State v. Dickson

46 P.3d 1216, 30 Kan. App. 2d 682, 2002 Kan. App. LEXIS 504
CourtCourt of Appeals of Kansas
DecidedMay 24, 2002
DocketNo. 85,586
StatusPublished
Cited by3 cases

This text of 46 P.3d 1216 (State v. Dickson) 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
State v. Dickson, 46 P.3d 1216, 30 Kan. App. 2d 682, 2002 Kan. App. LEXIS 504 (kanctapp 2002).

Opinion

Beier, J.:

Andrew T. Dickson appeals his convictions after jury trial on three counts of rape, one count of aggravated criminal sodomy, and one count of criminal sodomy. He raises four issues: (1) Did the district court give an improper preliminary instruction? (2) Was the evidence sufficient to support the criminal sodomy conviction? (3) Did the district court err by failing to give a multiple acts unanimity instruction? and (4) Was his sentence on his rape conviction on Count IV illegal?

We will restate the facts in this sickening case only as necessary for an understanding of our holdings. The charges arose out of Dickson’s sexual activity with two young sisters, K.D. and M.D.

Dickson’s challenge to the district court’s preliminary instructions focuses on the following language: “During the course of this trial, you will hear testimony in regard to certain locations within Sedgwick County. You may not visit these locations on your own, and you may not otherwise conduct your own investigation of these matters. All proper investigations have already been conducted.”

[684]*684Dickson did not object to this instruction at trial and must therefore demonstrate on appeal that the instruction was clearly erroneous, i.e., persuade us that there was a real possibility the jury would have rendered a different verdict if the error had not occurred. See State v. Evans, 270 Kan. 585, 588,17 P.3d 340 (2001).

Dickson’s first argument is that the instruction shifted the burden of proof on the element of venue to him. Once the State put on its evidence regarding the Sedgwick County locations of the various crimes, venue was never contested. We therefore conclude that any error in mentioning Sedgwick County in the instruction could not have made the difference between a guilty and not guilty verdict on the charges, particularly in the context of other preliminary and final instructions about the State’s burden to prove Dickson’s guilt and listing venue among the elements it must establish.

Dickson also argues the last sentence in the same instruction constituted a favorable comment on the credibility of the State’s witnesses. Because his convictions rested upon the inconsistent testimony of K.D. and M.D., he says, the judge’s instruction was prejudicial. Dickson is correct that “a judge should exercise great care and caution to say nothing within the hearing of the jury which would give them an indication of what he thought about the truth or falsity of any part of the testimony.” State v. Boyd, 222 Kan. 155, 159, 563 P.2d 446 (1977). However, we read the challenged sentence as being neutral. The court did not single out the State’s investigators as especially competent or their results as especially trustworthy. A reasonable juror would assume that both sides in such a serious case had fully investigated its facts and prepared for trial. The inclusion of this sentence was not error.

All of this being said, we are compelled to note that the instruction deviated substantially from its apparent model, PIK Civ. 3d 101.10(c). We do not disapprove of the district court’s effort to ensure that jurors decide the case only on the evidence presented and not on any amateur sleuthing they might conduct at or near the locations described in the testimony. But our appellate courts have repeatedly advised district judges to use PIK language, absent particular facts requiring modification. See, e.g., State v. Moncla, 262 Kan. 58, 71, 936 P.2d 727 (1997). Nothing about this case [685]*685required the modifications that led to Dickson’s arguments. Again, we urge district judges not to wander too far from PIK unless absolutely necessary.

Dickson’s next argument attacks the sufficiency of the evidence to support his criminal sodomy conviction for causing M.D. to engage in anal intercourse, in violation of K.S.A. 21-3505(a)(3).

According to the testimony supporting this count, Dickson, M.D.’s father, M.D., and two other children were watching television after school. After M.D.’s father fell asleep, Dickson, clad only in his underwear, covered himself and M.D.’s legs with a blanket. When M.D. moved the blanket, she saw Dickson’s penis, and he asked her to hold it. She did not but replaced the blanket. M.D. tried to get away from Dickson, but he moved her to the top of his legs under the blanket. Dickson then pushed M.D.’s clothing aside and inserted his penis into M.D.’s anus. According to M.D., she had already been raped by Dickson on another occasion when he had thrown her onto a bed and placed a pillow over her face until she passed out, and she was afraid of him.

On appeal, Dickson concedes that he engaged in sodomy with M.D., which is an offense under K.S.A. 21-3505(a)(2), but he claims there was no proof that he caused M.D. to engage in sodomy with any person or animal as required by K.S.A. 21-3505(a)(3), the particular subsection under which he was charged.

“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).

Resolution of this issue also requires us to analyze and interpret K.S.A. 21-3505 on criminal sodomy. This endeavor is assisted by simultaneous review and interpretation of K.S.A. 21-3506 on aggravated criminal sodomy.

K.S.A. 21-3505 provides:

“(a) Criminal sodomy is:
(1) Sodomy between persons who are 16 or more years of age and members of the same sex or between a person and an animal;
[686]*686(2) sodomy with a child who is 14 or more years of age but less than 16 years of age; or
(3) causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal.
“(b) It shall be a defense to a prosecution of criminal sodomy as provided in subsection (a)(2) that the child was married to the accused at the time of the offense.
“(c) Criminal sodomy as provided in subsection (a)(1) is a class B nonperson misdemeanor. Criminal sodomy as provided in subsections (a)(2) and (a)(3) is a severity level 3, person felony.”

K.S.A. 21-3506 provides:

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Related

State v. Fitzgerald
423 P.3d 497 (Supreme Court of Kansas, 2018)
State v. Dickson
69 P.3d 549 (Supreme Court of Kansas, 2003)

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Bluebook (online)
46 P.3d 1216, 30 Kan. App. 2d 682, 2002 Kan. App. LEXIS 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dickson-kanctapp-2002.