State v. Woods

• Decision Date: 09 April 1977
• Docket Number: No. 48481,48481
• Citation: State v. Woods, 563 P.2d 1061, 222 Kan. 179 (Kan. 1977)
• Parties: STATE of Kansas, Appellee, v. Larry WOODS, Appellant.
• Court: Kansas Supreme Court

Page 1061

563 P.2d 1061

222 Kan. 179

STATE of Kansas, Appellee, v. Larry WOODS, Appellant.

No. 48481.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

1. The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.

2. Generally the use of the disjunctive 'or' in an information and an instruction given thereunder is fatal only where uncertainty results.

3. An instruction on self-defense which goes beyond PIK Criminal, Sec. 54.17 and advises that a person may lawfully use only such force as may reasonably seem necessary to him or her in defending one's self against unlawful attack and serious bodily harm, but such person may not go further than appears reasonably necessary for such defense, is not erroneous.

4. When a specific intent is required as one of the elements of a crime defined in our criminal code, an instruction requiring proof of the specific intent is generally included in the instruction defining the elements of the crime to be proved. This included recital, together with the presumption of intent instruction (PIK Criminal, Sec. 54.01), adequately covers the required statutory specific intent.

5. Where a criminal statute is held unconstitutionally vague and of no force, an instruction thereon would be erroneous.

6. As affecting the credibility of a witness, evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character is inadmissible. (K.S.A. 60-422(d).)

7. In an appeal from a jury verdict which found the defendant guilty of battery (K.S.A. 21-3412) and aggravated battery (K.S.A. 21-3414) arising from separate attacks, the record is examined and it is held: (a) the trial court did not err in permitting the information to be amended; (b) the use of the disjunctive 'or' in the information and the instruction given thereunder is not fatally uncertain; (c) the self-defense instruction, considered as a whole, clearly and accurately reflects the law on self-defense; (d) the trial court did not err in the presumption of intent instruction given; (e) no instruction on criminal injury to persons was necessary; and (f) evidence of one specific past instance of misconduct was properly excluded under K.S.A. 60-422(d) and K.S.A. 60-447(a).

Harold T. McCubbin, Norton, argued the cause, and was on the brief for appellant.

Roger M. Theis, Asst. Atty. Gen., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

SCHROEDGER, Justice:

This is an appeal from a jury verdict which found Larry Woods (defendant-appellant) guilty of battery (K.S.A. 21-3412) and aggravated battery (K.S.A. 21-3414) arising from separate attacks on Reinhart Dusin in Phillipsburg, Kansas, on August 24, 1975.

Various alleged trial errors are asserted on appeal.

Reinhart Dusin, 57 years old, owned a farm northwest of Phillipsburg, Kansas. Just before midnight on August 23, 1975, he came into the Colonial Lounge in Phillipsburg for a beer. Shortly thereafter Dusin heard loud voices, including that of the bartender and owner, Leon Preister. Dusin, thinking it would be a good time to leave, walked by the proprietor and Larry Woods and said something like, 'hi, what's going on' to Mr. Preister. Almost immediately thereafter he was struck twice in the face and knocked out by Larry Woods. Dusin did not say anything to the defendant or rpovoke the incident in any manner. Mr. Preister confirmed the sudden and unprovoked nature of Larry Woods' attack. As a result of this Colonial Lounge incident, the defendant was charged with battery. (K.S.A. 21-3412.)

When Dusin regained consciousness he rested for a while. At approximately 1:30 a. m. he drove to the Rocket Grill for some food. As he walked toward the rear of the grill, he recognized the defendant. Dusin stopped to say that he did not mean any offense at the lounge. While he had his hands at his side, the defendant suddenly jumped up from his seat, struck Dusin several times and pushed him to the ground. This time when Dusin fell to the floor the defendant 'kicked and clobbered' him. Florence Richards, owner of the Rocket grill, testified Larry Woods kicked Dusin in the face and ribs many times despite her pleas and the pleas of Larry's girl friend to stop. John Gorache, a farm laborer, Mitchell, Johnson, a Phillipsburg teacher, and Larry Henderson, who worked for the Norton Daily Telegram, uniformly testified and confirmed that Larry was kicking and stomping the helpless Dusin.

Florence Richards and the other witnesses also uniformly testified they never heard Dusin say anything to the defendant, try to hit the defendant or attack him in any way. Nothing appears in the record to show the brutal assault was in any way provoked by Dusin.

When the defendant was finally pulled away, Dusin started to get up. The defendant broke away from those holding him, pushed Dusin out the door and continued to kick him. Dusin suffered severe contusions to his face and body and severe lacerations to his mouth which required a doctor's treatment at the hospital. Due to these injuries, Dusin was unable to complete his summer fallow. Dusin still bore scars from the assaults some two months later. As a result of this Rocket Grill incident, the defendant was charged with aggravated battery. (K.S.A. 21-3414.)

The trial commenced on November 24, 1975. Pertinent trial events are referred to later in this opinion. On November 26, 1975, the jury found the defendant guilty of both charges. On December 3, 1975, a motion for a new trial was denied, and appeal was thereafter duly perfected.

The appellant first contends the court erred in sustaining the state's motion to amend Count Two of the information immediately prior to the trial, and the amendment prejudicied the substantial rights of defendant.

Count Two of the original information, filed September 24, 1975, charged:

'That on or about the 24th day of August, 1975, the said Larry Woods, within the above and within named County and State, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully, willfully and feloniously apply force to the person of another, to-wit: Reinhart Dusin, at the Rocket Grill, Phillipsburg, Kansas, with the intention to injure said Reinhart Dusin, and which did inflict great bodily harm upon or cause disfigurement to the said Reinhart Dusin. . . .'

On November 24, 1975, the first day of trial, the last sentence of Count Two was amended, over the defendant's objection, to read as follows:

'(A)nd either which did inflict great bodily harm upon the said Reinhart Dusin, or which was done in a manner whereby great bodily harm or disfigurement could have been inflicted to the said Reinhart Dusin. . . .'

The county attorney thought the amended information was clearer and more accurately reflected the statutory language of K.S.A. 21-3414.

The appellant's contention is controlled by K.S.A. 22-3201(4) (now K.S.A. 1976 Supp. 22-3201(4)) which provided:

'The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudicied.'

The appellant does not complain that he was taken by surprise. The amendment did not change the nature of the crime alleged, charge the appellant with any additional or different crime, or prejudice the substantial rights of the appellant. Accordingly, no error is shown by the amended information. (K.S.A. 22-3201(4); State v. Rives, 220 Kan. 141, 144-145, 551 P.2d 788; and State v. Osburn, 216 Kan. 638, 640-641, 533 P.2d 1229, and authorities cited therein.)

Second, the appellant contends it was error for the court to give jury instruction No. 2(3) which stated an element of the crime charged in the disjunctive. The appellant attacks both the information and the instruction thereunder as being stated in the disjunctive and lacking certainty. (Citing State v. Seeger, 65 Kan. 711, 70 P. 599; and State v. Kamen, 166 Kan. 664, 203 P.2d 176.)

State v. Seeger, supra, involved a complaint where one could not tell whether the defendant was being charged with maintaining a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or whether they were being prosecuted for maintaining a place where such liquors were kept for the purpose of sale, barter or delivery in violation of the law.

In State v. Kamen, supra at 665, 203 P.2d (176) at 177, the information charged the defendant did unlawfully, feloniously, willfully buy and receive personal property 'that had been embezzled, taken or secreted, or stolen from another . . . knowing the same to have been so embezzled, taken or secreted, or stolen.' The court held this information, which charged that the defendant did one thing, or another, or still another, not only lacked certainty but failed to clearly set forth the offense charged.

Both of these cases involve situations where the act complained of could not be determined with certainty. The appellant in the instant case argues the same reasoning applies to the information and instruction given thereunder. Here the appellant was informed of the act complained of, although the consequences of that act may have been uncertain.

The information and instruction given thereunder comply with the statutory language of K.S.A. 21-3414 and PIK Criminal, Sec. 56.18. Generally an information drawn in the language of the statute is sufficient. (State v. Clanton, 219 Kan. 531, 534, 548 P.2d 768; and Carithers v. State, 207 Kan. 607, 485 P.2d 1368.) Similarly, an instruction patterned after the statute is valid. (State v. Beard, 220 Kan. 580, 552 P.2d 900; State v. Schriner, 215 Kan. 86, 91, 523 P.2d 703; and State v. Worth, 217 Kan. 393, 395, ...