State v. Hartfield

• Decision Date: 12 January 1984
• Docket Number: No. 54965,54965
• Citation: 676 P.2d 141,9 Kan.App.2d 156
• Parties: STATE of Kansas, Appellee, v. Mitchell HARTFIELD, Appellant.
• Court: Kansas Court of Appeals

Page 141

676 P.2d 141

9 Kan.App.2d 156

STATE of Kansas, Appellee, v. Mitchell HARTFIELD, Appellant.

No. 54965.

Court of Appeals of Kansas.

Jan. 12, 1984.

Syllabus by the Court

1. The granting of a continuance in a criminal prosecution is largely within the discretion of the trial court and its ruling in the matter will not be disturbed unless it affirmatively appears that such discretion has been abused to the extent that a defendant's substantial rights have been prejudiced.

2. When the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

3. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.

4. Circumstantial evidence can be used to prove any element of a crime, and can sustain a conviction of even the gravest offense.

5. Generally, a criminal defendant has the absolute right to be present at all stages of the prosecution against him. This right is guaranteed by the Sixth Amendment to the United States Constitution, which provides that: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." The Fourteenth Amendment makes this guarantee obligatory upon the states.

6. The right of the accused to be present at trial is one of the most basic rights preserved by the Constitution. However, a criminal defendant may not impede or prevent the continuation of his trial by simply choosing to voluntarily absent himself from the proceedings.

7. A defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.

8. Once lost, the right to be present at trial can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.

9. Rules relating to the admissibility of eyewitness identification testimony are stated and applied.

10. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.

11. One who by his own acts invites error is in no position to complain or take advantage of it on appeal.

12. In an appeal from a conviction of felony theft, K.S.A. 21-3701(a), the record is examined, and it is held: (1) the trial court did not abuse its discretion in denying defendant a continuance; (2) the evidence sufficiently supports the jury verdict; and (3) there was no violation of due process in the manner in which defendant was identified at trial, all as more fully set forth in this opinion.

Chester I. Lewis, of Lewis & Davis, Wichita, for appellant.

Geary N. Gorup, Asst. Dist. Atty; Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before REES, P.J., MEYER, J., and RICHARD W. WAHL, District Judge assigned.

MEYER, Judge:

Appellant Mitchell Hartfield (defendant) was found guilty in a trial by jury of criminal theft--K.S.A. 21-3701(a)--a class "D" felony.

On March 10, 1982, defendant and a companion were within the premises of the Target East Department Store in Wichita, Kansas. A private security officer observed both defendant and his companion placing store merchandise in their pockets.

When defendant and his companion exited the store without paying for this merchandise, they were met by a security officer who identified himself and asked both men to accompany him to the store's security office.

As the officer and his charges approached the security office at the rear of the store, defendant attempted to flee, but was physically restrained by other store employees. In the scuffle that ensued, three cameras dropped from defendant's person. Defendant was held by store employees until the police arrived and took him into custody.

Defendant was brought to trial before a jury on August 9, 1982. The precise details of various aspects of the trial will hereinafter be discussed in greater detail. At this point, we will present only a brief synopsis of the trial procedures.

Prior to the trial, and out of the hearing of the jury, defendant requested a continuance; this request was denied. He was however, allowed a recess to consult further with his counsel.

After the trial was reconvened some two hours later, defendant again brought the proceedings to a halt with his request to be allowed to absent himself from the proceedings. Defendant was allowed to leave, though his counsel stayed and represented him throughout the trial.

Several times throughout the trial, defendant was informed of his absolute right to be present and was assured that this right would be scrupulously honored. Defendant repeatedly refused to attend the trial; at one point, defendant even threatened the court guards with violence if they attempted to force him to attend.

Defendant was identified by prosecution witnesses as the man apprehended in the Target East store from a photograph; he was not present in the courtroom while the testimony of those witnesses was presented, and thus no face-to-face in-court confrontation occurred. The three cameras which he had hidden on his person were also introduced into evidence. These cameras were identified as property of Dayton-Hudson, Inc., d/b/a Target East Department Store, with a wholesale value of approximately $150.00.

On August 10, 1982, the jury convicted defendant of felony theft, in violation of K.S.A. 21-3701(a). On August 27, 1982, he was sentenced to a term of 6-20 years. This appeal followed.

Defendant raises three issues: (1) Whether the trial court erred in overruling defendant's motion for a continuance; (2) Whether the evidence supports the verdict; and (3) Whether the trial court erred in not requiring defendant's presence at trial for the purpose of in-court identification.

The first two of these issues present little merit, and, while we gave them full consideration during our deliberations, for the purposes of this opinion we shall dispense with them rather summarily.

Defendant first complains of the trial court's refusal to allow him a continuance.

K.S.A. 22-3401 empowers the courts to grant continuances; that statute provides, in pertinent part: "Continuances may be granted to either party for good cause shown."

Kansas has long accorded its judges great latitude in ruling on a criminal defendant's motion for a continuance.

"The granting of a continuance in a criminal prosecution is largely within the discretion of the trial court and its ruling in the matter will not be disturbed unless it affirmatively appears that such discretion has been abused to the extent that a defendant's substantial rights have been prejudiced." State v. Dickson, 198 Kan. 219, Syl. p 1, 424 P.2d 274 (1967).

And see also State v. Holt, 221 Kan. 696, Syl. p 1, 561 P.2d 435 (1977); and State v. Miller, 4 Kan.App.2d 68, Syl. p 1, 602 P.2d 553 (1979).

Having carefully examined the record herein, we conclude that the trial court committed no abuse of discretion in denying defendant's request for a continuance.

Defendant's second issue challenges the sufficiency of the evidence to support the verdict.

"When the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt."

"The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained." State v. Douglas, 230 Kan. 744, Syl. pp 2, 3, 640 P.2d 1259 (1982).

As noted by the court in State v. Douglas, 230 Kan. at 745-46, 640 P.2d 1259:

"[T]he inquiry is not whether the court itself believes the evidence establishes guilt beyond a reasonable doubt but rather whether the court believes any rational trier of fact could have found guilt beyond a reasonable doubt." (Emphasis original.)

And see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh. denied 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).

Defendant was convicted of theft, as defined in K.S.A. 21-3701, which states in pertinent part as follows:

"Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property:

(a) Obtaining or exerting unauthorized control over property...."

Defendant stresses that much of the evidence against him is circumstantial in nature, and that this fact seriously undermined the case against him. There is no merit to this contention.

"It is a well established rule that circumstantial evidence can be used to prove any element of a crime (State v. Rhoten, 174 Kan. 394, 257 P.2d 141; State v. Dill, 182 Kan. 174, 319 P.2d 172; State v. Crosby, 182 Kan. 677, 324 P.2d 197), and can sustain a conviction of even the gravest offense. (State v. Morton, 217 Kan. 642, 538 P.2d 675; State v. Ritson, 215 Kan. 742, 529 P.2d 90; State v. Hale, 207 Kan. 446, 485 P.2d 1338.)" State v. Johnson, 220 Kan. 720, 722, 556 P.2d 168 (1976).

Furthermore, the cases make it clear that, when reviewing a conviction based on circumstantial evidence, an appellate court should apply the same basic test for...