In re Corpus

289 P.3d 1185 (Table)

2012 WL 6061619 (Kan.App.)

In the Matter of the Petition of Brian WEIMER for a Writ of Habeas Corpus.

No. 106,862.

Court of Appeals of Kansas.

Nov. 30, 2012.

Original proceeding in habeas corpus.

Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, for petitioner.

Kristafer R. Ailslieger, deputy solicitor general, for respondent.

MEMORANDUM OPINION

MALONE, J.

In this original action for a writ of habeas corpus, Brian Weimer asserts that the State's prosecution of aggravated indecent liberties with a child is barred by double jeopardy protections. In a previous trial that included other charges, Weimer was charged with aggravated indecent liberties with a child based on sexual intercourse, but the jury was instructed on aggravated indecent liberties with a child based on lewd fondling or touching. Weimer was convicted of one count of rape and one count of aggravated indecent liberties with a child, but the conviction was overturned based on ineffective assistance of trial counsel. On remand, the State amended the complaint to include one charge of rape and one charge of aggravated indecent liberties with a child based on lewd fondling or touching. Weimer moved to dismiss the amended charge of aggravated indecent liberties with a child, but the district court denied the motion.

Weimer then filed this original action for a writ of habeas corpus, claiming that he was being wrongfully detained on the charge of aggravated indecent liberties with a child. This court has jurisdiction to hear Weimer's original petition for a writ of habeas corpus under K.S.A. 60–1501(a). This court initially denied Weimer's petition on the ground that it was interlocutory in nature, but Weimer petitioned for review, and our Supreme Court remanded to this court for consideration on the merits. Weimer now asserts that his prosecution on the amended charge of aggravated indecent liberties with a child based on lewd fondling or touching is barred by the compulsory joinder rule. We agree. Thus, we grant Weimer's petition for a writ of habeas corpus and direct the district court to dismiss the amended charge of aggravated indecent liberties with a child.

Factual and Procedural Background

On October 26, 2006, the State filed a complaint/information charging Weimer with one count of rape, one count of indecent liberties with a child by “engag [ing] in an act of lewd fondling or touching,” and two counts of indecent solicitation of a child. The charges were based on allegations made by Weimer's daughter, L.W., and on Weimer's subsequent admissions to police. On April 4, 2007, the State filed an amended complaint, which added an additional count of sodomy. On August 20, 2007, the State filed a second amended complaint, in which the charge of indecent liberties with a child based on lewd fondling or touching was amended to allege aggravated indecent liberties with a child based on the act of “sexual intercourse with a child who is 14 years or more of age but less than 16 years of age to-wit: L.W. dob: 1990 and who does not consent thereto, who is not his spouse in violation of K.S.A. 21–3504(a)(2).”

The 3–day trial occurred in May 2008. At the close of evidence, the district court instructed the jury that to establish the charge of aggravated indecent liberties with a child, the State was required to prove “1. That the defendant fondled or touched the person of [L.W.] in a lewd manner, with intent to arouse or to satisfy the sexual desires of either [L.W.] or the defendant, or both....” (Emphasis added.) Weimer's counsel did not object to the instruction. The jury found Weimer guilty of rape and aggravated indecent liberties with a child and acquitted him of the remaining charges. The district court sentenced Weimer to 165 months' imprisonment for the rape conviction and 61 months' imprisonment for aggravated indecent liberties with a child, to run concurrently. Weimer timely appealed his convictions to this court.

During that appeal, Weimer filed a motion to remand to the district court for a hearing pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), to determine whether his trial counsel was unconstitutionally ineffective. This court granted the motion. One of the claims against Weimer's trial counsel was that he had failed to object to the jury instruction on aggravated indecent liberties with a child based on lewd fondling even though Weimer was charged with aggravated indecent liberties with a child based on sexual intercourse. After conducting a hearing, the district court found that trial counsel had provided ineffective assistance and had thereby violated Weimer's rights under the Sixth and Fourteenth Amendments to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. In light of the district court's findings, this court reversed Weimer's convictions and remanded to the district court for a new trial.

On remand, the State filed a motion for leave to file a third amended complaint charging Weimer with one count of rape and one count of aggravated indecent liberties with a child based on lewd fondling or touching. The State argued that the reference to sexual intercourse in the second amended complaint was merely a “typographical error,” and that the parties were all aware that the true basis for the aggravated indecent liberties with a child charge was lewd fondling or touching. Over Weimer's objection, the district court granted the State's motion to file the third amended complaint. Weimer then filed a motion to dismiss the amended count of aggravated indecent liberties with a child and argued that prosecution of this charge was barred by the compulsory joinder statute. In the alternative, Weimer asked the district court to stay the proceedings so that he could file an original habeas action in the appellate courts. After a hearing, the district court filed a memorandum decision denying the motion to dismiss but staying the proceedings to allow Weimer to pursue an original habeas action.

On October 17, 2011, Weimer filed a petition for a writ of habeas corpus in this court. The State filed a response on October 28, 2011. This court initially denied Weimer's petition on the ground that it was interlocutory in nature. Weimer filed a petition for review and our Supreme Court granted the petition and remanded to this court for consideration on the merits of Weimer's compulsory joinder argument.

Does the Compulsory Joinder Statute Bar the State from Prosecuting Weimer for Aggravated Indecent Liberties with a Child Based on Lewd Fondling or Touching?

Weimer argues that the compulsory joinder statute, K.S.A. 21–3108, prohibits the State from prosecuting a crime that the State could have charged but did not charge in a former trial. Weimer asserts that because the State could have charged him with aggravated indecent liberties with a child based on lewd fondling at his first trial but instead charged him with aggravated indecent liberties with a child based on sexual intercourse, the State may not now prosecute him for aggravated indecent liberties with a child based on lewd fondling. Weimer acknowledges that his compulsory joinder argument does not affect count one of the third amended complaint alleging rape.

The State argues that Weimer was charged, tried, and convicted of aggravated indecent liberties with a child based on lewd fondling at the original trial and therefore he may be retried upon that charge. The State refers to the language in the second amended complaint charging Weimer with aggravated indecent liberties with a child based on sexual intercourse as being a “typographical error,” and contends that the parties were all aware that the true basis for the aggravated indecent liberties with a child charge was lewd fondling or touching. Instead of framing the issue as whether the compulsory joinder statute bars the State from prosecuting Weimer for aggravated indecent liberties with a child based on lewd fondling or touching, the State asks this court to utilize the analytical rubric applied to allegedly defective complaints challenged for the first time on appeal. Under this framework, the State argues that Weimer cannot show prejudice and that the State is not barred from prosecuting Weimer on the amended charge.

An original action in habeas corpus, as Weimer has filed here, is an appropriate vehicle for challenging a trial court's pretrial denial of a claim of double jeopardy. See In re Habeas Corpus Petition of Mason, 245 Kan. 111, 112–13, 775 P.2d 179 (1989). K.S .A. 21–3108 was the statutory codification of double jeopardy provisions in Kansas in effect at all times pertinent to this case. See State v. Arculeo, 29 Kan.App.2d 962, 969, 36 P.3d 305 (2001) (recognizing K.S.A. 21–3108 as the codification of the double jeopardy rule).

K.S.A. 21–3108, which codifies the compulsory joinder doctrine, states in part:

“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime ... if such former prosecution:

“(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely....” (Emphasis added.)

In State v. Brueninger, 238 Kan. 429, 433, 710 P.2d 1325 (1985), our Supreme Court stated the required components of compulsory joinder as:

“First, the prior prosecution must have resulted in a conviction or acquittal; second, evidence of the present crime must have been introduced in the prior prosecution; and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. [Citations omitted.]”

Weimer argues that the three requisite elements of compulsory joinder are present here and the doctrine...