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State v. Moore

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1139 (Kan. Ct. App. 2013)

Opinion

No. 106,209.

2013-03-8

STATE of Kansas, Appellee, v. Ryan O'Neil MOORE, Appellant.

Appeal from Johnson District Court; Sara Welch, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Brianna Harris, legal intern, Steven M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Johnson District Court; Sara Welch, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Brianna Harris, legal intern, Steven M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.

MEMORANDUM OPINION


PER CURIAM.

Ryan O'Neil Moore appeals his aggravated robbery conviction arguing that the aggravated robbery statute created alternative means for which the State failed to present sufficient evidence of each alternative means. We disagree. Moore also contends that the trial court erred in giving PIK Crim.3d 54.06 because it excludes language from K.S.A. 21–3205, making it an incorrect statement of law. We disagree. Moore also maintains the trial court erred in ordering restitution. We vacate the restitution order and remand for a hearing to determine the correct amount of restitution. Accordingly we affirm in part, vacate in part, and remand with directions.

On the evening of March 12, 2010, as Dawn Kadlubowski was walking to her car in the Wal–Mart parking lot, she felt someone bump her on her left shoulder. Kadlubowski turned to see a man wearing a dark hoodie standing next to her. The man grabbed her purse, but Kadlubowski fought back refusing to release her purse. As the struggle between Kadlubowski and the man continued, someone else grabbed Kadlubowski by the hair and yanked her head back causing her to fall to the ground. Kadlubowski was then hit numerous times in the head and face until she finally released the purse. Kadlubowski then saw her attackers run to a maroon convertible with a white top. Kadlubowski testified that the two individuals attacking her were laughing throughout the attack and also as they ran off after the attack. Kadlubowski later identified the man who attacked her as Moore.

Shortly after the attack, police spotted a car that matched the description Kadlubowski had given. While pursuing the car, police saw papers flying out of the windows of the car. Police eventually stopped the car and found four individuals in the car, including Moore. When searching Moore, officers recovered a woman's silver watch, a silver necklace, and $95 in cash from his pants' pocket. In the car, police recovered a black hoodie, a knit hat, and a Delta Dental card that belonged to Kadlubowski's husband. Police also retraced the path of the car and found numerous personal items belonging to Kadlubowski including social security cards, credit cards, and bank deposit slips.

During his interrogation, Moore admitted to planning the robbery and he admitted that the cash in his pocket belonged to Kadlubowski.

A jury convicted Moore of aggravated robbery. Moore was sentenced to 55 months in prison.

Does the aggravated robbery statute create alternative means?

Moore seeks reversal of his conviction for aggravated robbery, arguing that the trial court instructed the jury on alternative means of committing the crime but the State failed to provide sufficient evidence to support each means. Specifically, Moore contends the jury was instructed that it could find that the defendant took property from the person or the presence of another by force or by threat of bodily harm and that these were alternative means of committing a crime under K.S.A. 21–3426. The State responds that these are not alternative means.

“ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]’ “ State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).

In State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), our Supreme Court held that courts should apply a super-sufficiency of the evidence test in alternative means cases. Under this test, the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. Wright, 290 Kan. at 202–03. Therefore, when the jury is instructed on alternative means of committing a single crime and the State fails to present sufficient evidence to support each means, reversal is required. Wright, 290 Kan. at 203.

Recently, in State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), our Supreme Court held that courts must first determine whether the jury was presented with alternative means on a charge before it applies the super-sufficiency requirement. To make that determination, we must first consider whether an “or” separates alternative means or separates “options within a means.” 295 Kan. at 194. The Brown court explained:

“In examining legislative intent, a court must determine for each statute what the legislature's use of a disjunctive ‘or’ is intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction.” 295 Kan. at ––––,284 P.3d at 988.

The Brown court further explained that the legislature often signals its intent to state alternative means through structure, separating alternatives into distinct subsections of the same statute. 295 Kan. at 196. The legislature may also list additional alternatives or options within a single means of committing the crime. These “options within a means” do not constitute alternative means themselves if they do not state additional and distinct ways of committing the crime. Thus, if the “options within a means” do not require proof of at least one additional and distinct material element, they do not constitute alternative means. Brown, 295 Kan. at 200.

Person or Presence

First, Moore challenges his aggravated robbery conviction arguing the State presented insufficient evidence to demonstrate that he took property from the presence of the victim.

For property to be taken from someone's person, the property must be taken from a position in contact with the person's body. See State v. Robinson, 27 Kan.App.2d 724, 728, 8 P.3d 51 (2000). The Robinson court also held that “[p]ersonal property can be taken from a victim's ‘presence’ without being taken from his or her ‘person,’ but it cannot be taken from his or her ‘person’ without being taken in his or her ‘presence.’ “ 27 Kan.App.2d at 728.

In support of the aggravated robbery conviction, the victim testified that the man who attacked her grabbed her purse but she fought back refusing to release her purse. As the struggle between the victim and the man continued, someone else grabbed the victim by the hair and yanked her head back causing her to fall to the ground. The victim was then hit numerous times in the head and face until she finally released the purse. Moreover, in his brief, Moore concedes that he took the property from the victim's person.

Clearly, there was sufficient evidence to establish that Moore took property from the victim's person; however, there was no evidence that Moore took property from the victim's presence. But, if “person” and “presence” are not alternative means under K.S.A. 21–3426, the lack of evidence that Moore took property from the victim's presence will not require reversal of the conviction. See Wright, 290 Kan. at 203 (reversal required if State fails to present sufficient evidence to permit a jury to find each alternative means of committing the crime beyond a reasonable doubt).

We must examine the language of the relevant statutes, K.S.A. 21–3427 and K.S.A. 21–3426, to determine whether Moore's conviction of aggravated robbery is an alternative means crime. The question of whether alternatives within a statute define alternative means or “options within a means” is a question of law subject to de novo review. See Brown, 295 Kan. 193–94.

K.S.A. 21–3427 defines aggravated robbery as “a robbery, as defined in K.S.A. 21–3426 and amendments thereto, 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. 21–3426 further defines robbery as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.”

The language of the complaint and the jury instruction in this case were consistent with the language of the statute. The complaint alleged that Moore violated K.S.A. 21–3427 and asserted:

“That on or about the 12th day of March, 2010, in the City of Olathe, County of Johnson, State of Kansas, RYAN ONEIL MOORE did then and there unlawfully, feloniously and willfully take property, to-wit: ladies black purse with short strap and its contents, from the person or presence of another, to-wit: Dawn M. Kadlubowski, by force or by threat of bodily harm to the person of Dawn M. Kadlubowski, while Ryan ONeil Moore and/or his accomplice, did inflict bodily harm upon Dawn M. Kadlubowski in the course of such robbery.” (Emphasis added.)

The jury was instructed in relevant part that the State was required to prove: “That the defendant intentionally took a lady's black purse with short strap and its contents from the person or presence of Dawn Kadlubowski.”

As defined in K.S.A. 21–3426, the focus of the crime of robbery is the defendant's act of taking someone else's property. This is true regardless of whether the defendant took the property from the victim's person or presence. Therefore, person or presence are merely descriptions of the types of factual circumstances that may form the State's proof. Moreover, the robbery statute is not broken up into distinct subsections which often signals alternative means. See Brown, 295 Kan. at 196. Thus, we conclude that the terms “person” or “presence” are merely “options within a means” and are not alternative means of committing the crime of robbery. See also State v. Haberlein, 296 Kan. ––––, Syl. ¶ 3, 290 P.3d 640 (2012) (A taking from the person of a victim necessarily constitutes a taking from the presence of the victim.).

Force or threat of bodily harm

Moore also challenges his aggravated robbery conviction arguing the State presented insufficient evidence to demonstrate that he took property from the victim by threat of bodily harm.

As stated earlier, in support of the aggravated robbery conviction, the victim testified that the man who attacked her grabbed her purse but she fought back refusing to release her purse. As the struggle between the victim and the man continued, someone else grabbed the victim by the hair and yanked her head back causing her to fall to the ground. The victim was then hit numerous times in the head and face until she finally released the purse.

Clearly, there was sufficient evidence to establish that Moore took property from the victim by force; however, there was no evidence that Moore took property from the victim by threat of bodily harm. But, if “force” and “threat of bodily harm” are not alternative means under K.S.A. 21–3426, the lack of evidence that Moore took property from the victim by threat of bodily harm will not require reversal of the conviction. See Wright, 290 Kan. at 203 (reversal required if State fails to present sufficient evidence to permit a jury to find each alternative means of committing the crime beyond a reasonable doubt).

As stated earlier, K.S.A, 21–3426 defines robbery as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.”

The language of the complaint and the jury instruction in this case were consistent with the language of the statute. The complaint alleged that Moore violated K.S.A. 21–3427 and asserted:

“That on or about the 12th day of March, 2010, in the City of Olathe, County of Johnson, State of Kansas, RYAN ONEIL MOORE did then and there unlawfully, feloniously and willfully take property, to-wit: ladies black purse with short strap and its contents, from the person or presence of another, to-wit: Dawn M. Kadlubowski, by force or by threat of bodily harm to the person of Dawn M. Kadlubowski, while Ryan ONeil Moore and/or his accomplice, did inflict bodily harm upon Dawn M. Kadlubowski in the course of such robbery.” (Emphasis added.)

The jury was instructed in relevant part that the State was required to prove: “That the taking was by threat of bodily harm or force to Dawn Kadlubowski.”

Again, the focus of the crime of robbery is the defendant's act of taking someone else's property. This is true regardless of whether the defendant took the property by force or by threat of bodily harm. Therefore, force and threat of bodily harm are merely descriptions of the types of factual circumstances that may form the State's proof. Thus, we conclude that the terms “force” or “threat of bodily harm” are merely “options within a means” and are not alternative means of committing the crime of robbery. See State v. Haberlein, 290 P.3d at 649 (“Force, threat, and deception are not alternative means of kidnapping or aggravating kidnapping.”).

Did the trial court err in giving PIK Crim.3d 54.06?

Next, Moore contends that the trial court committed reversible error when it gave a jury instruction based on PIK Crim.3d 54.06. Specifically, Moore argues that the PIK instruction, which mirrors the aiding and abetting statute, K.S.A. 21–3205(2), misstates the law because it fails to include that the crime must be reasonably foreseeable as a probable consequence.

In this case, Jury Instruction 12 stated the following: “A person who intentionally aids, abets, advises, hires, counsels or procures another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.” This instruction conforms to PIK Crim.3d 54.06 (responsibility for crimes of another—crime not intended), which also mirrors the aiding and abetting statute, K.S.A. 21–3205(2).

At the time of Moore's trial, K.S.A. 21–3205(2) stated that an aider and abettor “is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.”

Moore's counsel objected to this instruction arguing that the instruction should include the “probable consequence” language that is stated in the statute. Moore's counsel stated:

“Actually 21–3205. That's the statutory basis for this instruction. The statute actually contains some language that is not contained in this instruction. I would ask the Court, based on the language in 21–3205, Subsection 2, to add to the end of the Court's instruction, the phrase, ‘if the other crime was reasonably foreseeable as a probable consequence of committing or attempting to commit the crime intended.’ The PIK version deletes that requirement, that the crime of another be foreseeable as a probable consequence; and I think the language, ‘foreseeable as a probable consequence’ is a higher burden than simply being foreseeable. Foreseeable is kind of a theoretical word, and I think the PIK instruction actually restricts the meaning of K.S.A. 21–3205, Subsection 2, and I think the jury needs to be informed that a crime committed in an attempt to carry out the intended crime must be foreseeable as a probable consequence, not simply as a possible consequence, and I think as it's written, a PIK instruction being adopted by the Court leaves open the possibility of a jury simply concluding ‘well, if it's foreseeable as a possible consequence, then it's foreseeable.’ Think that dilutes the language in 21–3205 which requires a probable consequence.”

Because Moore objected to the instruction at trial, we will examine the instruction “to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction.” State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).

Our Supreme Court has approved PIK Crim.3d 54.06 as a correct statement of K.S.A. 21–3205. See State v. Overstreet, 288 Kan. 1, 10, 200 P.3d 427 (2009); see also State v. Gleason, 277 Kan. 624, 636–38, 88 P.3d 218 (2004). The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied, 294 Kan. –––– (2012). Thus, we conclude that PIK Crim.3d 54.06 properly and fairly states the law.

Moreover, even if the additional language was included in Jury Instruction 12, it would not have changed the outcome of the case. “A review of the facts in each case is necessary to determine whether violence is reasonably foreseeable as a probable consequence of committing the crime intended.” State v. Davis, 4 Kan.App.2d 210, 213, 604 P.2d 68 (1979). Here, the intended crime was robbery by means of grabbing the victim's purse off her shoulder. Our Supreme Court has held that robbery is a crime inherently dangerous to human life. See State v. Giddings, 226 Kan. 110, 595 P.2d 1115 (1979).

Here, although no weapons were used, the aggravated robbery was clearly a reasonably foreseeable consequence of the robbery. In this case, there was testimony, including surveillance videos, that showed that Moore and his accomplice worked together. For example, both Moore and the accomplice followed the victim together as she walked out of Wal–Mart while the driver of their getaway car went to the car instead of following the victim. Then, when the victim resisted Moore's efforts to steal her purse, Moore's accomplice stepped in to assist him. Moore admitted to planning the robbery, but he denied planning or knowing that his accomplice would physically harm the victim. Nevertheless, why did Moore have his accomplice follow the victim with him if he did not intend on her helping him with the robbery if necessary. There is no other reason for Moore's accomplice to follow the victim other than for her to step in and use force if necessary. Additionally, there was no testimony that Moore told his accomplice to stop hitting the victim or that he tried to stop his accomplice from hitting the victim. The victim testified that all she heard was laughter while she was being attacked.

Therefore, we conclude that it was reasonably foreseeable that Moore's accomplice would use violence if the victim resisted Moore's attempt to steal her purse; thus, the additional language would not have changed the outcome of the trial.

Did the trial court err in assessing restitution?

Finally, Moore contends that the trial court erred in assessing him restitution without presenting any evidence to support the restitution amount. Moore also argues that if restitution was proper, then this court should remand this case to the trial court with directions to file a nunc pro tunc order to correct a clerical error in the sentencing transcript.

This court reviews the imposition of restitution under an abuse of discretion standard. State v. Dexter, 276 Kan. 909, 912, 80 P.3d 1125 (2003). A trial court has considerable discretion in determining the amount of restitution to be ordered. This court will find that a trial court has abused its discretion “when no reasonable person would take the view adopted by the trial court.” State v. Hinckley, 13 Kan.App.2d 417, 418, 777 P.2d 857 (1989). Moore contends the trial court abused its discretion here because the State did not produce any evidence of a restitution amount at sentencing.

At sentencing, the trial court asked if both parties received copies of the presentence investigation (PSI) report and both parties stated that they had. The PSI report contained a victim damage statement, claiming $1,040.06 in restitution. When discussing the PSI, the trial judge stated: “I have received an LSIR report along with the PSI, including a victim impact statement which the Court has reviewed, and a—I also note there's a restitution amount in there as well, counsel, and I have reviewed the PSI as well.”

The trial court sentenced Moore to 55 months in prison and entered an order of restitution. At no time did Moore request a restitution hearing or object to the order of restitution. The PSI report included the restitution amount that the trial judge imposed.

Although there was no hearing in this case on the amount of restitution, the issue of restitution was not contested in this case. Because Moore did not contest the amount of restitution in the trial court, he failed to preserve this issue for appeal. See State v. Hunziker, 274 Kan. 655, 662, 56 P.3d 202 (2002) (defendant cannot challenge the trial court's authority to order restitution for the first time on appeal).

Moore admits he failed to object to the order of restitution. Nevertheless, he argues this court should now address the issue because (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case and (2) consideration of the theory is necessary to serve the ends of justice. See State v. Foster, 290 Kan. 696, 702, 233 P.3d 265 (2010) (citing three exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal).

Moore contends that it is necessary to address his issue to serve the ends of justice and to promote judicial efficiency because, otherwise, he will have to file a K.S.A. 60–1507 motion alleging ineffective assistance of counsel for failing to object to restitution. But the ends of justice are hardly offended in this case when Moore violently stole an innocent woman's purse against her will. The ends of justice will not be served by addressing Moore's restitution issue for the first time on appeal. Moreover, it appears that Moore acquiesced to the restitution order.

In the alternative, Moore argues that if the restitution order was proper, the case should be remanded to the trial court to correct a clerical error in the transcript.

“Clerical mistakes within the record include typographical errors, incorrect statute numbers, failure to include the statute number, failure to state additional true matter, formal or clerical errors and entries concerning matters of procedure. Such omissions are correctable by nunc pro tunc orders.” State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986).

Here, the sentencing transcript reads as follows: “I find that restitution is due and/OEUG in the amount of $1,05.06. That will simply be a finding.”

The State admits that this is a typographical error, but it maintains that no correction is necessary because the journal entry properly states the amount of restitution.

To support its argument, the State cites to U.P.R. W. Co. v. Horney, 5 Kan. 340, Syl. ¶ 1 (1870), where our Supreme Court held that ambiguities in a transcript should be resolved by harmonizing the record as a whole; and, if by doing so, the record is sufficient to support the judgment of the trial court, such judgment will be affirmed.

Therefore, in following Horney, we must now review the record as a whole to determine if the trial court's judgment can be affirmed.

The State argues that the restitution amount in the journal entry is the amount set forth in the PSI report; however, that is not correct. The journal entry states the total restitution is $1,040.66. The journal entry further breaks down this restitution amount to $242 to the victim and $788.06 to the crime victim's compensation board. When you add these two amounts together it equals $1,030.06. This amount is $10.60 less than the total restitution listed in the journal entry. The PSI report lists the total restitution as $1,040.06. This amount differs from the amount in the journal entry by $0.60. The PSI report further breaks down the restitution amount to $242 to the victim and $788.06 to the crime victim's compensation board. This breakdown is the same breakdown as the one in the journal entry that totals $1,030.06.

After reviewing the record, it is unclear what the correct restitution amount should be; therefore, the restitution order is vacated and the case remanded to the trial court for a hearing on the amount of restitution.

Affirmed in part, vacated in part, and remanded.


Summaries of

State v. Moore

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1139 (Kan. Ct. App. 2013)
Case details for

State v. Moore

Case Details

Full title:STATE of Kansas, Appellee, v. Ryan O'Neil MOORE, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 8, 2013

Citations

296 P.3d 1139 (Kan. Ct. App. 2013)