Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


July 19, 1990.


The opinion of the court was delivered by

This is a criminal action in which Ralphetta Schad directly appeals her jury convictions of two counts of aggravated criminal sodomy, K.S.A. 21-3506, and one count of aggravated incest, K.S.A. 21-3603. Schad was sentenced to imprisonment for a period of ten to twenty years on each count of aggravated criminal sodomy and for a period of three to ten years for the aggravated incest offense. The sentences run consecutively.

The facts giving rise to this case are as follows: On September 9, 1988, five-year-old J.P. spent the afternoon with her godmother, Diana Lyons. Lyons testified that J.P. cried hysterically when it was time to go home and told Lyons she was afraid to

[247 Kan. 243]

      go because Bill (defendant's friend), Maurice (defendant's boyfriend), and the defendant (J.P.'s mother) put their fingers and tongues on her private part. Lyons further testified that J.P. also said her mother made her three-year-old sister, S.J., put her mouth "down there." Lyons also stated that earlier in the summer J.P. had spent the night with Bill and when Lyons had arrived to pick up J.P., J.P. said she had to put on her underpants and retrieved them from the living room floor and put them on.

  J.P. told Shaun Price, an investigating officer, that Bill, Maurice, and her mother touched her with their fingers and tongues in her private area. J.P. also told the officer these people gave her mother money before they came into J.P.'s bedroom and undressed her.

  Dixie Simpson, the nurse who examined J.P., testified that J.P. told her J.P.'s mother and "everybody" touched her in the private place and J.P. pointed to her genital area. J.P. also told the nurse that "they [defendant, Bill, Maurice, and S.J.] stuck their tongues in there, ain't that gross." A pelvic examination revealed a reddened area on the inner walls of the vagina.

  At trial, tape-recorded interviews with J.P. were introduced into evidence and played for the jury. During the interview with a police officer and a social worker, J.P. marked the vaginal area on anatomically correct drawings to show where Bill and Maurice touched her. At trial and during the interview, J.P. testified that Bill touched her in the genital area with his finger and tongue while she stayed at his home. J.P. also stated that Maurice gave her "bad touches" with his finger and tongue. J.P. further testified that her mother touched her in her private place with her tongue and fingers and that her mother also made S.J. touch her in the private place with her finger and tongue. Finally, J.P. stated that her mother received money, a toy dolly, candy, Raggedy Andy, a toy car, and a big slide for allowing Bill and Maurice to touch J.P.

  Schad was charged with three counts of causing a child to engage in oral sodomy under the aggravated criminal sodomy statute, K.S.A. 21-3506(b), and one count of engaging in oral copulation with her five-year-old daughter under the aggravated incest statute, K.S.A. 21-3603. Schad was acquitted on the aggravated

[247 Kan. 244]

      criminal sodomy involving Maurice and convicted on all other counts. This appeal followed.

  Schad first contends insufficient evidence exists to support the convictions of aggravated criminal sodomy because the State failed to prove oral or anal copulation.

  In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal 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 considers only the evidence in favor of the verdict to determine whether the essential elements of the charge are sustained. State v. Walker, 244 Kan. 275, 280, 768 P.2d 290 (1989).

  K.S.A. 21-3506 provides: "Aggravated criminal sodomy is: . . . . (b) causing a child under 16 years of age to engage in sodomy with any person." "Sodomy" is defined, in part, as oral or anal copulation. K.S.A. 21-3501(2). Schad contends the aggravated criminal sodomy convictions must fall because there is no evidence of sodomy by oral copulation. We must agree.

  In State v. Switzer, 244 Kan. 449, 456, 769 P.2d 645 (1989), we stated the first phrase of K.S.A. 21-3501(2) prohibits nonconsensual penetration by the male sex organ into a mouth or anus. Clearly, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.