State v. Fulcher

737 P.2d 61, 12 Kan. App. 2d 169, 1987 Kan. App. LEXIS 1027

• Court: Court of Appeals of Kansas
• Decided: May 21, 1987
• Docket: 59,328
• Status: Published

Opinions

Parks, J.:

Defendant, Joseph Fulcher, appeals from a jury verdict finding him guilty of two counts of indecent liberties with a child. K.S.A. 1986 Supp. 21-3503.

Fulcher, a Wellington police officer, was charged with having sexual intercourse on two occasions with fourteen-year-old A.S. He became acquainted with A.S. in September 1985, while he was working as a patrol officer near the junior high school. A.S.’s mother and stepfather worked in Wichita and were gone between the hours of 9:00 p.m. and 7:45 a.m. A.S. was home alone at night and her parents, upon being introduced to Fulcher, accepted his offer to check on her during his evening patrol shift.

In early October 1985, Captain Dan Christiansen of the Wellington Police Department initiated an investigation of A.S.’s relationship with Fulcher. Captain Christiansen and other officers observed Fulcher’s patrol car parked outside of A.S.’s home on numerous occasions for long periods of time.

Two Wellington police officers, Captain Harold Thatcher and Captain Scott Funderburk, interviewed A.S. on October 13, 1985. A.S. was interviewed at the police station for over three hours and she denied having any sexual contact with Fulcher. After she was allowed to leave, A.S.’s mother called the police to say that A.S. had lied. The officers interviewed A.S. twice more and during those interviews A.S. said she had had sexual intercourse with Fulcher on two occasions. Fulcher was found guilty by a jury of two counts of indecent liberties with a child. He appeals.

Defendant’s first contention on appeal is that the trial court erred in failing to instruct on aggravated sexual battery as a lesser included offense of indecent liberties with a child.

Aggravated sexual battery, K.S.A. 1986 Supp. 21-3518(l)(b), a class D felony, requires that the State prove: (1) The child is under 16 years of age; (2) the child is not the spouse of the accused; (3) defendant intentionally touched the person of the child; (4) the child did not consent to the touching; and (5) the touching was done with the intent to arouse or satisfy the sexual desires of the defendant or another.

Defendant was charged with two counts of indecent liberties with a child based on sexual intercourse, a Class C felony. K.S.A. 1986 Supp. 21-3503(l)(a). This statute requires that the State prove: (1) The child is under 16 years of age; (2) the child is not the spouse of the accused; and (3) defendant had sexual intercourse with the child.

Under K.S.A. 1986 Supp. 21-3107(2)(d), an offense is considered a lesser included offense when all elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged. Put differently, if the lesser offense requires an element to be proven that is not required of the greater offense, it is not a lesser included offense. State v. Galloway, 238 Kan. 415, 417, 710 P.2d 1320 (1985).

The offense of aggravated sexual battery requires the State to establish that the child did not consent to the unlawful touching. By contrast, the legislature did not include the element of consent in the indecent liberties statute. Therefore, since the offense of aggravated sexual battery requires proof of the additional element of an absence of consent, we hold that aggravated sexual battery is not a lesser included offense of indecent liberties with a child. Accordingly, the trial court did not err in failing to give an aggravated sexual battery instruction.

Defendant also contends that the evidence at trial was insufficient to support his conviction.

The scope of appellate review 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 looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Van Cleave, 239 Kan. 117, Syl. ¶ 3, 716 P.2d 580 (1986).

In this case, the State established by its evidence that (1) the victim was under 16 years of age and not the spouse of the defendant; (2) defendant had intercourse with the victim; and (3) the acts of sexual intercourse took place within a week of her fourteenth birthday and two days before the police interviewed her on October 13, 1985. Thus, the essential elements are sustained.

Defendant further contends that the evidence is insufficient to support his conviction because it was not corroborated.

Although corroboration is not required (State v. Lile, 237 Kan. 210, 699 P.2d 456 [1985]), there is corroboration in this case. Rodney Johnson and various police officers testified to the number of times and the lateness of the hour defendant’s car was seen parked near the victim’s house. Additionally, a friend of the victim testified that she observed behavior between defendant and victim which was inconsistent with the testimony of defendant. Accordingly, we find no merit in this claim.

Finally, defendant contends that the victim did not protest or resist and that she admitted no threats were made in connection with the incidents charged. The crime of indecent liberties with a child does not require proof of force or threat nor is the State required to prove the lack of consent on the part of the victim. We are convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt.

Affirmed.