State v. Burton, 55960

• Decision Date: 27 April 1984
• Docket Number: No. 55960,55960
• Citation: 235 Kan. 472,681 P.2d 646
• Parties: STATE of Kansas, Appellee, v. Larry BURTON, Appellant.
• Court: Kansas Supreme Court

Page 646

681 P.2d 646

235 Kan. 472

STATE of Kansas, Appellee, v. Larry BURTON, Appellant.

No. 55960.

Supreme Court of Kansas.

April 27, 1984.

As Corrected March 6, 1985.

Syllabus by the Court

1. When a verdict is challenged for insufficiency of the evidence in a criminal case the issue on appeal is whether the evidence, when viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence, and if the essential elements of the charge are sustained by any competent evidence the conviction must stand.

3. Presumptions and inferences may be drawn only from facts established and presumption may not rest upon presumption or inference on inference. What is meant by this rule is that an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.

4. Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury.

5. One who stays with the car in which he knows the main participants in the crime plan to make their getaway intentionally aids and abets in the commission of the crime and may be charged and convicted of the crime, although he did not participate at the scene of the crime.

6. An instruction on circumstantial evidence, which cautions the jury that a defendant should not be found guilty unless the facts and circumstances proved exclude every reasonable theory of innocence or states that the jury cannot convict the defendant on circumstantial evidence unless the circumstances exclude every reasonable hypothesis of his innocence, is unnecessary when a proper instruction on "reasonable doubt" is given.

7. The presumption in criminal cases that a person intends the ordinary consequences of his acts is merely a rule to assist the jury in reaching its conclusion upon a question of fact, and is not a presumption of law. The "presumption of intent" instruction only establishes a permissive inference and does not create a burden-shifting presumption.

8. No definition can make the concept of "reasonable doubt" any clearer than the words themselves.

9. The trial court has broad discretion in controlling both voir dire and closing arguments.

John C. Chappell, Lawrence, argued the cause and was on the brief for the appellant.

William P. Ronan, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Jerry L. Harper, Dist. Atty., were with him on the brief for the appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Larry Burton (defendant-appellant) guilty of aggravated robbery as an aider and abettor (K.S.A. 21-3427 and K.S.A. 21-3205). The appellant contends (1) the evidence was insufficient to sustain the charge of aiding and abetting, (2) the jury was improperly instructed on the presumption of intent, and (3) he is entitled to a new trial.

On November 27, 1982, around 5:00 p.m., the Kizer-Cummings Jewelry Store in Lawrence was robbed at gunpoint by two black males and a black female. The jewelry taken was stuffed into the female robber's purse. The female robber also carried a plastic trash bag containing a hard object which she used to try to break the glass on one of the jewelry cases. After the robbery a trash bag with a rock in it was found on the floor of the jewelry store.

While the robbery was in progress a police officer patrolling the downtown shopping area pulled into a parking lot located behind the jewelry store and several other businesses. He noticed a car backed into one of the parking stalls with the lights on and the engine running. The officer's car was marked only with a city seal on the side. Because the car in the parking lot matched the description of a car sought in connection with an earlier shoplifting incident, the officer blocked it in with his car and got out to investigate. A black male later identified as the appellant got out of the car on the driver's side and asked if anything was wrong. The officer was not sure whether the appellant had been in the front or back seat. When the officer advised the appellant the car was illegally parked, the appellant said he was there to pick up a package. The officer told the appellant not to leave the car parked that way for long and went to talk to another officer who had pulled into the parking lot. The officer then noticed the appellant walking in the alley behind the parking lot in the direction of the jewelry store. The officer estimated the car was parked 100 yards from the jewelry store. The car was parked facing the exit so it could be driven straight out of the parking lot onto the street. The officer thought the appellant appeared slightly nervous, but no more so than any person confronted by a police officer for parking illegally.

A few minutes later when the officer returned to police headquarters he heard the report of the robbery. A check of the parking lot behind the jewelry store confirmed that the illegally parked car was no longer there. A description of the vehicle and the four suspects was broadcast to other law enforcement personnel. Shortly thereafter, a highway patrol trooper spotted the getaway car coming from the direction of Lawrence on Highway K-10 in Johnson County. The patrolman followed the car for several minutes and, upon ascertaining that at least three black persons were riding in it, pulled the car over. The passengers were instructed to exit the car. The female passenger dropped her purse to the ground and it fell open, exposing numerous items of jewelry inside with price tags still attached. The four passengers of the car, including the appellant, were placed under arrest for aggravated robbery. When the car was later searched a large quantity of jewelry was found in a trash bag on the floorboard of the car. Price tags from the jewelry store were found strewn about the front of the car. A second trash bag with a rock in it was found on the floorboard behind the front seat. The appellant was sitting in the back seat when the car was stopped.

The appellant maintained he knew nothing about the robbery until the car was stopped and he was arrested. He told officers nothing was said by anyone in the car about a robbery, nor had he seen a gun or any stolen property which led him to believe a robbery had been committed. The appellant testified that the day before the robbery he had travelled to Kansas City from St. Louis, where he lived, to look for a job. The day of the robbery he was walking near Interstate 70 looking for a ride. Lawrence Lane stopped and offered to give him a ride back to St. Louis. Lane and the appellant were not personally acquainted, but knew members of each other's families. Lane was accompanied by his wife, Claudia, and her brother, Delvin Trotter. The three had travelled to Kansas City from St. Louis early the day of the robbery, ostensibly to check on a car. In Kansas City, Lane spotted the appellant walking along I-70. Lane stopped to talk to the appellant because he thought he knew him. Lane testified he told the appellant he would take him back to St. Louis, but first he had to pick up a package in Kansas, and the appellant could either go with them or they could pick him up on the way back to St. Louis. The appellant decided to go with them rather than wait.

The appellant testified he went to sleep in the car and did not wake up until they had arrived in Lawrence. After making a few stops to buy food and gas, Lane parked the car in the parking lot with the engine running and told the appellant to wait while he and the others went to pick up some packages. The appellant got out of the car when the police officer pulled up because he saw another marked police car also pull into the parking lot at about the same time and was curious about what was going on. He did not realize the first car that stopped was a police car until he saw the officer's uniform. After talking to the officer he walked into the alley behind the parking lot to see if he could find Lane or one of the others to tell them to move the car.

The three participants in the robbery all told the same basic story to police and at the appellant's trial. Lane maintained he alone planned the robbery and the other two did not know of his plans until they were walking to the jewelry store. Lane then forced his wife and brother-in-law to help him with the robbery. There was never any discussion concerning a robbery by the passengers in the car prior to when the car was stopped by police. Before the robbery Lane parked the car in the parking lot behind the jewelry store and told the appellant they were going to pick up some packages. He left the engine running because it was cold outside. When they returned to the car the appellant told them a police officer had said the car was illegally parked but did not issue a ticket or take down the license number. Lane said he did not tell the appellant what they were doing because it "wasn't none of his business." He also said he threw the gun out of the window after the robbery.

Various discrepancies in the stories told by the participants surfaced during trial. A detective who interviewed Lane after his arrest testified Lane told him that after arriving in Lawrence they drove around for a while looking at jewelry stores before determining Kizer-Cummings would be the best to rob. Claudia Lane told the detective...