State v. Rinck

• Decision Date: 27 January 1995
• Docket Number: No. 70254,70254
• Citation: State v. Rinck, 256 Kan. 848, 888 P.2d 845 (Kan. 1995)
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Christopher A. RINCK, Appellant.

Page 845

888 P.2d 845

256 Kan. 848

STATE of Kansas, Appellee, v. Christopher A. RINCK, Appellant.

No. 70254.

Supreme Court of Kansas.

Jan. 27, 1995.

Syllabus by the Court

1. Aggravated robbery and aggravated battery convictions are multiplicitous if the same act of violence provided the basis for each conviction.

2. The duty of a trial court to instruct on a lesser included offense arises when there is evidence of record from which a rational factfinder might have found defendant guilty of such offense. Absent such evidence, no duty to instruct arises.

3. The declaration of a mistrial is a matter within the trial court's discretion and will not be disturbed absent a showing of abuse of that discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view of the trial court.

4. Where the defendant has been granted reasonable latitude in cross-examining an accomplice witness and given the opportunity to inquire as to whether any deal has been made with the witness in exchange for the witness' testimony, the trial court does not abuse its discretion by refusing to allow inquiry into the differences in penalty provisions as a result of the bargain where doing so would allow the jury to hear the penalty in store for the defendant if found guilty.

5. Where the sentence imposed exceeds the minimum, the legislature intended that the sentencing judge place on the record the facts and factors considered by the judge. Failure to do so does not necessarily indicate that the court abused its discretion. However, where the record reflects no consideration of the sentencing factors found in K.S.A. 21-4606(2), or the sentencing policy found in K.S.A. 21-4601, the sentences imposed must be vacated and the case remanded for resentencing.

Hazel Haupt, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

Jerome A. Gorman, Asst. Dist. Atty., argued the cause, and Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

DAVIS, Justice:

The defendant, Christopher A. Rinck, appeals his convictions and sentences for aggravated burglary, aggravated robbery, and aggravated battery. He claims the aggravated robbery and aggravated battery charges are multiplicitous. He also contends the court erred in its instructions, in not declaring a mistrial, in limiting cross-examination, and in sentencing him. We affirm in part, reverse in part, and remand for resentencing.

The facts are not in dispute. The charges against the defendant arise from an incident in which the defendant and two juvenile accomplices burglarized the residence of an 82-year-old woman. They stole a TV set and Tupperware containers filled with change from the victim's residence. During the course of the burglary, the defendant beat the victim over the head with a flashlight. The victim suffered a two-inch gash on the top of her head which required 10 stitches.

Multiplicity

The defendant contends that the act giving rise to the aggravated robbery was also the same act giving rise to the aggravated battery. The basis for the aggravated robbery was the striking of the victim on the head. The basis for the aggravated battery was the striking of the victim on the head, causing severe injury to the victim.

The defendant argues that the charges of aggravated robbery and aggravated battery under the above circumstances are multiplicitous. We agree. In State v. Warren, 252 Kan. 169, Syl. p 10, 843 P.2d 224 (1992), we said: "Aggravated robbery and aggravated battery convictions are multiplicitous if the same act of violence provided the basis for each conviction." The State acknowledges our holding in Warren but asks us to disregard it and follow the approach taken in the earlier case of State v. Higgins, 243 Kan. 48, 55-56, 755 P.2d 12 (1988). Warren controls this case.

In Higgins, we said that aggravated robbery and aggravated battery convictions were not multiplicitous because each crime contains unique elements not contained in the other crime. Aggravated battery requires the infliction of great bodily harm, while aggravated robbery requires only the infliction of bodily harm; aggravated robbery requires the taking of property from another, while aggravated battery does not. 243 Kan. at 55, 755 P.2d 12. We, therefore, concluded that neither crime is necessarily proved if the other is proved. 243 Kan. at 56, 755 P.2d 12.

However, the decision in Higgins was based on an analysis of the statutory elements alone for each offense and our conclusion that each offense required proof of a fact not required in proving the other. 243 Kan. at 55, 755 P.2d 12.

We rejected this approach in Warren:

"If the charges in this case are not multiplicitous because one charge involves proof of a fact not required in proving the other, then it leads to the conclusion that only crimes involving identical elements can be multiplicitous. This cannot be the case because this court has found crimes involving different elements multiplicitous. [Citation omitted.]" 252 Kan. at 182, 843 P.2d 224.

We also note that Higgins predates this court's decision in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988). Fike established a two-prong analysis to determine lesser included offenses. Under the second prong of Fike, not considered by Higgins, the court must examine the allegations of the indictment, complaint, or information, as well as the evidence which must be adduced at trial, and if the allegations allege a lesser crime and the evidence which much be adduced at trial would also prove the lesser crime, the lesser crime is an included crime. 243 Kan. at 368, 757 P.2d 724. This court in Warren used the second prong of Fike to conclude that the defendant's convictions for aggravated robbery and aggravated battery were multiplicitous. 252 Kan. at 181, 843 P.2d 224.

The facts of this case are similar to Warren. In order to prove aggravated robbery in this case, the State was required to show that not only did the defendant and the others take property from the victim but that they inflicted bodily harm in so doing. The State proved bodily harm by showing that the defendant beat the victim with a flashlight, causing injuries. The same evidence also proved aggravated battery--that the defendant beat the victim with a deadly weapon or in a manner whereby great bodily harm could have been inflicted.

Warren holds that where the same act of violence provides the basis for a conviction for aggravated robbery and a conviction for aggravated battery, the convictions are multiplicitous. 252 Kan. at 182, 843 P.2d 224. The defendant's conviction for aggravated battery is, therefore, reversed. Because we have reversed the defendant's conviction for aggravated battery, the defendant's contention that the court erred by not instructing the jury on the lesser included offense of simple battery becomes moot.

Instructions

The defendant contends that the court's failure to give an instruction on what he claims is a lesser included offense of aggravated robbery, receiving stolen property under K.S.A. 21-3701(d), constitutes reversible error. The question of whether receiving stolen property under K.S.A. 21-3701(d) is a lesser included offense of robbery has not been decided by this court. In the case of State v. Bowman, 252 Kan. 883, 850 P.2d 236 (1993), we discussed this issue but did not need to resolve it because we concluded that the evidence did not warrant giving the instruction. We also conclude in this case that there is no evidence of record from which a rational factfinder might have found the defendant guilty of the offense of receiving stolen property. Under these circumstances, the trial court had no duty to give the instruction. See State v. Lumbrera, 252 Kan. 54, 71, 845 P.2d 609 (1992).

The defendant's argument that an instruction on receiving stolen property should have been given hinges on his claim that he told police the TV in the car belonged to his aunt, although his story at trial was that he thought the TV belonged to J.B., a juvenile accomplice. He argues that this provided substantial competent evidence from which a jury could find that he knew the TV was stolen but did not take part in the stealing of the TV.

The defendant's speculation that a jury might infer from his actions that he knew the TV was stolen, yet did not participate in the robbery, does not rise to the level of evidence from which a rational factfinder could have found him guilty of receiving stolen property. Neither the State nor the defendant presented any evidence that the defendant knew the TV set was stolen without taking any part in the robbery. The defendant denied taking part in the burglary and claimed upon first being questioned by police that the TV belonged to his aunt. Both juvenile accomplices testified that the defendant entered the victim's home, sprayed mace on the victim, and began beating her with a flashlight in order to obtain the location of her property. There simply was no evidence from which a jury might conclude that the defendant received stolen property and, thus, no duty to instruct.

Mistrial

During trial, while the State was examining one of the juvenile accomplices, M.Y., the following exchange occurred:

"Q. [State]: How long did you know Christopher Rinck prior to this day?

"A. [M.Y.]: I've heard of his name and I've finally seen him after he got out of prison."

A short time later, while the witness was still testifying, the defense counsel approached the bench and stated:

"Mr. Huffman [Defendant's attorney]: I was looking at some papers and Ms. Calb informed me that this guy just testified that he saw my client after he got out of prison. That's clearly inappropriate and I move for a mistrial.

"The Cour...