State v. Sims

108 P.3d 1007, 33 Kan. App. 2d 762, 2005 Kan. App. LEXIS 259
CourtCourt of Appeals of Kansas
DecidedMarch 25, 2005
DocketNo. 92,042
StatusPublished

This text of 108 P.3d 1007 (State v. Sims) 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. Sims, 108 P.3d 1007, 33 Kan. App. 2d 762, 2005 Kan. App. LEXIS 259 (kanctapp 2005).

Opinion

Brazil, J.;

After entering a plea of no contest, Mikel Sims was convicted of one count of attempted rape of his daughter, S.S., who was under 14 years of age. He now collaterally attacks his sentence. We affirm.

Sims was originally charged with feloniously and intentionally committing the act of sexual intercourse with his daughter, S.S., a child under 14 years of age, contrary to K.S.A. 21-3502.

He subsequently entered into a plea agreement with the State whereby the State agreed to amend the charge from rape to attempted rape in exchange for Sims’ agreement to plead no contest to the reduced charge and his agreement to an upward departure of up to twice die maximum presumed sentence for attempted rape [763]*763at his criminal histoiy rating. The State also agreed not to file any additional charges against Sims arising out of any other sexual conduct he may have committed against S.S. in tire past. On August 7,1997, the district court found Sims guilty of attempted rape and sentenced Sims in accordance with the parties’ plea agreement.

On March 10, 2003, Sims filed a motion to correct sentence. The district court summarily denied his motion.

Sims first contends he should have been charged with attempted aggravated incest rather than attempted rape. He cites Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994), as support for his argument.

In Carmichael, the State charged the defendant with rape. The victim was the defendant’s daughter. The evidence adduced at trial supported not only rape, but also aggravated incest. The Kansas Supreme Court cited the rule of statutory interpretation that where two statutes are in conflict, the statute that is more specific controls and held that the defendant could only be charged and convicted of aggravated incest (the specific offense) and not rape (the general offense). 255 Kan. at 15, 19.

However, when there is no conflict between two statutes because they govern two independent crimes, there is no reason to resort to such rales of interpretation. State v. Riles, 24 Kan. App. 2d 827, 829, 956 P.2d 1346, rev. denied 264 Kan. 824 (1998).

Here, at the time Sims committed the offense at issue in this appeal, K.S.A. 1996 Supp. 21-3502(a)(2) provided: “Rape is sexual intercourse with a child who is under 14 years of age.”

On the other hand, K.S.A. 21-3603 provided in pertinent part:

“(a) Aggravated incest is: (1) Marriage to a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: Child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece; or
“(2) engaging in: (A) Otherwise lawful sexual intercourse or sodomy as defined by K.S.A. 21-3501 and amendments thereto; or (B) any lewd fondling, as described in subsection (a)(1) of K.S.A. 21-3503 and amendments thereto, with a person who is 16 or more years of age but under 18 years of age and who is known to the offender to be related to the offender as any of tire following biological, step or adoptive relatives: Child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.”.

[764]*764Sims, in a pro se letter of additional authority submitted to this court, insists that K.S.A. 21-3603 applies in this case. However, it is not asserted anywhere in the record that Sims married S.S. Therefore, K.S.A. 21-3603(a)(l) does not apply. Similarly, K.S.A. 21-3603(a)(2)(A), which includes as aggravated incest “[otherwise lawful sexual intercourse or sodomy as defined by K.S.A. 21-3501 and amendments thereto,” also does not apply to the case at bar, as rape is expressly enumerated as an “[u]nlawful sexual act” under K.S.A. 21-3501(4). (Emphasis added.) Finally, K.S.A. 21-3603(a)(2)(B) is also inapplicable to the instant case as that subsection contains the element that the victim be “16 or more years of age but under 18 years of age,” while in the present matter it is uncontroverted that S.S. was under 14 years of age at tire time of the offense.

Under the facts of this case, Sims could have been charged with attempted rape, but not attempted aggravated incest. Therefore, no conflict exists between tire rape statute and the aggravated incest statute in this instance. Accordingly, there is no reason to resort to the rule of statutory interpretation employed in Carmichael.

Nevertheless, Sims contends public policy dictates that this court “construe K.S.A. 21-3603 to apply to minor children without any age restriction.” (Emphasis added.)

“Criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citation omitted.]” State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).

“Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]” G.T., Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).

“The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and [765]

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Related

Carmichael v. State
872 P.2d 240 (Supreme Court of Kansas, 1994)
State v. Riles
956 P.2d 1346 (Court of Appeals of Kansas, 1998)
State v. Betts
33 P.3d 575 (Supreme Court of Kansas, 2001)
Williamson v. City of Hays
64 P.3d 364 (Supreme Court of Kansas, 2003)
State v. McGill
22 P.3d 597 (Supreme Court of Kansas, 2001)
GT, Kansas, L.L.C. v. Riley County Register of Deeds
22 P.3d 600 (Supreme Court of Kansas, 2001)
State v. Muriithi
46 P.3d 1145 (Supreme Court of Kansas, 2002)

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Bluebook (online)
108 P.3d 1007, 33 Kan. App. 2d 762, 2005 Kan. App. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sims-kanctapp-2005.