State v. Walker

• Decision Date: 20 January 1989
• Docket Number: No. 61659,61659
• Citation: State v. Walker, 768 P.2d 290, 244 Kan. 275 (Kan. 1989)
• Parties: STATE of Kansas, Appellee, v. Lorie WALKER, Appellant.
• Court: Kansas Supreme Court

Page 290

768 P.2d 290

244 Kan. 275

STATE of Kansas, Appellee, v. Lorie WALKER, Appellant.

No. 61659.

Supreme Court of Kansas.

Jan. 20, 1989.

Syllabus by the Court

1. Whether a defendant may be tried on two or more complaints, informations, or indictments in a single trial rests in the sound discretion of the trial court, within the guidelines established in statute and case law, and its holding will not be disturbed on appeal absent a clear showing of abuse of discretion. Even if the trial court's consolidation order is determined to be an abuse of discretion, the defendant has the burden of showing prejudice requiring reversal.

2. If the acts or transactions alleged in two or more complaints, informations, or indictments are connected together, the dissimilarity of the crimes charged, standing alone, does not bar consolidation for a single trial.

3. Generally, reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument where no objection is lodged.

4. In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court considers only the evidence in favor of the verdict to determine whether the essential elements of a charge are sustained.

5. K.S.A. 21-3608(1)(b), endangering a child, does not require the State to prove that the offender had any independent legal duty to the victim.

6. Where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review.

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

Mary Murguia, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with her on the brief, for appellee.

HOLMES, Justice.

Lorie A. Walker appeals her convictions of two counts of aggravated criminal sodomy (K.S.A.1987 Supp. 21-3506[a]; two counts of endangering a child (K.S.A. 21-3608); and one count of making a terroristic threat (K.S.A.1987 Supp. 21-3419[a]. She raises four issues in this appeal, none of which has merit. We affirm.

The victims in this sordid case were the two young stepsons of the appellant. Lorie A. Walker, the appellant, married Douglas Walker, Sr., in April 1986. He had been left a widower with two sons when his former wife died of Huntington's chorea, a genetic disorder. At the time of trial, B.W. was age 12 and D.W. was age 9. B.W., like his natural mother, suffers from Huntington's chorea. D.W. is hyperactive and requires regular medication to control his behavior. While the youngster's father worked during the daytime hours, their stepmother, Lorie, cared for them.

The family moved from Cedar Rapids, Iowa, to Kansas City, Kansas, in June 1986. In July 1986, Kansas City authorities were alerted by an Iowa social services agency that there was a possibility the children were being abused or neglected. Throughout the fall months, the boys' teachers, school social worker, and Department of Social and Rehabilitation Services (SRS) personnel became concerned that B.W. was being physically abused and that D.W. was not receiving regular medication to control his hyperactive behavior. In early December 1986, the police removed both boys from the family home after B.W., having suffered particularly severe blows to his face, told an SRS social worker and the police that his mother had struck him, apparently with a board.

On January 6, 1987, appellant was charged with one count of child abuse, K.S.A.1987 Supp. 21-3609, for beating B.W. She was also charged in the same information with two counts of endangering a child, one count for each of her two stepsons.

While the two boys were in foster care, their behavior instigated an investigation into possible sexual abuse. The younger boy ultimately told an SRS child protection social worker that appellant had forced him and his brother B.W. to perform oral sex upon her while their father watched and encouraged them. Appellant later voluntarily admitted to a Wyandot Mental Health Center therapist that she had repeatedly forced the two boys to perform oral sex on her. On March 6, 1987, an information was filed charging both appellant and Douglas Walker, Sr., with two counts of aggravated criminal sodomy.

B.W. was admitted to the child psychiatric unit at the University of Kansas Medical Center (KUMC) on January 6, 1987. The primary reason for his admission was that he had exhibited behavior problems while in foster care. His father and stepmother visited B.W. frequently, but on several occasions they were asked to leave because of their disruptive behavior. On March 3, 1987, the Walkers attended a meeting at KUMC regarding restrictions to be imposed on their visitations with B.W. The Walkers were informed that only Mr. Walker would be permitted to visit B.W. Appellant, angered because she was to be prohibited from visiting B.W. at KUMC, directed the following epithet to Florice Bales, the hospital social worker: "You are a fucking dead bitch; I'm-I'm going to find your house and blow it up." Appellant then walked out of the meeting. Mr. Walker thereafter made threatening statements to Dr. Kristopher Wendler, who was also in the room during the meeting. On March 19, 1987, both appellant and Douglas Walker, Sr., were charged with two counts of making a terroristic threat, naming Ms. Bales and Dr. Wendler as the victims.

Douglas Walker, Sr., testified for the State at appellant's trial, having apparently decided to enter a plea. Appellant was found guilty by a jury of two counts of aggravated criminal sodomy, two counts of endangering a child, and one count of terroristic threat. The jury was unable to reach a unanimous verdict on the charge of abusing B.W. A mistrial was declared as to that charge, and the charge was dismissed. The appellant was acquitted of the charge of making a terroristic threat to Dr. Wendler. Additional facts will be set forth as they become pertinent to the various issues asserted in this appeal.

Appellant, for her first issue, asserts it was error to consolidate the trial of the two counts of making a terroristic threat with the trial of the charges in the other two informations. K.S.A. 22-3203 provides:

"Consolidation for trial of separate indictments or informations. The court may order two or more complaints, informations, or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment."

The rule on joinder of charges is stated in K.S.A. 22-3202(1), which reads:

"Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." (Emphasis added.)

Whether a defendant may be tried on two or more complaints, informations, or indictments in a single trial rests in the sound discretion of the trial court, within the guidelines established in statute and case law, and its holding will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Breazeale, 238 Kan. 714, 729, 714 P.2d 1356, cert. denied 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 102 (1986); State v. Boan, 235 Kan. 800, 806, 686 P.2d 160 (1984); State v. Bagby, 231 Kan. 176, 178, 642 P.2d 993 (1982); State v. Adams, 218 Kan. 495, 506, 545 P.2d 1134 (1976), and cases cited therein. Even if the trial court's consolidation order is determined to be an abuse of discretion, the defendant has the burden of showing prejudice requiring reversal. State v. Thomas, 206 Kan. 603, 609, 481 P.2d 964 (1971).

While it is true that the charges of terroristic threat are not of the same or similar character or based upon the same acts or transactions as the other charges against appellant, the State does not rely upon those criteria of the statute. Instead, the State asserts that the terroristic threat charges are "acts or transactions connected together" with the charges of aggravated criminal sodomy, child abuse, and endangering a child. If the acts are connected together, the dissimilarity of the crimes, standing alone, does not bar consolidation. State v. Thomas, 206 Kan. at 608-09, 481 P.2d 964.

For support of its argument, the State relies primarily on State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983), and State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979).

In Moore, the defendant was initially charged with aggravated robbery and kidnapping. In the original trial, the jury was unable to reach a verdict and the case ended in a mistrial. Shortly thereafter, the defendant was charged with corruptly influencing a witness and unlawful deprivation of property. The second charge essentially alleged that Moore had solicited a third party to testify falsely in a way that would have presumably assisted in his defense on the original charge of aggravated robbery and kidnapping, and that Moore unlawfully deprived the third party of his property when he changed his mind and refused to testify on Moore's behalf. Moore was subsequently tried on both complaints and convicted in a consolidated trial. This court reasoned:

"K.S.A. 22-3202 and K.S.A. 22-3203 correspond to Rules 8(a) and 13 of the Federal Rules of Criminal Procedure. The federal cases consistently hold that when criminal conduct resulting in a second charge is precipitated by a previous charge, the two are...