the time he was there. The assailant told her that because she could identify him he would come back and kill her if she told anyone what had happened.

After the assailant left, the victim lay huddled on her bed for at least an hour in fear her attacker was still in the house and would kill her if she took any action. When her fears subsided, she attempted to contact her boyfriend, a police officer. At first she could not reach him so she called a friend, who arrived at approximately 10:45 p.m. Her boyfriend arrived about 20 minutes later and called the police station.

The victim was examined at a hospital, where she gave a statement to the police. She gave a more complete statement [244 Kan. 451] later when she assisted in making a composite picture of the rapist. She described him to the police as a man in his mid-to-upper 30's, 6 feet tall, weighing approximately 220 pounds with a potbelly and heavy jowls. She said he had dark hair, a mustache, and a hairy chest. He did not wear glasses. She described his voice as calm and commanding. She said the man had a very offensive body odor, as of one who did not bathe often, which she noticed as soon as he came up behind her and put a hand over her mouth. She thought he must have been wearing slip-on shoes, because he was able to get out of them quickly. Although of normal hearing, she did not hear his approach at all. She looked at photographs of possible suspects, but found no one who resembled the assailant.

Nearly four months went by with no arrests. Then, on March 10, Ronald Switzer was seen by the victim at an Alcoholics Anonymous (AA) meeting in Silver Lake. Switzer had previously attended AA meetings elsewhere. This was the first time he had attended such a meeting in Silver Lake. Switzer sat down next to the victim, who became positive he was her assailant. She spent 30 minutes frozen to her chair trying to discover a feature or characteristic of Switzer which would prove her wrong. Switzer wore glasses, did not have a mustache, and had shorter hair. Other than that, she testified he matched her memory of the assailant in every way. She left the meeting and called her boyfriend, who advised her to get Switzer's license tag number from his car when he left, which she did. Upon returning to the meeting, she asked Switzer his telephone number, saying she needed to reach him if the place for the meetings had to be changed. Switzer gave her his correct number, and from this and his license tag, his full identity was discovered.

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After the meeting, the victim moved to a different apartment because her fears were renewed by having seen her alleged assailant again. At the victim's next AA meeting, Switzer was again present. The victim became so frightened she went into the bathroom and was physically ill. She testified that, later in the meeting, Switzer made a general comment that he worked for the postal service and could find anybody's address information.

Switzer testified he only mentioned he worked for the postal service and denied stating he had access to change of address information. He testified he used to attend AA meetings years [244 Kan. 452] ago, and began attending again on his counselor's advice because of the difficulties he was experiencing with his marriage. He explained he attended the meetings at Silver Lake because he lived there.

On Saturday morning, March 28, at approximately 10:00 a.m., the victim found a cassette in her mailbox. The cassette had not been mailed--it was not in an envelope or container of any sort. The cassette contained only one song, the words to which were, "[S]omeone is watching you and he's going to get you, and you can't escape the voice." The victim testified at the preliminary hearing she was certain she had checked her mail at noon on Friday. Thus, the tape would have had to have been deposited in her mailbox between noon Friday and 10:00 a.m. Saturday.

Michelle Gomez, a friend of Switzer's, testified she and Switzer met at...