State v. Evans
| Decision Date | 22 May 1992 |
| Docket Number | No. 66492,66492 |
| Citation | 251 Kan. 132,834 P.2d 335 |
| Parties | STATE of Kansas, Appellee, v. Joe EVANS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Following State v. Graham, 247 Kan. 388, Syl. p 5, 799 P.2d 1003 (1990).
2. Normally, the test of whether an instruction on a lesser included offense is required is whether there is any substantial evidence tending to prove that lesser included offense. A corollary to this rule is that an instruction on an included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense. In reviewing the evidence to determine whether a lesser included instruction should have been given, this court must review the evidence in a light most favorable to the defendant. Following State v. Perkins, 248 Kan. 760, Syl. p 11, 811 P.2d 1142 (1991).
3. A sentence imposed will not be disturbed on appeal if it is within the limits prescribed by law and the realm of trial court discretion and not a result of partiality, prejudice, oppression, or corrupt motive. Following State v. Nunn, 247 Kan. 576, Syl. p 1, 802 P.2d 547 (1990).
4. The record is examined and it is held that there is sufficient evidence to support convictions of aggravated kidnapping and aggravated robbery, and that the district court did not err in (1) admitting the photographic identification evidence, (2) refusing to instruct the jury on theft as a lesser included offense of aggravated robbery, and (3) sentencing the defendant.
Rebecca E. Woodman, Asst. Appellate Defender, argued the cause, and Kaye Messer, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were on the brief for appellant.
John J. Gillett, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.
This is a direct appeal by the defendant, Joe Evans, from his convictions of felony murder in violation of K.S.A.1991 Supp. 21-3401(b), aggravated kidnapping in violation of K.S.A. 21-3421, and aggravated robbery in violation of K.S.A. 21-3427. His sentence was enhanced under K.S.A. 1991 Supp. 21-4504, and he is serving consecutive terms of two life sentences for felony murder, two life sentences for aggravated kidnapping, and 30 years to life for aggravated robbery.
Haney Kenworthy, an 84-year-old widow, lived in an apartment in Neodesha, Kansas. The husband of one of Mrs. Kenworthy's nieces told defendant Joe Evans that he had seen Mrs. Kenworthy get money out of a metal box in her apartment and that he thought she had thousands of dollars. He also told Evans, who was his uncle, where Mrs. Kenworthy lived and that she lived alone. He gave the information to Evans in the hope of receiving something if Evans robbed her.
On March 8 or 9, 1990, Evans unsuccessfully tried to convince his son, Jeff Evans, to participate in robbing an "old lady." Evans unsuccessfully tried to recruit Don Wry, one of his sons-in-law, to help him rob Mrs. Kenworthy. Evans told Wry that he had posed as a census taker to check out the situation.
Then Evans unsuccessfully tried to recruit Don Wry's nephew, Richard Dickey. Evans told Dickey that they would tie up Mrs. Kenworthy, knock her in the head, and take her money.
Evans also unsuccessfully tried to recruit David Foster, a lifelong acquaintance. Evans told Foster that Mrs. Kenworthy had more money than she needed, that they would go into her house, tie her up with pantyhose or hose, "thump her in the head and take care of business."
Evans returned to his son Jeff. He offered to help Jeff get a car and $5,000 if he would help rob Mrs. Kenworthy. Jeff said he would help.
The next morning, March 15, they drove from Jeff's trailer in Springdale, Arkansas, to Evans' trailer in Independence, and then drove on to Neodesha. On the way, Evans told Jeff to get a small weighted bat, called a "Fishing Knocker" or "Fishing Whacker," out of the pocket of a coat which was lying on the floorboard. Evans showed Jeff how to use the bat and told him to hit Mrs. Kenworthy on the side of the head. Evans said they would hit her on the side of the head, tie her up, take the money, and leave.
When they got to Mrs. Kenworthy's apartment, she was not at home. They drove back to Independence because Evans did not want to burglarize the apartment.
At mid-day they returned to Neodesha and to Mrs. Kenworthy's apartment. Evans told her that he needed to ask her some more census questions and that Jeff was a trainee; she let both men into the apartment.
When Evans gave the signal, Jeff hit Mrs. Kenworthy on the side of her head. He hit her three times before she fell down on the couch. When Evans began to tie her up, he told Jeff to go into the bedroom to find the money. While Jeff was looking, Evans came into the bedroom, took some money out of a purse he found under the bed, and said, "Let's go."
As they were leaving, Jeff noticed that Mrs. Kenworthy had been tied up and was not lying in the position she had been in when he went into the bedroom. Earlier she had been up on the couch with her legs at one end and her head at the center. As they were leaving, her knees were down on the floor.
On the drive back to Independence, Evans asked if Jeff thought they had killed Mrs. Kenworthy. Jeff did not think they had killed her because she was still moving around when he went into the bedroom and because she was fighting Evans while he was trying to tie her up.
Evans and Jeff threw a clipboard and the bat out of the car as they drove. They counted the money and found that there was $920. Evans gave Jeff $300 and kept the rest.
They stopped briefly in Independence before driving to Bartlesville, Oklahoma, where they made some purchases at the Dock 44 store, then drove to Tulsa where they ate at a restaurant and stopped at several other stores before returning to Jeff's trailer in Springdale, Arkansas.
The first issue asserted by the defendant on appeal is whether there was sufficient evidence to allow a rational trier of fact to have found the defendant guilty beyond a reasonable doubt. Evans contends that aggravated kidnapping requires a live victim and that the evidence shows that Mrs. Kenworthy was not alive when he committed the acts which constitute the crime of aggravated kidnapping. The State does not dispute that aggravated kidnapping requires a live victim, but the State argues that there is sufficient competent evidence from which the jury could find that Mrs Kenworthy was alive as she was being bound and gagged.
In support of the proposition that aggravated kidnapping, as a matter of law, requires a live victim, Evans relies on State v. Perkins, 248 Kan. 760, 811 P.2d 1142 (1991), and State v. William, 248 Kan. 389, 807 P.2d 1292 (1991).
In Perkins, the court referred to the discussion in William as follows:
The court offered this further explanation why rape requires a live victim:
Following the rationale of Perkins, we conclude that the charge of aggravated kidnapping in this case required a live victim. "Person," as used in 21-3421 implies a living person, and the circumstances when a kidnapping occurs require that the victim be living when the acts constituting the crime take place.
With regard to the sufficiency of the evidence, this court recently stated:
"When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Graham, 247 Kan. 388, Syl. p 5, 799 P.2d 1003 (1990).
Evans concedes that Jeff testified that Mrs. Kenworthy "was scratching [Evans] and fighting him when he was trying to tie her up." He argues, however, that the medical evidence establishes that her death occurred while Jeff was hitting her and before Evans touched her.
The medical testimony was given by Dr. David DeJong, who performed an autopsy on Mrs. Kenworthy. She had considerable bruising and swelling on the right side of her head, including the ear and eye. Her skull was broken on the right side. Most of the injuries to the brain were located in this area. They were injuries which might cause unconsciousness, but would not be expected to cause death within a matter of minutes or even in several hours.
She had a large laceration consistent with a blow from a blunt object on the back of her head and a similar but smaller laceration high on the right side of her head. There was very little blood associated with these lacerations.
A "very...
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