State v. Southard

933 P.2d 730, 261 Kan. 744, 1997 Kan. LEXIS 38
CourtSupreme Court of Kansas
DecidedMarch 7, 1997
Docket74,391
StatusPublished
Cited by21 cases

This text of 933 P.2d 730 (State v. Southard) 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. Southard, 933 P.2d 730, 261 Kan. 744, 1997 Kan. LEXIS 38 (kan 1997).

Opinions

The opinion of the court was delivered by

Six, J.:

This is primarily a K.S.A. 22-3402 speedy trial case. Defendant Bobby Southard was convicted of one count of rape. See K.S.A. 21-3502.

We consider three issues: (1) Was Southard’s statutory right to a speedy trial violated; (2) was the evidence sufficient to support the conviction of rape; and (3) does a police officer’s negative answer when the prosecutor inquired whether the officer believed Southard’s story constitute reversible error?

We find no error and affirm. Our jurisdiction is under K.S.A. 22-3601(b)(l) (maximum sentence of life imprisonment imposed).

FACTS

On April 22, 1993, J.G., a 12-year-old girl, was babysitting for the first time with the next-door neighbors’ two small children. Before leaving, the children’s mother told J.G. that her brother (Southard) “might come over to pick up his mail.”

The first time Southard came to the house that day, J.G. gave Southard his mail, and he left.

[745]*745Later Southard returned and went into the bathroom. J.G. testified that when Southard came out of the bathroom, he locked and chained the front and back doors to the house and turned off the lights. He asked J.G. to go to the back room with him “because he wanted to show [her] a game that the girls like to play.” J.G. testified that she said, “No.”

According to J.G., Southard continued to ask and she continued to refuse. She ran to the door, but before she got it unlocked, Southard relocked it and grabbed J.G. around the waist. He took her into a bedroom, threw her on the bed, and told her to take off her clothes. When she did not undress, Southard pulled off her clothes. He took off his own pants and underwear, laid J.G. down on the bed, and got on top of her. He kissed her on and “in the mouth” and on her breasts. He put his penis into her vagina.

J.G. testified that Southard got a knife from underneath a tool box which was in the bedroom. He put the knife to her neck. J.G. could not remember what Southard said when he held the knife to her neck. J.G. testified that she was trying to push Southard off before he got the knife. She put up less resistance after he had the knife out.

After a couple of minutes, Southard went to the bathroom. While he was gone, J.G. put her clothes back on, and when Southard reappeared he was dressed. After telling J.G. not to tell anyone and to continue to babysit with the children, Southard left.

Because she was scared, J.G. did not tell anyone right away. The first person she told was her friend, D.R. Asked whether she told D.R. what happened, J.G. testified, “I told her that I had been raped.” J.G. was not certain but thought that she had told D.R. about the knife. D.R. advised J.G. to tell an adult, but J.G. did not want to. D.R. then told an adult, who told J.G.’s mother. J.G. was then checked by a doctor. J.G.’s mother reported the incident to police.

The doctor J.G. saw referred her to Dr. Lynn Sheets, director of the Sexual Abuse Program at the University of Kansas Medical Center. Dr. Sheets’ examination of J.G. revealed that the appearance of one part of her hymen made it a “suspicious area for [746]*746heal[ed] trauma,” which would be “very much consistent with the history” given by J.G. of the single experience of sexual intercourse.

DISCUSSION

The Right to a Speedy Trial

Southard claims a violation of his K.S.A. 22-3402 speedy trial right.

On April 20, 1994, Southard was arraigned on the rape charge. Trial began on October 3,1994. Southard was held in custody from the date of arraignment until the date trial began. The time elapsed was 166 days. On the first day of trial, the district court heard and denied Southard’s motion to dismiss on the ground that his statutory right to speedy trial had been violated.

K.S.A. 22-3402(1) provides, in part:

“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant.”

Southard contends that only 64 (29 days between May 18 and June 16 and the 35 days between July 25 and August 29) of the 166 days between arraignment and trial are attributable to him. The remaining 102 days, he argues, are attributable to the State.

The statutory time for a speedy trial begins on the date of arraignment. City of Derby v. Lackey, 243 Kan. 744, 745, 763 P.2d 614 (1988). Because only the State is empowered to bring a criminal charge to trial, it is the State’s obligation to ensure that the accused is provided with a speedy trial. State v. Prewett, 246 Kan. 39, 42, 785 P.2d 956 (1990). Delays which result from defendant’s application or fault, however, are not to be counted in computing the statutory period. State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978).

The district court concluded that the 28 days between arraignment on April 20 and the May 18 hearing requested by Southard and scheduled by both parties for substantive motions was attrib- . utable to Southard. That 28-day period, added to the two periods for which Southard accepts responsibility, totals 92 days. Thus, by [747]*747the district court’s calculation, 74 days were attributable to the State, and Southard was brought to trial well within the statutorily allotted time. A majority of this court agrees.

Southard maintains that the 28 days between April 20 and May 18 should not be attributed to him, because his only motions pending during that period were “standard motions for discovery,” which required no hearings and caused no delay. The State contends that the 28 days should be attributed to defendant because of the defense motions pending during that time.

The record shows that Southard was arraigned immediately after being bound over at the end of the preliminary hearing. As soon as Southard pled not guilty to the charge, the district court asked defense counsel: “Are you desirous of motion setting, Mr. Lewis or did we need . . . .” Counsel answered:

“MR. LEWIS [for the defense]: We will need a motion setting.
“MS. BROCK [prosecuting attorney]: I also have a motion to file as well.”

When the district court asked counsel to estimate how much time they would need to present their motions, the following exchange took place:

“MS.

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State v. Southard
933 P.2d 730 (Supreme Court of Kansas, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
933 P.2d 730, 261 Kan. 744, 1997 Kan. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-southard-kan-1997.