State v. Lohrbach, 47628

• Decision Date: 17 July 1975
• Docket Number: No. 47628,47628
• Citation: 538 P.2d 678,217 Kan. 588
• Parties: STATE of Kansas, Appellee, v. Evie Ray LOHRBACH, Appellant.
• Court: Kansas Supreme Court

Page 678

538 P.2d 678

217 Kan. 588

STATE of Kansas, Appellee, v. Evie Ray LOHRBACH, Appellant.

No. 47628.

Supreme Court of Kansas.

July 17, 1975.

Syllabus by the Court.

1. Pursuant to the provisions of K.S.A. 60-455, evidence of previous convictions is admissible as bearing on the issue of intent where insanity has become an issue in the case.

2. The basic philosophy underlying receidivist statutes is that where punishment imposed against a law violator has failed to deter him from further infractions of the law, a more severe punishment is justified in the hope that his reformation may thus be accomplished.

3. Where two or more convictions occurring on the same day result either from two or more counts in the same information or from counts in two or more informations, only one of them may be used as a former conviction to enhance punishment under the provisions of K.S.A. 21-4504(1) and (2) (Weeks 1974).

4. The record is examined in an action wherein the defendant was convicted of burglary, felony larceny and felony damage to property and for reasons appearing in the opinion it is held (1) the trial court did not err in admitting evidence of prior convictions under K.S.A. 60-455 and (2) the trial court erred in imposing sentence against the defendant as having previously been convicted of two or more felonies.

Charles E. Worden, Asst. Public Defender, argued the cause and was on the brief for appellant.

Gene M. Olander, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

FONTRON, Justice:

Evie Raymond Lohrbach, the defendant-appellant, was found guilty of having committed three felony offenses in the early hours of April 11, 1973: burglary, felony theft and felony damage to property. He was sentenced to consecutive prison terms of not less than nine (9) years nor more than life for the offense of burglary, not less than nine (9) years nor more than life for the offense of theft and not less than three (3) years nor more than life for the offense of criminal damage to property. The sentences were pronounced against him pursuant to the provisions of K.S.A. 21-4504(2) (Weeks 1974), commonly known as the Habitual Criminal Act, as being a person having previously been convicted of two (2) or more felonies.

Stated briefly the evidence showed that about 2 a. m. on April 11, 1973, a motorist passing by the Brothers Two Tavern in Topeka saw the back door of that establishment being closed and a green Thunderbird car, which had passed him sometime before, parked nearby. He alerted the police who, on arriving at the scene, found the defendant lying in the bushes next to the building. Some $48 in quarters and other small coins were found on his person, along with two canisters of Chemical Mace and thirteen Dutch Master cigars. A large quantity of Coors beer reposed in the trunk of the Thunderbird. A check of the tavern disclosed it had been surrepitiously entered and the following items were missing: several rolls of quarters, two canisters of Mace, ten to twenty cigars, twenty-three cases of beer, miscellaneous small change and a screwdriver. Two coin operated machines worth $300 each had been vandalized and rendered valueless.

Two points are raised on appeal:

1. The trial court erred in admitting prior felony convictions as evidence without a showing of factual similarity.

2. The trial court erred in sentencing the defendant as a habitual offender upon evidence of four prior felony convictions, when those convictions all occurred the same date.

We turn no the first point. During the trial, journal entries were introduced into evidence, showing that Mr. Lohrbach had been convicted of two burglary and larceny charges in the district court of Shawnee County on November 23, 1965. The defendant complaints there was no showing of similarity between the circumstances of the former offenses and those involved in the instant case. Hense, he argues, the convictions were inadmissible.

So far as pertinent, K.S.A. 60-455 provides that although evidence that a person has committed a crime on a specified occasion is not admissible to prove his disposition to commit crime as the basis for an inference that he committed another crime on another occasion, yet such evidence is admissible when relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. This statute has been before us on many a past occasion and we presume the end is not in sight.

On the basis of the record before us we believe the evidence of former convictions of burglary and larceny was admissible on the issue of intent, even though a specific showing of similarity was not made. Specific intent is an element of both burglary and larceny; and intent on the part of a burglar to commit a felony or theft in the structure or means of conveyance which he has entered, and intent on the part of a thief to deprive the owner permanently of the possession, use or benefit of his property.

The defendant did not deny having committed the acts charged against him. No issue was raised going to identity, where similarity between the offense charged and past offenses is of substantial importance. The defense offered by the accused in this case was that of insanity. A defense of this nature places intent squarely in issue; it calls into question the defendant's capacity to formulate a specific intent as well as a capacity to entertain in a legal sense a general criminal intent. (22 C.J.S. Criminal Law § 56, p. 194.)

In two cases of recent origin, State v. Nading, 214 Kan. 249, 519 P.2d 714, and State v. Myers, 215 Kan. 600, 527 P.2d 1053, this court dealt with the admissibility of prior convictions bearing on the issue of intent. Mr. Nading and Mr. Myers were jointly charged but separately tried for attempted burglary stemming from their unorthodox and suspicious behavior as they prowled around a dwelling house at the unusual hour of 4 o'clock a. m. In explanation of their bizarre behavior Mr. Nading testified at his trial they were searching for a hydrant from which to quench their urgent thirst. In the Nading case, we said:

'The previous convictions here were of a similar nature to the offense charged, sufficiently so, we think, that they could properly be taken into consideration as casting light upon the issue of the intent with which appellant's acts at the Hansen residence were done. We think the probative worth of this evidence sufficiently outweighed any possible prejudicial effect so as to render it admissible within the trial court's discretion. Consequently it must be held the court did not err in this respect.' (214 Kan. p. 255, 519 P.2d p. 719.)

In State v. Jenkins, 203 Kan. 354, 454 P.2d 496, the defendant was tried for robbery in the first degree. On appeal he complained that the details of a prior conviction introduced under the provisions of K.S.A. 60-455 had not been shown. Concerning this complaint, we said:

'. . . We cannot agree with the appellant's theory. The fact that the appellant had been convicted of a previous offense of first degree robbery would tend to prove certain elements of the offense charged. . . .

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'A previous offense may under some circumstances tend to prove some of the elements mentioned in the statute although there is little similarity, and by the same token, a similar crime may not be relevant as tending to prove all of the elements mentioned in the statute. These are matters that must be left to the sound discretion of the trial court, and the admission of evidence of previous crimes must always be accompanied with proper limiting instructions.' (p. 356, 454 P.2d p. 499.)

In our judgment the evidence of Mr. Lohrbach's prior convictions for burglary and larceny was admissible as to the element of intent, and no abuse of discretion may be charged against the trial court in permitting its introduction.

Turning to the second point, out attention is called to the fact that the four prior convictions introduced by the state, and on which the trial court relief in passing sentence against the defendant as a three-time offender, all occurred on the same day, November 13, 1965. Because the convictions were simultaneous, or practically so, the defendant argues they could be considered as only one previous conviction for the purpose of enhancing the sentence. We believe there is merit in his argument.

The basic philosophy underlying recidivist statutes might be expressed in this fashion: where the punishment imposed against an offender for...