State v. Gomez

• Decision Date: 02 December 1983
• Docket Number: No. 55443,55443
• Citation: 234 Kan. 447,673 P.2d 1160
• Parties: STATE of Kansas, Appellee, v. Anastacio Burtos GOMEZ, Appellant.
• Court: Kansas Supreme Court

Page 1160

673 P.2d 1160

234 Kan. 447

STATE of Kansas, Appellee, v. Anastacio Burtos GOMEZ, Appellant.

No. 55443.

Supreme Court of Kansas.

Dec. 2, 1983.

Syllabus by the Court

1. A penny, as well as a pound, forcibly extorted constitutes a robbery, the gist of the offense being the force and terror.

2. The principal feature of robbery is not the value of the property taken, but the force or threat of bodily harm by which the taking is accomplished.

3. In an appeal from a conviction of aggravated robbery, the record is examined and it is held that the trial court did not err in taking judicial notice that the items taken constituted property; that an item need not have intrinsic value to constitute "property" under the robbery statutes; that the trial court properly foreclosed argument to the jury that the item taken was not property because it had no intrinsic value; that evidence of a confederate's action was properly admitted in evidence; and that the robbery statutes, K.S.A. 21-3426 and -3427, are not unconstitutionally vague.

Kenton D. Wirth, Wichita, argued the cause and was on brief, for appellant.

Dell Marie Shanahan, legal intern, argued the cause, and Geary N. Gorup, Asst. Dist. Atty., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on brief, for appellee.

MILLER, Justice:

Anastacio Burtos Gomez appeals from his conviction by a jury in Sedgwick County District Court of aggravated robbery, K.S.A. 21-3427. He contends that the trial court erred in ruling that the bill taken from the victim's wallet was "property" as a matter of law, in refusing to instruct the jury on the statutory definition of property, in refusing to instruct on the lesser included offense of robbery, and in admitting evidence of the actions of his confederate. Finally, he claims that the statutory definitions of robbery and aggravated robbery are unconstitutionally vague and violate due process because the term "bodily harm" is undefined.

On the night of June 15, 1982, James Phillips was asleep in a car outside of the Eaton Tap Room in Wichita, Kansas. He was rudely awakened when the car doors were suddenly opened. He faced two men armed with knives, defendant Gomez entering on the driver's side and Carlos Morales on the passenger side. They sprayed mace into the car, took a bill from the victim's wallet and an opened package of Marlboro cigarettes from the dashboard, and left on foot. Phillips dashed into the tavern and sounded the alarm. Both robbers were quickly captured. Gomez had the bill taken from the victim's wallet, and Morales had what appeared to be the victim's cigarettes. Later, Gomez' thumbprint was found on the door handle of the car in which Phillips had been sleeping.

The bill taken from the victim's wallet was easily identified. It was not U.S. currency, but "funny money"--a $180 bill. Its four quadrants showed denominations of $100, $50, $20 and $10.

Over defendant's objection, the trial judge ruled that the $180 bill was "property" as a matter of law. The judge refused to give the jury the statutory definition of property contained in K.S.A. 21-3110(16), and he refused to give the jury an instruction proposed by the defendant, requiring the jury to find that items taken in a robbery must have intrinsic value in order to constitute "property."

The statutes involved read as follows:

"21-3426. Robbery. Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force."

"21-3427. Aggravated robbery. Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery."

"21-3110. General definitions. The following definitions shall apply when the words and phrases defined are used in this code, except when a particular context clearly requires a different meaning.

....

"(16) 'Property' means anything of value, tangible or intangible, real or personal."

The robbery statutes set forth above were enacted by the 1969 Legislature, and were classified under the heading "Crimes Against Persons." L.1969, ch. 180.

Theft, as defined by K.S.A. 21-3701, is a crime against property. In theft, unlike robbery, the value of the property determines the seriousness of the offense. Theft of property of the value of $100 or more is a felony, while theft of property of the value of less than $100 is a misdemeanor.

The value of property taken during a robbery, however, is not determinative of the seriousness of the offense. Robbery is primarily an offense against a person, and the gist of the offense is the taking from the person or presence of the victim by threat of bodily harm or by force. Justice Dawson, in The State v. Tucker, 115 Kan. 203, 222 P. 96 (1924), observed that:

"It was immaterial to the charge of first degree robbery whether the victim was robbed of ten cents or ten thousand dollars' worth of gold, silver, and diamonds." 115 Kan. at 204, 222 P. 96.

This appears to be the general rule. In 77 C.J.S., Robbery § 6, the rule is stated as follows:

"As long as the property taken has some value, the amount of its value is immaterial both at common law and under statutes containing no requirement with respect to the amount of value. Accordingly, the crime of robbery may be committed even though the property taken is of slight value. Further, an actual pecuniary value is not essential as long as it appears that the property had some value to the person robbed." (Emphasis supplied.)

In 67 Am.Jur.2d, Robbery § 13, p. 38, it is said:

"Although the property ordinarily must have some worth, proof of a specific pecuniary value is not required. The fact that the property was kept and preserved as of value to the owner and was neither worthless nor unfit for use, although its pecuniary value was nominal, insignificant, or incapable of estimation, is sufficient. And the property need not be taken for its pecuniary value; thus, taking cell keys from a jailer at gunpoint has been held to be robbery ...."

We note also that contraband property has generally been held to be the subject of robbery. See 67 Am.Jur.2d, Robbery § 13, and 77 C.J.S., Robbery § 8.

In Miller, Handbook of Criminal Law, § 124, pp. 391-92 (1934), the author states:

"As in the case of larceny, property, to be the subject of robbery, must be personal property.... The amount of the value of the property taken is immaterial."

Further, in § 110, pp. 343-44, Dean Miller says:

"It is frequently said that the property must also be of some value, though it may be the very smallest, less than that of any known coin. Since all property is of some value even if infinitesimal, the rule as stated seems to be a matter of words, merely. A bill, note, or other like instrument is not, at common law, the subject of larceny, because it was regarded, not as property, but as mere evidence of property or of some right thereto. If it were a valid instrument, the paper on which it was written was considered to be absorbed into the chose in action and to lose its existence as a piece of paper. If, however, the instrument were invalid, and of no value as such, it retained its existence as a piece of paper, and was the subject of larceny."

In Richardson v. State, 168 Miss. 788, 792, 151 So. 910 (1934), the court sets forth the rule as follows:

"In a prosecution for robbery, the property taken need not have any actual pecuniary value if it appears that it had some value to the person robbed. 54 C.J. 1012. The value of the property taken need be only the minutest, Bishop on Criminal Law (9 Ed.), vol. 2, sec. 1162, and, as said in the case of Jackson & Dean v. State, 69 Ala. 249, if there is evidence showing that the property taken was 'not worthless--that it was not wholly unfit for use, or that the owner kept and preserved it as of value to him, it was the subject of robbery, though the pecuniary value which could be imputed to it was nominal, insignificant, or incapable of estimation.' "

The statement of the Alabama Court of Criminal Appeals in White v. State, 378 So.2d 239, 244 (Ala.Cr.App.), cert. denied 378 So.2d 247 (Ala.1979), appears particularly appropriate:

"That some economists, in these days of inflation in unprecedented distention, are suggesting that pennies have no value, in the eyes of the law they still do and, regardless of their number, what was said in James v. State, 53 Ala. 380, 387 (1875), in quoting from Roscoe, Evidence in Criminal Cases, 1908, still applies:

" ' "... [T]he value of the property is immaterial. A penny, as well as a pound, forcibly extorted constitutes a robbery, the gist of the offense being the force and terror." ' "

In The People v. Cassidy, 394 Ill. 245, 246, 68 N.E.2d 302, cert. denied 329 U.S. 769, 67 S.Ct. 130, 91 L.Ed. 662 (1946), the Supreme Court of Illinois said:

"[T]he value of the property taken from another by force or intimidation is immaterial, since the gist of the crime [of robbery] lies in the force or intimidation."

Defendant contends that the trial court erred in ruling that the $180 bill was "property" as a matter of law. The only evidence tending to establish the value of the $180 bill was the victim's testimony that the bill was a gift; that it had personal value to him, but no intrinsic value; and that he had never seen another like it.

The bill is a novelty item, and while it does not have the value of a $100 bill, or any other item of United States currency, it is clear that the item has some small token value. According to the California case of People v. Simmons, 28 Cal.2d 699, 172 P.2d 18 (1946), judicial notice may be taken of the fact that an item of personal property has some value. In The State v. Phillips, 106 Kan. 192, Syl. p 2, 186 P. 743 (1920), this court took judicial notice that a slightly used five-passenger touring car was worth more than $20 and thus could form the basis...