The defendant alleges that the trial court wrongly denied him a new trial on the basis of newly discovered evidence. The evidence, which he claims to be newly discovered evidence, consists of a report prepared at the request of the court after the trial and before conviction by the Kansas State Reception and Diagnostic Center. The report shows that the accused has personality problems, *194 is severely disturbed and requires psychiatric treatment. This is not legal folly. The defendant further submits that it was an error to convict him of aggravated burglary under counts 1 (Young) and 6 (Abderholden) because no one was present when he entered the house. The complaint is not well-founded because he remained on hold until his victims returned and entered their homes. K.S.A. 1972 Supp. 21-3716 reads as follows: A similar attack on the information was reported in State v. Kelley, 125 Kan. 805, 265 Pac.
1109, where the accused was charged with attempted rape, but the information did not claim the open act necessary to carry out the attempt. Kelley states: Under K.S.A. 1972 Supp. 22-3429, the trial judge may refer a defendant to any psychiatric facility for review, assessment and report after conviction and prior to sentencing. The Kansas State Reception and Diagnostic Center is one such facility. The Centre is headed by the Director of Prisons. If the district judge receives a report that psychiatric care and treatment is necessary to meaningfully assist in the rehabilitation of an accused, the court may require the defendant to undergo treatment. (22-3430, op. cit. O.) If, on the other hand, the defendant and the company could be endangered by the defendant`s treatment in a minimum security device, the company must be protected. In this case, processing is at the discretion of the director of prisons. The sentence to be served by the defendant is linked to the State Director of Penitentiary Institutions.
(See K.S.A. 1972 Supp. 21-4603.) The director is responsible for the reception and diagnostic centre and has full control of this establishment. (See K.S.A. 76-24a04.) The main function and purpose of the Centre is to provide the Director with useful information in the treatment and rehabilitation programmes initiated by the Director, including treatment in one of the public hospitals. If the evidence is heard on appeal in a criminal case, the function of the Court of Appeal is limited to examining whether the evidence provides a basis for a reasonable finding of guilt. If such a finding is reached, the jury`s verdict approved by the trial court must stand. (State v. Shaw, 195 Kan. 677, 408 P.2d 650; Staat v. Chuning, 201 Kan.
784, 443 P.2d 248, Cert. 393 U.S. 1069, 89 p. ct. 726, 21 L. Ed. 2D 712; State v. Wade, 203 Kan. 811, 813, 457 S.2d 158; Staat v. Kliewer, 210 Kan. 820, Syl. ¶ 5, 504 p.2d 580.) The CW testified that she immediately left the beach and drove back to the road.
She collapsed on the ground near a crosswalk and began crying and calling for help. A man approached her and asked if she was okay, and she said, «No, I`m not well, I just got raped.» The man helped her to a nearby police station, which was in sight, where she had collapsed on the ground. Before entering the Playbar, according to The CW, she and her sister had «an awkward exchange,» and the CW left the band and returned to their hotel alone. Arriving at her hotel room, she put on a skirt because of the heat. She received text messages from Harlow and her sister asking her to return to the Playbar. She also received a text message from Rob, with whom she had exchanged numbers on Top of Waikiki. Rob asked if she wanted to stay for the rest of the evening, and The CW replied that it was her, but the other two women were in the Playbar. Rob asked if she would like to return to Playbar together, and The CW agreed. The two met and went together to the Playbar, where they joined Harlow and CW`s sister. The CW believed they arrived at the Playbar between 9:30 p.m.
and 10:00 p.m., but they weren`t sure. When they arrived at the beach, she moved from the two-foot-high seawall to the shore to create distance between them. Lora took off her pants and shoes and followed her to the beach. The CW said she was standing with her back to the seawall and Lora was in front of her. The CW said Lora then grabbed his hand and placed it on his penis over his underwear. At this point, the CW testified, she raised her voice and started yelling and begging him. Lora asked, «Will you take it from me now, or should I force you?» The CW testified that she was pressed against the dam digging into her lower back and that Lora was in front of her. The CW said it was trying to get away from him and lie on its back in the sand at the same height as the seawall. He held her by the arms and tore her shirt to expose her right breast. The CW said Lora`s saliva ended up on her chest during their fight. Lora pressed his arms inside her biceps, the CW said, and he squeezed her so hard that she lost sensation in his hands.
She said it was like «he was driving a knife into my arms»; She told him to stop please and she didn`t want to. The CW testified that Lora then pulled up her skirt and penetrated her vagina with her penis. The CW said she first fought and then went soft. During the fight, the CW testified, yelled at them, and screamed in hopes that someone would hear them. The CW also said Lora headbutted him in the forehead during the fight. He eventually stopped, the CW said, and they believed he had ejaculated. After Lora finished, he gathered his clothes and ran away. The testimony of the accused`s assessment in report *195 of the Reception and Diagnostic Center, which the District Judge received after the conviction and before the verdict, was reviewed and it is assumed that it is not newly discovered evidence that would entitle to a new trial.
The report in this case clearly shows that the defendant was fully aware of his personality problems at all times. He made a conscious decision not to attempt a defense based on madness. This was not newly discovered evidence under the rules set out in State v. Oswald, op. cit. cit., and State v. Collins, op. cit. The respondent then submits that her forensic identification by Ms. Young was tainted by (1) the misuse of a series of six photographs, (2) suggestive identification at the police station with four other persons, and (3) the showing of her hand and ringing in a passage of a door of the police station.
The accused was represented by a lawyer at the police station and the lawyer testified in support of a request for a retrial. We reviewed the documents before us and found none of the deficiencies alleged by the respondent that were sufficient to affect Ms. Young`s forensic identification of the accused. These identifications took place before an opposing criminal case. It can be argued that judicial identifications can stand on their own, although they are preceded by inadequate pre-trial confrontations. (Statement v. Kelly, 210 Kan. 192, 499 P.2d 1040; State v. Calvert, 211 Kan. 174, 505 p.2d 1110.) We don`t find anything too suggestive or biased in the display of photos or the police queue. Judicial identification alone is sufficient. The defendant submits that counts 6 (burglary of Abderholden`s home) and 7 (attempted rape of Ms.
Abderholden) are misleading and that the court erred in refusing to require the State to choose between these two counts.