Opinion
No. 106,024.
2012-08-10
STATE of Kansas, Appellee, v. Isaac CORRAL, Appellant.
Appeal from Ford District Court; Daniel L. Love, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. J. Scott James, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; Daniel L. Love, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. J. Scott James, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Isaac Corral's direct appeal of his convictions by a jury of one count of aggravated robbery, two counts of attempted aggravated robbery, one count of conspiracy to commit aggravated robbery, and one count of criminal damage to property.
Corral contends on appeal that the trial court erred in instructing the jury on the term “dangerous weapon” as used to define the crimes of aggravated robbery and attempted aggravated robbery. Corral further argues there was insufficient evidence to convict him of the attempted robbery of Julio Ramirez–Flores.
Factual and Procedural Background
Highly summarized, the charges in this case against Corral of three counts of aggravated robbery, two counts of attempted aggravated robbery, one count of conspiracy to commit aggravated robbery, and one count of criminal damage to property, were based on incidents which occurred on December 4, December 11, and December 18, 2009, in Dodge City, Kansas.
The State's complaint against Corral alleged that on the above-mentioned three dates, Corral, along with several other individuals, waited in a car at Love's convenience store parking lot in Dodge City for factory workers to arrive at the convenience store to cash the paychecks they had just received.
After the workers obtained cash, Corral and his accomplices would immediately follow an unsuspecting worker to his home where they, using BB guns and a replica revolver which resembled a real gun, would rob the worker of his money and other property before he could enter his home.
The charges against Corral proceeded to a jury trial which resulted in the jury acquitting Corral of two aggravated robbery counts which were allegedly committed on December 11, 2009. However, the jury found Corral guilty of committing aggravated robbery and criminal damage to property on December 4, 2009, guilty of committing attempted aggravated robbery on December 11, 2009, guilty of attempted aggravated robbery on December 18, 2009, and guilty of conspiracy to commit aggravated robbery.
The sentences for each felony conviction were ordered to run consecutively resulting in prison sentences totaling 158 months. The 6–month jail sentence for the criminal damage to property conviction was ordered to run concurrently with the prison sentences.
Corral has filed a timely notice of appeal raising the two issues which were first set forth.
Analysis of Appellate Issues
Corral first contends the district court committed reversible error when it instructed the jury on the term “dangerous weapon” as used in the definition of the crimes of aggravated robbery and attempted aggravated robbery.
Kansas law defines aggravated robbery in applicable part to this appellate issue as the taking of property from the person or presence of another by force or threat of bodily harm to any person (robbery, K.S.A.21–3426) 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 (aggravated robbery, K.S.A. 21–3427).
The jury instructions given by the court set forth all the elements of the crimes of aggravated robbery and attempted aggravated robbery, and further instructed the jury that “[a]n object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and which the victim reasonably believed to be a dangerous weapon.”
Corral contends this instruction which defines a dangerous weapon is erroneous and the court should have defined the term in the same manner as previous courts have defined the term “deadly weapon” for aggravated battery purposes. See, e.g., State v. Colbert, 244 Kan. 422, Syl. ¶ 4, 769 P.2d 1168 (1989) ( “The definition of a deadly weapon for purposes of the aggravated battery statute ... is an instrument which, from the manner it is used, is calculated or likely to produce death or serious bodily injury.”).
Since Corral failed to object to the district court's instruction as to what constitutes a dangerous weapon, we must apply a clearly erroneous standard of review. 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. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
The language quoted above which defines a dangerous weapon was taken directly from PIK Crim.3d 56.31 which states this definition should be used when there is an issue as to whether the defendant was armed with a dangerous weapon. In State v. Robbins, 272 Kan. 158, 167–68, 32 P.3d 171 (2001), disapproved on other grounds State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), our Supreme Court held that “it was error not to include the recommended PIK definition for a dangerous weapon” when there is an issue as to whether the defendant was armed with a dangerous weapon during the course of a robbery.
The Notes on Use section of PIK Crim.3d 56.31 states that the definition of dangerous weapon for aggravated robbery purposes comes from Colbert where our Supreme Court held:
“Whether or not a robber is ‘armed with a dangerous weapon’ for aggravated robbery (K.S.A.21–3427) purposes is determined 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. Hence, an unloaded gun or a gun with a defective firing mechanism may be a dangerous weapon within the purview of the aggravated robbery statute.” 244 Kan. 422, Syl. ¶ 3.
See also Robbins, 272 Kan. at 168 (depending on the circumstances, a BB gun can be considered a dangerous weapon for aggravated robbery purposes); State v. Davis, 227 Kan. 174, Syl. ¶ 1, 605 P.2d 572 (1980) (“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.”); State v. Childers, 16 Kan.App.2d 605, 612–13, 830 P.2d 50 (1991), rev. denied 250 Kan. 806 (1992) (The test to determine whether a particular instrumentality constitutes a dangerous weapon for aggravated robbery purposes “is based upon the perception of the victims and the intent of the perpetrator. Thus, even a toy water pistol can be found to be a dangerous weapon if the user intended the victim to believe it was a dangerous weapon and the victim reasonably believed it was a dangerous weapon.”).
Corral argues on appeal that beginning with State v. Archer, 8 Kan.App.2d 737, 54 Pac. 927 (1898), through State v. Mitchell, 220 Kan. 700, 556 P.2d 874 (1976), and the cases that followed, our Supreme Court has improperly utilized an erroneous Mitchell subjective test in aggravated robbery cases and this error has continued down through Colbert. As we are obligated to follow Supreme Court precedent, see State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011), this is not an argument which is persuasive to us.
Specifically applicable here, the Supreme Court in Colbert, relying on its previous holding in State v. Bowers, 239 Kan. 417, 721 P.2d 268 (1986), held that the definition of dangerous weapon for aggravated robbery purposes should not be used to define the term deadly weapon for aggravated battery purposes. Colbert, 244 Kan. at 426–27; see also Childers, 16 Kan.App.2d at 612–13 (whether the instrumentality used to accomplish a robbery was actually capable of inflicting deadly harm upon the victim plays no role in determining whether the instrumentality was a dangerous weapon for aggravated robbery purposes).
We hold the district court's instruction on what constituted a dangerous weapon in an aggravated robbery case correctly followed the recommended PIK Crim.3d language and Supreme Court precedent. It is a correct statement of law and not erroneous.
Corral's second issue and argument is that the State presented insufficient evidence to convict him of attempting an aggravated robbery of Julio Ramirez–Flores on December 11, 2009. It is Corral's contention that the evidence at trial clearly established that he completed the crime of aggravated robbery because he successfully took property from Ramirez–Flores (calling cards and a cell phone). Thus, Corral argues because he completed the crime of aggravated robbery, he cannot be found guilty of attempted aggravated robbery.
“When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence 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. Ward, 292 Kan. 541, Syl. ¶ 11, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). In determining whether there is sufficient evidence to support a conviction, an appellate court cannot reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005).
In examining this issue, it is necessary that we set forth the facts, evidence presented at trial, the instructions presented on this charge, the contentions on appeal, and argument to the jury as to this charge.
Ramirez–Flores testified that he got off work during the early morning hours of December 11, 2009, and went to the Love's convenience store to cash his paycheck. After cashing his paycheck, he drove to his home. As he was opening up the door to his house, a young man holding a pistol approached Ramirez–Flores and said: “Stop, stop. Let's see your money, let's see your money.” Ramirez–Flores said that two other individuals accompanying the young man grabbed him by his shirt, hit him, threw him to the ground, and proceeded to kick him. Ramirez–Flores suffered injuries as a result of this attack.
Ramirez–Flores said when he was on the ground, the robbers reached into his left pocket and pulled out his cell phone (a black Motorola Razor) and five phone cards. However, for no apparent reason, the robbers failed to pull money out of Ramirez–Flores' right pocket. At this time, a friend inside Ramirez–Flores' home opened the front door to the house which caused the three robbers to flee.
Shortly after the robbers fled, Ramirez–Flores found what he thought was his cell phone, a black Motorola Razor, lying on the ground outside his house, so he picked it up. Later that day, Ramirez–Flores determined that the cell phone was not his and turned it over to the Dodge City Police Department. Police subsequently learned that the cell phone belonged to Corral. Furthermore, police later searched Corral's home and found the cell phone that belonged to Ramirez–Flores.
At trial, the court gave the following instruction concerning the attempted aggravated robbery charge involving Ramirez–Flores:
“The Defendant is charged in count five with the crime of attempted aggravated robbery. The Defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant performed an overt act toward the commission of the crime of aggravated robbery;
“2. That the defendant did so with the intent to commit the crime of aggravated robbery;
“3. That the defendant failed to complete commission of the crime of aggravated robbery; and
“4. That this act occurred on or about the 11th day of December, 2009, in Ford County, Kansas.
“An overt act necessarily must extend beyond mere preparations made by the accused and must sufficiently approach consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. Mere preparation is insufficient to constitute an overt act.
“The elements of the completed crime of aggravated robbery are as follows:
“1. The defendant intentionally took property from the person of Julio Ramirez–Flores;
“2. The taking was by force or threat of bodily harm to Julio Ramirez–Flores;
“3. That the defendant was armed with a dangerous weapon or inflicted bodily harm on any person in the course of such conduct; and
“4. The act occurred on or about the 11th day of December, 2009, in Ford County, Kansas.
“An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and which the victim reasonably believed to be a dangerous weapon.”
As we earlier stated, the jury found Corral guilty of the attempted aggravated robbery of Ramirez–Flores.
In order to prove guilt of an attempted crime, there are three essential elements: (1) The defendant intended to commit the crime; (2) the defendant committed an overt act toward the preparation of the crime; and (3) the defendant failed to consummate the crime. K.S.A. 21–3301; PIK Crim.3d 55.01, comment, p. 143; State v. Collins, 257 Kan. 408, 893 P.2d 217 (1995).
The problem in attempt charges is often the question of when criminal liability attaches for the overt act. See State v. Gobin, 216 Kan. 278, 281, 531 P.2d 16 (1975). But, in our case, it seems clear that Corral's actions went well beyond that required for an attempt conviction.
As instructed by the district court, in order to complete an aggravated robbery of Ramirez–Flores, Corral had to, among other things, take property from the person of Ramirez–Flores. The crime of robbery is complete when the robber takes possession of the property because the element of asportation is no longer required to complete the crime. See State v. Kunellis, 276 Kan. 461, 469, 78 P.3d 776 (2003); State v. Bateson, 266 Kan. 238, 243, 970 P.2d 1000 (1998).
When Corral and his accomplices succeeded in taking the cell phone and calling cards from Ramirez–Flores, they had completed all the elements and perpetrated the crime of aggravated robbery. Consequently, Corral could not be found guilty of an attempted armed robbery of Ramirez–Flores because there was absolutely no evidence presented at trial to suggest he failed to obtain property from the victim or that he failed to complete the commission of the crime of aggravated robbery.
The State attempts to avoid the above conclusion by arguing the jury could have found that the property intended to be taken was money and when no money was taken from Corral, the crime became one of attempted aggravated robbery. The prosecutor did say in closing as to the attempted armed robbery against Julio Ramirez–Flores, “He fought back. He didn't let go of his wallet. We'll ask that you find the Defendant, Isaac Corral, guilty of the attempted aggravated robbery of Julio Ramirez–Flores.”
This argument is not persuasive because the jury was never instructed that the only property sought in the aggravated robbery was the money in Ramirez–Flores' pocket. Instead, the jury was instructed that one of the elements of the completed crime of aggravated robbery is that Corral “intentionally took property from the person of Julio Ramirez–Flores.” (Emphasis added.) Notably, the term “property” was never specifically defined or limited. Accordingly, because the evidence presented at trial clearly established that Corral and his accomplices succeeded in taking a cell phone and calling cards, i.e., property, from Ramirez–Flores, the evidence was insufficient to show that Corral “failed to complete commission of the crime of aggravated robbery.”
Our conclusion is bolstered by the holding in State v. Grauerholz, 232 Kan. 221, Syl. ¶ 4, 654 P.2d 395 (1982), that “[w]here the crime charged is completed, there is no call for an instruction on attempt.” And, in State v. Buggs, 219 Kan. 203, Syl. ¶ 2, 547 P.2d 720 (1976), which states: “A robbery is no longer an attempt but is complete when the robber takes possession of the property which is the object of the robbery.”
We reverse the conviction of attempted aggravated robbery of Ramirez–Flores and remand to the district court with orders that Corral's sentence for that crime be vacated.
Affirmed in part, reversed in part, and remanded with instructions that the sentence for the reversed conviction be vacated.