State v. Plummer

• Decision Date: 15 April 2011
• Docket Number: No. 101,684.,101,684.
• Citation: 251 P.3d 102,45 Kan.App.2d 700
• Parties: STATE of Kansas, Appellee,v.Douglas S. PLUMMER, Appellant.
• Court: Kansas Court of Appeals

45 Kan.App.2d 700

251 P.3d 102

STATE of Kansas, Appellee,

v.Douglas S. PLUMMER, Appellant.

No. 101,684.

Court of Appeals of Kansas.

April 15, 2011.

[251 P.3d 104 , 45 Kan.App.2d 700]

Syllabus by the Court

1. 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.

2. Theft accomplished by obtaining or exerting unauthorized control over property of another is a lesser degree of robbery and aggravated robbery.

3. Neither theft nor robbery requires the perpetrator to carry away or move the property to complete the offense.

4. If a thief's effort to obtain control of the property is immediately challenged or contested and he or she brandishes a weapon or resorts to the use of force to complete the taking, the crime becomes robbery or aggravated robbery.

5. If a thief has already exercised dominion over the property and uses force to flee or otherwise avoid apprehension, he or she has not committed robbery.

6. The crime of theft is completed once the perpetrator takes the property with the specific intent to permanently deprive the owner.

7. Under the circumstances of this case, the skip rule is inapplicable to the failure to give a jury instruction on theft as a lesser degree of aggravated robbery.

8. If required based on the facts of a given case, a trial court may modify a standard jury instruction but should do so cautiously. A trial court may use a nonstandard supplemental instruction if necessary.

9. A defendant is entitled to instruction on the law applicable to his or her theory of defense if there is evidence to support that theory.

Michelle Davis, of Kansas Appellate Defender Office, for appellant.Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Steve Six, attorney general, for appellee.Before McANANY, P.J., LEBEN and ATCHESON, JJ.ATCHESON, J.

Defendant Douglas Plummer challenges his conviction for aggravated robbery in what began as an audacious shoplifting spree at a Hutchinson Target store and ended in a slugfest with company employees. Because of instructional errors on lesser included offenses, we reverse the verdict of the Reno County jury—jurors materially misinformed on the law generally have a tough time getting to a legally sustainable conclusion. We cannot tell whether the jurors here would have come to another result had they received sufficient instructions, but they certainly might have evaluated the facts differently. Defendant Plummer, therefore, gets a new trial.

I.

The significant facts can be laid out succinctly. On March 24, 2008, Plummer entered the Target store and almost immediately attracted the attention of security personnel because of his furtive conduct. He seemed fidgety, and he closely watched other people in his vicinity as if trying to spot loss-prevention agents. Over the next 2 hours or so, Plummer navigated throughout the store under the observation of a couple of the agents and the store's security cameras. Initially, Plummer picked up a pair of sunglasses and put them in his pocket. Later he filched a backpack, removed the paper packaging from inside, and began to fill it with other Target merchandise. Plummer took a Target knife to cut the packaging from a shaver that he put in the backpack. The duration of Plummer's enterprise and his use of Target's own property—the backpack and the knife—to facilitate the crime seem noteworthy for their brazenness.

Plummer finally pushed a shopping cart with the backpack toward the store exit. He grabbed the backpack and moved past the checkout registers without stopping. As Plummer entered a set of double doors leading outside, Target security officer Tony Schwabuer accosted him. Schwabuer grabbed Plummer's arm and told him to stop. In an effort to break Schwabuer's hold, Plummer punched the agent in the shoulder. The set-to was on. Another security agent and several other Target employees joined the effort to detain Plummer. Somebody called the police.

Plummer continued to physically struggle until the first police officers rolled up about 2 minutes later. By then the scrum had migrated from between the double doors to an area just outside both doors. Several participants, including Plummer and Schwabuer, emerged with cuts, bruises, and torn clothing. After restoring order, the police searched Plummer. The police inventoried just over $300 worth of Target merchandise recovered from his pockets and the backpack.

The Reno County District Attorney charged Plummer with a single count of aggravated robbery. The case was tried to a jury on July 22 and 23, 2008. Various police officers and Target employees testified to the events they saw. Plummer chose not to recount his version for the jury. Plummer requested that the trial court instruct the jury on theft and robbery as lesser offenses. He also asked that the court instruct the jury on the legal distinction between theft followed by a use of force to retain possession of the purloined property, on the one hand, and robbery in its various degrees, on the other. After hearing argument of counsel and weighing the matter overnight, the district judge declined to give an instruction on theft. Accordingly, the judge also determined any instruction on the legal difference between theft and robbery to be superfluous. The judge did instruct the jury on robbery as a lesser included offense. The jury convicted Plummer of aggravated robbery. The trial court sentenced him in due course, and he has timely appealed.

II.

We generally address the issues as the parties have framed them. Plummer principally rests his appeal on the failure of the trial court to instruct on theft, attempted aggravated robbery, and legal distinctions between robbery and theft coupled with a later use of force. He also suggests, alternatively we suppose, that this court reverse with directions that the trial judge enter a judgment of conviction for attempted aggravated robbery. Finally, Plummer raises an issue regarding use of his past convictions at sentencing. We consider the last two issues moot in light of our decision to reverse his conviction and remand for a new trial.

When a criminal defendant has requested a jury instruction that the trial court declines to give, we review that failure as a question of law. State v. Gallegos, 286 Kan. 869, 873, 190 P.3d 226 (2008); State v. Simmons, 45 Kan.App.2d ––––, Syl. ¶ 5, 249 P.3d 15 (2011), filed March 4, 2011. That is, we give no deference to the trial court's decision. 45 Kan.App.2d ––––, Syl. ¶ 5, 249 P.3d 15. 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. K.S.A. 22–3414(3); State v. Simmons, 282 Kan. 728, 741–42, 148 P.3d 525 (2006). An instruction should be given even if the evidence supporting that lesser offense is “weak or inconclusive.” State v. Nelson, 291 Kan. 475, Syl. ¶ 1, 243 P.3d 343 (2010). We ask whether the evidence would allow a reasonable jury to find the defendant guilty of the lesser offense for which no instruction had been given. State v. Hendrix, 289 Kan. 859, 861, 218 P.3d 40 (2009). If a jury might do so, even though that outcome seems unlikely or remote, the trial court's failure to give the instruction creates reversible error. State v. Hutcherson, 25 Kan.App.2d 501, 505, 968 P.2d 1109 (1998).

III.

The parties presume that theft is a lesser offense of aggravated robbery for purposes of instructing a jury. The State argues that the particular facts of this case fail to warrant an instruction on theft. Historically, the Kansas appellate courts have considered theft to be a lesser degree of the offense defined by the various forms of robbery because both crimes are rooted in a person taking property in one way or another that doesn't belong to him or her. State v. Long, 234 Kan. 580, 591–92, 675 P.2d 832 (1984) (“[T]heft is a ‘lesser degree of the same crime’ which embraces robbery.”). The two offenses share a lineage to the common-law crime of larceny. 234 Kan. at 590, 675 P.2d 832. Robbery entails the perpetrator's use of force or other coercive action to obtain the property from the victim. 234 Kan. at 592, 675 P.2d 832. In contrast to the robber, a thief gains control of the property without physically intimidating the victim to do so. See 234 Kan. at 592, 675 P.2d 832 (The victim need not be present during a theft and may be separated from his or her property through the criminal's stealth alone.). But because of their common objective and shared legal antecedents, the crimes have been considered sufficiently kindred that theft should be treated as a lesser degree of the offense of robbery. 234 Kan. at 592, 675 P.2d 832 (“The unlawful taking of the property of another is the gravamen of both offenses.”). Both Long, 234 Kan. at 585–92, 675 P.2d 832, and State v. Aldershof, 220 Kan. 798, 800–04, 556 P.2d 371 (1976), contain detailed discussions of the historical relationship between theft and robbery as cognate offenses. Although that discussion need not be recited at greater length here, the inquisitive reader will find each to be a trove of information and authority on the matter.

Despite some differences in the strict elements of theft and robbery, the appellate courts...