State v. Galloway ( 1985 )

Lockett, J.,

concurring and dissenting: I concur with the majority opinion which affirms that sexual battery is not a lesser included crime of rape, that the trial court did not abuse its discretion by refusing to grant the defendant an additional continuance and that the court properly admitted into evidence the stained panties of the victim.

I respectfully dissent from that portion of the opinion which under the facts of this case upholds the trial court’s refusal to instruct on the lesser included offense of attempted rape. The majority opinion correctly recites that the trial court’s duty to instruct the jury on a lesser crime arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge, citing State v. Everson, 229 Kan. 540, 626 P.2d 1189 (1981). In Everson, the victim testified she was forced at gunpoint to engage in oral sex with the defendant. Everson denied that any act of oral sex occurred, with consent or at gunpoint. Although Everson requested an instruction on sodomy, no evidence of sodomy was presented to the jury. Therefore, it was not necessary to instruct on sodomy as a lesser included offense.

In State v. Korbel, 231 Kan. 657, 658-59, 647 P.2d 1301 (1982), the victim claimed that Korbel had raped her. Korbel testified that the victim had consented and that the act was not completed because he had stopped intercourse when the victim expressed she was suffering pain. The Korbel court determined since both the victim and the defendant admitted there was some penetration of the female sex organ by the male sex organ there was no duty on the trial court to give an instruction on the lesser included offense of attempted rape.

Here, the victim testified that she was raped by Galloway. Galloway testified that the victim had attempted to seduce him, there was some sexual contact, he attempted to have intercourse with the victim but he could not obtain an erection and no penetration of the female sex organ by his sex organ occurred. Under the statute, the crime of rape occurs and is complete if there is any penetration, even though slight. State v. Ragland, 173 Kan. 265, 268, 246 P.2d 276 (1952). However, since there was evidence which tended to show a lesser degree of the crime charged, Galloway had the right to have his theory of the case presented to the jury with appropriate instructions even though the evidence may have been weak and not conclusive. The trial court’s failure to instruct on the lesser included offense of attempted rape requires that Galloway be granted a new trial.

Prager, J., joins the foregoing concurring and dissenting opinion.