State v. Bateson

• Decision Date: 11 December 1998
• Docket Number: 77,156,Nos. 77,155,s. 77,155
• Citation: 970 P.2d 1000,266 Kan. 238
• Parties: STATE of Kansas, Appellee, v. Darrell G. BATESON, Appellant.
• Court: Kansas Supreme Court

Page 1000

970 P.2d 1000

266 Kan. 238

STATE of Kansas, Appellee, v. Darrell G. BATESON, Appellant.

Nos. 77,155, 77,156.

Supreme Court of Kansas.

Dec. 11, 1998.

Syllabus by the Court

1. To constitute the crime of robbery by forcibly taking property from the person or presence of the victim, it is necessary the violence to the victim must either precede or be contemporaneous with the taking of the property.

2. In determining whether the taking of property constitutes robbery or a theft, the test is whether or not the taking of the property had been completed at the time the force or threat occurred.

3. Robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape.

Jennifer C. Roth, assistant appellate defender, argued the cause, and Michael J. Helvey, assistant appellate defender, and Jessica R. Kunen, Topeka, were on the brief for appellant.

Jim A. Vanderbilt, county attorney, argued the cause, and Peter D. Larato, assistant county attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

McFARLAND, C.J.:

Darrell G. Bateson was convicted of robbery (K.S.A.21-3426) in Case No. 95-CR-214 and of a traffic offense in Case No. 95-TR-1371. The cases were consolidated on appeal and the convictions were affirmed by the Court of Appeals. State v. Bateson, 25 Kan.App.2d 90, 958 P.2d 44 (1998). We granted review of a single issue concerning the sufficiency of the evidence supporting the robbery conviction. The specific question is whether there was sufficient evidence of a forceful taking of property as opposed to a theft of property.

FACTS

The precise layout of the area involved in the offense is unclear as, at trial, the parties relied on a diagram not before us and juror viewing of the scene. With these limitations, the facts may be summarized as follows. On October 10, 1995, June Huston, Jefferson County Planning and Zoning Administrator, was alone in her office in the basement of the courthouse. She left briefly to get some information from an adjoining office. On her return she observed defendant bent over behind her desk. She asked what he was doing and he responded that he was "looking for somebody." Huston then saw that the lower desk drawer where she kept her handbag was partially open. She took out her purse, looked inside and saw that her cash ($95) was gone from her wallet as well as an address book. She demanded the return of these items. Defendant then turned, left the office, and walked rapidly to the stairs. The victim was not threatened, nor was any force applied to her. Huston followed, some 6 to 8 feet behind. There are two flights of steps with a landing and a turn between the basement and the main floor. When entering the main floor from the basement, one passes through two doors described as being 3 feet apart. The doors have glass in their upper parts. Defendant went through the first door, followed by Huston. Defendant went through the second door. He was not in the victim's sight at the time. As Huston opened the second door, it came back rapidly and hit her in the face. She concluded this had to have been the result of defendant having intentionally slammed the door in her face. Defendant was not in sight in the courthouse when Huston subsequently came through the second door. She does not know from which entrance he left the building, but she subsequently confronted him again on the courthouse grounds where he offered her $100. He then left in a vehicle driven by a woman. The victim's money and address book were recovered from a nearby alley Bateson had been seen entering after he had left the grounds prior to his return thereto. Identity is not an issue in this case. The jury was instructed on theft as a lesser included offense of robbery.

STATUTES

"Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person." K.S.A. 21-3426. Robbery is a severity level 5 person felony. K.S.A. 21-3426.

"Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property: (1) Obtaining or exerting unauthorized control over property." K.S.A. 21-3701(a). Theft of property of the value of less than $500 is a class A nonperson misdemeanor. K.S.A. 21-3701(b)(3).

PRIOR CASE LAW

Defendant contends that the evidence shows he obtained unauthorized control over the victim's property and left her office without force or threat of bodily harm. Any force was subsequent to taking of the property and would, at most, constitute the separate offense of "battery." Thus, he argues that we reverse the robbery conviction and remand the case for resentencing him for conviction of theft, a class A nonperson misdemeanor. Defendant likens the facts herein to those in State v. Aldershof, 220 Kan. 798, 556 P.2d 371 (1976).

The State argues that the victim herein immediately resisted the taking of her property and that defendant used force (slamming the door) to effect the removal of the property from her presence and the premises. The State likens the facts herein to State v. Dean, 250 Kan. 257, 824 P.2d 978 (1992); State v. Long, 234 Kan. 580, 675 P.2d 832 (1984); and State v. Miller, 53 Kan. 324, 36 P. 751 (1894).

The issue herein involves the difference between robbery and theft. The four cases cited by the parties turn on the difference, and discussion thereof is necessary to the resolution of this appeal.

In Miller, 53 Kan. 324, 36 P. 751, the court considered whether the force required in a robbery must precede the taking of the property. The facts were that Miller went into a laundry to pick up a shirt. When the proprietor opened the cash drawer, Miller grabbed On appeal, Miller argued that the violence was merely for the purpose of breaking away from the victim and that, if he took the money, he had it in his possession before any violence occurred. This court disagreed and adopted the general rule that the violence to the person and the taking may be contemporaneous. Under the facts, the court concluded Miller had not obtained complete possession of the money before using the violence on the proprietor. The court noted there was evidence Miller cut the victim's hand in order to remove his own hand containing the money from the cash drawer. The court stated:

money therein. The proprietor caught Miller's hand while it was still in the drawer and released it only when Miller cut the proprietor's hand with a knife. Miller ran for the door but was caught by the victim who released his hold only after being stabbed in the abdomen.

"Nice questions may and do arise as to just when the possession of the owner of articles not attached to his person, but under his immediate charge and control, is divested, and it may well be doubted whether a thief can be said to have taken peaceable possession of money or other thing of value in the presence of the owner, when the taking is instantly resisted by the owner, before the thief is able to remove it from his premises or from his immediate presence." 53 Kan. at 328, 36 P. 751.

In Aldershof, 220 Kan. 798, 556 P.2d 371, two women were sitting in a booth in a tavern. Lighting was poor by virtue of a power outage. One woman left the table. While she was gone, Aldershof went to the booth and grabbed both the absent woman's purse from the table and the other woman's purse from her lap. The woman at the booth pursued Aldershof to the parking lot and grabbed his shirt. He turned, hit her in the eye, and fled. He was convicted of robbery.

On appeal, Aldershof argued that the evidence showed no force or threat during the taking of the purses and that the purses were taken by stealth; therefore, the crime was a theft not a robbery. The State argued the crime was robbery as the taking was still in progress when the victim was hit in the parking lot.

Aldershof thoroughly discussed the law of theft and robbery and stated:

"We are inclined to follow the general rule recognized in State v. Miller, supra, that to constitute the crime of robbery by forcibly taking money from the person of its owner, it is necessary that the violence to the owner must either precede or be contemporaneous with the taking of the property and robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape. We believe that the test should be whether or not the taking of the property has been completed at the time the force or threat is used by the defendant. This must of necessity be determined from the factual circumstances presented in the particular case before the court." 220 Kan. at 803, 556 P.2d 371.

Applying this rule to the facts in Aldershof, we concluded that the taking of the purses had been completed when the thief snatched the purses and left the premises of the tavern. Any violence occurring after the thief left the tavern with the purses under his control "could not convert the theft into a robbery, although it may well have been the basis for a charge of battery under K.S.A. 21-3412." 220 Kan. at 804, 556 P.2d 371.

In Long, 234 Kan. 580, 675 P.2d 832, we again considered the question of the distinction between robbery and theft. Long had entered a sales building where the Wolfs sold milk. The building was open to the public with customers helping themselves to the milk in the display case and dropping payment into a locked, slotted money box mounted on a wall. Ms. Wolf was not in the sales room but saw Long drive up and park. She went into the sales building to tell him more milk would be available soon. When she entered the room, Ms. Wolf observed Long crouched in front of the money box, which had been pried open. Long had his hands in his pockets and a dollar bill was observed on the floor beneath the money box. Ms. Wolf positioned herself...