State v. Clingerman, 47092
| Decision Date | 08 December 1973 |
| Docket Number | No. 47092,47092 |
| Citation | 213 Kan. 525,516 P.2d 1022 |
| Parties | STATE of Kansas, Appellee, v. Vernon L. CLINGERMAN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where the question of the identity of a defendant on trial is raised with respect to prior convictions of similar offenses the state may offer evidence to show the defendant is the same person who was previously convicted.
2. K.S.A. 60-455 expressly excludes evidence of prior crime if its only purpose is to show a disposition to commit crime, i. e., inclination, attitude or tendency.
3. The word 'feloniously' appearing in the statute (K.S.A. 21-527) in a legal sense refers to the doing of the act with a deliberate intent to commit a crime which crime is of the grade or quality of a felony.
4. Where intent is a required element of the crime it must be included in the charge and in the instructions of the court covering the separate elements of that particular crime.
5. The record on appeal from a conviction of robbery is examined and it is held, (1) evidence of a prior crime was improperly admitted and (2) the court failed to properly instruct on all elements of the crime.
Thomas H. Bornholdt of Cooke, North, Crossette & Dickson, Prairie Village, argued the cause and was on the brief for appellant.
J. J. B. Wigglesworth, Asst. Dist. Atty., argued the cause, and Margaret Jordan, Dist. Atty., was with him on the brief for appellee.
Vernon L. Clingerman was charged and convicted of first degree robbery (K.S.A 21-527). This is a direct appeal from the judgment and sentence. No question is raised on appeal as to the sufficiency of the evidence. Only a brief summary of facts will be necessary to discuss the points raised.
The victim of the robbery was William Berg, a truck driver who testified at the trial. The crime was committed on August 9, 1969. That date is important as it fixes the charge under K.S.A. 21-527, rather than the new Kansas Criminal Code effective July 1, 1970. Berg testified he was driving to the bus station in Kansas City when he picked up an acquaintance named Eddy Lane. After riding around for a while they saw the appellant, Clingerman, and a girl by the name of Susan who were friends of Lane. Clingerman and Susan got into the car with Berg and Lane and they drove to Berg's motel room. At the suggestion of Lane, Berg and the girl got undressed and into bed. Shortly thereafter according to some undisclosed plan Berg was forcibly taken from the motel room by his 'friends', who made use of his car and his gun. They drove Berg to Johnson County, took his money and billfold, forced him out of his car and shot him. Berg recovered and testified that Clingerman not only held the gun at the base of his skull during the drive but also robbed and shot him after they arrived at a lonely spot in Johnson County.
During the trial the state introduced evidence of a prior crime which Clingerman was alleged to have committed in Missouri. This is the basis for the first point of error to be considered on appeal. Before introducing an authenticated copy of this prior conviction the state called as a witness an assistant prosecutor from Missouri who had handled the case. Clingerman pled guilty in Missouri to assaulting a woman with intent to rob. It appears from the evidence that Clingerman followed the woman to her home and when the door was unlocked he demanded money from her under the threat of a knife. The woman's husband was at home. The husband disarmed Clingerman and held him for the Missouri police.
Clingerman first objects to the admission in evidence of the authenticated copy of the prior conviction because that conviction was under the name of Jesse L. Clingerman. He insists the extraneous evidence introduced was insufficient to identify him as the person convicted in Missouri. We do not agree.
Where the question of the identity of a defendant on trial is raised with respect to prior convictions of similar offenses the state may offer evidence to show the defendant is the same person who was previously convicted. (See State v. Cippola, 202 Kan. 624, 629, 630, 451 P.2d 199, cert. den. 396 U.S. 967, 90 S.Ct. 446, 24 L.Ed.2d 432.) This was done in the present case.
Before this prior conviction was introduced the assistant prosecutor from Missouri testified that he was present when the plea was entered and he was reasonably certain that the defendant was the same person who pled guilty in Missouri. He further testified that his files indicated that the defendant in the Missouri case was known by various other names including that of Vernon L. Clingerman. This was sufficient competent evidence to sustain the state's burden of proof as to identity.
Defendant next objects to this evidence on the ground that it was not relevant. To be admissible under K.S.A. 60-455 evidence of a prior conviction must be relevant to prove one or more of the material factors of proof specified in the statute. There are eight of them listed, i. e., (1) motive, (2) opportunity, (3) intent, (4) preparation, (5) plan, (6) knowledge, (7) identity and (5) absence of mistake or accident.
In State v. Jenkins, 203 Kan. 354, 454 P.2d 496, it is held:
'The purposes for which evidence of previous offenses may be considered are defined by K.S.A. 60-455 and a trial court should limit its instructions thereon to the purposes set out in the statute or analogous purposes.' (Syl. #e3.)
Evidence of prior crimes cannot be used under K.S.A. 60-455 to establish 'inclination', 'attitude', or 'tendencies'. The statute does not include these within the eight possible factors of proof. K.S.A 60-455 expressly excludes evidence of prior crime if its only purpose is to show a disposition to commit crime, i. e., inclination, attitude, or tendency.
In State v. O'Neal, 204 Kan. 226, 461 P.2d 801, it is pointed out:
In the present case it does not appear that the facts of the prior crime were pertinent to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident with respect to the present charge. When the authenticated copy of the prior conviction was offered the state said:
(Emphasis added.)
The court apparently admitted the same under the theory it tended to prove all eight factors. Rarely are all eight of these factors issues in a single case. The necessary limiting instruction given by the court followed the wording of the statute and advised the jury to consider the evidence of the prior crime as relevant to prove all eight statutory factors as bearing on defendant's guilt. We can find no similarities in the facts of the Missouri case which would appear to be relevant to prove any of the eight statutory factors of proof in our present case. On the basis of the record before us we must conclude that the prior conviction only tended to prove disposition to commit crime and it should not have been admitted in evidence in the present case. Its relevancy is questionable, its probative worth as to any of the eight statutory factors of proof is highly suspect, its prejudicial impact seems out of proportion to its probative value and confusion from proof of the prior crime may reasonably have resulted in prejudice to the defendant. (See State v. Motley, 199 Kan. 335, 430 P.2d 264.)
When the trial court admitted evidence of this prior crime to prove all eight of the statutory factors of proof without considering how and in what way they might be relevant to prove the crime charged it abused its judicial discretion. The case must therefore be reversed and remanded for a new trial.
In addition the appellant, Clingerman, calls this court's attention to another prejudicial trial error which must result in a reversal. The trial court failed to instruct the juty on felonious intent, one of the necessary elements of robbery as set forth in K.S.A. 21-527.
The crime of robbery as defined in the statute is as follows:
'Every person who shall be convicted of feloniously taking the property of another from his person or in his presence, and against his will, by violence to his person or by putting him in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.' (21-527, supra.)
The instruction as to the elements of the crime given by the court reads:
It is stipulated on appeal that no other instruction relative to intent was submitted to the jury with regard to the crime of robbery. The state refers us to the instruction given on the presumption of intent, a rule of evidence, which is as follows:
This presumption is merely a rule of evidence and the instruction does not purport to require the jury to...
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