overt act requirement in Kansas

2019In Smith , "we expressed concern when a jury is given a list of possible overt acts-any of which may satisfy the overt act requirement-'a danger could exist that the jury was not unanimous as to the act or acts it relied upon for the conviction.' " (Emphasis added.) Butler , 307 Kan. at 844 , 416 P.3d 116 (quoting Smith , 268 Kan. at 230 , 993 P.2d 1213 ).

2019In Smith , "we expressed concern when a jury is given a list of possible overt acts-any of which may satisfy the overt act requirement-'a danger could exist that the jury was not unanimous as to the act or acts it relied upon for the conviction.' " (Emphasis added.) Butler , 307 Kan. at 844 , 416 P.3d 116 (quoting Smith , 268 Kan. at 230 , 993 P.2d 1213 ).

2018But resolving Butler's claim does not necessitate an analysis of whether Enriquez and Smith remain valid after our decision in Brown , 295 Kan. 181 , 284 P.3d 977 , in which we established a statutory test for determining if alternative means existed.

2018But resolving Butler's claim does not necessitate an analysis of whether Enriquez and Smith remain valid after our decision in Brown , 295 Kan. 181 , 284 P.3d 977 , in which we established a statutory test for determining if alternative means existed.

2016In the context of attempted rape, "Kansas appellate courts have interpreted broadly the overt act requirement." State v. Zimmerman, 251 Kan. 54, 60 , 833 P.2d 925 (1992); see State v. Salcido-Corral, 262 Kan. 392, 398 , 940 P.2d 11 (1997) (discussing cases).

2016In the context of attempted rape, "Kansas appellate courts have interpreted broadly the overt act requirement." State v. Zimmerman, 251 Kan. 54, 60 , 833 P.2d 925 (1992); see State v. Salcido-Corral, 262 Kan. 392, 398 , 940 P.2d 11 (1997) (discussing cases).

2006In stating that the overt act requirement was mandated by statute to allow conspirators to change their mind about a conspiracy agreement, the United States Supreme Court in United States v. Britton, 108 U.S. 199, 204-05 , 27 L.

2006Ed. 2d 698 , 2 S. Ct. 531 (1883), stated: “The provision of the [conspiracy] statute, that there must be an act done to effect the object of the conspiracy, merely affords a locus poenitentiae, so that before the act [is] done either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute.” If conspirators are informed of the alleged act, they might say that although they did agree, they later called it off before the act was completed.

2006In setting forth the overt act requirement, the jury instruction stated: “ ‘That the defendant or any party to the agreement acted in furtherance of the agreement by an overt act.’ ” 277 Kan. at 666 .

1997Further, in regard to the intent element of attempted rape or attempted aggravated criminal sodomy, “intent . . . may be shown by acts, circumstances, and inferences reasonably deductible therefrom.” William, 248 Kan. at 402 .

1992In State v. *61 Lora, 213 Kan. 184, 192 , 515 P.2d 1086 (1973), “[t]he overt act toward perpetration of the rape which was necessary to constitute the crime of attempted rape in this case consisted of seizing [the victim] and attempting to restrain her within the residence.” Here, there is substantial evidence that Zimmerman’s actions went beyond mere preparation.

1992In State v. *61 Lora, 213 Kan. 184, 192 , 515 P.2d 1086 (1973), “[t]he overt act toward perpetration of the rape which was necessary to constitute the crime of attempted rape in this case consisted of seizing [the victim] and attempting to restrain her within the residence.” Here, there is substantial evidence that Zimmerman’s actions went beyond mere preparation.

1989We believe that the present case is distinguishable from Baldosar v. Illinois, 446 U.S. 222 , and State v. Priest, 239 Kan. 681 , 722 P.2d 576 (1986), in that the present case does not involve the use of a previous uncounseled conviction to enhance the term of imprisonment of the subsequent conviction, but rather, the previous uncounseled conviction was used to impose a civil liability, i.e., the habitual violator status, upon the defendant, and such civil disability was simply made enforceable by criminal sanctions.

1989We believe that the present case is distinguishable from Baldosar v. Illinois, 446 U.S. 222 , and State v. Priest, 239 Kan. 681 , 722 P.2d 576 (1986), in that the present case does not involve the use of a previous uncounseled conviction to enhance the term of imprisonment of the subsequent conviction, but rather, the previous uncounseled conviction was used to impose a civil liability, i.e., the habitual violator status, upon the defendant, and such civil disability was simply made enforceable by criminal sanctions.

1989We believe that the present case is distinguishable from Baldosar v. Illinois, 446 U.S. 222 , and State v. Priest, 239 Kan. 681 , 722 P.2d 576 (1986), in that the present case does not involve the use of a previous uncounseled conviction to enhance the term of imprisonment of the subsequent conviction, but rather, the previous uncounseled conviction was used to impose a civil liability, i.e., the habitual violator status, upon the defendant, and such civil disability was simply made enforceable by criminal sanctions.