State v. Green, 57246

Decision Date05 April 1985
Docket NumberNo. 57246,57246
Citation697 P.2d 1305,237 Kan. 146
PartiesSTATE of Kansas, Appellant, v. Thomas Dean GREEN, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. The magistrate conducting a preliminary examination in a criminal case serves a limited function--to determine whether a crime has been committed and whether there is probable cause to believe that the accused committed it.

2. It is not necessary that evidence at a preliminary hearing upon which the defendant is held for trial should be sufficient to support a conviction. Probable cause to believe the defendant is guilty is all that is required.

3. "Probable cause" signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. State v. Huff, 235 Kan. 637, 681 P.2d 656 (1984).

4. K.S.A. 21-3205(1) provides 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. Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury. Following State v. Burton, 235 Kan. 472, 477, 681 P.2d 646 (1984).

Mark Knight, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Jerry L. Harper, Dist. Atty., and Steve Hopkins, legal intern, were on the brief for the appellant.

Craig W. Huntley, of Hamilton, Huntley, & McRorey, of Olathe, argued the cause and was on the brief for the appellee.

SCHROEDER, Chief Justice:

This is an appeal by the prosecution from an order of the court dismissing the complaint and discharging the defendant at the close of the preliminary hearing. The defendant, Thomas Dean Green, was charged with one count of theft in violation of K.S.A. 21-3701.

The sole issue on appeal is whether the State presented sufficient evidence to have the defendant bound over for trial.

The facts disclosed at the preliminary examination, concisely stated, were as follows: Around midnight on the evening of January 24, 1984, the defendant and his two friends--Dwight Thuro and Jeff McDaniels--drove in Thuro's car from their home in Wellsville, Kansas, to Lawrence, Kansas, for the purpose of "just driving around." They drove by Turner Chevrolet once, and then went back and stopped there for the purpose of taking some new wheels and tires for Thuro's car. There was no clear evidence presented at the preliminary hearing that the defendant was involved in the decision to commit the theft. McDaniels testified that he thought Thuro and the defendant might have discussed the idea during the ride to Lawrence, but he was uncertain and admitted he couldn't hear much as he was sitting in the back seat. Thuro testified that he made the decision to stop at Turner's after driving by and seeing the new tires. He said nothing about discussing the idea on the way to Lawrence.

Upon arriving at Turner's, Thuro and McDaniels proceeded to remove the tires and wheels from a Chevrolet pickup truck. Meanwhile, the defendant took Thuro's car and left because he wanted nothing to do with the theft. Both Thuro and McDaniels testified that the defendant had nothing to do with taking the tires. The defendant later returned to pick up his companions. Thuro and McDaniels loaded the tires into the trunk of Thuro's car. McDaniels was unsure whether it was the defendant or Thuro who unlocked the trunk, but Thuro remembered unlocking it himself. The defendant did not help load the tires.

Later, after leaving the scene, the car was stopped for minor traffic violations at which time the tires were discovered. The tires were worth over $100 making the theft a Class D felony. See K.S.A. 21-3701. Thuro and McDaniels entered a diversion agreement with the state, pled guilty to the charges prior to Green's preliminary hearing.

At the close of the hearing, the court said:

"The real issue here is not whether a crime was committed but whether there's probable cause to believe the defendant committed the crime. When there are two different theories presented, the Court is to allow that matter to go to the trier of fact.

"Here, the State presented two witnesses who both indicated through their testimony that Mr. Green had nothing to do with planning the matter, nor was he involved in it other than being a tag-along or a spectator, basically.

"Passive observations of a crime when the crime is being committed is not alone enough to bind the defendant over on an aiding and abetting charge, nor is it enough to convict him of that charge."

....

"The Court finds that the State has presented insufficient evidence to show probable cause...."

The nature and purpose of the preliminary examination was set out in State v. Jones, 233 Kan. 170, 660 P.2d 965 (1983), and reiterated in State v. Huff, 235 Kan. 637, 639, 681 P.2d 656 (1984), as follows:

"If from the evidence it appears to the magistrate that a crime has been committed and there is probable cause to believe the defendant committed a felony, the magistrate binds the defendant over for trial....

"A preliminary examination differs from a trial. This court stated in In re Mortimer, 192 Kan. 164, 166, 386 P.2d 261 (1963):

" 'There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty.' " 233 Kan. at 172-73, 660 P.2d 965.

Additionally, in State v. Zimmerman & Schmidt, 233 Kan. 151, 158, 660 P.2d 960 (1983), we stated:

"It is a well-established principle of law that it is the prerogative of the jury to determine the credibility of the witnesses, the weight to be given the evidence, and to draw all reasonable inferences from the evidence. State v. Fenton, 228 Kan. 658, 666, 620 P.2d 813 (1980). Where the evidence tends to disclose that the offense charged was committed and the defendant committed it, the question is one for the jury to decide, even though the evidence is weak. State v. Townsend, 201 Kan. 122, Syl. p 3, 439 P.2d 70 (1968)."

Probable cause was defined in State v. Huff, 235 Kan. at 640, 681 P.2d 656, quoting Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C.Cir.1973), as:

" 'Probable cause signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. Proof beyond a reasonable doubt, on the other hand, connotes evidence strong enough to create an abiding conviction of guilt to a moral certainty. The gap...

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  • State v. Mitchell
    • United States
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    • 1 July 1986
    ...less than the quantum necessary to establish proof beyond a reasonable doubt at trial, as the defendant concedes. State v. Green, 237 Kan. 146, ----, 697 P.2d 1305, 1307 (1985); Myers v. Commonwealth, 363 Mass. 843, 850, 298 N.E.2d 819 (1973); State v. Dunn, 121 Wis.2d 389, 396, 359 N.W.2d ......
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