State v. Moore, 79,807.

• Decision Date: 21 April 2000
• Docket Number: No. 79,807.,79,807.
• Citation: 4 P.3d 1141,269 Kan. 27
• Parties: STATE OF KANSAS, Appellee, v. ANTONIO C. MOORE, Appellant.
• Court: Kansas Supreme Court

269 Kan. 27

4 P.3d 1141

STATE OF KANSAS, Appellee, v. ANTONIO C. MOORE, Appellant.

No. 79,807.

Supreme Court of Kansas.

Opinion filed April 21, 2000.

Cory D. Riddle, assistant appellate defender, argued the cause, and Mary D. Prewitt, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with him on the briefs for appellee.

Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellant.

The opinion of the court was delivered by

MCFARLAND, C.J.:

The case is before us on the State's petition for review challenging the Court of Appeals' reversal of Antonio C. Moore's jury trial conviction of robbery and remand of the case for sentencing on theft. (State v. Moore, 26 Kan. App.2d 89, 978 P.2d 291 [1999].)

Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person (K.S.A. 21-3426). The Court of Appeals held there was insufficient evidence of "threat of bodily harm" to sustain the conviction. We disagree.

FACTS

The testimony at trial is crucial to the resolution of the issue and must be set forth in considerable detail. This is particularly important where, as here, the Court of Appeals opinion mixes in the testimony from the preliminary examination, which was not before the jury.

Christie Brown and Chad Schieb were walking to Brown's car in a Wal-Mart parking lot between 7:30 and 8:00 p.m. on an August evening. The car was parked at the side of the store where there was "very little light." While not yet dark outside, it was becoming so. As Brown and Schieb approached Brown's car, they saw another car parked diagonally beside it with parking lights on. Brown said it looked a little suspicious, but she did not think anything of it. When Brown and Schieb were at the back of their car, defendant got out of the other car and met them at the trunk of their car. Defendant was about 5 feet from Brown. Brown testified about what happened next.

"Q. Okay. Did [defendant] say anything to you?

"A. Just, `Give me your keys.'

"Q. Did you have them out in your hand?

"A. Yes.

"Q. Did you give him your keys?

"A. Yes. I did.

"Q. How'd you give him your keys?

"A. I just tossed them to him.

"Q. Why'd you do that, why did you give him your keys?

"A. Well, whenever someone asks for my things that I don't know, I'm going to give it to them if I feel threatened.

"Q. Did you feel threatened by him?

"A. Yes."

Defendant took Brown's keys, opened Brown's car, and took her car stereo. Defendant then returned to his car and the driver drove off. Two other men sat in defendant's car watching the incident, including the driver thereof.

When asked how she felt during the time she stood there and saw defendant take her things, Brown said, "Well, I felt threatened. I didn't like my stuff getting taken from me." When asked if she was scared, Brown replied affirmatively. On cross-examination, Brown responded to the following series of questions:

"Q. Did anybody ever threaten you?

"A. No, they didn't.

"Q. Were there any weapons involved?

"A. Not that I seen.

"Q. Okay. Did anybody say, `I've got a gun'?

"A. No.

"Q. Did anybody say, `I've got a knife'?

"A. No.

"Q. Did anybody say, `I'm going to kill you'?

"A. No."

Chad Schieb, Brown's fiance, corroborated Brown's version of the events. Schieb said there were two other men in the defendant's car, one in the driver's seat and one in the backseat. Schieb looked at the driver during the incident but could not really see the man in the backseat because it was getting dark outside. Schieb said Brown tossed defendant the keys before Schieb could tell her not to. Schieb said he was upset and "mouth[ed] off" to defendant. Defendant did not respond, but the driver of the other car "was just shaking his head." Schieb thought there may have been a gun in the other car.

When asked about Christie Brown's demeanor during the incident, Schieb described her this way: "She was just shaking. She wasn't saying much, I guess, except, `Chad, shut up.' . . . [Christie] was scared. Very scared." Brown was 18 years old when accosted.

In reversing the robbery conviction the Court of Appeals stated:

"Kansas has not defined what constitutes threat of bodily harm. Generally, actual fear need not be strictly proven; the law will presume fear if there are adequate indications of the victim's state of mind. 67 Am. Jur.2d, Robbery § 24, p. 79. In U.S. v. Mitchell, 113 F.3d 1528 (10th Cir. 1997), the court held that there was sufficient evidence to prove robbery when Mitchell merely approached the teller's window and said, `This is a holdup.' The court looked to three factors in making its decision: (1) whether the situation appeared dangerous; (2) whether defendant intended to intimidate; and (3) whether the victim's fear of death or injury was reasonable. 113 F.3d at 1531.

"There is no question that Moore intended to intimidate Brown to get her keys; however, there is a question as to whether there was a threat of bodily harm....

"In State v. Bateson, 266 Kan. 238, 970 P.2d 1000 (1998), the Supreme Court held that it is not robbery when the thief gains peaceable possession of the property and uses no violence except when resisting arrest or escaping. Moore obtained possession of the car keys peaceably and without violence to Brown. There was no resistance by Brown. Under these circumstances, there is no basis for concluding that Moore took Brown's keys by force or by threat of bodily harm; therefore, we cannot affirm Moore's conviction for robbery, and the sentence for that conviction must be vacated. There was, however, sufficient evidence to support the lesser included offense of theft. Where a defendant has been convicted of the greater offense of robbery but the evidence supports only the lesser included offense of theft, the conviction for robbery should be vacated and the case remanded for defendant to be resentenced on the conviction of theft. See State v. Kingsley, 252 Kan. 761, 782, 851 P.2d 370 (1993). Moore's case is remanded to the district court for resentencing for the conviction of theft." 26 Kan. App.2d at 91-92.

The instruction herein on robbery stated that the taking of property from Brown was by threat of bodily harm. Was the evidence on this element sufficient?

When the sufficiency of the evidence is challenged, the question is whether, after a review of all the evidence, viewed in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Johnson, 266 Kan. 322, 326, 970 P.2d 990 (1998).

From the trial transcript and closing argument, it would appear Brown continued to exhibit fright over the incident on the witness stand. The jury, of course, had the benefit of observing her demeanor in determining her credibility as a witness.

The function of weighing the evidence and passing on credibility of witnesses belongs to the jury, not to the appellate court. A verdict secured on substantial competent evidence will not be disturbed on appellate review. State v. Borthwick, 255 Kan. 899, 904-05, 880 P.2d 1261 (1994). Further, on appellate review, the credibility of the witnesses will not be passed upon, conflicting evidence will not be weighed, and all questions of credibility are resolved in favor of the State. State v. Clemons, 261 Kan. 66, 71, 929 P.2d 749 (1996).

In support of its reversal, the Court of Appeals cites State v. Bateson, 266 Kan. 238, 970 P.2d 1000 (1998). The case is easily distinguished. In Bateson, the defendant obtained peaceable possession of the property while the owner was absent. The only force involved the defendant having possibly slammed a door in the victim's face after she caught him before he could leave her office and pursued him up the steps and out the ground floor door. Threat of bodily harm was not involved in Bateson, as it was a question of whether the subsequent door slamming transformed the theft into a robbery.

No cases precisely on point have been cited to us or found independently. By analogy, the following cases are of interest.

In United States v. Mitchell, 113 F.3d 1528 (10th Cir. 1997), cert. denied 522 U.S. 1063 (1998), a case relied on by the Court of Appeals here, the question was whether the evidence was sufficient to support a federal conviction of bank robbery by intimidation. Mitchell argued that the evidence only supported a conviction for the lesser crime of bank larceny, rather than bank robbery by intimidation, because the bank employee could not have been intimidated by his actions. Mitchell entered the bank and approached the teller's window. He said "this is a hold up" and "get back." 113 F.3d at 1530-31. Mitchell asserted that he did not have a weapon or claim to have a weapon, never yelled, never threatened the teller with injury, and never touched her at any time during the incident.

Judge Tacha, writing for the court, indicated that three factors are examined in determining if there was intimidation in the context of a bank robbery: (1) whether the situation appeared dangerous, (2) whether the defendant intended to intimidate, and (3) whether the bank personnel were reasonable in their fear of death or injury. 113 F.3d at 1531 (citing United States v. Smith, 10 F.3d 724, 729 [10th Cir. 1993], and United States v. Slater, 692 F.2d 107, 109 [10th Cir. 1982]). The Tenth Circuit affirmed the conviction.

State v. Davis, 227 Kan. 174, 605 P.2d 572 (1980), involved whether a starter pistol was a dangerous weapon sufficient for an aggravated robbery charge. We stated:

"Generally, the courts which hold starter pistols are dangerous or deadly weapons rely on a subjective analysis. Since robbery has always involved intimidation or fear, the circumstances of the robbery, including the weapon, are examined from

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