Appeal from Riley District Court; DAVID L. STUTZMAN, judge.
1. When considering a claim of error in the admission of evidence, an appellate court first considers whether the evidence is relevant, i.e., whether it tends to prove a disputed material fact. Once relevance is established, the court applies the other rules governing the admission and exclusion of evidence, recognizing that the admission of evidence lies within the sound discretion of the trial court. However, when the challenge is to the legal basis for the evidentiary ruling, the appellate court's review is de novo.
2. Evidence of other crimes is not admissible to prove a defendant's criminal disposition. However, such evidence may be admitted to prove a disputed material fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, if its admission does not violate K.S.A. 60-445.
3. The crime of kidnapping includes the taking or confining of a person by means of force or threat for the purpose of terrorizing or inflicting bodily injury upon the victim. The crime becomes aggravated kidnapping when bodily injury is actually inflicted upon the victim. Rape satisfies the bodily injury requirement for aggravated kidnapping.
4. When a defendant's conduct leaves no room for an innocent explanation the introduction of evidence of other crimes can have no probative value on the issue of intent. In such a situation, criminal intent is obvious from the mere doing of the act.
5. Determining whether the probative value of evidence is substantially outweighed by its probable prejudicial effect is a matter for the district court to decide in the exercise of its discretion.
6. In resolving a claim of multiplicity in a criminal action the court first determines whether the charges arose out of the same conduct. If they do, the court then must determine whether each crime requires proof of an element not necessary to prove the other crime. If this second test is met, the charges stemming from a single act are not multiplicitous.
7. The test for multiplicity requires a comparison of the strict elements of the offenses without considering the facts that must be proven to establish those elements. Such a comparison establishes that rape and criminal threat are not multiplicitous.
The opinion of the court was delivered by: McANANY, J.
Before HILL, P.J., McANANY, J., and BRAZIL, S.J.
Tysen Hampton appeals his convictions of rape, aggravated kidnapping, and criminal threat. He claims the district court erred in admitting evidence of other bad acts, and his convictions for criminal threat and rape are multiplicitous.
Eighteen-year-old M.S.O. met Hampton on an online internet chat room site. She agreed to meet him in Manhattan. Since she was nervous about the meeting she asked two friends to follow her. M.S.O. met Hampton at the appointed time, and they decided to go to Bluemont Hill to sit and talk. They drove separately. Upon arrival M.S.O. got into Hampton's car. M.S.O.'s friends, who were supposed to follow her, got lost and failed to appear.
When the discussion between Hampton and M.S.O. turned to matters of sex, M.S.O. decided to leave. Hampton physically restrained her from leaving, locked the car door, and raped her. He quelled her resistance by referring to a bag on the floor of the car and warning that she would not like it if he reached ...