Appeal from Wyandotte District Court; WILLIAM F. LYLE, JR., judge.
1. As a general rule, rape as proscribed within K.S.A. 21-3502 does not require specific intent on the part of the defendant.
2. A defendant may not assert voluntary intoxication as a defense unless a particular intent or state of mind is a necessary element of the crime charged.
3. K.S.A. 21-3502(a)(1)(C) is unlike the other statutory proscriptions of rape in that it requires knowledge by the defendant that the victim is incapable of giving consent.
4. The distinction between a general intent crime and a crime of specific intent is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited act.
5. The act proscribed by K.S.A. 21-3502(a)(1)(C) is sexual intercourse with a victim incapable of giving consent, but the statute requires a further state of mind of the offender, i.e., knowledge of that condition if not reasonably apparent. This is a state of mind that is beyond the general criminal intent required for rape. Accordingly, the knowledge requirement of the statute justifies a voluntary intoxication defense.
6. K.S.A. 60-2105 requires that we disregard technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment. Moreover, even if an instruction error may constitute the deprivation of a constitutional right, we need not reverse where the evidence of guilt is of such a direct and overwhelming nature that it cannot be said the error could have affected the result of the trial.
7. To show plan or modus operandi under K.S.A. 60-455, the evidence of the prior conduct must be so strikingly similar or so distinct to the allegations before the court that it is reasonable to conclude the same individual committed both acts.
8. K.S.A. 21-3525, the rape shield statute, clearly provides a procedure for a timely motion and hearing as a condition to any exception to the general rule that prior sexual conduct is inadmissible, and any failure to comply with the statutory procedure precludes admission of such evidence at trial.
9. Although pattern instructions are strongly recommended, mere departure from the pattern instructions does not necessarily render an instruction erroneous.
10. The substitution of an alternate juror for one of the original twelve jurors for reasonable cause is within the prerogative and discretion of the trial court, especially where the substitution is made prior to the jury deliberating. There is no right under Kansas law to the original twelve jurors.
11. Cumulative error will not be found when the record fails to support the errors raised on appeal by a criminal defendant.
12. We have no jurisdiction to consider a challenge to a presumptive sentence.
The opinion of the court was delivered by: Greene, J.
Affirmed in part and dismissed in part.
Before GREEN, P.J., GREENE and LEBEN, JJ.
Jesse Smith appeals his conviction and sentence for rape, arguing insufficiency of the evidence, error in the admission of certain evidence, error in applying the rape shield statute, instruction error, cumulative trial error, and sentencing error. We reject Smith's challenge to the sufficiency of the evidence. We conclude, however, that the district court erred in refusing to instruct the jury as to voluntary intoxication, but we conclude the error was harmless. Smith's remaining claims of error are rejected; thus, we affirm his conviction. His challenge to a presumptive sentence is dismissed.
Factual and Procedural Background
On July 14, 2004, S.L. met Smith, her friend of 5 months, to have dinner and "a couple drinks." She considered him merely a friend, had no sexual or romantic interest in him, and was then dating another man. After dinner, they visited several bars and consumed a large quantity of beer; on the way home, S.L. passed out in Smith's vehicle. Upon arrival, Smith indicated it was not safe for her to drive and offered his bedroom, promising to sleep on the couch. Before she retired, however, she invited Smith to sleep on one side of the bed, but she did not intend to have sex with him.
According to S.L., she awakened in the night and felt something on her hips but went back to sleep until she awoke and discovered she had nothing on from the waist down. She also discovered what looked to be semen with a black pubic hair on her genital area. She tiptoed back to the bedroom, grabbed her clothes, and left. She tried to call her boyfriend on her way home, but he was upset about being awakened so she hung up.
The next day, colleagues of S.L. urged her to see a physician, and the physician urged her to go to the hospital for an exam. Her father took her to the hospital, where she was examined and spoke to police about the incident.
Smith was charged with one count of rape in contravention of K.S.A. 21-3502(a)(1)(C), proscribing the act of sexual intercourse without consent under circumstances where the victim is incapable of giving a valid consent due to the effect of alcoholic liquor or narcotic drug, which condition is known by the defendant or reasonably apparent.
At trial, Smith testified that he went to sleep on the couch and did not remember anything else until he awoke the next morning. Smith requested an instruction on voluntary intoxication, but the district court refused to give the instruction and, instead, instructed the jury that "voluntary intoxication is not a defense to a charge of rape." Smith was found guilty by the jury, and he was sentenced to 184 months' imprisonment. He timely appeals.
Was the Evidence Sufficient to Support Smith's Conviction of Rape?
On appeal, Smith argues the evidence was insufficient to sustain his conviction because the State did not prove S.L. was unable to give consent and the State did not prove Smith had knowledge she was unable to give consent or that this was reasonably apparent. These arguments fail.
"When the sufficiency of the evidence is reviewed in a criminal case, this court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]" State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006).
Smith was charged and convicted of rape in contravention of K.S.A. 21-3502(a)(1)(C), which provides:
"(a) Rape is (1) sexual intercourse with a person who does not consent to the sexual intercourse, under any of ...