State v. Robinson

Citation417 P.3d 1087,55 Kan.App.2d 464
Decision Date06 April 2018
Docket NumberNo. 116,763,116,763
Parties STATE of Kansas, Appellee, v. Roy G. ROBINSON, Appellant.
CourtCourt of Appeals of Kansas

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Leben and Powell, JJ.

Leben, J.:

Roy Robinson appeals his conviction for aggravated burglary, contending that the case against him should have been dismissed for selective prosecution. Robinson contends that the State unfairly targeted him because it didn't proceed with a burglary charge against a second man who had been with him. Robinson also contends that the district court didn't give the jury a full chance to consider his selective-prosecution defense.

But the selective-prosecution defense isn't one for the jury to decide, anyway: It has nothing to do with whether a defendant is guilty, which is what the jury determines. And the district court's refusal to dismiss the charge against Robinson based on selective prosecution was appropriate because there were reasons other than some arbitrary or invidious criteria to proceed against Robinson. Robinson had a more serious criminal record and the victim had testified at a preliminary hearing that Robinson, not the other man, had been the one who asked for the property that he had intended to steal.

Robinson also argues briefly that the evidence wasn't sufficient to show that he entered the home without authority or intended to commit a theft when he came in. But the resident said she didn't invite him in or want him there. And Robinson came to the home at a time when its residents would have been expected to have been at work, which suggested that he entered the home to take something, not to drop by for a visit. So the evidence was sufficient on these challenged points. We affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The events at issue unfolded at the Larned, Kansas, residence of Wayne Steen, Jakeeia Chambers, and her four children.

(Steen is the father of the youngest child, who was four.) On a normal weekday, Chambers left before 6 a.m. to get to work, though she typically returned briefly around 7:30 a.m. to take three of the children to school, Steen to work, and the youngest child to her father's house. She would then normally return to her employment.

But she had stayed home from work this Monday morning because she hadn't felt well. By 8 o'clock, Steen had taken their only car to work; the older children were in school; and the youngest child was with Chambers' father. So Chambers was home alone. While she was fixing breakfast for herself in the kitchen, she "heard a big bang" from her back door. She then found two men—Robinson and Derek Devine—standing inside her home.

She recognized Robinson as an acquaintance of Steen's who had visited the home before. She didn't know Devine.

Chambers said the men seemed surprised when they saw her, and she asked them to leave. Instead, she said, they told her "to give them TVs, and money, and computers." She said the men told her that Steen owed them money. The men did not specify a particular television or computer that they wanted.

Chambers said she told the men to leave. She then retreated to her bedroom and called Steen. At least one of the men followed. After that call, she again told the men to leave—and they did. They didn't take any property with them. Chambers then called the police.

The State at first charged both Robinson and Devine with aggravated burglary. In Devine's case, though, the State amended the charge against Devine from aggravated burglary, a felony, to criminal trespass, a misdemeanor. At the hearing at which the charge was reduced, a prosecutor said that he didn't think there was enough evidence to show that Devine intended to commit a theft inside the residence.

But the State did not reduce the charge against Robinson. So he filed a pretrial motion to dismiss the case, claiming selective prosecution. The district court denied the motion, concluding that the evidence presented in Robinson's case was sufficient to proceed and that "there may be dissimilar circumstances" between Robinson and Devine.

In a jury trial, Robinson presented two lines of defense. First, he said that he came to collect a debt—not to commit a theft. Second, he argued that the State was unfairly picking on him since it didn't pursue the same charge against Devine. The jury convicted Robinson, and he has appealed to our court.

ANALYSIS
I. Robinson Has Not Shown Error in the District Court's Refusal to Dismiss the Charge Against Him Based on His Selective-Prosecution Claim.

Robinson mainly argues on appeal that the State unfairly singled him out for prosecution. He's right that it's a defense to a criminal prosecution that the State has unfairly targeted someone for criminal prosecution. Doing so violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. State ex rel. Murray v. Palmgren , 231 Kan. 524, Syl. ¶ 1, 646 P.2d 1091 (1982). To succeed on that defense, the defendant must show "that others who are similarly situated are generally not prosecuted for conduct similar to the conduct for which the defendant is being prosecuted and that the defendant has been intentionally and purposefully singled out for prosecution on the basis of arbitrary or invidious criteria." State v. Gant , 288 Kan. 76, 85, 201 P.3d 673 (2009).

The selective-prosecution defense must be raised by pretrial motion under K.S.A. 22-3208(3). State v. Weniger , 9 Kan.App. 2d 705, Syl. ¶ 1, 687 P.2d 643 (1984). Robinson did so.

And at a hearing before trial, the district court denied the motion, saying that "there may be dissimilar circumstances" between Robinson and the man who was with him, Devine. When Robinson renewed his motion after trial—asking that the district court grant an acquittal, setting aside the jury's conviction—the district court said that there were "differences" between Robinson and Devine, "[m]ost notably" Robinson's greater list of past offenses. The court also noted Robinson's "recent involvement" in criminal cases in which he hadn't successfully completed probation. When sentencing the defendant, the district court noted that Robinson's probation had been revoked—and he had been sent to prison—in other cases because he had not complied with probation requirements, "usually" by failing to report as required.

On appeal, Robinson has raised two arguments about selective prosecution. First, he argues that the district court should have granted his motion to dismiss the charge. Second, he argues that the jury instructions didn't accurately tell the jury how to consider his selective-prosecution defense. We will first look at whether the district court had a sufficient basis for its ruling.

The State cites two bases for its decision to proceed against Robinson: (1) that Robinson had a greater role in the crime and (2) that Robinson had many more prior convictions than Devine did. Either would be enough to support the district court's ruling.

The district court's pretrial denial of Robinson's motion came after a preliminary hearing. The only witness was Chambers, who said that Robinson was the one who said, "I need your TVs and computers" while also saying that Steen "owes me." She said that Devine also said "he owes me," but she reported that Robinson was the one who followed her to her bedroom. And she said Robinson "kept saying [Steen] owes me." She also explained that Robinson had been to the home before to see Steen but she had never seen Devine before. This testimony suggested that Robinson had had a greater role in the offense.

At trial, her testimony was somewhat different. This time, she simply attributed the statements made to her to both men: "[T]hey told me to give them TVs, and money, and computers." In denying the posttrial motion about selective prosecution, though, the district court still said that Chambers' trial testimony "focused upon Mr. Robinson's activities on the date in question more so than Mr. Devine's."

Even with the less-specific statements at trial about who first told Chambers to hand over the TVs and computers, the court's conclusion that her testimony focused on Robinson as the primary actor may still be a fair one. Robinson was the one who followed Chambers to her room, and Robinson was the one who knew Steen. Robinson's attorney argued to the jury that this was just an "attempt to collect a debt," and it would have made more sense that the debt was owed to Robinson, who knew Steen, than to Devine, who didn't.

But even if the evidence didn't show a difference in what Robinson and Devine each did in committing this crime, the difference in their criminal records would still serve as a sufficient basis to prosecute Robinson more severely than Devine. Robinson's presentence-investigation report shows 32 prior convictions, including domestic battery, violation of a protection-from-abuse order, attempted criminal threat, and nonresidential burglary. And six of the offenses occurred in the same community within five years of the crime charged here.

Our record doesn't contain Devine's criminal-history record. But Robinson makes no argument on appeal that the district court was wrong to conclude there was "a substantial difference" in the criminal records of the two men.

As we've already noted, to show unlawful selective prosecution, Robinson must prove that the State has singled him out based on some arbitrary or invidious criteria. See Gant , 288 Kan. at 85, 201 P.3d 673 ; Weniger , 9 Kan.App. 2d at 707, 687 P.2d 643 ; 4 LaFave, Israel, King & Kerr, Crim. Proc. § 13.4(c) (4th ed. 2015). By invidious, we generally mean that the State has discriminated based on some improper characteristic, such as race, religion, national origin, or sex. See Owen v. Wainwright , 806 F.2d 1519, 1523 (11th Cir. 1986) ; United States v....

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  • State v. Keys
    • United States
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    • June 3, 2022
    ...United States Constitution. State ex rel. Murray v. Palmgren , 231 Kan. 524, Syl. ¶ 1, 646 P.2d 1091 (1982) ; State v. Robinson , 55 Kan. App. 2d 464, 467, 417 P.3d 1087 (2018). To succeed with this defense, a defendant must establish (1) the State generally does not prosecute other similar......
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    ...to the United States Constitution. State ex rel. Murray v. Palmgren, 231 Kan. 524, Syl. ¶ 1, 646 P.2d 1091 (1982); State v. Robinson, 55 Kan.App.2d 464, 467, 417 P.3d 1087 (2018). To succeed with this defense, a defendant must establish (1) the State generally does not prosecute other simil......
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