State v. Holbrook, 74724

Citation932 P.2d 958,261 Kan. 635
Decision Date24 January 1997
Docket NumberNo. 74724,74724
PartiesSTATE of Kansas, Appellee, v. Larry HOLBROOK, Appellant.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.

2. Where it is charged that an aggravated robbery was committed by threat of bodily harm to the victim while the robber was armed with a dangerous weapon, it is not necessary for the State to prove the robberactually exhibited the weapon to the victim. When dictated by the facts, jury instructions should direct that whether the robber was armed with a dangerous weapon is to be determined from the reasonable belief of the victim. The robber's conduct and/or statements, if intended to convince the victim that the robber is so armed, along with a reasonable indication by the victim that he or she was so convinced, may be legally sufficient to satisfy this element. A failure to include the reasonableness factor in the jury instructions is error.

3. Where the evidence shows the robber threatened to shoot the victim if he did not give his money to the robber and gestured as though reaching for an object concealed in his waistband, and the victim then turned over his money to the robber out of concern for his life, the evidence is sufficient to support a conviction for aggravated robbery even though no weapon was actually exhibited.

4. A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal.

Michael J. Helvey, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Jerome A. Gorman, Assistant District Attorney, argued the cause, and Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellee.

McFARLAND, Chief Justice:

Larry Holbrook appeals his jury trial conviction of aggravated robbery (K.S.A. 21-3427 [Ensley 1988] ), for which he was sentenced to a term of 15 years to life.

On April 13, 1992, at approximately 4:40 p.m., Michael Hillegas was delivering a package for his employer, United Parcel Service (UPS), at 7th and Parallel Avenue in Kansas City, Kansas. As Hillegas left his vehicle carrying the package, he was stopped by a young male (later identified as defendant Larry Holbrook) who first asked Hillegas for directions, then demanded money. Hillegas refused the demand. He testified the man then said, "Well, give me the mother fuckin' money or I'm gonna shoot you." At the time, the men were 2 1/2 to 3 feet apart. The robber then reached across his own body with his right hand into the inside of his vest towards the left side of his waistband. The hand was wholly obscured from view. Hillegas then handed the robber approximately five $1 bills, a dollar in change, his gold-tone Timex watch, and a pair of black dress gloves. The robber walked away. Additional facts will be given as necessary for the discussion of particular issues.

For his first issue, defendant contends the trial court's elements instruction was erroneous.

We review jury instructions under the following standard:

" 'Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.' [Citation omitted.]" State v. Hunt, 257 Kan. 388, 392, 894 P.2d 178 (1995).

Stated another way, " ' "[i]f jury instructions properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal." ' [Citations omitted.]" State v. Butler, 257 Kan. 1043, 1065, 897 P.2d 1007 (1995).

" 'Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done.' " State v. Johnson, 255 Kan. 140, 148, 871 P.2d 1246 (1994) (quoting State v. Peltier, 249 Kan. 415, 426, 819 P.2d 628 [1991],cert. denied 505 U.S. 1207, 112 S.Ct. 2999, 120 L.Ed.2d 875 [1992] ); accord State v. Cox, 258 Kan. 557, 572, 908 P.2d 603 (1995).

As for the use of PIK instructions, we have said:

" 'The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed. [Citation omitted.]' " Butler, 257 Kan. at 1066, 897 P.2d 1007.

The fact that the trial court departed from the standard PIK instruction does not establish error. The question is whether the instruction misleads the jury or in some way prejudiced defendant's right to a fair trial. State v. Harmon, 254 Kan. 87, 93, 865 P.2d 1011 (1993).

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." K.S.A. 21-3427 (Ensley 1988).

The elements instruction given is as follows:

"INSTRUCTION NO. 3

"The defendant is charged with the crime of aggravated robbery. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. That the defendant intentionally took property from the person of Michael Hillegas;

"2. That the taking was by threat of bodily harm to Michael Hillegas;

"3. That the defendant was armed with a dangerous weapon and;

"4. That this act occurred on or about the 13th day of April, 1992 in Wyandotte County, Kansas.

"It is not necessary for the defendant to have exhibited the dangerous weapon to the victim. Whether or not the defendant is armed with a dangerous weapon is determined from the victim's point of view."

This is PIK Crim.2d 56.31 (1992 Supp.) except for the final paragraph. It is this addition which defendant contends is erroneous. He argues that the modified PIK instruction misled the jury, invaded the province of the jury, misstated the law, and allowed defendant to be convicted without the victim having a reasonable belief that defendant was armed with a dangerous weapon. We agree that the omission of the "reasonableness" requirement was error; however, we do not believe the jury could reasonably have been misled by this instruction and do not find that the error requires reversal.

Defendant denied he was the victim's assailant or was even present. The victim gave the only testimony as to what transpired. Thus, the following is the uncontroverted evidence of the occurrence. The victim, a UPS driver, was delivering a package at 7th and Parallel. When the robber first approached the victim and demanded money without stating or indicating he had a gun, the victim refused the request. Then the robber escalated the demand by (1) stating, "[G]ive me the ... money or I'm gonna shoot you," and (2) reaching for an object hidden from view in his waistband.

The victim testified that the robber's hand and waistband were covered by a vest, and the victim demonstrated the robber's movement to the jury.

When the victim was questioned as to his thoughts immediately after the robber's gesture, he testified as follows:

"A. Well, my immediate thought was to go ahead and comply. That's part of UPS policy also is to comply with any robber, just go ahead and do what they tell you to.

"Q. Did you have any particular feelings or thoughts as to whether he actually had something that he could shoot you with?

"A. Well, I'm familiar with the neighborhood, I, you know, grew up there years ago, and I wasn't going to take any chances. I have better things to do than to die out on 7th Street and Parallel."

The robber threatened to shoot the victim, and the threat was accompanied by a menacing gesture obviously intended to make the victim believe he was reaching for the gun. This performance, whether in fact backed by the actual presence of a gun, was intended to make the victim part with his valuables out of fear of being shot. The robber's performance was, obviously, creditable as it caused the victim to change his position from his initial refusal to compliance with the demand. It should also be noted the robber was 2 1/2 to 3 feet away from the victim in an open area when the threat was made. There was nothing to interfere with the robber's ability to shoot the victim.

In State v. Robertson, 225 Kan. 572, 573, 592 P.2d 460 (1979), a robber put his hand in his coat pocket and pointed the pocket toward the store employee, acting as if there was a gun in the coat pocket. The robber then stated, "This is serious. It's a robbery. I want all your money." We held:

"It was not necessary for the State to show that the robber actually exhibited the weapon to the victim in order to raise a jury question. The only requirement was that there be some substantial evidence which raised a reasonable inference that the defendant was armed. As this court pointed out in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), the aggravated robbery statute (K.S.A.21-3427) requires only that the robber be ...

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15 cases
  • State v. Dixon
    • United States
    • Kansas Supreme Court
    • June 19, 2009
    ...the substantial rights of a complaining party do not require reversal if substantial justice has been done. State v. Holbrook, 261 Kan. 635, 636-37, 932 P.2d 958 (1997); State v. Johnson, 255 Kan. 140, 148, 871 P.2d 1246 On pattern instructions, we have said: "`"The use of PIK instructions ......
  • State v. Wimbley
    • United States
    • Kansas Supreme Court
    • August 20, 2021
    ...clarity, and uniformity to jury instructions.’ " State v. Dixon , 289 Kan. 46, 67, 209 P.3d 675 (2009) (quoting State v. Holbrook, 261 Kan. 635, 637, 932 P.2d 958 [1997] ); see State v. Mitchell , 269 Kan. 349, 357, 7 P.3d 1135 (2000). In other words, if a court follows the PIK instructions......
  • United States v. Bong
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 28, 2019
    ...that whether or not the defendant was armed with a dangerous weapon was determined from the victim’s point of view. State v. Holbrook, 261 Kan. 635, 932 P.2d 958, 961 (1997).5 As Bong notes in his Rule 28(j) letter, the Ninth Circuit also reached the same conclusion in a more recent case, i......
  • State v. Deal
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    • Kansas Court of Appeals
    • May 1, 2009
    ...of a complaining party do not require reversal when substantial justice has been done."' [Citations omitted.]" State v. Holbrook, 261 Kan. 635, 636-37, 932 P.2d 958 (1997). Deal contends that the "no duty to retreat" instruction could have misled the jury and caused it to believe that while......
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