Patterson v. StatePatterson v. State
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- Rees
Donald Patterson appeals from the denial of his
The jury was instructed on the elements of rape and on the elements of aggravated sexual battery as a “lesser included crime.” The latter instruction was given at defense counsel’s request and over the State’s objection. The jury was not instructed on the elements of attempted rape, a class C felony (
Briefly put, the jury was instructed (1) that for it to find Patterson guilty of rape it was necessary that it find he had sexual intercourse with the victim (by finger insertion— see
On direct appeal, we affirmed Patterson’s conviction and sentencing. State v. Patterson, No. 57,940, unpublished opinion filed December 5, 1985. Whether the trial court was without jurisdiction to convict him of aggravated sexual battery was an issue neither raised nor addressed on the direct appeal.
The evidence and other matters reported by the record on appeal need not be reiterated or commented upon beyond these observations: We are satisfied that underlying the jury’s decision finding Patterson not guilty of rape but guilty of the “lesser included crime” of aggravated sexual battery was conflicting evidence on the question whether there was penetration. On the evidence adduced, there was room for the jury to find that there was penetration, that there was not penetration, or that penetration was not proved.
Patterson now argues that it was error to instruct and convict on aggravated sexual battery as a “lesser included crime.”
We are confronted with an issue of definition.
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime.”
The question for our resolution is whether at Patterson’s trial it was error to convict him for aggravated sexual battery as a “lesser degree of the same crime.”
In speaking to the question whether a certain crime is an included crime of another, numerous Kansas appellate decisions discuss or apply the identity of statutory elements test, the operative test in deciding whether the lesser crime is an included crime for the purposes of K.S.A. 1987 Supp. 21-
*733
3107(2)(d). See
State v. Long,
234 Kan. 580, 587-88, 675 P.2d 832 (1984);
State v. Arnold,
223 Kan. 715, 716-17, 576 P.2d 651 (1978).
State v. Galloway,
238 Kan. 415, 710 P.2d 1320 (1985), is one of these cases. There it is held that sexual battery (
For the purposes of
Long
and
Gregory
teach that inquiry for the existence of a
With respect to whether there is a “same crime” of which rape and aggravated sexual battery may be lesser degrees on the adduced evidence, we find that rape and aggravated sexual battery are explicitly embraced within the statutory definition of “unlawful sexual act” (
Accordingly, we hold that on the adduced evidence in this *734 case it was correct to submit to the jury the crime of aggravated sexual battery as a “lesser included crime” and that the trial court had jurisdiction to enter a judgment of conviction for aggravated sexual battery upon the jury’s verdicts of not guilty of rape and guilty of aggravated sexual battery.
As a second issue, Patterson contends that his trial counsel afforded him ineffective assistance. This contention is premised on trial counsel’s request for the aggravated sexual battery instruction. Inasmuch as we conclude there was no error in submission of the case to the jury with the inclusion of the challenged “lesser included crime” instruction, Patterson’s ineffective assistance of counsel contention necessarily fails.
Affirmed.