MAY A COURT CONSIDER VICTIM STATEMENTS OR STATEMENTS BY PEOPLE CLOSE TO THE VICTIM IN ORDER TO SHOW EVIDENCE OF SUBSTANTIAL HARM, THUS, JUSTIFYING A MORE SEVERE PUNISHMENT?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Zuck, 21 Kan.App.2d 597 (1995).

This case addresses the following issue:

May a court consider victim statements or statements by people close to the victim in order to show evidence of substantial harm, thus, justifying an upward departure sentence?

When reviewing the decision of a trial court to impose a departure sentence, the reviewing court is to determine if the sentencing court’s findings of fact and reasons justifying departure are (1) supported by substantial and competent evidence; and (2) constitute substantial and compelling reasons for departure as a matter of law. The applicable review standard includes a two prong test: (1) an evidentiary test – that the facts stated by the sentencing court justifying the departure are supported on the record, and (2) a law test – that the reasons stated on the record for the departure adequately justify a sentence outside of the presumptive sentence. Id. Substantial evidence has been summarized to include such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Id. at 600.

In this case, the defendant was convicted of one count of attempted rape, two counts of aggravated incest, and one count of aggravated indecent solicitation of a child. Id. at 597. The only applicable conviction for which the Kansas Sentencing Guidelines Act applies is that of the attempted rape charge due to the fact that it was the only conviction that occurred after the act was enacted. Id. at 598. Before sentencing the State filed a motion for a durational departure, which the defendant responded to the motion with a motion asking the court to order the victims to submit to a psychological examination in order to aid in his defense against the State’s motion to depart. Id. After this was conducted, the trial court departed from the presumptive sentence of 43 months and imposed a 62 months sentence to be served in prison for the attempted rape charge. Id. Of particular consideration is that of the finding that by the trial court which partially justified the departure on the grounds that the victim had suffered great psychological and emotional harm in excess of what is normally associated with the crime of attempted rape. Id. at 604. The evidence of excessive emotional harm was displayed by testimony provided a social worker that the victim had to be removed from several foster homes, and was eventually hospitalized. Id. The court ruled that because of this testimony, displaying the overall effect of substantial emotional harm, the victim’s injuries in this case were significantly more severe than in the usual case, and thus the finding is supported by the record. Id. at 605.