State v. Edwards

• Decision Date: 27 June 2014
• Docket Number: No. 106,299.,106,299.
• Citation: 299 Kan. 1008,327 P.3d 469
• Parties: STATE of Kansas, Appellee, v. Bobby D. EDWARDS, Appellant.
• Court: Kansas Supreme Court

299 Kan. 1008

327 P.3d 469

STATE of Kansas, Appellee,

v.Bobby D. EDWARDS, Appellant.

No. 106,299.

Supreme Court of Kansas.

June 27, 2014.

Syllabus by the Court

1. Theft is a lesser included offense of robbery.

2. According to the plain language of K.S.A. 21–3426, robbery and aggravated robbery are general intent, not specific intent crimes. In order to prove the elements of the crimes, the State need only prove that a defendant took property from the person or presence of another by force or by threat of bodily harm to any person. To the extent that State v. Montgomery, 26 Kan.App.2d 346, 988 P.2d 258 (1999), is inconsistent with this legislative mandate, it is disapproved.

3. The State is not required to provide advance notice of expert witnesses called for the purpose of rebutting expert witnesses called for the defense.

4. The rules of K.S.A. 60–226, relating to notice for parties introducing the testimony of expert witnesses, do not govern in criminal proceedings.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause, and Shawn E. Minihan, of the same office, was with her on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by ROSEN, J.:

Bobby Edwards seeks review of the Court of Appeals published decision affirming his conviction of aggravated robbery. We agree with the Court of Appeals and affirm.

On the evening of September 15, 2008, Wichita police received a report that Edwards was stumbling around in the streets and had punched out a store window. When police arrived, Edwards was trying to pull down street signs and was making obscene gestures at cars. Around 10 p.m., Edwards was escorted to Via Christi Hospital, where his blood alcohol content was tested at .375. Edwards fought with and spat on the medical staff, who finally administered two 2.5–milligram injections of Haldol in order to sedate him. Edwards calmed down and went to sleep, and the staff removed restraints that they had placed on him. He woke up around 4:30 in the morning, and the staff noticed that his speech was slurred, so they allowed him to sleep longer. Around 6:30 that same morning, he woke up again. The hospital staff observed that he was walking steadily and was talking without slurred speech. The staff deemed him clinically sober and released him, still wearing hospital scrubs.

Kristie Zenner was living at the time in a townhouse in Wichita, with her boyfriend and her 6–year–old son. On the morning of September 16, 2008, Zenner remained in bed while her boyfriend got ready to leave for work, and she heard him leave around 7:30. A few minutes later, she heard a knock at the back door, and, still in her pajamas and assuming that it was her boyfriend who had left without his keys, she went downstairs to let him back in.

When she opened the door, Zenner realized that it was Edwards, not her boyfriend, who had been knocking. Although she did not know him by name, she recognized Edwards as a neighbor who lived in the apartment to the north of hers and as someone whom she had previously allowed to use her cell phone. On that occasion, he had stood outside the door, made his phone call, and returned the phone without incident.

Edwards asked if he could use her phone again. Zenner pushed the front door shut and walked into her living room to retrieve her phone from the couch. When she turned around, she discovered Edwards immediately behind her. She handed him the phone and told him he was welcome to use it but he had to go outside to do so. Edwards took the phone and put it in the pocket of the scrubs that he was wearing.

Edwards then looked over at a nearby table and saw a hammer that Zenner had been using to take down pictures. He picked up the hammer, pushed Zenner into a chair behind her, and swung the hammer so that the flat end hit her on the head. The hammer flew out of his hand, and he began looking for it. While Edwards searched for the hammer, Zenner struggled to get away but Edwards held her in a chokehold. Zenner took advantage of her martial arts training and the fact that her head was slippery with blood from the hammer blow and was able to free herself from his grip.

Zenner noticed that her phone was lying on the chair, having apparently fallen out of Edwards' pocket during the attack. She grabbed the phone and attempted to call 911, but Edwards wrestled the phone away from her before she was able to complete the call.

As the attack was taking place, Zenner repeatedly shouted, “Rape!” Edwards told her that he was not going to rape her and that he was looking for the hammer so that he could take his “evidence” and leave. Edwards also asked who was in the house with Zenner. She initially declined to tell him but eventually mentioned that her 6–year–old son was upstairs.

As the confrontation continued, Edwards asked if Zenner could take him somewhere. Realizing that she was bleeding from her head wound, Zenner declined, saying that she needed her keys to drive for medical attention. Edwards then asked her whether she would not even give him the keys to save her life. She decided at that time to give him the keys and tried to go upstairs to put on her clothes.

As she tried to go upstairs, Edwards found the hammer in a vase. He struck her on the head a second time, knocking her back into the chair. Zenner attempted to kick him in the groin several times, but she did not succeed in incapacitating him. Edwards swung a third time, and Zenner blocked the blow, causing Edwards to lose his balance and let the hammer fall into her lap. She grabbed the head of the hammer, while Edwards grabbed the handle.

As the two struggled, Zenner told Edwards that he could leave the townhouse and take her phone and hammer with him. During the entire incident, Edwards spoke clearly. He did not slur his words, and he articulated ideas coherently. He did not stagger or shake or give any evidence of tremors. When Zenner's son began to cry, Edwards agreed to leave. Zenner and Edwards walked to the front door, each maintaining a grip on the hammer. After Edwards left through the door, Zenner let go of the hammer and shut and locked the door behind him.

At Zenner's request, a neighbor called the police. While Zenner and the neighbor waited for the police to arrive, Edwards returned to Zenner's door and requested that she allow him back in the house to retrieve a bag that he had left behind. She refused and told him that the police were on the way and it would be best if he left the scene.

After the police arrived, they discovered Zenner's phone with blood on it inside a nearby apartment door. In Zenner's townhouse they found a plastic bag that contained Edwards' wallet and hospital papers.

The State charged Edwards with one count of aggravated burglary; one count of aggravated robbery, based on the taking of the cell phone and the hammer; and one count of attempted first-degree murder, based on the repeated blows to Zenner's head. Two weeks later, Edwards was taken into custody in Tulsa, Oklahoma.

At his first trial, a jury acquitted Edwards of aggravated burglary and attempted first-degree murder. The jury was unable to reach a verdict on the charge of aggravated robbery, and the district court declared a mistrial on that count. During Edwards' second trial, the district court declared a mistrial because a witness improperly testified about prior violent conduct that she had observed Edwards engage in.

At his third trial, a jury found Edwards guilty of aggravated robbery. The district court sentenced Edwards to a high-end guidelines sentence of 247 months' imprisonment. The Court of Appeals affirmed the conviction in State v. Edwards, 48 Kan.App.2d 383, 290 P.3d 661 (2012), and Edwards petitioned for review before this court.

The opinion by the Court of Appeals is thorough and analytically sound. Although we granted review with respect to all issues, this opinion will focus on two questions that are matters of first impression before this court.

We initially consider whether taking Zenner's telephone and hammer were incidental to battery and were therefore insufficient to support a conviction for robbery. Edwards contends that he did not form the specific intent to deprive Zenner of those items and that he merely obtained control over those objects in the course of carrying out some other objective, such as attacking her in her home. In support of this argument, Edwards points to State v. Montgomery, 26 Kan.App.2d 346, 988 P.2d 258 (1999).

In Montgomery, the Court of Appeals considered a conviction after the defendant attempted to carry out a rape and, during the course of the attack, removed the victim's glasses in an apparent effort to make it more difficult for her to identify him. The defendant eventually discarded her glasses. He was charged with and convicted of attempted rape and aggravated robbery.

On appeal, the court concluded that the taking of the victim's glasses was “incidental” to the crime of attempted rape. Because theft is a lesser included offense of robbery and theft is a specific intent crime, the court read into the robbery statute a requirement of specific intent and determined that the defendant lacked the necessary intent to deprive the victim permanently of her property. In reversing the conviction of aggravated robbery, the court established a precedent that the mere incidental taking of property during the commission of another crime does not meet the “taking” element of robbery. Montgomery, 26 Kan.App.2d at 350, 988 P.2d 258.

Before considering the continuing viability of the Montgomery opinion, we note initially that its underlying theory does not fit the facts of the present case. In Montgomery, the defendant removed the victim's glasses in an effort to help him evade...