State v. Smith, 53901
| Decision Date | 03 December 1982 |
| Docket Number | No. 53901,53901 |
| Citation | 232 Kan. 284,654 P.2d 929 |
| Parties | STATE of Kansas, Appellee, v. Charles B. SMITH, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A. 21-4618 requiring mandatory sentencing for certain crimes committed with a firearm is discussed and held not to include attempted aggravated robbery.
2. The commission of multiple article 34 crimes with a firearm during one incident does not constitute only one usage of the firearm within the meaning of K.S.A. 21-4618 and does not limit the application of said statute to only one of said crimes.
3. The term "application of force to the person of another" as used in the statute defining aggravated battery (K.S.A. 21-3414) is discussed and held to include pulling as well as pushing motions.
4. K.S.A. 21-4618, the mandatory sentencing statute, is held applicable to an aggravated battery committed when homeowner is forced over a balcony railing while struggling with a burglar for possession of the burglar's gun.
5. A trial court has discretion in giving its instructions to the jury and on appeal the instructions should be approved, if, after considering them in their entirety, they properly and fairly state the law as applied to the facts in the case.
Barry L. Arbuckle, of Arst & Arbuckle, Wichita, was on the brief for appellant.
Cris Senseman, Asst. Dist. Atty., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief for appellee.
Charles B. Smith appeals his jury trial convictions of aggravated burglary (K.S.A. 21-3716), attempted aggravated robbery (K.S.A. 21-3301, K.S.A. 21-3427), aggravated battery (K.S.A. 21-3414), and kidnapping (K.S.A. 21-3420). All convictions arise from the events occurring during the late evening of May 19, 1981, at the residence of the Jamie Coulter family in Wichita. Additional facts will be supplied as needed for determination of particular issues.
The first issue is whether the trial court erred in sentencing defendant under K.S.A. 21-4618 for attempted aggravated robbery.
K.S.A. 21-4618(1) provides:
"Probation or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime."
The crime of aggravated robbery is set forth in K.S.A. 21-3427. The statute defining attempted crimes and the penalties therefor is K.S.A. 21-3301 which provides in relevant part:
"(1) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.
....
The mandatory sentencing statute (K.S.A. 21-4618) by its clear language is limited to article 34 crimes and certain sex crimes. Aggravated robbery is an article 34 crime, but "attempts" are defined by article 33. Therefore the question becomes whether attempted aggravated robbery is a chapter 34 crime within the meaning of K.S.A. 21-4618.
The issue is one of first impression before this court. However, a similar challenge to mandatory sentencing for an attempted crime was recently considered by the Court of Appeals in Sutton v. State, 6 Kan.App.2d 831, 636 P.2d 187 (1981). The crime in Sutton was attempted murder. The court's reasoning was as follows:
6 Kan.App.2d at 832, 636 P.2d 187.
We find the Sutton rationale of the decision to be logical and persuasive. Apparently so does the State as it has conceded that the sentencing under K.S.A. 21-4618 for an attempted aggravated robbery was error.
The error does not, however, alter the practical effect of the sentences imposed herein inasmuch as the attempted aggravated robbery sentence runs concurrently with longer sentences imposed for the aggravated battery and kidnapping convictions. See K.S.A. 21-4608(3).
Defendant's sentence for attempted aggravated robbery is modified to remove any reference to K.S.A. 21-4618.
The second issue is whether the trial court erred in applying the mandatory minimum firearm statute (K.S.A. 21-4618) to more than one crime arising out of the same occurrence.
The trial court applied K.S.A. 21-4618 to the sentences imposed on the kidnapping, aggravated battery, and attempted aggravated robbery convictions. This court has in the preceding issue held K.S.A. 21-4618 inapplicable to the attempted aggravated robbery conviction. Therefore this issue as it relates to that offense is moot. Remaining, however, are two crimes arising out of the same occurrence to which the mandatory sentencing statute has been applied.
Defendant states his contentions as follows:
"It is the defendant's position that once a trial court imposes a sentence for the conviction of a Chapter 21 Article 34 crime and finds, in invoking a mandatory sentence under K.S.A. 21-4618, that a firearm was used in the commission of the crime, then the trial court cannot, on another additional conviction, again invoke the provisions of K.S.A. 21-4618 if the offenses were part of the same transaction and continued 'use' of the firearm."
In other words defendant argues continuous use of a firearm in the commission of various crimes arising from one occurrence legally constitutes only one "usage" of the gun for mandatory sentencing purposes.
Although set forth in the discussion of the preceding issue, for convenience, K.S.A. 21-4618 is repeated herein as follows:
"Probation or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime."
The statute clearly and unequivocally requires a trial court to sentence each defendant convicted of each crime included therein to at least the minimum term of imprisonment provided for the particular crime involved. There are no exceptions for multiple crimes arising from one incident. The commission of multiple article 34 crimes with a firearm during one incident does not constitute only one usage of the firearm within the meaning of K.S.A. 21-4618 and does not limit the application of said statute to only one of said crimes.
We conclude this issue is without merit, and the trial court did not err in applying K.S.A. 21-4618 to the aggravated battery and kidnapping convictions.
For his third issue defendant contends the trial court erred in denying his motion for judgment of acquittal on the aggravated battery charge, said motion being made at the close of the State's case and renewed at the close of all evidence.
We must state the relevant facts before proceeding. Defendant forced his way at gunpoint into the Coulter residence, entry being made through a second floor bedroom door from an outdoor balcony. Mr. Coulter escaped from the master bedroom and fled to his daughter's room to secure a shotgun. Defendant followed, still armed with his rifle. Defendant and Mr. Coulter struggled for several minutes in an upstairs hallway for possession of the rifle. Both men had their hands on the gun attempting to gain sole possession thereof. The struggle continued down the hall to a balcony overlooking the family room below. Mr. Coulter in his testimony described what happened next in the following terms: "... He gave a might[y] heave and pulled me over the balcony rail." As a result of the 12 to 14 foot fall to the brick floor below, Mr. Coulter suffered a broken tooth, a broken bone in his foot, an almost severed toe, and injuries to both knees.
The test to be utilized in considering a motion for judgment of acquittal has often been stated. In State v. Rider, Edens & Lemons, 229 Kan. 394, 625 P.2d 425 (1981), the court said:
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