State v. Goering

• Court: Kansas Supreme Court
• Writing for the Court: MILLER
• Citation: State v. Goering, 594 P.2d 194, 225 Kan. 755 (Kan. 1979)
• Decision Date: 05 May 1979
• Docket Number: No. 50098,50098
• Parties: STATE of Kansas, Appellee, v. Sandra J. GOERING, Appellant.

Page 194

594 P.2d 194

225 Kan. 755

STATE of Kansas, Appellee, v. Sandra J. GOERING, Appellant.

No. 50098.

Supreme Court of Kansas.

May 5, 1979.

Syllabus by the Court

1. A person is criminally responsible for a crime committed by others if that person intentionally aids and abets the others in the commission of the crime.

2. The element of intent necessary in aiding and abetting may be inferred from circumstantial evidence.

3. On appellate review, the question is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form a basis for a reasonable inference of guilt on all elements of the crime.

4. A person who aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.

5. Whether to grant a new trial is a matter of discretion, and a trial court's decision in the matter will not be disturbed except by a showing that the discretion was abused.

6. Even though verdicts may appear irreconcilable, a conviction will not be reversed on the ground of inconsistency.

7. A defendant, who claims that he has been prejudiced by pretrial publicity, has the burden of demonstrating that prejudice. Media news releases do not per se establish prejudice against a defendant.

8. A sentence which is within the statutory limits as set forth by the legislature will not be disturbed on appeal in the absence of special circumstances showing an abuse of discretion.

9. The discretion in imposing sentences which is lodged with a court is not a boundless, but a judicial, discretion. It is a discretion limited to sound judgment to be exercised, not arbitrarily, but with regard to what is right and equitable under the circumstances and the law.

10. Under the particular facts and circumstances of this case, the imposition of six consecutive sentences upon the defendant, who was the driver of the getaway car, and who had no prior criminal record, though within the limits of the statutes, constituted an abuse of judicial discretion, and such sentence is set aside, and the case is remanded with directions that the defendant be re-sentenced.

John F. Jones II, of the Law Offices of John F. Jones II, Newton, argued the cause and was on the brief for the appellant.

James W. Modrall, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for the appellee.

MILLER, Justice:

A jury convicted Sandra Goering of the aggravated kidnapping of Judd Durner (K.S.A. 21-3421); the kidnapping of Rosetta Durner (K.S.A. 21-3420); the aggravated robbery of Judd Durner (K.S.A. 21-3427); burglary of the State Bank of Burrton (K.S.A. 21-3715); the attempted murder of Judd Durner (K.S.A. 21-3301, 21-3401); and the attempted murder of Rosetta Durner (K.S.A. 21-3301, 21-3401). Following sentencing, and the overruling of her post-trial motions, the defendant appeals, contending that the evidence was insufficient to sustain a conviction of the crimes charged, and that the court erred in its instructions, in failing to grant a new trial, in admitting certain exhibits, and in imposing maximum consecutive sentences.

All of the charges arose out of an attempt to rob the State Bank of Burrton, Kansas, on September 17, 1974. Very early that morning, Charles Thach, James Keener, and the defendant, Sandra Goering, drove from Wichita to Burrton, and proceeded to the home of Mr. and Mrs. Judd Durner. Mr. Durner was cashier and managing officer of the bank. Mr. and Mrs. Durner were asleep until Thach rang their doorbell; Mr. Durner came to the door. Thach stated that he had car trouble, and he asked to use the telephone. Upon entering the home, he drew a handgun from behind his back and pointed it at Mr. Durner. Keener, armed with a sawed-off shotgun, entered the home shortly thereafter. Thach and Keener announced that they intended to rob the bank. Durner advised them that all money, except coins, was under a time lock, and that it could not be opened until later that morning. The defendant initially remained outside in the car. Thach went out to get her; he returned alone and said that she was asleep and would not come in. Later, Keener went out and roused the defendant, and she came into the Durner home. She was unarmed. She stood near the door and could see that both Thach and Keener were pointing firearms at Mr. and Mrs. Durner. Thach, Keener and Goering then discussed changing their plan; they would wait until the time lock went off, in order to take the currency. They decided to have Goering take their car out in the country so that the car would not attract attention in town. Thach took Mr. Durner's car keys, and Goering and Thach left. Goering drove Thach's car, and Thach followed in Durner's vehicle. Goering parked out in the country, and remained there in the car; Thach returned to the Durner residence.

Thach, Keener, and the Durners then drove to the bank. Thach and Mr. Durner got out of the car, and Keener said to Thach: "If she comes back without me, the first thing you do is kill him." Thach and Mr. Durner then entered the bank, while Keener drove Mrs. Durner out into the country. Mrs. Durner complained of feeling ill. She got out of the car, flagged down a passing motorist, LaVerne Schrag, and jumped into his car. A high-speed chase followed. Keener fired a shotgun blast at Schrag and Mrs. Durner, but fortunately neither were hit. Schrag finally was able to elude Keener, and he and Mrs. Durner escaped unharmed.

Judd Durner was not so fortunate. Keener returned to the bank and told Thach of Mrs. Durner's escape; the two decided to take some sacks of coins, abandon the currency which was still under time lock, kill Mr. Durner, and leave. Mr. Durner quickly moved into the vault and attempted to close the door, but before the door could close, the shotgun was fired and Durner was seriously injured. Thach and Keener then left the bank, rejoined the defendant at the Thach automobile out in the country, and returned to Wichita.

Defendant first contends that it was error for the trial court to overrule her motions for judgment of acquittal made at the close of the state's evidence, and at the close of all of the evidence, for the reason that the evidence introduced was insufficient to sustain a conviction of the crimes charged. We set forth the rule for the determination of a motion for judgment of acquittal in State v. White & Stewart, 225 Kan. 87, Syl. P 13, 587 P.2d 1259 (1978), as follows:

"A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion."

It is obvious that the defendant was convicted as an aider or abettor under K.S.A. 21-3205. That statute provides in part:

"(1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.

"(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by him as a probable consequence of committing or attempting to commit the crime intended."

A person is criminally responsible for a crime committed by others if that person Intentionally aids and abets the others in the commission of the crime. K.S.A. 21-3205; State v. Edwards, 209 Kan. 681, 498 P.2d 48 (1972). The element of intent necessary in aiding and abetting may be inferred from circumstantial evidence. In light of the evidence disclosed by the record before us, the jury could well have found that the defendant, knowing of the robbery and murder plans, participated in the scheme as a driver, since she drove, positioned, and stayed in the getaway car until her confederates were ready to leave the area. We hold that the evidence was sufficient to warrant the trial judge's conclusion that a reasonable mind might fairly conclude beyond a reasonable doubt that the defendant was a knowing, voluntary, and intentional participant in the criminal act. On appellate review, the question is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form a basis for a reasonable inference of guilt on all elements of the crime. State v. Racey, 225 Kan. 404, 590 P.2d 1064 (1979). The evidence in the case before us fully justified the trial judge's submitting the case to the jury.

Defendant next contends that the trial court erred in instructing the jury on aiding and abetting, since the defendant was charged only as a principal. These were the only instructions to which objection was made at trial; there, counsel stated:

"(T)he facts and evidence before the Court and jury do not justify the submission of those Instructions at the present time."

We determined this issue adversely to appellant's contention in State v. Smolin, 221 Kan. 149, 557 P.2d 1241 (1976). We said:

"By statute and case law this jurisdiction has long held that any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal. . . . Moreover, defendant's argument that she should have been charged in the information with aiding and abetting the aggravated battery rather than with the substantive offense has been rejected by this court." (p. 152, 557 P.2d p. 1245.)

In the case at hand, the defendant was properly charged as a principal, the evidence was sufficient to justify the instructions given, and ...