State v. Bateson
| Decision Date | 08 May 1998 |
| Docket Number | Nos. 77155,77156,s. 77155 |
| Parties | STATE of Kansas, Appellee, v. Darrell G. BATESON, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. To prove robbery, it must be shown that property was taken from another either by force or by threat of bodily harm.
2. A taking is complete when the thief has obtained the complete, independent, and absolute possession and control of the property of another.
3. A thief cannot be said to have taken peaceable possession of money or other things 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 the owner's premises or from the immediate presence of the owner.
4. In this case, the theft was not complete until the door was slammed in the pursuing owner's face. The theft was immediately resisted by the owner, and the thief was never out of her presence until the door was slammed in her face.
5. In this case, since defendant used force to gain peaceable possession of the money, he is guilty of robbery.
6. Compulsion is not a defense to driving while the offender's driver's license has been suspended and there is seated beside the offender a licensed driver who is capable of driving the car in question.
Michael J. Helvey, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for the appellant.
Lee K. Durham and Peter D. Larato, Assistant County Attorneys, and Carla J. Stovall, Attorney General, for the appellee.
Before LEWIS, P.J., RULON, J., and JACK A. MURPHY, District Judge, Assigned.
This appeal involves two consolidated cases and defendant's convictions in both cases. In case No. 95-CR-214, defendant appeals from his conviction for robbery, for which he received a sentence of 61 months. In case No. 95-TR-1371, defendant appeals from his conviction as a habitual violator for driving while his license was revoked. Defendant was ordered
to serve a 12-month sentence in the custody of the Secretary of Corrections, and that sentence was to run consecutive to his sentence in the robbery conviction.
Defendant was convicted of robbery in this case and argues, among other things, that the evidence was insufficient to sustain his conviction.
The crime of robbery is defined by K.S.A. 21-3426 as follows: "Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person." (Emphasis added.)
Defendant's argument on appeal is that the evidence did not show that he forced or threatened bodily harm to take property from the victim. He therefore argues that this crime was, at the very most, a theft and that we should reverse his robbery conviction and remand for sentencing on a theft conviction.
June Huston walked into her office on the day in question and found a stranger leaning over her desk and looking into the drawer where she kept her purse. Defendant was that stranger.
Huston asked defendant what he was doing and received an equivocal answer. She then emphatically told defendant to stay in her office while she checked her purse, and he did so. Huston checked her purse, discovered cash missing, and accused defendant of taking it. Defendant then advised Huston that he had to go, and he left the office and began walking quickly down the hall and up the stairs of the courthouse.
As defendant walked out the door of the office, Huston followed him down the hallways at a distance of 6 to 8 feet. When they reached an entrance to the first floor of the courthouse, defendant went through the entrance ahead of Huston. When Huston attempted to pass, the door slammed abruptly back, hitting her in the shoulder and head and knocking off her glasses. By the time Huston had recovered from her contact with the door, defendant was nowhere to be seen.
After reporting these events to the sheriff, Huston encountered defendant again on the sidewalk. She again accused him of taking her money, and he denied it and offered her a $100 bill. She told defendant to wait for the sheriff, but he declined and left in a car driven by Barbara Tomich.
Later that day, an address book belonging to Huston was found at a construction site, and it contained the missing cash.
Based on this highly summarized version of the facts, defendant was convicted of robbery and sentenced to an upward departure of 61 months.
Defendant's principal argument is that there was no evidence at trial to indicate that force or threat of bodily harm was used by him to take Huston's property.
Initially, we find that a rational factfinder could have concluded beyond a reasonable doubt that defendant stole Huston's money and that defendant pushed the courthouse door backwards into Huston's face in an effort to dissuade her from continuing her pursuit. The question is whether the force applied occurred during the robbery or after a theft had been completed.
To prove robbery, it must be shown that property was taken from another either by force or by threat of bodily harm. State v. Aldershof, 220 Kan. 798, 800, 556 P.2d 371 (1976). A taking is complete when the thief has obtained the complete, independent, and absolute possession and control of the property of another. State v. Long, 234 Kan. 580, 585, 675 P.2d 832 (1984), overruled in part on other grounds State v. Keeler, 238 Kan. 356, 365, 710 P.2d 1279 (1985).
In the instant matter, the evidence indicates that defendant did not threaten Huston, nor did he use physical force in taking the money out of her purse. The only force involved in this case is defendant's act of slamming a door shut in the face of the pursuing victim, thus causing her some physical injury and further causing her to temporarily abandon the effort of recovering her property from defendant.
Was the slamming of the door in Huston's face sufficient force to convert the crime of We have a number of Supreme Court cases on this issue. However, the resolution of the issue depends primarily on the facts of each case. Our Supreme Court in State v. Long, 234 Kan. at 583, 675 P.2d 832, said: "Prior Kansas cases are not in accord with one another and as such do not provide much assistance in determining when a taking is completed."
theft into one of robbery? Ultimately, we must decide whether the taking of the property had been completed prior to the application of force
However, there are some principles of law which we believe apply to the instant matter. In State v. Miller, 53 Kan. 324, 328, 36 P. 751 (1894), the court said:
"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." (Emphasis added.)
Some 90 years later, the Kansas Supreme Court in State v. Long, 234 Kan. 580, Syl. p 2, 675 P.2d 832, said:
"A thief does not obtain the complete, independent and absolute possession and control of the money or property adverse to the rights of the owner necessary to constitute a taking where the taking of the property is immediately resisted by the owner before the thief can remove it from the premises or from the owner's presence." (Emphasis added.)
This rule was most recently applied by the Supreme Court in State v. Dean, 250 Kan. 257, Syl. p 4, 824 P.2d 978 (1992).
In this case, the evidence shows that the taking of the property was immediately resisted by the owner of the property, who pursued defendant until he slammed the door in her face.
In State v. Dean, the initial possession of the thief was a good deal more secure than it was in the case at bar. In Dean, the defendant ordered and was given $3 worth of gasoline pumped into his car. After the gasoline had been pumped, the station owner asked for payment, and the defendant put his hand in his pocket and made it appear as if he had a gun. Upon sighting the alleged "weapon," the owner was dissuaded from continuing to stop the defendant from leaving without paying for the gas, and the defendant drove away. The Supreme Court reversed the trial court, which had dismissed the defendant's robbery charge following the preliminary hearing, and said:
250 Kan. at 260, 824 P.2d 978.
In this case, Huston found defendant reaching into a drawer in her desk. She immediately resisted any further efforts on his part by telling him to stand away from the desk until she checked to see if any money was missing. As soon as Huston announced money was missing, defendant left the room with Huston in hot pursuit behind him. As we read the record, Huston followed defendant down the hall and down the steps of the courthouse, never being more than 6 to 8 feet behind him. In our judgment, defendant was unable to remove the property from the presence of the pursuing owner until he slammed the door in her face. The slamming of the door in her face was an act of force and results in defendant being guilty of robbery. The theft in this case was not complete, defendant's possession was imperfect, and his control of the stolen money was qualified by the immediate pursuit of the owner. See State v. Dean, 250 Kan. 257, Syl. p 3, 824 P.2d 978. Defendant was required to use force to make...
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State v. Bateson
...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......