K.S.A. Chapter 21 Article 51

PRELIMINARY

Current through End of 2011 Legislative Session

21-5101          Title and construction.

21-5102          Crimes defined; classes of crimes.

21-5103          Scope and application.

21-5104          Severability

21-5105          Civil remedies preserved.

21-5106          Jurisdictional application.

21-5107          Time limitations.

21-5108          Burden of Proof.

21-5109          Multiple prosecutions for same act; lesser included crimes.

21-5110          Effect of former prosecution.

21-5111          Definitions.

21-5101. Title and construction.

            This code is called and may be cited as the Kansas Criminal Code.

History: L. 1969, ch. 180, § 21-3101; L. 2010, ch. 136, § 1; July 1, 2011.

21-5102. Crimes defined; classes of crimes.

            A crime is an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized or, in the case of a traffic infraction or a cigarette or tobacco infraction, a fine is authorized. Crimes are classified as felonies, misdemeanors, traffic infractions and cigarette or tobacco infractions.

            (1) A felony is a crime punishable by death or by imprisonment in any state correctional institution or a crime which is defined as a felony by law.

            (2) A traffic infraction is a violation of any of the statutory provisions listed in subsection (c) of K.S.A. 8-2118 and amendments thereto.

            (3) A cigarette or tobacco infraction is a violation of K.S.A. 21-4009 through 21-4014 and subsection (m) or (n) of K.S.A. 79-3321 and amendments thereto.

            (4) All other crimes are misdemeanors.

History: L. 1969, ch. 180, § 21-3105; L. 1984, ch. 39, § 32; L. 1994, ch. 291, § 90; L. 1996, ch. 214, § 24; L. 1998, ch. 192, § 3; L. 2010, ch. 8, § 1; L. 2010, ch. 136, § 2; L. 2011, ch. 30, § 5; July 1.

21-5103. Scope and application.

            (1) No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state, but where a crime is denounced by any statute of this state, but not defined, the definition of such crime at common law shall be applied.

            (2) Unless expressly stated otherwise, or the context otherwise requires, the provisions of this code apply to crimes created by statute other than in this code.

            (3) This code does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree.

            (4) This code has no application to crimes committed prior to its effective date. A crime is committed prior to the effective date of the code if any of the essential elements of the crime as then defined occurred before that date. Prosecutions for prior crimes shall be governed, prosecuted and punished under the laws existing at the time such crimes were committed.

History: L. 1969, ch. 180, § 21-3102; L. 2010, ch. 136, § 3; July 1, 2011.

21-5104. Severability.

            The provisions of the Kansas criminal code are severable. If any provision of this code or any part thereof and any amendment thereto is held invalid or unconstitutional or its application to any person or circumstance is held invalid or unconstitutional, it shall be conclusively presumed that the legislature would have enacted the remainder of the code without such invalid or unconstitutional provision.

History: L. 1992, ch. 298, § 96;L. 2004, ch. 125 § 7; L. 2010, ch. 136, § 4; July 1, 2011.

21-5105. Civil remedies preserved.

            This code does not bar, suspend or otherwise affect any civil right or remedy, authorized by law to be enforced in a civil action, based on conduct which this code makes punishable; and the civil injury caused by criminal conduct is not merged in the crime.

History: L. 1969, ch. 180, § 21-3103; L. 2010, ch. 136, § 5; July 1, 2011.

21-5106. Jurisdiction Application.

            (1) A person is subject to prosecution and punishment under the law of this state if:

            (a) He commits a crime wholly or partly within this state; or

            (b) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state; or

            (c) Being outside the state, he commits an act which constitutes an attempt to commit a crime within this state.

            (2) An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If the body of a homicide victim is found within the state, the death is presumed to have occurred within the state.

            (3) A crime which is based on an omission to perform a duty imposed by the law of this state, is committed within the state, regardless of the location of the person omitting to perform such duty at the time of the omission.

            (4) It is not a defense that the defendant's conduct is also a crime under the laws of another state or of the United States or of another country.

            (5) This state includes the land and water and the air space above such land and water with respect to which the state has legislative jurisdiction.

History: L. 1969, ch. 180, § 21-3104; L. 2010, ch. 136, § 6; July 1, 2011.

21-5107. Time limitations.

            (1) A prosecution for murder, terrorism or illegal use of weapons of mass destructionmay be commenced at any time.

            (2) Except as provided in subsection (5), a prosecution for any crime must be commenced within 10 years after its commission if the victim is the Kansas public employees retirement system.

            (3) (a) Except as provided in subsection (5), a prosecution for a sexually violent offense as defined in K.S.A. 22-3717, and amendments thereto, must be commenced within the limitation of time provided by the law pertaining to such offense or one year from the date on which the identity of the suspect is conclusively established by DNA testing, whichever is later.

            (b) For purposes of this section, ‘‘DNA’’ means deoxyribonucleic acid.

            (4) Except as provided by subsection(5), a prosecution for any crime, as defined in K.S.A. 21-3105, and amendments thereto, not governed by subsections (1), (2), or (3), must be commenced within five years after it is committed.

(5) The period within which a prosecution must be commenced shall not include any period in which:

            (a) The accused is absent from the state;

            (b) the accused is concealed within the state so that process cannot be served upon the accused;

            (c) the fact of the crime is concealed;

            (d) a prosecution is pending against the defendant for the same conduct, even if the indictment or information which commences the prosecution is quashed or the proceedings thereon are set aside, or are reversed on appeal;

            (e) an administrative agency is restrained by court order from investigating or otherwise proceeding on a matter before it as to any criminal conduct defined as a violation of any of the provisions of article 41 of chapter 25 and article 2 of chapter 46 of the Kansas Statutes Annotated which may be discovered as a result thereof regardless of who obtains the order of restraint; or

            (f) whether or not the fact of the crime is concealed by the active act or conduct of the accused, there is substantially competent evidence to believe two or more of the following factors are present: (i) The victim was a child under 15 years of age at the time of the crime; (ii) the victim was of such age or intelligence that the victim was unable to determine that the acts constituted a crime; (iii) the victim was prevented by a parent or other legal authority from making known to law enforcement authorities the fact of the crime whether or not the parent or other legal authority is the accused; and (iv) there is substantially competent expert testimony indicating the victim psychologically repressed such witness' memory of the fact of the crime, and in the expert's professional opinion the recall of such memory is accurate and free of undue manipulation, and substantial corroborating evidence can be produced in support of the allegations contained in the complaint or information but in no event may a prosecution be commenced as provided in this section later than the date the victim turns 28 years of age. Corroborating evidence may include, but is not limited to, evidence the defendant committed similar acts against other persons or evidence of contemporaneous physical manifestations of the crime. 'Parent or other legal authority' shall include but not be limited to natural and stepparents, grandparents, aunts, uncles or siblings.

            (6) An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing offense plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed.

            (7) A prosecution is commenced when a complaint or information is filed, or an indictment returned, and a warrant thereon is delivered to the sheriff or other officer for execution. No such prosecution shall be deemed to have been commenced if the warrant so issued is not executed without unreasonable delay.

History: L. 1969, ch. 180, § 21-3106; L. 1986, ch. 118, § 1; L. 1990, ch. 306, § 20; L. 1992, ch. 321, § 20; L. 1993, ch. 253, § 13; L. 1994, ch. 296, § 1; L. 1996, ch. 267, § 13; L. 1998, ch. 52, § 2; L. 1998, ch. 185, § 4; L. 2001, ch. 208, § 3; L. 2005, ch. 162, § 1; L. 2006, ch. 146, § 4; L. 2010, ch. 136, § 7; July 1, 2011.

21-5108. Burden of Proof.

            (a) In all criminal proceedings, the state has the burden to prove beyond a reasonable doubt that a defendant is guilty of a crime. This standard requires the prosecution to prove beyond a reasonable doubt each required element of a crime.

            (b) A defendant is presumed to be innocent until proven guilty. When there is a reasonable doubt as to which of two or more degrees of a crime the defendant is guilty, the defendant shall be convicted of the lowest degree only. When there is a reasonable doubt as to a defendant’s guilt, the defendant shall be found not guilty.

            (c) A defendant is entitled to an instruction on every affirmative defense that is supported by competent evidence. Competent evidence is that which could allow a rational fact finder to reasonably conclude that the defense applies. Once the defendant satisfies the burden of producing such evidence, the state has the burden of disproving the defense beyond a reasonable doubt.

            (d) Issues raised under sections K.S.A. 2010 Supp. 21-5106, 21-5107 and 21-5110, and amendments thereto, are not affirmative defenses under subsection (c).

History: L. 1969, ch. 180, § 21-3109; L. 2010, ch. 136, § 8; July 1, 2011.

21-5109. Multiple prosecutions for same act; lesser included crimes.

            (1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.

            (2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:

            (a) A lesser degree of the same crime;

            (b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;

            (c) an attempt to commit the crime charged; or

            (d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).

            (3) Whenever charges are filed against a person, accusing the person of a crime which includes another crime of which the person has been convicted, the conviction of the lesser included crime shall not bar prosecution or conviction of the crime charged if the crime charged was not consummated at the time of conviction of the lesser included crime, but the conviction of the lesser included crime shall be annulled upon the filing of such charges. Evidence of the person's plea or any admission or statement made by the person in connection therewith in any of the proceedings which resulted in the person's conviction of the lesser included crime shall not be admissible at the trial of the crime charged. If the person is convicted of the crime charged, or of a lesser included crime, the person so convicted shall receive credit against any prison sentence imposed or fine to be paid for the period of confinement actually served or the amount of any fine actually paid under the sentence imposed for the annulled conviction.

History: L. 1969, ch. 180, § 21-3107; L. 1974, ch. 146, § 1; L. 1983, ch. 107, § 1; L. 1998, ch. 185, § 1; L. 2010, ch. 136, § 9; July 1, 2011.

21-5110. Effect of former prosecution.

            (1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:

            (a) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; or

            (b) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution; or

            (c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of: (i) The illness or death of an indispensable party; or (ii) the inability of the jury to agree; or (iii) the impossibility of the jury arriving at a verdict. A defendant is in jeopardy when he or she is put on trial in a court of competent jurisdiction upon an indictment, information or complaint sufficient in form and substance to sustain a conviction, and in the case of trial by jury, when the jury has been impaneled and sworn, or where the case is tried to the court without a jury, when the court has begun to hear evidence.

            A conviction of an included offense is an acquittal of the offense charged.

            (2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, 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; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began; or

            (b) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution; or

            (c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of: (i) The illness or death of an indispensable party; or (ii) the inability of the jury to agree; or (iii) the impossibility of the jury arriving at a verdict, and the subsequent prosecution is for an offense of which the defendant could have been convicted if the former prosecution had not been terminated improperly.

            (3) A prosecution is barred if the defendant was formerly prosecuted in a district court of the United States or in a court of general jurisdiction of a sister state or in the municipal court of any city of this state for a crime which is within the concurrent jurisdiction of this state, if such former prosecution:

            (a) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began; or

            (b) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the prosecution in this state.

            (4) A prosecution is not barred under this section:

            (a) By a former prosecution before a court which lacked jurisdiction over the defendant or the offense; or

            (b) By a former prosecution procured by the defendant without the knowledge of a prosecuting officer authorized to commence a prosecution for the maximum offense which might have been charged on the facts known to the defendant, and with the purpose of avoiding the sentence which otherwise might be imposed; or

            (c) If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty.

            (5) In no case where a conviction for a lesser included crime has been invalidated, set aside, reversed or vacated shall the defendant be subsequently prosecuted for a higher degree of the crime for which such defendant was originally convicted.

History: L. 1969, ch. 180, § 21-3108; L. 1970, ch. 124, § 1; L. 1977, ch. 105, § 8; L. 2010, ch. 136, § 10; July 1, 2011.

21-5111. Definitions.

            The following definitions shall apply when the words and phrases defined are used in this code, except when a particular context clearly requires a different meaning.

            (a) "Act" includes a failure or omission to take action.

            (b).."Another" means a person or persons as defined in this code other than the person whose act is claimed to be criminal.

            (c).."Conduct" means an act or a series of acts, and the accompanying mental state.

            (d).."Conviction" includes a judgment of guilt entered upon a plea of guilty.

            (e).."Deception" means knowingly creating or reinforcing a false impression, including false impressions as to law, value, intention or other state of mind. Deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that such person did not subsequently perform the promise. Falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive reasonable persons, is not deception.

            (f).."Deprive permanently" means to:

            (1) Take from the owner the possession, use or benefit of property, without an intent to restore the same;

            (2) retain property without intent to restore the same or with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; or

            (3) sell, give, pledge or otherwise dispose of any interest in property or subject it to the claim of a person other than the owner.

            (g).."Distribute" means the actual or constructive transfer from one person to another of some item whether or not there is an agency relationship. "Distribute" includes, but is not limited to, sale, offer for sale, furnishing, buying for, delivering, giving, or any act that causes or is intended to cause some item to be transferred from one person to another. "Distribute" does not include acts of administering, dispensing or prescribing a controlled substance as authorized by the pharmacy act of the state of Kansas, the uniform controlled substances act, or otherwise authorized by law.

            (h).."DNA" means deoxyribonucleic acid.

            (i) "Domestic violence" means an act or threatened act of violence against a person with whom the offender is involved or has been involved in a dating relationship, or an act or threatened act of violence against a family or household member by a family or household member. Domestic violence also includes any other crime committed against a person or against property, or any municipal ordinance violation against a person or against property, when directed against a person with whom the offender is involved or has been involved in a dating relationship or when directed against a family or household member by a family or household member. For the purposes of this definition:

(1) "Dating relationship" means a social relationship of a romantic nature. In addition to any other factors the court deems relevant, the trier of fact may consider the following when making a determination of whether a relationship exists or existed: Nature of the relationship, length of time the relationship existed, frequency of interaction between the parties and time since termination of the relationship, if applicable.

(2) "Family or household member" means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time. Family or household member also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time.

            (j) "Domestic violence offense" means any crime committed whereby the underlying factual basis includes an act of domestic violence.

            (k)."Dwelling" means a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.

            (l)."Expungement" means the sealing of records such that the records are unavailable except to the petitioner and criminal justice agencies as provided by K.S.A. 22-4701 et seq., and amendments thereto, and except as provided in this act.

            (m)."Firearm" means any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion.

            (n)."Forcible felony" includes any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person.

            (o)."Intent to defraud" means an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.

            (p)."Law enforcement officer" means:

            (1) Any person who by virtue of such person’s office or public employment is vested by law with a duty to maintain public order or to make arrests for crimes, whether that duty extends to all crimes or is limited to specific crimes;

            (2) any officer of the Kansas department of corrections or, for the purposes of K.S.A. 21-5412 and subsection (d) of K.S.A. 21-5413, and amendments thereto, any employee of the Kansas department of corrections; or

            (3) any university police officer or campus police officer, as defined in K.S.A. 22-2401a, and amendments thereto.

            (q)."Obtain" means to bring about a transfer of interest in or possession of property, whether to the offender or to another.

            (r)."Obtains or exerts control" over property includes, but is not limited to, the taking, carrying away, sale, conveyance, transfer of title to, interest in, or possession of property.

            (s)."Owner" means a person who has any interest in property.

            (t)."Person" means an individual, public or private corporation, government, partnership, or unincorporated association.

            (u)."Personal property" means goods, chattels, effects, evidences of rights in action and all written instruments by which any pecuniary obligation, or any right or title to property real or personal, shall be created, acknowledged, assigned, transferred, increased, defeated, discharged, or dismissed.

            (v)."Possession" means having joint or exclusive control over an item with knowledge of or intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.

            (w)."Property" means anything of value, tangible or intangible, real or personal.

            (x).."Prosecution" means all legal proceedings by which a person’s liability for a crime is determined.

            (y)."Prosecutor" means the same as prosecuting attorney in K.S.A. 22-2202, and amendments thereto.

            (z)."Public employee" is a person employed by or acting for the state or by or for a county, municipality or other subdivision or governmental instrumentality of the state for the purpose of exercising their respective powers and performing their respective duties, and who is not a "public officer."

            (aa).."Public officer" includes the following, whether elected or appointed:

            (1) An executive or administrative officer of the state, or a county, municipality or other subdivision or governmental instrumentality of or within the state;

            (2) a member of the legislature or of a governing board of a county, municipality, or other subdivision of or within the state;

            (3) a judicial officer, which shall include a judge of the district court, juror, master or any other person appointed by a judge or court to hear or determine a cause or controversy;

            (4) a hearing officer, which shall include any person authorized by law or private agreement, to hear or determine a cause or controversy and who is not a judicial officer;

            (5) a law enforcement officer; and

            (6) any other person exercising the functions of a public officer under color of right.

            (bb).."Real property" or ‘‘real estate" means every estate, interest, and right in lands, tenements and hereditaments.

            (cc)."Solicit" or ‘‘solicitation" means to command, authorize, urge, incite, request or advise another to commit a crime.

            (dd)."State" or ‘‘this state" means the state of Kansas and all land and water in respect to which the state of Kansas has either exclusive or concurrent jurisdiction, and the air space above such land and water. "Other state" means any state or territory of the United States, the District of Columbia and the Commonwealth of Puerto Rico.

            (ee).."Stolen property" means property over which control has been obtained by theft.

            (ff).."Threat" means a communicated intent to inflict physical or other harm on any person or on property.

            (gg)."Written instrument" means any paper, document or other instrument containing written or printed matter or the equivalent thereof, used for purposes of reciting, embodying, conveying or recording information, and any money, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.

History: L. 1969, ch. 180, § 21-3110; L. 1976, ch. 145, § 106; L. 1990, ch. 97, § 1; L. 1998, ch. 131, § 1; L. 2004, ch. 48, § 1; L. 2005, ch. 141, § 1; L. 2008, ch. 150, § 2; L. 2010, ch. 101, § 5; L. 2010, ch. 136, § 11; L. 2011, ch. 30, § 6, July 1.