State v. Carter

• Decision Date: 12 June 1976
• Docket Number: No. 47921,47921
• Citation: 551 P.2d 821,220 Kan. 16
• Parties: STATE of Kansas, Appellee, v. Gilbert M. CARTER, Appellant.
• Court: Kansas Supreme Court

Page 821

551 P.2d 821

220 Kan. 16

STATE of Kansas, Appellee, v. Gilbert M. CARTER, Appellant.

No. 47921.

Supreme Court of Kansas.

June 12, 1976.

Syllabus by the Court

1. It is fundamental that a litigant who invites and leads a trial court into error will not be heard on appeal to complain of that action.

2. A judgment or verdict will not be reversed or set aside by reason of erroneous admission of evidence unless the party objecting to its admission interposes a timely objection which makes clear the specific grounds therefor.

3. Generally the remoteness in time of a prior conviction, if otherwise admissible, affects the weight of the prior conviction rather than its admissibility.

4. On appellate review of a criminal case this court will not overturn the decision of the jury if there is substantial evidence, even though entirely circumstantial from which a reasonable inference of guilt could be drawn.

5. Before it can be said that an accused has been denied his constitutional right to counsel it must clearly appear that the representation afforded him was wholly ineffective and inadequate.

6. When a verdict is challenged on appeal for insufficiency of the evidence in a criminal case, the issue is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence, when viewed in the light most favorable to the state, is sufficient to form the basis for a reasonable inference of guilt.

Michael D. Gragert, Wood & Gragert, Wichita, argued the cause and was on the brief for appellant.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Clifford L. Bertholf, Asst. Dist. Atty., were with him on the brief for appellee.

KAUL, Justice:

Defendant-appellant (Gilbert M. Carter) appeals from jury convictions on two counts of felony theft. (K.S.A. 21-3701(a).) His principal contentions on appeal concern the admission into evidence of a prior theft conviction and a subsequent similar offense for which no conviction had been obtained. Defendant also claims error in the limiting instruction submitted by the court in connection with K.S.A. 60-455.

In the first count of the information defendant was charged with taking $600 in cash and $381 in credit card receipts from Jim's Auto Service in Wichita. In the second count defendant was charged with the theft of $300 in cash from Western Auto Store No. 7 in Wichita.

The state's evidence on count No. 1 consisted primarily of the testimony of Jim Hying, manager of the Apco Service Station, and Brian Hooks, an employee.

On the morning of June 27, 1973, Mr. Hying finished adding up the station's previous day's receipts around 9:40 a.m. He put the day's receipts in a bank pouch and placed the pouch in his desk drawer which he believed was locked. He then left the station to drive a customer home. Shortly thereafter two of the three remaining employees left the station on errands, leaving Hooks working alone.

Shortly before 10:00 a.m. Hooks went out to the station driveway to wait on a customer. While doing so, he testified he saw the defendant walking toward the station building. After he finished with the customer, and was returning to the building, Hooks passed the defendant who was leaving the station wearing an overcoat that came below the knees. Hying testified he returned to the station around 10:05 a.m. and discovered the bank pouch containing approximately $981 in currency was missing from his desk.

Mr. Hying further testified that sometime during the previous month a customer had informed him that a man had been in his office. After being informed Hying immediately returned and checked his desk drawer, but the money pouch had not been taken. Hying testified the man who was pointed out to him by the customer as having been in his office was the defendant. He further testified he later observed this same man on June 29, 1973, near a nearby Western Auto store and subsequently identified his picture as that of the man near the store on that date.

The Western Auto store theft charged against defendant in count No. 2 occurred on June 29, 1973, two days after the service station theft. It appears the Western Auto store was within one block of the service station. Defendant admitted he lived near the vicinity of both alleged crimes. About 9:00 a.m. on June 29, Wayne Hastings, the manager of the Western Auto store, place $370 in currency in an office drawer. Shortly thereafter the store opened and a man, subsequently identified as the defendant, approached Hastings concerning a merchandise exchange. Hastings referred defendant to Ben Mader, an employee. Mader went into the store office to get a refund slip since a one-dollar credit was due the defendant. Defendant followed Mader into the office. At this point, defendant told Mader he did not have a sales receipt for his merchandise, so Mader left defendant in the office while he went to confer with the manager. Mader located Hastings, waited ten or fifteen seconds for the latter to finish with a customer, and began to explain the situation to him. At this point, defendant walked up to Hatings and Mader. Mr. Hastings explained to defendant that a sales receipt was needed unless the exchange was a straight swap of merchandise. Defendant then left the store. A few minutes later, when another customer sought change for a twenty-dollar bill, Hastings went to the office drawer and discovered the money was missing.

At trial, in the course of the state's presentation of its case in chief, it offered evidence of a prior similar offense for which defendant was convicted. The information in this prior offense was filed July 24, 1967, charging defendant with grand larceny in the amount of $78 in currency and bank checks which were stolen from Alice H. Christopher at the Phyllis Wheatley Children's home in Wichita on June 2, 1967. The journal entry of judgment was filed on December 7, 1967, and showed defendant's plea of guilty to the charge and subsequent probation.

Before the information and journal entry of judgment, evidencing defendant's 1967 conviction, were offered the trial court held a hearing outside the jury's presence. At the hearing Alice Christopher and her secretary, Loretta Harris, testified in detail concerning the facts underlying the charge and conviction. Mrs. Christopher testified that she knew the defendant and that while working at the Wheatley home on June 2, 1967, she left her purse in her office during the noon hour and returned to find the money missing from it. Mrs. Harris testified that she saw defendant leaving Mrs. Christopher's office, while Mrs. Christopher was at lunch, and that she (Mrs. Harris) questioned defendant and defendant told her his name was Johnson.

Defendant objected to the introduction of the information and journal entry on the ground of remoteness. His counsel, Mr. Lewis, argued:

'. . . This has been some seven years ago and we argue that it is too remote in time to have any probative emphasis or value in this particular proceeding. Now if it were seven months ago, or even as late as a year ago, but not seven years ago. It is too remote in time to make it evidentiary.'

Defendant also strenuously objected to the admission of the testimony of Mrs. Christopher and Mrs. Harris concerning the circumstances of the offense. The trial court sustained defendant's objection to the testimony of Mrs. Christopher and Mrs. Harris, but did permit the introduction of the information and journal entry.

Later in the state's case in chief, the court permitted the state to introduce the testimony of Bill Sturn and Richard Fife concerning an incident that occurred on August 8, 1973, in Winfield. On that date Sturn was the manager and Fife an employee of a service station in Winfield. Fife testified that he saw defendant drive by the station while Sturn was preparing a bank deposit at his desk in the station. Defendant made a U-turn and drove into the station driveway. Defendant entered the station office and sat at Sturn's desk examining a road map while Fife put some gasoline in his automobile and checked the oil. At this time everyone had left the station, including Sturn and the defendant. Fife further testified that about five minutes later two ladies came to the station and were then followed by the defendant who returned and asked for $2.00 worth of gasoline.

Sturn testified that while he was working on his bank receipts in the morning he saw defendant drive up in a red Cadillac convertible; that Sturn put the money in his desk drawer, which he locked, and went out to wait on customers, including the defendant. Defendant went into the station as Sturn was leaving and asked if he could use the telephone. Sturn further testified that while he was working on an automobile defendant was sitting on the desk looking at a road map; and that when he (Sturn) came back into the station the defendant asked him how to get to Neodesha. After collecting $2.00 from defendant for gasoline, Sturn left the station on an errand. When he returned to the station to go to the bank and make a deposit he discovered the currency was missing and called the police. At the conclusion of the testimony of Sturn and Fife defendant's counsel moved to strike their testimony on the grounds that it was collateral and prejudicial and asked the court to declare a mistrial. The motion was overruled and the court indicated that it was going to advise the jury of the circumstances and that it was going to use all of the elements (60-455) because the court said the testimony puts the 'whole ball' into this lawsuit and that it was going to explain how the jury should consider the testimony at this time.

The state objected to an instruction which included all of the elements of 60-455 and stated its position to be that the testimony of Sturn and Fife would only go to prove the elements of plan and identity. The court...