State v. Plummer, No. 101,684.

• Court: United States State Supreme Court of Kansas
• Writing for the Court: The opinion of the court was delivered by JOHNSON
• Citation: 283 P.3d 202
• Decision Date: 24 August 2012
• Docket Number: No. 101,684.
• Parties: STATE of Kansas, Appellee, v. Douglas S. PLUMMER, Appellant.

283 P.3d 202

STATE of Kansas, Appellee,
v.
Douglas S. PLUMMER, Appellant.

No. 101,684.

Supreme Court of Kansas.

Aug. 24, 2012.

[283 P.3d 204]

Syllabus by the Court

1. For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011)cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).

2. Theft is a lesser degree of the same crime which embraces robbery and, therefore, pursuant to K.S.A. 21–3107(2)(a), theft is a lesser included crime of robbery and aggravated robbery.

3. Robbery requires that the taking of property be accomplished by force or by threat of bodily harm. If a defendant completes the taking of property before using force or threat of bodily harm on the property owner or victim, the defendant has committed a theft, rather than a robbery. Whether the defendant completed taking property before using force or threat on the victim is a factual determination to be made from the circumstances in each case.

4. Where the evidence is sufficient for a rational jury to find that the defendant had peaceably obtained possession and control of merchandise in a self-service retail store with the apparent intent to shoplift the property, prior to engaging in a physical altercation with a security officer who was attempting to

[283 P.3d 205]

prevent the defendant from leaving the premises, the district court erred in refusing to give a requested lesser included offense instruction on theft.

5. The “skip rule” has been described as applying where the district court has instructed the jury on a lesser included offense, but the jury convicts of a greater offense, in which event any error resulting from failure to give an instruction on another still lesser included offense is cured. However, the skip rule should be viewed as simply providing a route to harmlessness in those circumstances where the elements of the crime of conviction, as compared to a rejected lesser included offense, necessarily show that the jury would have rejected or eliminated an even lesser offense.

Michelle Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Thomas R. Stanton, deputy district attorney, argued the cause, and Keith E. Schroeder, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by JOHNSON, J.:

On direct appeal of his conviction for the aggravated robbery of a Target store employee, Douglas Plummer raised the issue of whether the district court committed reversible error by refusing to give the jury a lesser included offense instruction on the crime of simple theft. A panel of the Court of Appeals found that the refusal to give the theft instruction was reversible error and remanded the case to the district court for a new trial. State v. Plummer, 45 Kan.App.2d 700, 251 P.3d 102 (2011). The State petitioned for our review of that decision, claiming that the Court of Appeals applied an incorrect standard of review and arguing that the particular facts of this case, as well as the skip rule, dictate an affirmance of the trial court's refusal to instruct on theft. Finding that the Court of Appeals reached the correct result, we affirm its decision to reverse and remand for a new trial.

Factual and Procedural Overview

The alleged victim of the aggravated robbery was Tony Schwabuer, who at the time of the incident was performing his duties as security officer for the Target store where the crime occurred. Prior to the confrontation, the security officer had observed Plummer inside the store for over 2 hours, during which he took merchandise from the shelves in several locations. Some items were left in different locations throughout the store, but for many of the items, Plummer removed the tags or packaging and stuffed them into his pockets or into a backpack he had picked up in the store for that purpose.

The security officer waited to take any action until Plummer had passed the checkout cash registers without paying. Between the two sets of doors at the front of the store, the security officer made contact with Plummer, identified himself as a store employee, explained that he was aware of the stolen items, requested that Plummer stop, and then placed his hand on Plummer's shoulder. Plummer allegedly reacted by swinging at the security officer, and a scuffle ensued. The engaged combatants made their way out of the store and onto the parking lot, where other Target employees came to assist the security officer in subduing Plummer. Both Plummer and the security officer sustained scratches and scrapes as a result of the altercation.

Plummer was charged with aggravated robbery under the theory that Plummer had taken Target's property from the security officer by using force that caused bodily injury. At the close of the State's case, Plummer filed a motion for judgment of acquittal on the aggravated robbery charge. He argued that he did not obtain possession of any of the items of merchandise through the use of violent force, as required for an aggravated robbery conviction under K.S.A. 21–3427. Rather, Plummer asserted that the physical contact with the security officer occurred after he had peaceably obtained possession of the items, i.e., he only used force to resist arrest for the completed theft. The district court denied the motion because of its belief that Plummer had not completed the theft

[283 P.3d 206]

while he was still on Target property. The trial court opined that support for its ruling could be found in State v. Bateson, 266 Kan. 238, 970 P.2d 1000 (1998), State v. Moore, 269 Kan. 27, 4 P.3d 1141 (2000), and Stewart v. State, No. 95,994, 2007 WL 959623 (Kan.App.2007) (unpublished opinion).

During the jury instructions conference, defense counsel requested instructions on the lesser included offenses of robbery and theft. The court granted the request for the robbery instruction but refused to instruct the jury on theft. Again, the district court concluded that Plummer, at the time of the physical altercation with the security officer, had not completed the requisite taking of the property to support the theft charge. Ultimately, the jury convicted Plummer of aggravated robbery, and the court sentenced him to 233 months in prison.

Plummer directly appealed to the Court of Appeals, and the panel concluded that the district court had erred in refusing to give the requested theft instruction. Relying heavily on State v. Saylor, 228 Kan. 498, 500–01, 618 P.2d 1166 (1980), the panel determined that a jury could have concluded that the taking was complete before Plummer tangled with the security officer. Plummer, 45 Kan.App.2d at 707–08, 251 P.3d 102. The panel specifically noted that the question of when a thief's taking of the victim's property was completed constitutes a factual determination to be made by the jury. 45 Kan.App.2d at 711, 251 P.3d 102. Accordingly, the panel ordered reversal of the conviction and remand for a new trial.

The panel also addressed the State's claim that the skip rule precluded reversibility in this case. The Court of Appeals opined that the skip rule is not so much a hard and fast rule as it is a guideline for determining whether the defendant suffered any prejudice from the omission of a lesser included offense instruction. Applying the concept in this case, the panel observed that the jury's selection of aggravated robbery over the lesser included offense of robbery simply established that the jury believed that the security officer had sustained actual bodily injury in the physical confrontation with Plummer. That decision shed no light on how the jury would have decided the question of whether the theft was complete before the physical altercation commenced, i.e., whether the jury would have convicted Plummer of theft in lieu of aggravated robbery, if given the choice. As such, the Court of Appeals found that the skip rule could not save the district court's instructional error in this case. 45 Kan.App.2d at 711–12, 251 P.3d 102.

Standards of Review and Analytical Process

The State's petition for review suggests that the Court of Appeals applied an incorrect standard of review. The standard of review and analytical process applied by the panel is summarized in the opinion's first syllabus:

“When a criminal defendant has requested a jury instruction that the trial court declines to give, that failure is reviewed as a question of law. The appellate court gives no deference to the trial court's decision. A trial court has an obligation to instruct on any lesser included offenses supported in the evidence and must review that evidence in a light most favorable to the defendant for that purpose. An instruction should be given even if the evidence supporting that lesser offense is weak or inconclusive. If a jury might return a verdict for the defendant on the lesser offense, even though that outcome seems unlikely or remote, the trial court's failure to give the requested instruction creates reversible error.” 45 Kan.App.2d 700, Syl. ¶ 1, 251 P.3d 102.

The State does not favor us with an argument as to why any specific portion of the Court of Appeals' recitation is erroneous. Rather, the State simply contends that the...