State v. Bentley

721 P.2d 227, 239 Kan. 334, 1986 Kan. LEXIS 232
CourtSupreme Court of Kansas
DecidedJune 13, 1986
Docket57,689
StatusPublished
Cited by20 cases

This text of 721 P.2d 227 (State v. Bentley) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bentley, 721 P.2d 227, 239 Kan. 334, 1986 Kan. LEXIS 232 (kan 1986).

Opinions

The opinion of the court was delivered by

Schroeder, C.J.:

The defendant, Quintín Bentley, was convicted of two counts of indecent liberties with a child (K.S.A. 21-3503). The issue on appeal concerns the criminal statute of limitations (K.S.A. 21-3106) and whether a threat to a child not to tell anyone what the defendant had done constitutes concealment and tolls the running of the statute of limitations.

In an unpublished opinion filed January 9, 1986, the Kansas Court of Appeals reversed the defendant’s convictions and held a threat to a child does not constitute concealment. The basis of the opinion is that it is not within the province of the court to fashion exceptions to the statute of limitations; that is left to the legislature. The Court of Appeals stated to hold a threat consti[335]*335tuted concealment would result in extending the two-year limitation in nearly every case of indecent liberties because threats are commonplace in sexual assaults on children. We granted the State’s petition for review.

The facts of the incidents are not in dispute. The victim’s parents were divorced and the incidents occurred while she was visiting her father on the weekend. The defendant, the victim’s uncle, slept in his car at the victim’s father’s address. Both incidents occurred when the victim was nine years old. The defendant admitted the two incidents had occurred.

The first incident occurred when the victim was taking a bath at her father’s house at 1430 S. Seneca, Wichita, Kansas. Her father wasn’t home, but her brothers and the defendant were. Her brothers were watching television. The defendant came into the bathroom, fondled and touched her and made her touch him. The defendant heard the victim’s father’s car pull into the driveway and pulled up his pants. In a mean voice, he threatened her not to tell anybody, and if she did, he would try to do it again. He also said if she told her father, he would tell her father that her brothers had come into the bathroom while she was in there, which was against her father’s privacy rule. When asked why she didn’t tell her father, the victim replied she didn’t want the defendant to do it again.

The second incident also occurred when her father was not home. The victim and her brothers were outside playing soccer when the defendant called her into the house. She went in to change her clothes and the defendant came into the bedroom and fondled and touched her. When her father started to come into the house, the defendant pulled up his pants and left the bedroom.

One day the victim, her brothers, and her mother were in their car and ran out of gas. As they were walking home they passed three boys whom the victim thought were laughing at them and she became frightened. When they got home, her mother asked her what was wrong and she eventually told her what the defendant had done.

While the facts are not in dispute, the times that the incidents occurred are. The charges against the defendant were filed on March 7, 1984. Therefore, to be within the two-year statute of [336]*336limitations, the two incidents must not have occurred before March 7, 1982.

The victim stated the first incident happened in the summer or after school had started, and the second' incident happened two or three months after the first incident. The complaint stated the first incident occurred between June and September of 1982, and the second incident occurred during September 1982. However, at trial the victim testified that both incidents occurred at her father’s house at 1430 S. Seneca. Her father moved from that address on April 16, 1982. At the time of the first incident, the victim testified she lived with her grandmother; she lived there before her mother remarried on February 11, 1982. That would place the first incident before March 7, 1982, and outside the statute of limitations by a count of 24 days. However, the victim also testified that at the time of the first and second incidents she lived on 9th Street; she moved to that address on February 27, 1982. That would place both incidents between February 27,1982, and April 16,1982, possibly within or without the statute of limitations.

In a trial to the court, the court found by a preponderance of the evidence that Count I occurred prior to February 11, 1982. However, the trial court had a reasonable doubt whether Count II occurred on or before March 7,1982. Rriefs were prepared and arguments were heard on whether the defendant’s threat to the child tolled the criminal limitations statute. The trial court ruled the defendant’s threats were calculated to prevent discovery of the crimes and, therefore, the threats constituted concealment which tolled the statute of limitations, making the charges against the defendant timely filed. The defendant was convicted on both counts of indecent liberties with a child.

As to Count I, the defendant argues on appeal the threat does not constitute concealment. As to Count II, the defendant argues no threat was made at the second incident.

As a general rule, statutes of limitation are favored by the law and are to be construed liberally in favor of the accused and against the prosecution. Exceptions to the statute are to be construed narrowly, or strictly, against the State. State v. Mills, 238 Kan. 189, 190, 707 P.2d 1079 (1985).

Pursuant to K.S.A. 21-3106, prosecutions for crimes other than murder must be commenced within two years of the commission of the crime. However, there are exceptions to that two-year time [337]*337limit. The period within which prosecution must commence does not include any period in which the fact of the crime is concealed. K.S.A 21-3106(3)(c).

Cases construing this exception to the statute of limitations have involved charges of embezzlement or theft. The rule established in these cases is that the statute refers to acts of concealment preventing discovery of the fact that crime was committed, which must be unconnected with the fact the accused was the perpetrator. In re Stewart, 60 Kan. 781, 57 Pac. 976 (1899). Concealment of the facts of the crime refers to concealment of those criminal acts which constitute the crime. State v. Gainer, 227 Kan. 670, 608 P.2d 968 (1980). To constitute concealment, it must appear the accused’s statements or conduct was calculated and designed to prevent discovery of the crime with which he or she is charged; mere silence, inaction or nondisclosure is not enough. Nondisclosure is the failure to reveal facts, while concealment is any statement or conduct which prevents another from acquiring knowledge of a fact. State v. Watson, 145 Kan. 792, 794, 67 P.2d 515 (1937).

Where the defendant hid stolen property and then later used that property as his own, this court ruled those actions did not constitute concealment. See State v. Gainer, 227 Kan. 670; State v. Heinz, 121 Kan. 547, 247 Pac. 631 (1926).

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Cite This Page — Counsel Stack

Bluebook (online)
721 P.2d 227, 239 Kan. 334, 1986 Kan. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bentley-kan-1986.