BY THE COURT
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.
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."
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).
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.
of the judgment of the Court of Appeals in an unpublished
opinion filed June 9, 2017.
from Saline District Court; Patrick H. Thompson, judge.
A. Kaul, of Kansas Appellate Defender Office, argued the
cause and was on the brief for appellant.
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.
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.
and Procedural Background
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.
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.
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,
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.
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