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State v. Elrod

September 14, 2007

STATE OF KANSAS, APPELLEE,
v.
GARY R. ELROD, APPELLANT.



Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge.

SYLLABUS BY THE COURT

1. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. Any inconsistency in a sodomy victim's testimony is best evaluated by the jury.

3. K.S.A. 21-3501(2) only requires that there be oral contact with the female genitalia in order to satisfy the definition of sodomy; vaginal penetration is not required.

4. A defendant cannot be charged in the information with one offense and be convicted of a different offense which is not a lesser included offense of the crime charged.

5. An information is sufficient if it informs the defendant of the precise offense of which he or she is accused so that the accused may prepare a defense, and a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense.

6. The information, complaint, or indictment is the jurisdictional instrument upon which the accused stands trial. If all essential elements of a crime are not charged in an information, or the crime is not a lesser included crime of the offense charged, the trial court may not impose sentence for a crime not charged.

7. An information that is amended after a trial and conviction does not control the trial or the conviction.

8. Multiplicity is the charging of a single offense in several counts of a complaint or information. The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense.

9. Some factors which may be considered in determining if conduct is a violation of a single statute or from violations of multiple statutes include: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.

10. Charges are not multiplicitious when the offenses occur at different times and in different places.

11. An appellate court's standard of review regarding a trial court's admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion.

12. The practice of allowing admission of prior crimes evidence independent of K.S.A. 60-455 is contrary to both common law and the plain language of the statute.

13. The factors listed in K.S.A. 60-455 are exemplary rather than exclusive. A trial court may find that evidence of prior crimes is relevant and admissible to prove a material fact other than the eight listed; however, the evidence must be subjected to the same sort of explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, and prophylactic limiting instruction that is required when any other K.S.A. 60-455 evidence is admitted.

14. Errors which do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when substantial justice has been done.

15. The appellate court reviews a trial court's failure to give a jury instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.

16. When giving the jury instruction at PIK Crim. 3d 52.02, the word "unless" is an improved replacement for "until" in the instruction in a criminal case; however, any error stemming from that word choice is not reversible error.

17. The State is required to prove beyond a reasonable doubt every element of the crime with which an accused is charged. Evidentiary presumptions cannot be included in the jury instructions if they have the effect of relieving the State of its burden of proof beyond a reasonable doubt of every essential element of a crime.

18. The test of whether cumulative trial errors are so great as to require reversal of the defendant's conviction is the totality of circumstances. No prejudicial error may be based on cumulative error if the evidence is overwhelming against the defendant.

The opinion of the court was delivered by: Marquardt, J.

Affirmed.

Before MARQUARDT, P.J., McANANY, J., and BRAZIL, S.J.

Gary R. Elrod appeals his convictions for two counts of criminal sodomy and two counts of indecent liberties with a child. We affirm.

D.T. has known her stepfather, Elrod, since 1998. D.T. testified that she had a "pretty good" relationship with Elrod. D.T. testified that after she turned 10, Elrod began to do inappropriate things, like asking her to sit on his lap, ...


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