Opinion
No. 105,565.
2012-06-29
STATE of Kansas, Appellee, v. Walter GLASS, Appellant.
Appeal from Sedgwick District Court; Eric R. Yost, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric R. Yost, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, Walter Glass asks us to overturn his conviction and set aside his sentence for attempted aggravated robbery and criminal possession of a firearm. Primarily, Glass contends that there was insufficient evidence to support his conviction for attempted aggravated robbery. Because the evidence indicated that Glass arrived at the scene of the crime with a concealed shotgun in his possession, rubber gloves, binoculars, a stocking cap, a neck gator that could be used to cover his face, and a plastic bag to collect the proceeds of a robbery, we hold that a rational factfinder could consider this evidence as an overt act towards the perpetration of the crime of attempted aggravated robbery. We will address the other issues raised by Glass in the course of the opinion. We affirm his conviction and vacate a portion of his sentence that exceeded the statutory limits for postrelease supervision.
The police receive a tip.
In January 2010, the Wichita Police Department received a tip that Walter Glass and Willis Dewberry intended to commit an armed robbery of the Family Video store located at George Washington Boulevard and Hillside in Wichita on that evening. The informant told the police where Glass and Dewberry lived, that they would be driving either a Cadillac or a black Dodge Durango, and that Glass would have a sawed-off shotgun with him. Acting on the tip, law enforcement officers prepared a surveillance operation. That evening, Detective Daniel McFarren and his partner watched the Dodge Durango back out of the driveway and they followed in an unmarked vehicle. The Dodge Durango stopped at a Quick Trip store and pulled up to a gas pump for approximately 5 minutes. During this time, the driver put gas in the vehicle and went up to the store. After the vehicle left the Quik Trip, the detective was able to see that there were two people in the vehicle. The Dodge Durango then proceeded to the intersection of George Washington Boulevard and Hillside, where it eventually pulled into a parking lot near the Family Video. From the parking lot, the Dodge Durango had an unobstructed view of the entrance of the Family Video.
Police officers then approached the Durango and took Glass and Dewberry into custody. A pair of latex gloves fell to the ground as Glass was getting out of the passenger side of the vehicle. Once Glass was out of the vehicle, the officers found a loaded shotgun strapped to his body concealed beneath his trenchcoat. Glass was wearing a stocking cap and a neck gator underneath his chin but pulled up over his ears and tucked under the back of his stocking cap. The driver, Dewberry, was also wearing a stocking cap. Before Officer Groh removed Glass' neck gator, he determined that Glass could easily pull it up to the base of his eyes and conceal his face. Officer Groh found a Quick Trip plastic bag in a pocket of Glass' overcoat. A pair of binoculars was found on the passenger floorboard where Glass had been seated.
The detectives interviewed Glass for just over an hour after reading him his Miranda rights. Glass admitted to planning and beginning to execute the robbery of the Family Video. When asked why he went to Family Video, Glass responded, “Cuz I was gonna rob something.” Glass acknowledged that the shotgun found on him was loaded, his neck gator could be pulled up over the bottom of his face and nose and used as a mask, and that he intended to put the money from the robbery in the Quik Trip bag. Glass also explained that when he arrived at the Family Video, there were too many people and a lot of cars in the parking lot, so he just decided to park and see what happened.
The State charged Glass with one count of attempted aggravated robbery and one count of criminal possession of a firearm. Later at his jury trial, Glass was convicted of the attempted aggravated robbery and criminal possession of firearm counts. Glass moved for a durational and dispositional departure sentence. This motion was later denied by the court at the sentencing hearing. The district court sentenced Glass to concurrent presumptive prison terms of 46 months for attempted aggravated robbery and 7 months for criminal possession of a firearm. The district court also ordered a 36–month postrelease supervision term, but the journal entry of judgment reflects a postrelease supervision term of 24 months.
There was sufficient evidence to support a conviction for attempted aggravated robbery.
Glass claims there was insufficient evidence to support his conviction for attempted aggravated robbery. He contends the State failed to prove his actions went beyond mere preparation, as he took no overt act towards executing the crime. The State maintains that the only reason Glass did not complete the crime is because the police intervened before he could enter the Family Video store.
Our rules on this point are well settled. “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
The crime charged here was attempted aggravated robbery. Robbery is defined 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. 21–3426. Aggravated robbery is defined as robbery committed by a person who is armed with a dangerous weapon. K.S.A. 21–3427. An attempt is “any 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.” K.S.A. 21–3301(a).
Obviously, what constitutes an overt act depends on the particular facts of each case. The overt act must extend beyond mere preparations made by the accused. The act must approach sufficiently near to the consummation of the crime to stand either as the first or subsequent step in a direct movement toward the commission of the crime after the preparations are made. State v. Garner, 237 Kan. 227, 238–39, 699 P.2d 468 (1985). Glass bases his argument on two Kansas Supreme Court cases, State v. Calvin, 279 Kan. 193, 105 P.3d 710 (2005), and State v. Words, 226 Kan. 59, 63, 596 P.2d 129 (1979), where the court found that contact with the victim of the crime was sufficient to constitute an overt act. He argues that since he had no contact with any victim, he has not committed any overt act towards the perpetration of the crime.
We are more persuaded that the intent to commit the felony is so clearly shown by other evidence in this case, that it is enough that Glass arrived at the scene in which he planned for the crime to occur. See State v. Chism, 243 Kan. 484, 490, 759 P.2d 105 (1988). In accord, see State v. Peterman, 280 Kan. 56, 118 P.3d 1267 (2005), where the court held the defendant's act of driving to meet a fictional child for the purpose of sexual intercourse was construed as an overt act beyond mere preparations.
Here, obviously, Glass had gone well beyond mere preparation. Under the facts of this case, the jury could have reasonably viewed Glass' arrival at the scene with a concealed shotgun, rubber gloves, binoculars, stocking cap, neck gator, and a plastic bag to collect the loot, as actions well beyond mere preparation and a step towards the commission of the aggravated robbery. We note that Glass even admitted to Detective Binkley that he went to Family Video to “rob something.” Further, we think a reasonable juror could also conclude that Glass' intent was thwarted when the police took him into custody. Considering the evidence in the light most favorable to the prosecution, a rational factfinder could have found beyond a reasonable doubt that Glass was guilty of attempted aggravated robbery.
The court erred by imposing a 36–month postrelease supervision period.
Glass correctly claims that his 36–month postrelease supervision period exceeded the statutory limits set by K.S.A.2011 Supp. 22–3717(d)(1)(B).
Because Glass' underlying conviction was an attempt to commit a nondrug felony, his sentence was calculated as a severity level 5. See K.S.A. 21–3301. A person sentenced to a nondrug severity level 5 crime must serve a 24–month postrelease period. K.S.A.2011 Supp. 22–3717(d)(1)(B). The law requires a sentencing court to impose the mandatory postrelease supervision period unless the court finds substantial and compelling reasons to impose a departure based upon a finding that the current crime of conviction is sexually motivated. K.S.A.2011 Supp. 22–3717(d)(1)(D)(i).
We note that the record on appeal shows no motion for an upward durational departure for postrelease supervision, and there are certainly no findings in the record calling for the extended postrelease supervision term. We see no reason to remand this issue, however, because the journal entry shows the appropriate 24–month period of postrelease supervision. We will therefore only vacate that portion of the order that extends this postrelease supervision from 24 months to 36 months.
For his next issue, Glass claims the district court abused its discretion by denying his motion for a downward dispositional departure requesting probation and sentencing him to prison. We hold that we do not have jurisdiction to consider this request. K.S .A. 21–4721(c)(1) provides that an appellate court shall not review on appeal a sentence for a felony conviction that is within the presumptive guideline sentence for the crime. See State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008).
Finally, Glass claims the district court violated his Sixth and Fourteenth Amendment Rights as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Glass maintains that the district court should have required the State to include his prior convictions in the complaint and prove those convictions before the jury beyond a reasonable doubt. Kansas Supreme Court precedent has rejected this argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent. We affirm Glass' conviction.
Affirmed in part and vacated in part.