State v. Wade

• Decision Date: 03 January 1989
• Docket Number: No. 61678,61678
• Citation: 244 Kan. 136,766 P.2d 811
• Parties: STATE of Kansas, Appellee, v. Gary WADE, Appellant.
• Court: Kansas Supreme Court

Page 811

766 P.2d 811

244 Kan. 136

STATE of Kansas, Appellee, v. Gary WADE, Appellant.

No. 61678.

Supreme Court of Kansas.

Jan. 3, 1989.

Syllabus by the Court

1. That the child victim is not married to the offender is one of the essential elements of the crime of aggravated criminal sodomy set out in K.S.A. 1987 Supp. 21-3506. The essential element of non-marriage is implied by a common-sense construction when the information, on its face, recites the tender age of the victim.

2. Because there is no minimum statutory age for marriage in Kansas, the common law governs and fixes the age at fourteen for males and twelve for females.

3. The K.S.A. 23-106 age limitation for marriage relates only to the issuance of a marriage license without parental (or guardian) and judicial consent. Anyone under the age of 18 must have the consent of a parent or legal guardian and a judge of the district court to be issued a marriage license.

4. K.S.A. 23-101 provides, among other things, that a marriage contract is to be considered in law as a civil contract between two parties who are of the opposite sex, to which the consent of the parties is essential.

5. A witness may be asked questions on redirect examination to clarify or modify statements made on cross-examination. A witness on redirect may also explain the effect of new matters brought out on cross-examination.

6. The admission of non-expert opinion testimony is permitted by K.S.A. 60-456 in some circumstances and is within the discretion of the trial court.

7. Under the facts herein, it was not error to admit the redirect examination lay testimony of a child protection case worker, who investigated alleged sexual abuse and described: (1) what she looked for when required to make a sexual abuse case determination judgment call; (2) the behavior of children who told her they have been sexually abused, stating that it was consistent with behavior she observed in the child victim; and (3) how most children who have been sexually abused also go through a time where they have a lot of behavior difficulties.

8. The credibility of witnesses is a determination for the finder of fact. Witness credibility should not be second-guessed by an appellate court, which only has access to the cold transcript of the trial proceedings.

Karen E. Mayberry, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on the briefs for appellant.

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

SIX, Justice:

Gary Wade was convicted of aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506.

The first issue in his appeal is whether the trial court had jurisdiction. Was the criminal complaint, used as an information, defective because it failed to allege that the five-year-old child victim, S.E., was not married to the offender?

The trial court did have jurisdiction. The information was not defective.

A secondary issue focuses on the trial court's admission, over Wade's objection, of the testimony of a social rehabilitation service worker who had observed and interviewed S.E., the five-year-old child victim. The trial court did not abuse its discretion in admitting the SRS worker's testimony.

Wade also contends there was not sufficient evidence for a rational factfinder to find him guilty beyond a reasonable doubt; consequently, he reasons his motion to dismiss should have been granted. We disagree.

Finding no error we affirm.

In January of 1986, S.E.'s parents, D.E. and R.E., separated. S.E. and her mother moved into an apartment in Auburn, Kansas. In February, Gary Wade, the defendant, moved into the apartment. In March, S.E. told her mother of Wade's actions that formed the aggravated criminal sodomy charge. We choose not to recite the indelicate factual background. The rationale for our decision does not rest upon the physical fact relationship between S.E. and Wade.

S.E.'s mother testified that, when Wade found out about the accusation, he beat her up, causing two black eyes and a bloody nose. He then grabbed her as well as S.E. by the neck and threatened to kill them if they told anyone. Wade testified that when he found out about the accusations, he was "disappointed." He told the mother and S.E. that the accusation should not be discussed outside the family. According to Wade, S.E. began to throw a temper tantrum. He spanked her and put her to bed. After S.E. was in bed, he and S.E.'s mother had a discussion during which things were thrown and verbal abuse was exchanged. Wade denied that he beat the mother.

S.E.'s mother testified that, after Wade threatened them, S.E. told her that she had made the story up to try to break up her mother's relationship with Wade. There was testimony that S.E. wanted her parents to get back together and that she did not like living with Wade. There also was testimony that the mother had previously talked to S.E. about what S.E. should do if anyone ever made any sexual advances to her and that people that did those things are sent to jail. S.E. told a social worker that she wanted Wade put in jail. S.E.'s mother also testified that S.E. had once walked in on Wade and the mother while they were having oral sex. She said, however, that she thought S.E. had not seen anything.

S.E. told her mother that S.E.'s incident with Wade occurred in the bathroom. S.E. told the social worker that the incident occurred in the living room.

In June 1986, SRS removed S.E. from her mother's custody. The removal was not based on the alleged sexual abuse by Wade, as this had not yet been reported to the authorities. The reason for the removal appears to have been excluded prior to trial by a defense motion in limine. S.E. was first placed in foster care. Later in July, custody was given to her paternal grandmother (with whom her father lived). Her father testified that, late in July, S.E. told him about the alleged incident of sexual abuse. The incident was reported to Michelle Mlynar, a child protection worker, in July 1986. Mlynar interviewed S.E. in August 1986 and again in October.

In August, S.E.'s parents reported the sexual abuse incident to the Shawnee County Sheriff's Department. The testimony indicated that shortly after the incident was reported to the police, S.E.'s mother moved back in with Wade. She had also reported that Wade had beaten her up, but later refused to testify against him. S.E.'s mother continued to live with Wade until he was arrested on the aggravated criminal sodomy charge. She visited him in jail a couple of times after the arrest.

S.E.'s mother was told by SRS that she could not regain custody of S.E. unless she disassociated herself from Wade. At one point, the mother accused Michelle Mlynar of postponing a custody hearing to make sure that she would testify against Wade in the sodomy case. The mother regained custody of S.E. in February 1987, with the understanding that S.E. was to have no contact with Wade.

The jury found Wade guilty of aggravated criminal sodomy in April 1987. Wade was sentenced to 45 years to life in June 1987. Wade moved for modification of sentence. The sentence was modified to 15 to 60 years on October 7, 1987, and Wade filed his notice of appeal on the same day.

1. JURISDICTION

Wade was charged under K.S.A. 1987 Supp. 21-3506, which provides:

"Aggravated criminal sodomy is:

"(a) Sodomy with a child who is not married to the offender and who is under 16 years of age."

The information upon which Wade was convicted read as follows:

"I, Gene M. Olander, being duly sworn, on oath, says that on or about the ____ day of March to April A.D. 1986 in the County of Shawnee and State of Kansas, Gary G. Wade Route 2, Box 34A, Carbondale, Kansas, dob 1-31-61, WM, 5'9"', 135#, bro/bro did then and there unlawfully, feloniously, and willfully, ... engage in oral copulation with [S.E.] a child under the age of sixteen, to-wit, age 5, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Kansas."

The information fails to allege that S.E., the child victim, is not married to the offender. Wade contends that such an allegation is one of the essential elements of the crime of aggravated criminal sodomy set out in K.S.A. 1987 Supp. 21-3506. We agree. He asserts that failure of the information to state the essential element of non-marriage is a fundamental defect and, consequently, his conviction is void. We disagree.

The essential element of non-marriage is implied by a common-sense construction when the information, on its face recites the tender age of the victim; here, five years. The trial court did have jurisdiction.

Wade relies on State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986). In Jackson, the defendant appealed his conviction of two counts of indecent liberties with a child and one count of aggravated criminal sodomy. The alleged victim in Jackson was six years old. We reversed both counts of indecent liberties with a child because essential elements of the offense were omitted from the information. The first count failed to allege that the victim was under sixteen years of age. The second count failed to allege that the child was not married to the accused and that the child was under sixteen years of age. 239 Kan. at 465, 721 P.2d 232. We distinguish Jackson on the basis that neither count alleged the child's age. Therefore, there was nothing on the face of the information that would indicate that the victim could not be married to the offender and, in addition, the information also failed to state another essential element. The aggravated criminal sodomy charge was reversed on other grounds. 239 Kan. at 470, 721 P.2d 232.

In its brief, the State conceded that the court lacked jurisdiction of Wade because of the defect in the information. At...