Opinion
No. 106,353.
2012-09-21
STATE of Kansas, Appellee, v. Martin Arnold RILEY, Appellant.
Appeal from Shawnee District Court; David B. Debenham, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant, and Martin A. Riley, appellant pro se. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; David B. Debenham, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant, and Martin A. Riley, appellant pro se. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Martin Arnold Riley appeals his convictions of aggravated robbery, robbery, and criminal threat following a jury trial. The charges arose out of two incidents that occurred about 1 1/2 weeks apart. He argues in the brief filed by the appellate defender's office that the district court erred in giving an instruction on eyewitness identification and in refusing to instruct the jury that it could consider the lesser included crime of theft as to the robbery charge. We conclude that the trial court should not have given the instruction it gave on the eyewitness identifications, but that it did not result in reversible error. As to the second point, we conclude that the court did err in failing to instruct the jury that it could consider the lesser offense of theft as to the robbery charge. For that reason, we reverse and remand for a new trial on the robbery charge.
Riley also filed a pro se brief raising four issues. We conclude in his favor on the argument that there was not sufficient evidence to support the conviction for aggravated robbery since there was no evidence that Riley was armed with a dangerous weapon or that he inflicted bodily harm on the victim of that crime. For that reason, we reverse that conviction and remand the case to the trial court for resentencing of Riley for the lesser crime of robbery. His other points are either rendered moot by our decision or without merit.
A rather detailed recitation of the facts from the testimony at trial is necessary for an understanding of the issues on appeal.
On May 8, 2010, Maria Hernandez was working the front desk at the Baymont Inn & Suites. The hotel was under video surveillance, and a camera was located in the lobby. Around 11:20 p.m., a man who Hernandez identified as Riley walked into the hotel and asked if there were any rooms available and how much they cost. He was wearing a dark hoodie when he entered the hotel. After hearing the price of a room, Riley told Hernandez that it was too expensive and he asked her where a Motel 6 was. Hernandez replied that there was a Super 8 Motel nearby. Riley then left.
Approximately 50 minutes later, a man wearing the same clothing that Riley had been wearing came into the hotel with the hood on the hoodie over his head. He approached Hernandez and asked her to give him a room and the money. Hernandez did not hear him and asked him what he had said. Again, the man stated, “[T]he money, I want the money.” Hernandez could not see if the man had a weapon because he was standing so close to the counter. She gave him the money, and he left the hotel. Hernandez immediately called the police to report the robbery.
A few days later, the police prepared a photo lineup and showed it to Hernandez. Hernandez picked Riley's photo as being the person who robbed her. Hernandez testified that there was no doubt in her mind that Riley was the man who first asked about the price of the rooms and then later came back and robbed her.
Officer's used still photographs from the hotel's surveillance video to try to apprehend the robber. The still photos were e-mailed to all Topeka law enforcement officers.
Nine days later, on May 19th, Officer Travis Jepson was patrolling in south central Topeka and saw a person who resembled the suspect in the still photos. Jepson drove by the man a couple times trying to get a better look at his face. Jepson did not stop the man because he was not sure it was the same person. He further testified he saw the man walking about a block away from the Tobacco World store.
Shortly after Jepson saw this man, a robbery was reported at Tobacco World. Nicole Carothers was working as a cashier at the store when a man entered the store and bought a Sprite and a cigar. After paying for those items, the man decided he wanted another cigar. When Carothers opened the register the second time, the man reached over the counter and grabbed the $20 bills that were in the register. Carothers immediately grabbed the money back. The man told Carothers to give him the money, but she refused. The man then grabbed Carothers' jacket and jumped over the counter. The two struggled over the money until the man threatened to knock Carothers out and shoot her 6–year–old daughter who was in the back room of the store. Carothers then shoved the money at the man and told him to leave. The man then demanded that Carothers open the cash register, but she refused. The man finally left, and Carothers immediately called the police.
Officer Jepson responded to the call and helped secure the area around Tobacco World. Jepson later contacted the detectives working on the hotel robbery case to tell them he might have seen the suspect in that case near Tobacco World shortly before it was robbed. The detectives showed Officer Jepson a photo lineup from which he chose Riley's photo as being the man he saw walking near Tobacco World on the day it was robbed.
Video surveillance cameras also caught the tobacco store robbery on film. Detective Donna Ping showed Carothers the same photo lineup that was shown to Hernandez. Carothers also picked Riley's picture out of the photo lineup. Carothers testified that she did not previously know the man, but that she had no doubt in her mind that Riley was the man that robbed her.
After Riley was arrested, officers showed him the still photographs from the surveillance videos. Riley admitted that he was the person in the still photographs from the hotel camera at one point, but he denied that he was the person who entered the hotel the second time demanding money. He also denied that he was the person in the surveillance video from Tobacco World.
Riley gave the officers permission to search his car, his house, and his mother's house. During the search of the car, officers found five $1 bills and one $20 bill in the center console. The $20 bill was torn and missing part of the bill. Serial numbers on a part of a $20 bill found at Tobacco World matched the numbers on the part of the $20 bill found in Riley's car. Additionally, during the search of Riley's house, officers found clothing and shoes that were similar to the clothing worn by the suspect in the surveillance videos.
In his defense, Riley presented several witnesses who testified that they saw him at work on the date of the Tobacco World robbery.
The State charged Riley with aggravated robbery of the tobacco store, robbery of the hotel, and criminal threat. The jury convicted him on all three counts. Riley timely appealed.
We will refer to more facts in discussing the parties' arguments.
The Eyewitness Identification Instruction
Riley first argues the trial court erred in instructing the jury that it could consider the “degree of certainty” that a witness testifies to in weighing the reliability of the eyewitness' identification testimony.
Riley did not object to the trial court's use of the degree of certainty language in the jury instructions. Our standard of review then is whether the instructions were clearly erroneous. See K.S.A. 22–3414(3). “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ “ State v. Carter, 284 Kan. 312,324, 160 P.3d 457 (2007).
The jury instruction that Riley complains of in this issue came essentially from PIK Crim.3d 52.20 and read in part as follows:
“The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove he has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused.”
Riley argues the trial court should have modified the instruction by deleting the sixth factor—degree of certainty—because expressions of certainty by eyewitnesses have been criticized as unreliable by the scientific community. Riley targets the testimony of Hernandez with this argument since he contends she expressed great confidence in her identification.
Our Supreme Court recently held: “[T]he witness certainty factor in PIK Crim.3d 52.20 should no longer be used because it prompts the jury to conclude that eyewitness identification evidence is more reliable when the witness expresses greater certainty.” State v. Mitchell, 294 Kan. 469, 471, 481, 275 P.3d 905 (2012); see also State v. Anderson, 294 Kan. 450, 452, 276 P.3d 200 (2012) (error to instruct jury on degree of certainty factor). In the case at bar, the trial court used the version of PIK Crim.3d 52.20 that included this degree of certainty factor. As a result, it erred when it gave this instruction. Nevertheless, reversal is not required unless the jury instruction “could reasonably have misled the jury.” See Mitchell, 294 Kan. at 483.
To determine if the instruction could reasonably have misled the jury, we must:
“(a) decide whether an expression of certainty by the eyewitness was communicated to the jury and, if so, (b) the nature and extent of the certainty expressed. If the court determines there was no degree of certainty conveyed by the eyewitness when making the identification, the jury could not have been misled by including this factor in the jury instructions.” 294 Kan. 469, Syl. ¶ 5.
“If an appellate court determines an eyewitness expressed a degree of certainty when making an identification of the defendant, the court next must determine: (a) whether the identification was a critical aspect of the prosecution's case and (b) whether there is any serious question about the reliability of the witness' identification.” 294 Kan. 469, Syl. ¶ 6.
In addition, use of the degree of certainty factor in the jury instructions is not reversible error if the jury was “thoroughly exposed to the facts and circumstances both in favor of and against the accuracy” of the witness' identification of the defendant and his or her expression of certainty about that identification. 294 Kan. at 483.
We will apply these Mitchell factors to the evidence in this case.
While Officer Jepson did not express any certainty about his identification, there can be no question that the jury heard testimony from the two victims about the certainty of their identifications. Hernandez indicated at the time of the photo lineup that she was 98 to 99.99% certain that Riley was the robber, and this evidence was admitted at trial. She not only expressed her certainty, but she placed a percentage on it close to 100%. She also testified at trial that there was no doubt in her mind that Riley was the robber. Carothers also identified Riley in court and testified that she had no doubt that he was the person who robbed her. We proceed to the next step in the Mitchell analysis.
Were the two eyewitness identifications crucial to the State's case? While the identifications were certainly helpful in convicting Riley, there was other strong evidence to support his convictions. For example, Riley admitted to being at the Baymont Hotel on the night the robbery occurred and he admitted that the person in the still photographs from the surveillance cameras at the hotel was he. The surveillance videos were presented to the jury that could then determine whether the person who entered the second time to rob the hotel was in fact Riley. A very significant piece of evidence linking Riley to the robbery at the tobacco store was the $20 bill that was found in his car. Officers were able to match the serial number of the bill to the piece of the bill that was found at the scene of the crime. And finally, when searching Riley's home, officers found clothing that was similar to the clothing worn by the suspect in the surveillance videos. Based on all the evidence, it is clear that the eyewitness identifications were not the only evidence linking Riley to the robberies, and they were not a critical aspect of the prosecution's case.
Is there any serious question about the reliability of the witness' identifications? There is nothing in the record that suggests the witnesses were unreliable or that they changed their stories or identifications of the suspect. Additionally, the fact that Riley admitted to being at the hotel enhances the credibility of Hernandez' identification. She stated that Riley came in twice that evening. The first time he simply asked the price of a room. During this conversation, Hernandez made eye contact with Riley and knew what he looked like. Then when Riley entered the hotel the second time demanding the money, she remembered him. Although she did not know him personally, she had seen him earlier that night.
Although the trial court should not have given the instruction, Riley's argument for reversal falls short. Riley's trial counsel thoroughly challenged the eyewitness identifications through cross-examination. Also, during closing argument, counsel continued to challenge the veracity of the eyewitness identifications. The jury was apprised of all the facts and circumstances both in favor of and against the accuracy of the identifications of Riley by both victims and of their expressions of certainty about their identifications. On this record Riley has failed to meet his burden to show that the jury could reasonably have been misled by the degree of certainty factor contained in the jury instructions.
A Lesser Included Instruction
Next, Riley argues the trial court erred in refusing to give a requested lesser included offense instruction on theft with respect to the robbery of the hotel. The State concedes that theft as described in K.S.A. 21–3701(a)(1) is a lesser included offense of robbery and aggravated robbery, but it argues that the evidence did not support an instruction for theft.
“When a defendant has requested a lesser included instruction at trial, the standard of review for failing to so instruct is whether the evidence, when viewed in the light most favorable to the defendant, supported the instruction.” State v. Jones, 279 Kan. 395, Syl. ¶ 1, 109 P.3d 1158 (2005). A trial court is required to instruct the jury on lesser included crimes when there is some evidence that would reasonably justify a conviction of some lesser included crime. K.S.A. 22–3414(3); State v. Foster, 290 Kan. 696, 710, 233 P.3d 265 (2010). But an instruction need not be given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense. Jones, 279 Kan. 395, Syl. ¶ 1.
K.S.A. 21–3426 sets forth the elements for robbery as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.”
K.S.A. 21–3701(a)(1) defines theft as obtaining or exerting unauthorized control over property with the intent to permanently deprive the owner of the possession, use, or benefit thereof. Riley correctly notes that theft as defined in K.S.A. 21–3701(a)(1) is a lesser included offense of both robbery and aggravated robbery. See State v. Sandifer, 270 Kan. 591, 599–601, 17 P.3d 921 (2001); K.S.A. 21–3107(2)(b).
In support of his argument for a theft instruction, Riley suggests that the evidence presented at trial could support a jury finding that he was guilty of theft under K.S.A. 21–3701(a)(1) rather than robbery because there was no evidence of a threat of bodily harm with regard to the hotel robbery. The State counters with the fact that Hernandez was a 21–year–old woman working alone when a man entered the hotel with his hood over his head and demanded money created an intimidating environment. It argues that this constitutes an implied threat which supports a conviction for robbery and not theft.
In denying Riley's request for the theft instruction, the trial court relied on State v. Moore, 269 Kan. 27, 33, 4 P.3d 1141 (2000), which held that a threat does not have to be explicit to satisfy the elements of a robbery. There, the defendant and two accomplices backed a car towards the victim's car in a remote parking lot and demanded her car keys. The victim complied, and Moore stole the victim's car stereo. In upholding Moore's robbery conviction, our Supreme Court wrote: “Analyzing the evidence, we find the defendant orchestrated a situation intended to intimidate the young woman into surrendering her car keys”; “[a] reasonable person would not ordinarily surrender his or her car to a stranger under such circumstances unless he or she feels threatened or intimidated.” 269 Kan. at 33.
We find Moore is inapplicable to the issue Riley raises here. Riley does not challenge the sufficiency of the evidence and ask that we reverse the robbery conviction based upon the State not presenting any evidence of a threat. He maintains that under the evidence presented here, a jury could reasonably have found that no threat occurred and that he was guilty only of theft.
Similar to Moore, the jury could have found, and did in fact find, that Riley presented an intimidating presence which caused Hernandez to have some concern for her personal safety and she acceded to Riley's demand for money. Nevertheless, when viewing the evidence in a light most favorable to Riley, it is possible that reasonable jurors could also have found there was no evidence of a threat of bodily harm and, therefore, Riley was only guilty of theft.
“A district court has a duty to instruct the jury on any lesser included offense established by the evidence, even if that evidence is weak or inconclusive.” State v. Nelson, 291 Kan. 475, Syl. ¶ 1, 243 P.3d 343 (2010). Accordingly, the trial court erred in failing to instruct the jury on theft, as a lesser degree of robbery, in conformity with Riley's request. We reverse the robbery conviction arising from the crime at the hotel and remand for a new trial on that charge.
Four Issues Riley Raises in His Pro Se Brief
Riley argues there was insufficient evidence to convict him of the aggravated robbery of the tobacco store. When the sufficiency of the evidence is challenged on appeal, this court must determine, after a review of all the evidence, viewed in the light most favorable to the prosecution, whether it is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009).
Aggravated robbery is defined as 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.” K.S.A. 21–3427. In order to convict Riley of aggravated robbery, the State had to prove (1) Riley intentionally took property from the person of Carothers; (2) the taking was by threat of bodily harm to Carothers or by force; (3) Riley was armed with a dangerous weapon or inflicted bodily harm to Carothers; and (4) this act occurred on or about May 19, 2010, in Shawnee County, Kansas.
Riley specifically argues there is insufficient evidence to establish the bodily harm element of the aggravated robbery charge. He relies on State v. Bryant, 22 Kan.App.2d 732, 922 P.2d 1118,rev. denied, 260 Kan. 996 (1996), and notes the difference between robbery and aggravated robbery. Specifically, he maintains that aggravated robbery is 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.” K.S.A. 21–3427.
Riley contends that any injuries Carothers sustained during the robbery were slight and trivial and insufficient to justify the elevation of the charge to aggravated robbery under Bryant. Bryant was convicted of attempted aggravated robbery and felony theft. Police were chasing Bryant for another offense when he approached a van being driven down the street. Bryant opened the driver's door to the van and attempted to pull the driver out of the vehicle. He then tried to enter the van as if he were crawling onto the driver's lap. During these events, he grabbed the driver's hand, arm, and chest. The van accelerated briefly with Bryant hanging out of the driver's door, and eventually stopped. Bryant was then arrested.
On appeal, this court reviewed Bryant's arguments and compared the aggravated robbery statute's requirement of “bodily harm” with the same requirement under the aggravated kidnapping statute. Quoting from PIK Crim.3d 56.25 Notes on Use, p. 237, for aggravated kidnapping, which cites to State v. Sanders, 225 Kan. 156, 587 P.2d 906 (1978), the court agreed that
“ ‘ “[b]odily harm” includes any act of physical violence even though no permanent injury results. Trivial or insignificant bruises or impressions resulting from the act itself should not be considered as “bodily harm.” Unnecessary acts of violence on the victim, and those occurring after the initial abduction would constitute “bodily harm.” ‘ “ (Emphasis added.) Bryant, 22 Kan.App.2d at 734–35.
See PIK Crim.3d 56.3 (agg robbery), comment, p. 251 (analogous discussion citing Bryant).
The Bryant court noted that some trivial injuries can happen during the course of a robbery, “but bodily harm that leaves permanent scarring or unnecessary acts of violence committed upon a victim transforms the robbery into aggravated robbery.” 22 Kan.App.2d at 735. The Supreme Court has recognized that because trivial injuries were likely to result from the very act of kidnapping, the legislature intended that a victim sustain more than mere bruises resulting from the act itself before the more severe penalty could be imposed. See State v. Taylor, 217 Kan. 706, 714, 538 P.2d 1375 (1975) (act of throwing young kidnapping victim into river was “bodily harm” despite the lack of permanent physical injury).
Based on the testimony, this court rejected Bryant's arguments because the evidence established that the van driver's knuckles were cut and bleeding and required the attention of emergency medical personnel. Also, the cut caused some permanent scarring. Bryant, 22 Kan.App.2d at 735.
While our research of the statutes and the caselaw has revealed no clear cut definition of bodily harm that elevates a robbery to an aggravated robbery, it is apparent that the victim must have suffered more than trivial or minor bruises and marks on his or her body. There appears to be two approaches to the issue. Some cases focus on the nature of the injuries. See Jones v. State, No. 101,597, 2010 WL 744887, at *7 (Kan.App.2010) (unpublished opinion) (sufficient evidence to support aggravated robbery charge when defendant pushed victim to the pavement, which caused her to have scrapes on her elbows and knees that caused blood to run down one of her legs), rev. denied 290 Kan. 1094 (2010). Other cases have focused on whether the defendant's physical aggression was beyond that normally associated with simple robbery. See State v. Gwennap, Nos. 98,254; 98,255, 2008 WL 3916001, at *1 (Kan.App.2008) (unpublished opinions) (as victim resisted defendant's efforts to take his wallet, falling backward flat onto his back, striking the side of his face and head on concrete, injury was sufficient to support aggravated robbery charge), rev. denied 287 Kan. 767 (2009); State v. Woods, No. 95,520, 2007 WL 2080388, at *1 (Kan.App.2007) (unpublished opinion) (aggravated robbery instruction proper when victim testified robbers “stomped” on his head numerous times and body causing bleeding), rev. denied 285 Kan. 1177 (2007); see also State v. Miller, No. 102, 016, 2010 WL 4156745, at *1–2 (Kan.App.2010) (unpublished opinion) (evidence presented established that defendant kicked in the door of victim's room, hitting the victim in the face and then hit victim in the face multiple times; unwarranted acts of violence established); Macias v. State, No. 91, 493, 2005 WL 1089038, at *3 (Kan.App.2005) (unpublished opinion) (the act of choking the victim must be viewed as an “act of physical violence” beyond that associated with the act of robbery itself), rev. denied 280 Kan. 983 (2005).
Here, the injuries of the clerk at the tobacco store appear minor and trivial compared to the injuries sustained by victims in cases that upheld a conviction for aggravated robbery. Moreover, Riley's scuffle with Carothers was brief (only 15 seconds according to the DVD recording of the incident). This does not discount at all any fear or emotional trauma the victim may have experienced. However, there is no evidence that these factors were any greater for Carothers than they would be for any other robbery victim, i.e., a person whose property was taken by force or threat of bodily harm.
We conclude that the evidence falls short of establishing an essential element of the charge of aggravated robbery, namely, that Riley was armed with a dangerous weapon or that he inflicted bodily harm on the store clerk. The State does not contend on appeal that Riley was ever armed with a dangerous weapon. That conviction is reversed, and the case remanded for resentencing for the crime of robbery. See State v. Wilt, 273 Kan. 273, Syl. ¶ 3, 44 P.3d 300 (2002) (“When a criminal defendant has been convicted of a greater offense, but evidence supports only a lesser included offense, the case must be remanded to resentence the defendant for the lesser included offense.”).
Riley also argues in his pro se brief that the complaint was defective and he was prejudiced by the State amending the complaint after the verdict by removing the firearm element from his aggravated robbery conviction. He also argues the trial court erred in failing to instruct the jury on the lesser offense of robbery regarding that charge. Our ruling reversing the aggravated robbery conviction renders these points moot. Besides, the trial court did, in fact, instruct the jury that that robbery was a lesser included offense of aggravated robbery.
Finally, Riley argues cumulative error deprived him of a fair trial. The argument fails. Our opinion here directs that Riley receive a new trial on the robbery charge arising from the hotel incident and that he be resentenced for robbery arising from the tobacco store incident. These directions address the two issues he raises in this appeal which we find to be meritorious. He presents no other errors that provide a basis for finding that he was deprived of a fair trial.
The conviction for criminal threat is affirmed. The conviction for robbery (of the hotle) is reversed, and the case remanded for a new trial. The conviction for aggravated (of the tobacco store) robbery is reversed and remanded for resentencing on the lesser crime of robbery.
Affirmed in part, reversed in part, and remanded with directions.