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State v. Toothman

Supreme Court of Kansas

September 6, 2019

State of Kansas, Appellee,
v.
Larry Laverne Toothman, Appellant.

         SYLLABUS BY THE COURT

         1. When an appellate court raises a new issue sua sponte, counsel for all parties should be afforded a fair opportunity to brief the new issue and to present their positions to the appellate court before the issue is finally determined.

         2. Since 1993, the aggravated incest statute criminalizes "[o]therwise lawful sexual intercourse or sodomy" with certain prohibited persons. K.S.A. 2011 Supp. 21-5604(b)(2)(A). Under this definition, aggravated incest is not a more specific crime than aggravated criminal sodomy or rape, which can never be "[o]therwise lawful."

         3. Criminal sodomy, as defined in K.S.A. 2011 Supp. 21-5504(a)(3), is not a lesser included offense under K.S.A. 21-3107(2)(b) of aggravated criminal sodomy, as defined in K.S.A. 2011 Supp. 21-5504(b)(3)(A).

          4. The jury instruction, "Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions," is legally correct and does not prevent a jury from exercising its power of nullification.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed June 9, 2017.

          Appeal from Saline District Court; Patrick H. Thompson, judge.

          Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Anna M. Jumpponen, assistant county attorney, argued the cause, and Christina Trocheck, special assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

          OPINION

          Stegall, J.

         Larry Toothman regularly raped and sodomized C.T., after he picked her up from school. This went on for about two years. A jury convicted him of seven sex crimes, but the Court of Appeals reversed two of the convictions sua sponte and remanded the case with directions to resentence Toothman for aggravated incest on those counts instead. We reverse the Court of Appeals on this issue and affirm Toothman's convictions.

         Factual and Procedural Background

         C.T. was born with cerebral palsy, which caused muscle weakness on the right side of her body. C.T.'s cerebral palsy prevented her from walking long distances and often caused her to fall down because her "right side just quits." When C.T. was a freshman and sophomore in high school, Toothman would sometimes pick her up from school. But instead of driving her home, Toothman would drive her to his house and perform sexual acts on her by force. Over the course of about two years-when C.T. was 15 and 16 years old-Toothman performed oral sex on C.T., digitally penetrated her, forced her to perform oral sex on him, and tried to have sexual intercourse with her. During this time, Toothman weighed about 577 pounds and C.T. weighed 101 pounds. C.T. testified that she was afraid and tried to escape but did not have the physical strength to do so.

         The State charged Toothman with 11 sex crimes committed between 2010 and 2012. We note that the crimes allegedly occurred over a span of several years and the criminal statutes were recodified during that time. So Toothman was charged under different statute numbers for committing the same kind of crime at different times. Despite the 2011 recodification, however, the relevant statutory language for each crime stayed the same during this time. For simplicity, we will cite only to the 2011 Supplement for the crimes charged.

         For each count, the State charged Toothman with a crime committed when C.T. was overcome by force or fear and, in the alternative, a crime of lesser severity predicated on C.T.'s age at the time. Counts 1, 2, 4, 5, and 6 charged aggravated criminal sodomy or, in the alternative, criminal sodomy. See K.S.A. 2011 Supp. 21-5504(b)(3)(A) (aggravated criminal sodomy of a victim "overcome by force or fear"); K.S.A. 2011 Supp. 21-5504(a)(3) (criminal sodomy of a child "who is 14 or more years of age but less than 16 years of age"). Count 3 charged aggravated criminal sodomy or, in the alternative, aggravated incest. See K.S.A. 2011 Supp. 21-5604(b)(2)(A) (aggravated incest requiring "[o]therwise lawful sexual intercourse or sodomy" with a niece who is "16 or more years of age but under 18 years of age"). Counts 7 and 8 charged attempted rape or, in the alternative, attempted aggravated indecent liberties with a child. See K.S.A. 2011 Supp. 21-5503(a)(1)(A) (rape of victim "overcome by force or fear"); K.S.A. 2011 Supp. 21-5506(b)(1) ("[s]exual intercourse with a child who is 14 or more years of age but less than 16 years of age"). Counts 9 and 10 charged rape or, in the alternative, aggravated indecent liberties with a child. Count 11 charged rape or, in the alternative, aggravated incest.

         At trial, the district court instructed the jury on each primary charge and its corresponding alternative charge but did not give any lesser included offense instruction. Toothman did not object to the jury instructions. For counts 1, 2, 3, 6, 9, 10, and 11, the jury found Toothman guilty of each primary charge and its alternative charge. But the jury acquitted him on counts 4, 5, 7, and 8.

         Shortly after his conviction, Toothman moved for a new trial. He argued the district court erred when it failed to instruct the jury that criminal sodomy is a lesser included offense of aggravated criminal sodomy. He also claimed his convictions were multiplicitous because, on each count, the jury ...


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