State v. Toothman, 448 P.3d 1039

Background

Victim C.T., born with cerebral palsy, was sexually assaulted repeatedly by Larry Toothman when she was 15–16; assaults included oral sex, digital penetration, attempted intercourse, and forcible rape/sodomy over ~2 years.
State charged Toothman on 11 counts (forcible and age-based alternatives) across recodified statutes; jury convicted him of seven sex crimes (both primary and alternative counts on several counts).
District court sentenced Toothman on the primary (forcible) offenses, set aside some alternative convictions, and denied his mid-sentencing request for new counsel after a vague letter.
On appeal the Court of Appeals affirmed most issues but sua sponte reversed two forcible convictions (Counts 3 and 11) and ordered resentencing on aggravated incest (the alternatives) without allowing briefing.
The Kansas Supreme Court granted review, held the Court of Appeals erred to act sua sponte, reversed that part of the panel, and (1) affirmed convictions for aggravated criminal sodomy and rape on those counts, (2) held criminal sodomy (age-based) is not a lesser included offense of aggravated criminal sodomy under the elements test, (3) found the district court’s inquiry into counsel dissatisfaction adequate, and (4) upheld the jury instruction telling jurors their verdict must be founded on evidence and law.

Issues

Issue	State (Plaintiff) Argument	Toothman (Defendant) Argument	Held
Whether Court of Appeals could raise and decide sua sponte that aggravated incest controlled and reverse two forcible convictions without briefing	Panel was wrong to decide new issue sua sponte and should have allowed briefing; prior cases relying on older statute are inapplicable	Sua sponte relief was improper because parties had no chance to brief; convictions should stand	Court: Court of Appeals erred; appellate courts must afford parties opportunity to brief new issues; reversal vacated and convictions affirmed
Whether aggravated incest is a "more specific" crime than rape/aggravated criminal sodomy under the current statute	Aggravated incest does not apply to forcible crimes because statute applies only to "otherwise lawful" intercourse/sodomy; thus not more specific	Panel argued older precedents made incest more specific when victim is related	Court: Under post-1993 statute aggravated incest requires "otherwise lawful" conduct and is not more specific than forcible rape/aggravated sodomy; older precedent inapplicable
Whether criminal sodomy (age-based) is a lesser included offense of aggravated criminal sodomy (forcible)	Court of Appeals previously held lesser-included; State conceded lesser instruction would be legally/factually appropriate but disputed harmlessness	Toothman argued failure to give a lesser-included instruction was error requiring reversal of some convictions	Court: Criminal sodomy (which requires proof of victim age) is not a lesser included offense under the strict elements test (K.S.A. 21-3107(2)(b)); affirmed as right for wrong reason re: harmlessness
Whether district court adequately inquired into Toothman's request for new counsel at sentencing	State: judge’s brief, open-ended inquiry and giving defendant chance to speak was adequate	Toothman: inquiry insufficient; judge relied on counsel’s experience and declined to probe	Court: inquiry was adequate—judge investigated basis, asked open-ended question, gave defendant opportunity but defendant declined to add details
Whether jury instruction "Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions" improperly foreclosed jury nullification	State: instruction is legally correct and required to tell jurors to follow law	Toothman: wording ("must") improperly told jurors they had no power to nullify	Court: instruction is legally correct; no recognized right to jury nullification; instruction upheld

Key Cases Cited

State v. Williams, 250 Kan. 730 (interpreting pre-1993 aggravated incest statute and holding incest could displace other sex charges)
Carmichael v. State, 255 Kan. 10 (applying Williams to vacate forcible rape convictions where incest statute then covered unlawful acts)
State v. Ippert, 268 Kan. 254 (discussing 1993 statutory change narrowing aggravated incest)
Lumry v. State, 305 Kan. 545 (appellate courts must allow parties to brief novel issues raised sua sponte)
State v. Ramirez, 299 Kan. 224 (explaining strict elements test for lesser included offenses)
State v. McLinn, 307 Kan. 307 (preservation rules and clear-error standard for unpreserved jury-instruction challenges)
State v. Puckett, 230 Kan. 596 (procedural directive regarding sua sponte appellate issues)
State v. Looney, 299 Kan. 903 (statutory interpretation reviewed de novo)