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
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)
"(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)
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. ...