*1 47,652 No. Raymond Appellant. Gonzales, Appellee, Kansas, R. 988) 2dP. Opinion filed
May 1975. Jerry Soldner, Calillan, Green, Loyd, City, L. of Garden Calihan and argued appellant. the cause and was on the brief Shirley, deputy county attorney, argued cause, and Curt T. John Schneider, attorney general, county attorney, Brantley, Keen K. were with appellee. him on the brief for the The opinion of the court was delivered by
Harman, C.: Raymond R. Gonzales was convicted by a the offense of rape (K. A. 21-3502 [a]). His motion for new trial denied, he was sentenced and now His appeals. involve the appeal admission of evidence offenses com- mitted by him and the instructions relating thereto'. The state’s evidence showed the following; On the
March R, prosecutrix, Ms. her male Rod- companion riquez and drove in an automobile from Scott City Leoti to locate another female. After considerable searching around Leoti were unable to find her and the trio commenced the return to Scott trip City. Ms. was seated between the driver Rodriquez and An argument appellant. developed Rod- riquez advances concerning making toward Ms. R during trip. Upon Rodriquez’ instructions Ms. R got into the back seat of the vehicle. As the group neared Scott City leaped into the back seat and held an "object” against the neck of Ms. R. Rodriquez the car and stopped ran into a field. the car and engaged in conversation Rodriquez. refused to return to the car.
entered it and drove away.
After a short drive appellant the car and stopped into the got face with He struck the prosecutrix. seat with
back however, refused; following She told her undress. fist and *2 sexual inter- clothing her and she of further blows removed threat R her and drove Ms. to home occurred. then Appellant course time he would some get on him out that if she told let her saying time A short he was released. her when it but he would get for arrived, local Ms. police. accompanied later Mr. ato make statement and then station to a police was taken to the for examination. hospital 3, 1974, she lived with a Mr. February
A Ms. C testified that on and Kenmore; her that came to home evening appellant picked beer; was but she knew who go appellant Kenmore to drink up that later evening; appellant never to him to had spoken alone, had out passed turned to the house that Kenmore explaining water; car; when she for a of asked her drink appellant returned from the kitchen with the water was pointing her; undress; she gun go told to into bedroom and he her bed; however, sat when came over and on the complied him con- to her she him she was and away telling pregnant pushed child; said if she would cerned over the welfare of her leave; him he he her to she promise kiss wanted wouldn’t in; him turn no sexual occurred and intercourse premises. with this appellant pled guilty connection incident of aggravated to the offense of in the district court Wichita assault county, Kansas. and he had in- knew brother F that she appellant’s
Ms. testified her; November, appel- one to troduced appellant in; he house; and let him she unlatched the door lant came to if make money she would pay her about man who told “No”; and him; said awhile appellant stayed love she her; talked; and while her throat choked grabbed then appellant her; them. “the act” took place so undressed sex he further “I cannot recall whether there was The witness testified: ... cannot state that was any penetration any pene- tration. .” Ms. evidence conduct with Ms. F and C was appellant’s objection
received it irrelevant and appellant’s over prejudicial. The trial court instructed the this evidence jury similar in the information and was to revealed acts be considered motive bearing upon appellant’s and operation. renews objection here reception evidence he further trial court complains the erred in telling were could considered for their bearing upon motive and appellant’s contends other acts in fact were routine; dissimilar and revealed no particular that this pattern evidence did not trial, supply the offense further that intent was since a intent is not an ingredient of the offense rape, the issue in being whether the prosecutrix consented to the act of intercourse.
We think contentions are appellant’s answered to his adversely in State v. position There 2d 127. evidence other offenses received in a prosecution for rape. probative value this type to K. S. A. 60-455 was discussed at We length. need iterate that discussion. *3 received, evidence was held to be properly this court saying: displayed “. the force bearing on similar occasions had a material as to the approached intent with which case, the the victim in this defendant procedure opposition.” and his (p. 910.) should he encounter In the case at bar was a display by force in all three the acts shown. There was sufficient similarity and under authority Hampton it must held the trial court did not abuse its admitting offenses; discretion in of the further, appellant was not prejudiced by the court’s instructions to the as to the purposes which the evidence be con- might sidered.
The judgment is affirmed.
approved by the court. J., participating.
Fromme,
dissent.
respectfully
Specifically, I
with
Prager,
disagree
J.:
the
by
majority
907,
reliance
the
on State v.
215 Kan.
Hampton,
Great caution must be exercised regard other crimes evidence to K. A. 60-455 because of highly nature. prejudicial Other crimes evidence has probative no value and hence is not admissible if the fact it is supposed to prove is not substantially in issue. v. 215 Kan. (State Bly, P. 2d Here, the introduced and admitted to prove evidence was motive, my judgment In
defendant’s in substantially none of them were issue A defendant’s intent is not rape specific Other crimes evidence offered to where intent is not prove issue, substantially amounts to no more than de- showing clearly inclination for bad conduct. This is Cross, v. under the statute and our case law. impermissible (State 2d case evidence of present the defendant’s odious conduct had no bearing sexual on the matters in In a burden state to issue. is on the subjected femal overcome force and victim was to sexual intercourse without her consent. It is intent and If the defendant supreme importance. state of mind which is of act of intercourse his voluntarily committed the forcible sexual offenses have intent is immaterial. Defendant’s consent. (See no victim’s question States, 781; Moore, Lovely v. v. United 278 So. 2d [La.] State, 386; S. W. 4th, 2d A. 169 F. 1948] [Ark.] [C. Alford character, bad serve show defendant’s 804.) They only 60-455. are outside the scope inclination which disposition or have may raped a man because Put another way, simply not raise reason- does other women past attempted did not in question woman the case inference that the able consent. of proving also admitted for purpose evidence was in the case bar. real issue
fendant’s motive. feeling state of "an inducement or defined as Motive has been act.” C. (M. in a criminal indulge the mind to tempts *4 impels Dilemma, 20 Vices, Crimes: An Other Evidentiary Other Slough, Evidence, Ed., 3rd Wigmore, citing §§ Kan. L. Rev. is the desire 396,, conceivable in issue the matters is irrelevant to for sexual gratification. not a likewise Plan of operation Slough states: Professor evidentially condition to an antecedent mental refers doing planned. Something more than or the act merely neg- design, object required is not as the to evidence acts is project directed definite the existence of but to ative an innocent completion question.” Rev., supra toward crime Kan. L.
quoting Evidence, Wigmore, Ed., § instant there is little between the very similarity crime Certainly offenses admitted into evidence. they do not evidence any sort of preconceived pattern
The majority call opinion seem to conservative ap- proach to the admission other crimes evidence in all types criminal cases except rape cases. cases are to be Rape apparently treated differently, door wide to almost open anything in the way of other crimes evidence. 60-455 express language is not to be used as a tool for character proving defendant’s bad Rather, or inclination to commit crime. the statute allows offenses for the eight pur- stated poses. Admission of other crimes evidence proper only after a determination that one of these elements inis issue and that its outweighs potential for prejudice. For the reasons set out above I have concluded that the admission offenses constituted prejudicial error. I verse the case and grant defendant a new trial.
Owsley, J., joins the foregoing dissenting opinion.