State v. Rogers, 47730
| Decision Date | 14 June 1975 |
| Docket Number | No. 47730,47730 |
| Citation | 537 P.2d 222,217 Kan. 462 |
| Parties | STATE of Kansas, Appellee, v. Rodney ROGERS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record is examined in a prosecution for seven counts of felony theft in violation of K.S.A. 21-3701(a), and it is held: The trial court did not err (1) in ruling the evidence was sufficient to form a basis for a reasonable inference of guilty; (2) in ruling the conduct of the prosecutor during trial did not result in prejudicial error; (3) in ruling the late endorsement of witnesses did not prejudicially affect the right of the accused to prepare his defense; and (4) in permitting the jury to determine the value of certain stolen goods. It is further held the trial court did not abuse its discretion in the admission of evidence following the defendant's contention that the state failed to comply with the pretrial discovery order.
Charles W. Thompson, Kansas City, argued the cause, and David K. Duckers, Kansas City, was with him on the brief for appellant.
Philip L. Sieve, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.
This is a direct appeal by the defendant-appellant, Rodney Rogers, after being found guilty by a jury on seven counts of felony theft in violation of K.S.A. 21-3701(a). Appellant was sentenced to a term of not less than one year nor more than ten years on each count, said sentences to run concurrently. Following denial of his post-trial motions, Rogers appealed, alleging numerous trial errors. He will be referred to as Rogers or appellant.
At all times material hereto, Rogers was the owner-operator of a retail liquor store. On September 11, 1973, an information was filed in the district court of Wyandotte County, Kansas, charging Rogers and his mother, co-defendant Helen Rogers, with seven counts of felony theft by having obtained or exerted unauthorized control over certain specified men's suits with the intent to deprive the owner of the possession and use thereof. Charges against the two defendants arose out of an investigation conducted by the Federal Bureau of Investigation into the burglary and theft of several men's clothing stores. The state presented testimony from various witnesses indicating that two special agents of the F.B.I. contacted Rogers for the purpose of buying men's suits which they belived to be stolen. They were directed by Rogers to the nearby residence of his mother where they were shown approximately sixty suits for sale at greatly reduced prices. Both Rogers and his mother were later arrested and tried jointly for theft of the suits. The jury found Rogers guilty as charged, but acquitted his mother.
Appellant's initial claim on appeal is that there was insufficient evidence to support a conviction. He testified that he purchased the suits from a customer of his liquor store who represented himself to be a clothing salesman with some closed-out merchandise, that he paid the salesman $2,500 for about one hundred suits, and that he had no knowledge the suits were stolen property.
While the state has the burden to establish the crime beyond a reasonable doubt, the issue on appeal is whether the evidence is sufficient to form a basis for a reasonable inference of guilt when viewed in a light most favorable to the state. (State v. Platz, 214 Kan. 74, 519 P.2d 1097; State v. Hill, 211 Kan. 239, 505 P.2d 704.) It is the function of the trier of fact, and not the reviewing court, to weigh the evidence and pass on the credibility of the witnesses. We have reviewed the record in its entirety, and, while the evidence is not overwhelming, we nonetheless feel it was sufficient to form a basis for a reasonable inference of guilt when viewed in a light most favorable to the state.
Agent Telford Brock, Jr., testified he was a special agent with the F.B.I., assigned to the Kansas City Division. Agent Brock stated he first came in contact with the defendants when he phoned Rogers at his liquor store and told him an acquaintance had said he might be able to purchase some suits from Rogers at less than the retail price. According to the agent's testimony, Rogers asked for the name and description of the acquaintance. When Brock later arrived at the store, Rogers sent him to his mother's house where he was shown a room containing approximately sixty suits.
Agent Brock further testified Mrs. Rogers told him she originally had two hundred suits and she was afraid she could lose her insurance license because they were 'hot' suits. At one point he heard Mrs. Rogers say she 'should have killed Rod (appellant) when he was a baby.' When he was looking at one of the more expensive suits, Mrs. Rogers said it was the 'hottest' one she had and that was the reason she took the tags out. Brock's testimony was corroborated by a fellow agent, David Spencer.
Julius Sander, an Overland Park tailor, testified state's exhibits one through six were suits stolen from his clothing store.
Harold Brents testified on behalf of appellant. He said he was appellant's accountant and he had purchased a suit from appellant. No mention was made to him about the suits being 'hot' and there was no attempt to conceal the sale.
Robert Desbien, appellant's friend for twenty-five years, stated appellant called him to ask his opinion as to the feasibility of buying and reselling some suits that were closed-out or distressed merchandise. He also later purchased one of the suits from appellant.
Bob Sands, another lone-time friend of appellant, stated he helped move the suits from appellant's apartment to his mother's apartment. This was done in the open, without any attempt to conceal the goods. Appellant told him he bought some of the suits from a customer who was being transferred out of town.
The co-defendant, Helen Rogers, testified appellant told her he had purchased a few suits at a close-out sale. She claims she told the F.B.I. agents the suits were being sold for a hot price, and did not tell them the suits were 'hot' in the sense of having been stolen.
Unfortunately for appellant, the jury did not believe his explanation as to how he acquired the stolen property. The jury had the witnesses before it and was able to observe their demeanor and assess their credibility. Applying the previously stated rule for appellate review of criminal convictions, we find no error in the trial court's acceptance of the jury's verdict.
Under the second point of appellant's brief we are faced with several claims of error flowing from the alleged misconduct of the prosecutor during the trial. One of appellant's complaints is that the prosecutor committed prejudicial error in the state's cosing argument when he referred to appellant as being guilty of a prior offense and being a criminal.
We have examined the record and the included portions of the state's closing argument and find no basis for predicating reversible error. Appellant's objection to the use of the words 'guilty' and 'criminal' have been taken out of context and a proper reading shows the state did not refer to appellant as a criminal, but was merely referring to others convicted of a crime by the state. Although the prosecutor used the word 'guilty,' he did so in regard to appellant's admission that he was guilty of selling liquor on credit in violation of unspecified regulations.
Appellant also complains the state failed to confine its argument to the evidence admitted at trial. Although the prosecutor strayed from the evidence in his closing argument and engaged in speculation on several occasions, he was properly admonished by the trial court and no prejudice appears to have resulted from his comments.
We find no prejudice resulted from the endorsement of additional witnesses by the state. Appellant argues the state intentionally suppressed the names of three witnesses it planned to call until two days before trial, when it filed a motion to endorse the additional witnesses. The trial court sustained the motion and appellant contends he was given no opportunity to prepare for the three 'surprise' witnesses.
K.S.A. 22-3201(6) provides the prosecuting attorney shall endorse on the information the names of all witnesses known to him at the time of filing. Our cases construing this section and its predecessor, G.S.1949, 62-802, have developed the rule that the late endorsement of the names of witnesses rests in the sound discretion of the trial court, and its ruling will not be disturbed in the absence of an abuse which prejudicially affects the rights of an accused to prepare his defense....
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