State v. Tate

The opinion of the court was delivered by This is an appeal by George Joe Tate from a conviction by a jury of one count of aggravated anal sodomy. (K.S.A. 21-3506.) The sole question on appeal is whether the trial court committed error in consolidating Tate's trial with the trial of Gary L. Kepka, who was charged and convicted of one count of aggravated anal sodomy and one count of oral sodomy involving the same victim. Kepka has also appealed his convictions. (State v. Kepka, # 52,159, this day decided in an unpublished opinion.) The facts of the case are basically not in dispute. On June 13, 1979, there were seven men in cell two of the Reno County jail. Five of the seven were involved in a mock trial to determine if the victim, Jack Jones, was a homosexual. After finding him guilty and as a penalty for this determination, Jones was forced to submit to anal intercourse with Kepka and appellant Tate. A third inmate, Urban, approached Jones but did not engage him in sodomy. Before the acts of sodomy occurred, the victim was apparently beaten by the three inmates for approximately ten or fifteen minutes. The victim testified Tate was the first to commit anal sodomy, followed by Kepka. Shortly thereafter Kepka forced Jones to perform oral sodomy in the shower. Jones testified that all of these acts were done against his will. [228 Kan. 753]