State v. Sutherland, 64274

• Decision Date: 18 January 1991
• Docket Number: No. 64274,64274
• Citation: 804 P.2d 970,248 Kan. 96
• Parties: STATE of Kansas, Appellee, v. Douglas A. SUTHERLAND, Appellant.
• Court: Kansas Supreme Court

Page 970

804 P.2d 970

248 Kan. 96

STATE of Kansas, Appellee, v. Douglas A. SUTHERLAND, Appellant.

No. 64274.

Supreme Court of Kansas.

Jan. 18, 1991.

Syllabus by the Court

1. An instruction on a lesser included offense must be given if the evidence might reasonably cause a jury to convict a defendant of the lesser offense.

2. If the evidence at trial excludes a theory of guilt of a lesser offense, the failure to instruct the jury on some lesser degree of the crime charged is not grounds for reversal.

3. K.S.A.1989 Supp. 21-4603(3), effective July 1, 1989, provides that, at any time within 120 days of sentencing, the district court shall modify a sentence imposed "if recommended by the state reception and diagnostic center unless the court finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification." Prior to July 1, 1989, the statute provided that the court "may" modify a sentence.

4. A fundamental rule of statutory construction is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively.

5. An exception to the fundamental rule set forth in Syl. p 4 is that, if the statutory change does not affect the substantive rights of the parties and is merely procedural or remedial in nature and is not prejudicial to the parties, it applies retroactively.

6. Because K.S.A.1989 Supp. 21-4603(3) affects the length of the sentence to be imposed, it is substantive in nature and must be applied prospectively.

7. In a case where the defendant was convicted of aggravated robbery, the record is examined and it is held: (1) The trial court's instruction placed the burden on the State to prove that the knife used in the robbery was a deadly weapon, and the record contains ample evidence from which a jury could conclude the knife used is a deadly weapon; (2) the evidence was insufficient to require instructions on robbery and theft as lesser included offenses of aggravated robbery; and (3) the trial court did not abuse its discretion in refusing to modify the sentence imposed.

Steven R. Zinn, Asst. Appellant Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Thomas J. Robinson, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

ABBOTT, Justice:

This is a direct appeal by Douglas A. Sutherland from his conviction of one count of aggravated robbery, contrary to K.S.A. 21-3427.

Sutherland was convicted of the October 5, 1988, aggravated robbery of a Town and Country store located in Wichita. Sutherland, who was 17 years old at the time of the offense, was certified to stand trial as an adult.

Sutherland contends the trial court erred by instructing the jury that a knife is a dangerous weapon and in failing to instruct the jury on robbery and theft as lesser included offenses of aggravated robbery. He also contends that K.S.A.1989 Supp. 21-4603(3) mandates that his sentence be reduced because the State Reception and At trial, Sarah Lehman testified substantially as follows. She was working at the Town and Country store on October 5, 1988, in the early morning. At about 12:30 she became suspicious when she saw a man standing outside the building. She asked a customer, Cris Fulps, to go outside and ask the person standing there to leave. The man then turned and walked away.

Diagnostic Center (SRDC) report recommended a modification of the sentence.

Lehman later saw the same man, accompanied by another man, standing outside the store. She again went out and asked them if they needed anything. The men told Lehman that they were waiting for a ride. Lehman told the men that she would call the police if they did not leave. The men walked across the street. Lehman observed that both men were wearing brown camouflage paint on their faces.

Lehman was frightened by the men and she asked Fulps to stay in the store with her. At about 4 a.m., the men returned. Sutherland, whom Lehman positively identified at trial, approached her at her desk and demanded money. The other man stood by Fulps; Lehman identified Aric Baughman at trial as that man. Lehman initially told Sutherland that she did not have any money, and he responded, "Don't play stupid with me; you know what we want."

At this point, she observed that Baughman was holding a knife straight down by his side. She described the knife as about six inches long with a jagged edge. Lehman proceeded to the cash register and opened it, and Sutherland reached in and grabbed the money. Sutherland and Baughman then ran out of the store.

Fulps also testified at trial. He testified he initially saw the tip of a knife blade sticking out the end of the sleeve of the man standing next to him. The man revealed the knife to Fulps and pointed it at him as soon as Sutherland told Lehman not to "play stupid." Fulps described the knife as six to eight inches long. At trial, Fulps was unable to positively identify Sutherland as the man who took the money from Lehman, although he did say that Sutherland looked a lot like him; Fulps did identify Aric Baughman as the man who stood next to him.

Baughman also testified at trial. He testified that he, Sutherland, and several other people were at his mother's house prior to the robbery, where he and Sutherland discussed the robbery. Before they left, they both got knives from the kitchen and put brown paint on their faces. On their way to the Town and Country, they stopped at the Zip-In store to talk with a friend. Their presence at the Zip-In was verified at trial by Douglas Black and Gary Zongker, both of whom stated that either Sutherland or Baughman dropped a knife while they were in the store.

Some time after the robbery, Sutherland was questioned by Wichita Police Detective Mitchell Mervosh, who testified at trial. Mervosh testified that he advised Sutherland of his Miranda rights and began questioning him about the robbery. When Mervosh advised Sutherland of the purpose of the interview, Sutherland began crying. According to Mervosh, Sutherland generally denied participation in the robbery, but when asked about the knives, Sutherland replied that he and Baughman obtained them from Baughman's mother's kitchen, and that after the robbery, he and Baughman returned to that residence.

At trial, Sutherland testified on his own behalf to the effect that he was at Baughman's house where a party was underway, but that he did not go to, nor rob, the Town and Country. According to Sutherland, when Baughman left the party, he remained behind until Baughman returned.

Sutherland was found guilty of aggravated robbery and sentenced to 15 years to life.

AGGRAVATED ROBBERY INSTRUCTION

K.S.A. 21-3427 provides: "Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery."

The following jury instruction, based on PIK Crim.2d 56.31, was given as instruction No. 9:

"Douglas A. Sutherland is charged with the crime of aggravated robbery. Mr. Sutherland pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. That Douglas Sutherland intentionally took property, to-wit: U.S. monies from the person of or in the presence of another, to-wit: Sarah Lehman;

"2. That the taking was by threat of bodily harm to Sarah Lehman;

"3. That Mr. Sutherland was armed with a deadly weapon, to-wit: a knife; and

"4. That this act occurred on or about the 5th day of October, 1988, in Sedgwick County Kansas."

Sutherland argues that instruction No. 9 is erroneous because it instructs that the knife used was a deadly weapon, and the determination of whether it was a deadly weapon is a question of fact for the jury. Sutherland failed to object to this instruction at trial. His failure to object alters our standard of review of the instruction:

"A party may not assign as error the giving or failure to give an instruction unless he objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court's failure to give the instruction was clearly erroneous. [Citations omitted.] The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict." State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).

In State v. Davis, 227 Kan. 174, Syl. p 1, 605 P.2d 572 (1980), in determining whether a defendant was armed with a dangerous weapon during a robbery, this court said the victim's perception of the object used as a weapon is relevant:

"In an appeal from a conviction of aggravated robbery (K.S.A. 21-3427) the court holds a starter pistol is a dangerous weapon. Since robbery has always involved intimidation or fear, the circumstances of the robbery, including the weapon, are examined from the victim's point of view. An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon."

See also State v. Bowers, 239 Kan. 417, 422, 721 P.2d 268 (1986) (holding that in determining whether a defendant charged with aggravated assault was armed with a dangerous or deadly weapon, the trier of fact must determine whether the victim reasonably believed the object was a deadly weapon).

In State v. Colbert, 244 Kan. 422, 425, 769 P.2d 1168 (1989), the trial court instructed the jury that "a firearm is a deadly weapon as a matter of law." The defendant failed to object to the instruction. The gun the defendant used was defective and inoperable and, on appeal, the defendant argued that whether it was a...