State v. Ritson

• Decision Date: 07 December 1974
• Docket Number: No. 47401,47401
• Citation: 529 P.2d 90,215 Kan. 742
• Parties: STATE of Kansas, Appellee, v. Charles F. RITSON, Appellant.
• Court: Kansas Supreme Court

Page 90

529 P.2d 90

215 Kan. 742

STATE of Kansas, Appellee, v. Charles F. RITSON, Appellant.

No. 47401.

Supreme Court of Kansas.

Dec. 7, 1974.

Syllabus by the Court

1. In a criminal case, the issue on appeal is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the state.

2. A verdict of guilty in a criminal case will not be disturbed if there was substantial evidence, even though entirely circumstantial from which the jury could draw a reasonable inference of guilt.

3. In a criminal case based upon circumstantial evidence the test on appellate review is whether there is a basis in the evidence for a reasonable inference of guilt.

4. Possession by an accused of recently stolen property is sufficient to sustain a conviction of robbery where a satisfactory explanation is not given.

5. The words 'reasonable doubt' are clear in their meaning and no instruction defining their meaning is necessary when the jury has been otherwise fully instructed concerning burden of proof, presumption of innocence, and the necessity of proof beyond a reasonable doubt.

6. Testimony is not inadmissible as hearsay evidence when it is not offered to prove the truth of the matter asserted.

7. In a prosecution on two counts of aggravated robbery, wherein the defendant was convicted on one count and acquitted on the other, the record is examined and it is held: The prosecution's evidence was sufficient to sustain the conviction; reversible error is not shown with respect to any instruction given; the trial court did not err in rulings on the admission of evidence; and under the circumstances shown no error was committed in overruling defendant's motion to produce.

Jack Peggs, of Smith, Shay, Farmer & Wetta, Wichita, argued the cause and was on the brief for appellant.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Clifford L. Bertholf, Asst. Dist. Atty., were with him on the brief for appellee.

KAUL, Justice:

Defendant, Charles F. Ritson, appeals from a conviction by a jury of aggravated robbery under K.S.A.1973 Supp. 21-3427. Defendant was tried on two counts. Count No. 1 charged aggravated robbery of the Town and Country Food Market in Wichita and Count No. 2 aggravated robbery of a Quick Shop Food Market in Wichita. Defendant was acquitted on Count No. 1 and convicted on Count No. 2.

This is the second appearance of defendant's case in this court. In defendant's first trial he was convicted on both counts. On appeal (State v. Ritson, 210 Kan. 760, 504 P.2d 605) convictions on both counts were reversed and the case remanded for a new trial. The conviction of the Quick Shop Food Market robbery, with which we are concerned herein, was reversed in the first appeal because defendant's exercise of his constitutional right to silence was used against him as substantive evidence over his objection in such a manner as to constitute reversible error.

Various errors are assigned. Before they are discussed, however, a brief statement as to the facts should be supplied. Gary Caldwell, a police detective, while cruising the streets of Wichita, about 8:36 p. m. on November 18, 1970, followed a 1970 yellow Ford Torino to an intersection in the vicinity of the Quick Shop Food Market. While waiting for a light permitting him to turn right and the Ford to turn left he observed the occupants of the Ford automobile. He recognized two of the occupants as Marshall White and the defendant. He did not recognize the third person in the automobile.

Around 9:00 p. m. two men armed with pistols entered the Quick Shop Food Market and ordered an employee, Robert Huske, to start putting the money in a sack. The two men left the store with several checks and about $320.00 in cash. Huske immediately reported the robbery to the police. In his report he described one of the holdup men as being five feet eight inches in height; slender build; brown hair; and rotten teeth.

Detective Caldwell received a call from the dispatcher at 9:04 p. m. reporting the robbery and the description of one of the suspects as reported by Huske. Caldwell testified that the description brought to mind Marshall White. Caldwell then requested that a pickup order be put out for the 1970 yellow Ford Torino and for Charles Ritson, Marshall White and an unknown third occupant.

As a result of Caldwell's information, detective E. D. Miller received instructions from the sheriff's dispatcher to proceed to North Ash in Valley Center, which is eight to ten miles from the Quick Shop Food Market on Amindon.

At 9:00 p. m. Miller arrived at 549 North Ash and observed a yellow Ford Torino pulling into the driveway. Miller pulled in directly behind the automobile and watched as the defendant got out of the driver's seat on the left side of the automobile while the other two exited from the right.

Miller immediately took the three men into custody and looked into the automobile. He discovered a brown paper sack sitting on the console between the two seats of the car. The sack contained three checks made out to Quick Shop and a piece of paper with words 'draw five' signed by a Quick Shop employee. These items were all identified as coming from the Quick Shop. Miller also discovered two pistols-a .25 caliber automatic lying in nearby shrubbery to the right of the automobile, and a .45 caliber automatic found under the right front seat. These guns were similar to the ones used in the robbery.

Meanwhile, Caldwell had received a call from the dispatcher at 9:28 p. m. advising him that the yellow Torino had been stopped at 549 North Ash and he proceeded to that address and identified the three suspects as the same men whom he had seen earlier that evening.

Other detailed facts will be presented as we consider the specific issues to which they apply.

Defendant first complains that the trial court erred in not sustaining his motion to dismiss because the state's evidence was not sufficient to support a verdict of guilty.

This court has long followed the rule that when a verdict is challenged for insufficiency of the evidence in a criminal case the issue on appeal is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the state. The most recent enunciation of the rule will be found in State v. Platz, 214 Kan. 74, 519 P.2d 1097. In determining the sufficiency of the evidence, this court looks only to the evidence favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence the conviction will stand. (State v. Taylor, 212 Kan. 780, 512 P.2d 449.)

Defendant contends the state's evidence is not of a substantial character since it is largely circumstantial. This argument has no merit. It is a well-established rule in this jurisdiction that a conviction of even the gravest offense may be sustained by circumstantial evidence. (State v. Wilkins, 215 Kan. 145, 523 P.2d 728; State v. Hale, 207 Kan. 446, 485 P.2d 1338; and State v. Kennedy, 124 Kan. 119, 257 P. 726.)

In State v. Wilkins, supra, this court concluded that the probative values of direct and circumstantial evidence are intrinsically similar and there is no sound reason for drawing a distinction as to the weight to be assigned to each.

The evidence establishes the fact that the defendant was riding in the yellow Ford Torino, in the vicinity of the Quick Shop Food Market at 8:40 p. m. In the car with defendant were the two men who entered and robbed the market at 9:00 p. m. At 9:10 p. m. defendant was arrested some eight miles away from the market with the same two men, as he was exiting from the driver's seat. It is reasonable to infer that defendant waited outside with the get-a-way car while his two companions robbed the market.

It might also be added, as we have previously noted, that at the time of the arrest a paper sack with part of the stolen loot from the market was beside the driver's seat. No satisfactory explanation as to the possession of the recently stolen property was offered. It is the rule in this state that possession by the accused of recently stolen property is sufficient to sustain a conviction of robbery where a satisfactory explanation is not given. (State v. Atkinson, 215 Kan. 139, 523 P.2d 737; and State v. Singleton, 210 Kan. 815, 504 P.2d 224.) There is ample evidence to support the verdict.

Defendant next complains of the court's instruction on reasonable doubt. He takes no issue with our statement made in several recent cases that 'reasonable doubt' is self-defining and requires no further explanation. He does, however, take issue with the trial court's definition of 'reasonable doubt' in terms of what it is not. He specifically complains that the court instructed that reasonable doubt does not require the state to prove the case beyond 'mathematical or scientific certainty.' This same question was before us in State v. Price, 215 Kan. --, 529 P.2d 85, (This day decided). In the opinion we said:

'In several recent cases this court has stated that 'reasonable doubt' are words of common understanding and an attempt to give a jury a more explicit definition thereof is unnecessary where the jury has been otherwise fully instructed concerning burden of proof, presumption of innocence and the necessity of burden of proof beyond a reasonable doubt. (State v. Larkin, (209 Kan. 660, 498 P.2d 37), supra; and PIK (Criminal) 52.04, p. 49.) However, this court has never held that giving an instruction defining reasonable doubt amounted to prejudicial error. In the recent case of State v. Winston, 214 Kan. 525, 520 P.2d 1204, we reiterated a statement made in the Larkin case that the...