State v. BlackmoreState v. Blackmore
- Reporters:
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- Before:
- Herd
The opinion of the court was delivered by
Herd, J.:
Michael A. Blackmore appealed his conviction of indecent liberties with a child,
Michael Blackmore dated and lived with J.K.B. from May or June of 1987 to April or May of 1988. About the time Blackmore began dating J.K.B., she left Jacob, her four-year-old son, with her mother because she was going through a period of instability. Jacob visited his mother two days a week and on weekends.
Jacob had behavior problems which prompted his grandmother to take him to the Wyandot Mental Health Center for treatment. Annette Inman, a mental health therapist at Wyandot Mental Health Center, saw Jacob 31 times between June 7, 1988, and March 1990. During this time, Jacob first told Inman that defendant “stabbed him in the butt with a knife.”
This statement and other statements by Jacob regarding things Blackmore had done to Jacob led to Blackmore being charged with one count of indecent liberties with a child, with the incident occurring between January 1, 1987, and June 31, 1988. Blackmore was convicted by a jury and sentenced to the maximum sentence of 5 to 20 years. The Board of Paroles also revoked Blackmore’s probation on his previous conviction of aggravated indecent so *670 licitation of a child, Case No. 86CR0812. The sentences were ordered to run consecutively.
The first issue for appellate review is whether the trial court erred in overruling Blackmore’s motion for. an independent psychiatric examination of the complaining witness.
Blackmore filed a pretrial motion requesting an independent psychiatric examination of Jacob that the trial court denied. On appeal, Blackmore argues the trial court abused its discretion in denying his motion. Blackmore, however, has not provided us with the transcript of the relevant preliminary hearing in the record on appeal.
As the Court of Appeals correctly pointed out, “ ‘[a]n appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.’ ” State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989) (quoting State v. Bright, 229 Kan. 185, Syl. ¶ 6, 623 P.2d 917 [1981]). Thus, we hold this issue is without merit.
The second issue for our consideration is whether the trial court erred in admitting evidence of Blackmore’s prior conviction pursuant to
Prior to trial the State filed a motion requesting permission to introduce evidence of Blackmore’s prior conviction at trial pursuant to
“Subject toK.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject toK.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Appellate review of a trial court’s decision regarding the admissibility of evidence of prior crimes pursuant to
Blackmore argues his prior conviction has no probative value in establishing identity in a later unrelated case. Blackmore denied committing the acts charged against him or having any knowledge of the incidents. He also asserts the evidence of his prior conviction is not relevant to the current case. Additionally, Blackmore contends that even if the evidence were relevant its probative value is outweighed by the risk of prejudice to him.
“Where a prior conviction is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both offenses. [Citations omitted. ] Similarity must be shown in order to establish relevancy. [Citation omitted.] It is not sufficient simply to show that the offenses were violations of the same or similar statutes; there should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. [Citations omitted.] However, the prior offenses need only be similar, not identical in nature. [Citation omitted.]” State v. Breazeale, 238 Kan. 714, 721, 714 P.2d 1356, cert. denied 479 U.S. 846 (1986).
After reviewing the record, we find the trial court met the three requirements found in Nunn and, therefore, did not abuse its discretion.
The final issue to be considered is whether the sentence imposed upon Blackmore was illegal because it was pronounced by a member of the Wyandotte County Board of Paroles (Board).
Blackmore, in his direct appeal to the Court of Appeals, argued that imposition of sentence by the Board was an unlawful delegation of judicial authority and, thus, illegal. The Court of Appeals agreed. Blackmore, 15 Kan. App. 2d at 545. The State’s petition for review to this court raised this issue, arguing each member of the Board was a judge who had the authority to impose sentences. The State further contends one judge, not the Board, *672 imposed the sentence and points out only one judge, in his capacity as a district court judge, signed the journal entry of judgment that imposed Blackmore’s sentence.
Blackmore did not request probation. Blackmore and his attorney, however, were notified of Blackmore’s sentencing hearing on a “District Court Probation Department” letterhead. The letter to Blackmore states in part: “You are to appear before the Board of Probation on Friday afternoon 6-22-90 at 1:30 p.m. for a hearing on your application for probation.” Moreover, the transcript of the sentencing hearing, entitled “Transcript of Proceedings of Parole Board Hearing,” shows the panel of three district court judges identified themselves as “the Board.” It is not disputed that Blackmore was sentenced while appearing before the Wyandotte County Board of Paroles.
The record, however, gives credence to the State’s argument, and we find that the Court of Appeals erred in holding Black-more’s sentence was illegal. The sentencing procedure was conducted by one judge. He pronounced sentence and signed the journal entry. Under Kansas statutes it is not required that the trial judge be the sentencing judge. See
The judgment of the district court is affirmed, and the judgment of the Court of Appeals is affirmed in part and reversed in part.