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STATE v. GIBSON

March 2, 1990.

STATE OF KANSAS, Appellee,
v.
THEODORE GIBSON, Appellant.



The opinion of the court was delivered by:

Theodore Gibson appeals his conviction of one count of rape (K.S.A. 21-3502) and the ten- to twenty-five-year sentence imposed by the trial court. We affirm.

The events leading to the defendant's conviction occurred during the early morning hours of May 21, 1988. About 3:00 o'clock a.m., the victim, T.W., awoke to find the defendant standing in her bedroom. The defendant, who had entered through an unlocked

[246 Kan. 299]

      window, threatened T.W., choked her, and subsequently raped her. At the time, T.W.'s boyfriend, Steve, was asleep on a couch in another room of the residence. The defense was consent. Additional facts will be set forth as necessary to consider the issues on appeal.

  Defendant first contends that the trial court erred in refusing to give an instruction on aggravated sexual battery (K.S.A. 21-3518) as a lesser included offense of rape.

  The statutes pertinent to defendant's claim are K.S.A. 21-3502(1)(a) and K.S.A. 21-3518(1)(a). K.S.A. 21-3502(1)(a) provides:
"(1) Rape is sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances: (a) When the victim is overcome by force or fear."
K.S.A. 21-3518(1)(a) provides:
"(1) Aggravated sexual battery is:
(a) The unlawful, intentional application of force to the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another."
  Defendant recognizes that the statutory elements are different in that aggravated sexual battery requires proof of a nonspousal relationship and proof of an intentional application of force with the intent to arouse or satisfy the sexual desires of the offender or another, neither of which are required to prove rape. However, defendant contends that under our decision in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), the instruction was required because the State did prove an intentional application of force with the intent to arouse upon proving the act of sexual intercourse and also proved a nonspousal relationship.

  In Fike, the court stated the test for lesser included crimes under K.S.A. 21-3107(2)(d) as follows:

  "In determining whether a lesser crime is a lesser included crime or offense under K.S.A. 1987 Supp. 21-3107(2)(d), a two-step analysis or two-pronged test has been adopted. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime under K.S.A. 1987 Supp. 21-3107(2)(d)

[246 Kan. 300]

      if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime." 243 Kan. 365, Syl. ¶ 1. (Emphasis added.)

  Defendant's reliance on Fike is misplaced. He has confused what the State may have actually proved in its evidence establishing that a rape occurred with what the State was required to prove to establish the crime charged. The mere fact that the evidence adduced in proving the crime charged may also prove some other crime does not make the other crime a lesser included offense under K.S.A. 21-3107(2)(d). Neither the factual allegations of the rape charge nor the evidence the State was required to adduce at trial includes an intent to arouse or a nonspousal relationship. Defendant fails to distinguish between what the State may prove and what the State must prove at trial.

  The trial court, in refusing to instruct the jury on aggravated sexual battery as a lesser included offense, stated:
"I submit to you that you can prove the crime of rape without proving the victim is not the spouse. So it is not the case that the evidence required to be adduced at trial in order to prove rape would also necessarily prove aggravated sexual battery."
We agree with the trial court's analysis.

  Although not argued to the trial court and not cited in the brief, defense counsel at oral argument contended that Patterson v. State, 12 Kan. App. 2d 731, 754 P.2d 1207 (1988), is also controlling on the issue. In that case the Court of Appeals held that, under the facts of the case, aggravated sexual battery was a lesser included crime of rape. In Patterson, the defendant was charged with rape. The defendant requested an instruction on aggravated sexual battery as a lesser included offense and the court, over the objections of the prosecution, granted the request. Defendant was convicted of the lesser charge. The instruction was not an issue on the defendant's direct appeal where the conviction was affirmed in an unpublished opinion. State v. Patterson, No. 57,940, 10 Kan. App. 2d xlv. Thereafter, the defendant filed a motion pursuant to K.S.A. ...


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