Looking for penis in Chautauqua Kansas

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It is error to instruct on a theory of rape due to lack of capacity to consent when the victim clearly understood the nature of sexual relations and its dangers, the right not to consent, and in fact stated she did not give consent.

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Where a single offense may be committed in more than one way, there must be jury unanimity as to the crime charged, but unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. Where alternate means of commiting a single offense are charged and heavy prosecutorial reliance is placed on an alternate theory of guilt for which there is insufficient evidence, a general verdict of guilty relying on more than one theory cannot stand.

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Opinion filed February 11, Reversed and remanded with directions. Janine Cox and Mary D. Prewitt, assistant appellate defenders, and Jessica R. Kunen, chief appellate defender, for the appellant. On the night of June 8,year-old R.

The physical evidence was inconclusive. An investigation revealed no evidence of vaginal trauma indicative of involuntary penetration, no fresh bruising, and no semen deposits from the vaginal, oral, or rectal swabs. As a result, the chief evidence at trial consisted of R.

Reedy, the officer's testimony that Ice admitted to having sex with R. The State pursued two theories at trial: first, that R. Her condition arises from her premature birth with very low birth weight, hydrocephalus, and a series of brain infections occurring over the first few months of her life. Her IQ is approximately Both the State and defense counsel extensively examined R. She testified that when someone says "no" to sex, "they mean no. She testified she knew that sex was when a man put his penis into a woman's vagina and that married people had sex if they wanted to have. It was clear she knew the touchings were sexual in nature and knew the penis, vagina, and breasts had sexual functions.

She distinguished sex between married people for the purpose of having children and the encounter between herself and Ice, saying, "There shouldn't be no purpose for him to do that to me. He won't stop. He kept on going and I was -- and it really did hurt me and I did cry. I didn't like it. The State presented testimony from Dr. Reedy, a psychiatrist who had examined R.

Reedy had reviewed school records, medical records, another examiner's psychiatric report, police reports, and had interviewed R. He placed her mental age at around 8 Looking for penis in Chautauqua Kansas 9 years old, with a commensurate ability to understand social situations and make judgments based upon her understanding. He noted that in a person with brain damage and impulsive disorders, alcohol would be far more detrimental to that person's judgment than to other people. He testified, over the defense's objection, that.

Reedy added that R. Other witnesses included lab technicians, the arresting officer, and R. Their testimony was collateral to the main issue raised in this appeal--R. Regarding rape, the court gave the following instruction to the jury, following K. That the act of sexual intercourse was committed without the consent of [R.

B] under circumstances when:. The jury convicted Ice of rape, but acquitted him of furnishing alcohol to a minor and intimidation of a witness. Ice appeals, mainly raising issues related to R. After receiving two extensions, the State did not file a brief. Ice challenges the expert testimony, the jury instructions, and the evidence supporting the State's claim that R.

These arguments are intertwined and illustrate a single basic problem--under any sensible definition of ability to consent, R. This is despite Dr. Reedy's expert testimony. Section 2 of the instruction lists the alternative means by which Ice could have performed a sexual act without R. The jury could have found him guilty based on any or all of the elements listed in the section.

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In an alternative means case, unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. Ice points to R. The question central to the appeal is whether her level of comprehension precludes a finding she was unable to legally consent to a sexual act. C when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender.

The test for consent under that provision is whether the individual understands the nature and consequences of the proposed act. See State v. Juarez, 19 Kan. Therefore, in order to preserve the constitutionality of the provision, the definition of "nature and consequences" must be sufficiently clear to permit the person proposing sex, and the jury, to discern whether the individual can give legal consent.

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If an individual can comprehend the sexual nature of the proposed act, can understand he or she has the right to refuse to participate, and possesses a rudimentary grasp of the possible arising from participation in the act, he or she has the capacity Looking for penis in Chautauqua Kansas consent. Anything more open-ended would become impermissibly vague. As noted, R. Her testimony was lucid throughout direct and cross-examination, her was specific, and she repeatedly affirmed she resisted and was overcome.

Whether the jury believed or disbelieved R. It is difficult to see what else the "nature and consequences" test would require. Reedy determined that R. However, it should be kept in mind that [R. She has difficulty comprehending the consequences of her behaviors in a broader sense beyond the concrete sense. Reedy does not explain why the test for legal capacity to consent would require any understanding of consequences beyond the concrete.

Reedy testified that R. This is simply too vague to support a finding beyond a reasonable doubt that she was incapable of consent. The test is not whether the individual is impaired, but whether the individual is incapable of knowingly consenting. There is no evidence in the record that R. At best, she was suggestible under certain circumstances. In this case, she testified she did not consent--she resisted. The jury instruction for rape presented a of alternative means by which the jury could have determined lack of consent.

At least one means, that of mental deficiency, was not proven by sufficient evidence. As a result, one or more jurors may have convicted Ice on legally insufficient evidence. The question is whether this possibility requires a remand for a new trial. Carr, Kan. Timley, Kan. Higgenbotham, Kan. The court used more emphatic language in State v. Garcia, Kan. However, in State v. Grissom, Kan. United States, U. In Griffin, the defendant was charged with a single count of conspiracy, with dual aims of hindering the IRS and the Drug Enforcement Agency in their official duties.

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At trial, the Government failed to produce any evidence to prove interference with the Drug Enforcement Agency. The jury returned a general guilty verdict against Griffin and her two codefendants. The Court affirmed the conviction, concluding that where one of the possible bases of conviction was neither unconstitutional nor illegal, but "merely" unsupported by sufficient evidence, there is no constitutional problem.

See Griffin, U. The Court concluded there is a commonsense reason to distinguish between a jury instruction which misstates the law and one which presents a theory of conviction not supported by the evidence. While the jury would not discern a mistake in the law as charged to them, a court may be more confident the jury would reject a legal theory not supported by the facts.

Grissom followed Griffin's reasoning and concluded that where the State charged the defendant with murder, alleging alternative means of felony or premeditation, evidence of premeditation alone was enough to preserve the verdict. The Tenth Circuit has relied upon Griffin as well. See, e. Hanzlicek, F. In the instant case, we have no idea whether the jury found Ice guilty of rape due to force and fear being used, or due to a lack of capacity of the victim to consent, or a combination of the two.

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State v. Ice