State v. Patterson

• Decision Date: 03 June 1988
• Docket Number: No. 60857,60857
• Citation: 243 Kan. 262,755 P.2d 551
• Parties: STATE of Kansas, Appellee, v. Franklin PATTERSON, Appellant.
• Court: Kansas Supreme Court

Page 551

755 P.2d 551

243 Kan. 262

STATE of Kansas, Appellee, v. Franklin PATTERSON, Appellant.

No. 60857.

Supreme Court of Kansas.

June 3, 1988.

As Modified June 28, 1988.

Syllabus by the Court

1. In a criminal action, 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 a charge are sustained.

2. A trial court has an affirmative duty to instruct the jury on lesser included offenses, including lesser degrees of the same crime; however, this duty does not arise unless there is evidence supporting the lesser offense.

3. In order for the evidence to be sufficient to require instructions on lesser included offenses, testimony supporting such instructions must be offered either by the State or the defense for the purpose of proving what events occurred.

4. An instruction is clearly erroneous when a reviewing court reaches a firm conviction that, if the trial error had not occurred, there is a real possibility that the jury would have returned a different verdict. State v. Houck, 240 Kan. 130, 139, 727 P.2d 460 (1986).

David Gottlieb, Supervising Atty., Kansas Appellate Practice Clinic, Lawrence, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, Topeka, was with him on the brief, for appellant.

Mona Furst, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty., and Debra L. Barnett, Asst. Dist. Atty., were on the brief, for appellee.

MILLER, Justice:

This is a direct appeal by the defendant, Franklin Patterson, from his conviction by jury trial in Sedgwick County of murder in the first degree, K.S.A. 21-3401; aggravated kidnapping, K.S.A. 21-3421; and aggravated robbery, K.S.A. 21-3427. The trial court found, from evidence introduced at the time of sentencing, that the defendant had been convicted of three prior felonies, and the trial court ordered that the sentences imposed be tripled under the habitual criminal act. Defendant was sentenced to imprisonment for a period of three life terms on the charge of first-degree murder, three life terms on the charge of aggravated kidnapping, and not less than 45 years to three life terms on the charge of aggravated robbery. The sentences for aggravated kidnapping and aggravated robbery were to run concurrently but consecutive to the sentence imposed for first-degree murder.

Four issues are raised. First, was the evidence sufficient to support the conviction for aggravated kidnapping? Second, did the court err by refusing a defense request to instruct the jury on theft as a lesser offense of aggravated robbery? Third, did the court's refusal to permit the defendant to examine witnesses or introduce evidence concerning the victim's physical condition deprive defendant of the right to present a defense? And fourth, did the court's instruction on premeditation constitute plain error?

The first issue is the sufficiency of the evidence to establish the offense of aggravated kidnapping. Count II of the information charged that defendant Patterson and his nephew, John F. Copeland, "did then and there unlawfully, willfully, take or confine another, to-wit: Gloria J. Mitchell, by force, with the intent in them, the said FRANKLIN E. PATTERSON and JOHN F. COPELAND, to hold the said Gloria J. Mitchell, to inflict bodily injury, and did inflict bodily harm upon the person of the said Gloria J. Mitchell."

K.S.A. 21-3420 defines kidnapping. It reads:

"Kidnapping is the taking or confining of any person, accomplished by force ..., with the intent to hold such person:

....

"(c) To inflict bodily injury or to terrorize the victim or another."

Under K.S.A. 21-3421, kidnapping becomes aggravated kidnapping when "bodily harm is inflicted upon the person kidnapped." Thus, the elements to establish the offense of aggravated kidnapping, as charged, were that Patterson took and confined Gloria J. Mitchell by force; that it was done with the intent to hold her to inflict bodily harm upon her; that bodily harm was inflicted upon her; and that the acts occurred on about December 12, 1986, in Sedgwick County, Kansas.

When the evidence is challenged as insufficient, the familiar standard for review is that set forth in State v. Ramos, 240 Kan. 485, 486-87, 731 P.2d 837 (1987), as follows:

"In a criminal action, 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."

We therefore review the evidence in the light most favorable to the prosecution to determine whether it supports the aggravated kidnapping conviction.

Patterson and codefendant John Copeland met the victim, Gloria Mitchell, at the Stetson Bar in Sedgwick County during the afternoon of December 12, 1986. At some point they left that bar, and visited the Paradice Club and later the Cypress Club. After they left the Cypress Club, defendant drove Gloria Mitchell's car, with Copeland and Gloria as passengers, to a gas station. Later they drove around for awhile and ultimately parked in an alley behind the trailer where Copeland and Patterson resided. According to the testimony of Copeland, Patterson and Gloria engaged in fondling and oral sex. Up to that point, the participation by all three in the activities of the evening was consensual. There is no suggestion of any kidnapping prior to the time the vehicle was parked in the alley.

The sexual activity was of short duration. Defendant became angry either over his inability or Gloria's unwillingness to engage in further sexual conduct. He began hitting Gloria with his fist and open hand until she passed out. After she regained consciousness, he proceeded to beat her again. Defendant told Copeland to go to the trailer and get a knife. Copeland left the car and within two or three minutes returned with a steak knife. Defendant told Copeland to kill Gloria. Copeland said he was not going to do it and handed the knife to the defendant. Defendant said that Copeland was not a man if he did not do it and defendant gave the knife back to Copeland. Copeland testified that he leaned up over the back seat, Patterson pushed Gloria back against the car door, and Copeland stabbed her. Patterson was holding her at the moment Copeland stabbed her. She was more or less lying down, with her head back up against the passenger door, facing the driver's door. After Copeland stabbed her, Gloria fell to the floorboard. Patterson checked and found Gloria had no pulse. Defendant started the car and drove to a remote area where the two men dumped Gloria's body. Copeland threw the knife away on the return trip. The car was parked in the same alley and was abandoned after defendant opened the glove compartment to see if there was anything in it, and looked through Gloria's purse. Defendant conceded that he looked through Gloria's purse, removed it from the car, and destroyed the identification therein. The purse was later found in his trailer.

The main contention of the defendant is that the evidence fails to prove confinement, an essential element of aggravated kidnapping. We agree. There is no evidence that Gloria was held in the automobile against her will. The car was hers. She voluntarily joined the two men, permitted Patterson to drive, and voiced no objection to any movement of the vehicle. After the vehicle was parked, Gloria was savagely beaten and fatally stabbed. She was pushed against the car door and was held by the defendant at the moment of the stabbing. We find no evidence of any act of confinement of the victim as a separate act independent of the stabbing. The act of pushing her against the car door appears to be incidental to the stabbing and thus will not support a kidnapping charge. Evidence indicated that the victim was extremely intoxicated. There is no evidence that she asked to leave the vehicle, attempted to leave the vehicle, or was restrained in any way, or that she was held by Patterson except at the moment that she was killed. While the beating and stabbing were senseless, and the acts revolting, we find no evidence to support the kidnapping charge.

The next issue is whether the trial court erred in refusing to instruct the jury on the crime of theft as a lesser offense of aggravated robbery. Defendant does not contend that the evidence was insufficient to support a conviction of aggravated robbery; he contends that the evidence was also sufficient to support a conviction of theft, and the trial court should have so instructed the jury.

Robbery is...