In re S.M.D.

980 P.2d 1028, 26 Kan. App. 2d 165
CourtCourt of Appeals of Kansas
DecidedMay 14, 1999
DocketNo. 82,147
StatusPublished
Cited by2 cases

This text of 980 P.2d 1028 (In re S.M.D.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re S.M.D., 980 P.2d 1028, 26 Kan. App. 2d 165 (kanctapp 1999).

Opinion

Gernon, J.:

S.M.D. appeals from his adjudication as a juvenile offender on the charge of aggravated criminal sodomy and from the court’s ruling that the proceeding should be an extended jurisdiction juvenile prosecution.

In April 1998, a juvenile complaint was filed against S.M.D. in McPherson County, alleging that “[o]n or about the 7th day of February, 1998,” he caused the victim, then under the age of 14, to engage in sodomy contrary to K.S.A. 21-3506. At the time he was so charged, S.M.D. was 17 years old. The incident allegedly occurred in Inman, Kansas.

Several months later, the State filed a motion to designate the proceedings as an extended jurisdiction juvenile prosecution. The motion alleged that S.M.D. was 17 years old at the time of the offense and that the charge amounted to the adult crime of aggravated criminal sodomy, a severity level 2 offense. The journal entry granting the motion reflected that S.M.D. did not oppose the motion.

On July 2, 1998, S.M.D. filed a notice of alibi, asserting that he had an alibi for the evening of February 7,1998. In turn, the State identified rebuttal witnesses in response to the notice of alibi.

At trial, the court noted that the criteria were met to trigger the statutory presumption that extended jurisdiction should apply and that it was S.M.D.’s obligation to rebut that presumption. S.M.D. and his attorney stipulated that the presumption applied and that he could not rebut that presumption. The court then granted the motion for extended jurisdiction. At that time, S.M.D. waived his right to a jury trial.

S.M.D. first contends that the trial court committed reversible error by adjudging him guilty of committing the offense sometime during February 1998 rather than on the date referenced in the complaint. S.M.D. essentially argues that he relied on the State’s silence after he filed his notice of alibi for February 7, 1998, and that he had no reason to believe the State was contemplating the offense was committed on some other date. S.M.D. contends that [167]*167after filing his notice of alibi, the State was obligated to amend the complaint to clarify that it was not limiting its evidence to that showing the crime occurred on February 7, 1998.

The requirements for complaints in juvenile proceedings are set forth in K.S.A. 1998 Supp. 38-1622. A subparagraph of that statute provides that the precise time of the commission of the offense is not required unless time is an indispensable element of the offense. K.S.A. 1998 Supp. 38-1622(a)(4). This language is nearly identical to the language of K.S.A. 1998 Supp. 22-3201(b). Because of the similarity of language, this court has held that the juvenile statute should be construed in pari materia with K.S.A. 1998 Supp. 22-3201. In re J.T.M., 22 Kan. App. 2d 673, 676-77, 922 P.2d 1103, rev. denied 260 Kan. 993 (1996). In In re J.T.M., this court ruled that a juvenile complaint could be amended in the same manner as a complaint in a criminal proceeding even though the juvenile statute did not specifically provide for amendments. 22 Kan. App. 2d at 677.

In the same manner, K.S.A. 1998 Supp. 38-1622 does not provide a remedy for situations where ambiguities in the complaint make it difficult for an alleged offender to prepare his or her defense. However, K.S.A. 1998 Supp. 22-3201(f) provides that a defendant in a criminal proceeding may request a bill of particulars, clarifying the details necessary for a defendant to prepare a defense to the charge. When a bill of particulars is ordered, the State's evidence is confined to those details provided. K.S.A. 1998 Supp. 22-3201(f). Based on the reasoning of In re J.T.M., the opportunity for a juvenile offender to request a bill of particulars in order to prepare a defense should be implied under the Juvenile Offenders Code.

In this case, S.M.D. provided a notice of alibi as provided in K.S.A. 1998 Supp. 38-1623; the notice indicated that S.M.D. was identifying an alibi for February 7, 1998. Similarly, criminal procedure statutes require a defendant to provide a notice of alibi before trial. K.S.A. 22-3218(2). Again, the criminal statute creates a procedure permitting a defendant to apply to the court for an order requiring the prosecutor to amend the complaint to include more details or for a bill of particulars in order for the defendant [168]*168to file a timely notice of alibi. K.S.A. 22-3218(3). Again, while K.S.A. 1998 Supp. 38-1623 provides no explicit right for an offender to seek a bill of particulars, that remedy should be implied by construing the two statutes together. See In re J.T.M. 22 Kan. App. 2d at 676-77.

Kansas cases dealing with the obligation of defendants to seek a bill of particulars when they claim the absence of or vagueness in the allegations in the complaint impairs their ability to prepare a defense include State v. Webber, 260 Kan. 263, 284-85, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997); State v. Armstrong, 238 Kan. 559, 562, 712 P.2d 1258 (1986); State v. Myatt, 237 Kan. 17, 28-29, 697 P.2d 836 (1985); State v. Jones, 204 Kan. 719, 724-25, 466 P.2d 283 (1970); and State v. Miesbauer, 3 Kan. App. 2d 53, 55-56, 588 P.2d 953 (1979).

The common threads running through these cases are that: (1) The burden is on a defendant to seek a bill of particulars; (2) uncertainties as to the dates are common; (3) a defendant must object at trial if he or she believes a bill of particulars is inadequate; and (4) the appellate courts will examine whether the defendant was surprised by an amendment or a charge and deprived of the opportunity to defend.

Here, S.M.D. is essentially asking that the State be required to file a bill of particulars automatically anytime an alibi defense is raised.

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Related

State v. Ellmaker
221 P.3d 1105 (Supreme Court of Kansas, 2009)
In Re SMD
980 P.2d 1028 (Court of Appeals of Kansas, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
980 P.2d 1028, 26 Kan. App. 2d 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-smd-kanctapp-1999.