Opinion
No. 105,517.
2012-09-7
STATE of Kansas, Appellee, v. Jonathan ROBERTSON, Appellant.
Appeal from Reno District Court; Richard J. Rome, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Richard J. Rome, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
GREENE, C.J.
Jonathan Robertson appeals his convictions of two counts aggravated robbery and one count each of aggravated assault and aggravated battery. He challenges the sufficiency of the evidence to support either of his convictions of aggravated robbery; he argues that these convictions are multiplicitous, and he argues error in the court's receipt of the verdict. We reverse and vacate one of the robbery convictions as multiplicitous and reverse the other because the evidence was insufficient and remand for resentencing on theft. Finally, concluding any error in receiving the verdict was harmless, we affirm Robertson's remaining convictions.
Factual and Procedural Background
After assistant store manager John Beavers saw Robertson place a magazine down his pants and begin to walk out of the grocery store, Beavers and another employee confronted Robertson outside of the store. They told him to come back and discuss the magazine, and when he failed to respond, the police were called.
On Beaver's second request for Robertson to come back inside the store, Robertson appeared to comply by relinquishing the magazine and walking towards the front door. Just before reaching the door, Robertson turned around and stabbed Beavers in the stomach with a knife. The other employee tried to physically detain Robertson but let him go when Robertson again flashed the knife. Robertson then ran from the scene.
The magazine was recovered inside the foyer area of the store, and the testimony is not clear as to how it got there. When Robertson was arrested, a bloody knife was found in his pocket. Swabs from the knife revealed both Robertson's and Beaver's DNA. Robertson told the arresting officer that he either gave the magazine back or threw it down prior to the skirmish with the employees.
Robertson was charged with two counts of aggravated robbery and one count each of aggravated battery, aggravated assault with a deadly weapon, and possession of drug paraphernalia with intent to introduce a controlled substance into the human body. The jury found Robertson guilty of aggravated battery, aggravated assault, and both counts of aggravated robbery. The jury found him not guilty of possession of drug paraphernalia. After reading the verdict, the judge asked if either party wished to have the jury polled. Both parties declined, and the judge discharged the jury. The judge did not ask the jurors if this was their verdict; neither party objected to this omission.
Robertson was given a controlling 112–month prison sentence, with the two sentences for aggravated robbery running concurrently and the remaining sentences running consecutively. Robertson timely appeals.
Were Robertson's Aggravated Robbery Convictions Multiplicitous?
For his initial issue on appeal, Robertson argues that his aggravated robbery convictions were multiplicitous. He suggests they both arose from violations of K.S.A. 21–3427, thus requiring a unit of prosecution test based on State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). Then, applying the reasoning and outcome of State v. Pham, 281 Kan. 1227, 136 P.3d 919 (2006), Robertson argues we should consider his conduct unitary in nature and vacate one of his convictions for this reason.
The State concedes this issue and suggests that we should vacate Robertson's second conviction for aggravated robbery. We agree. The convictions were multiplicitous so we reverse and vacate one of the convictions for this reason.
Was There Sufficient Evidence to Support Robertson's Remaining Aggravated Robbery Conviction?
Robertson next argues that the evidence was insufficient to support a conviction of aggravated robbery because the taking occurred prior to and was complete before any force or threat of bodily harm. We agree.
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). To the extent this issue involves statutory interpretation, this court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
To sustain a conviction for aggravated robbery, the evidence must show: (1) The defendant intentionally took property from the person or the presence of the victim; (2) the taking was by threat of bodily harm or force; and (3) the defendant was armed with a dangerous weapon or inflicted bodily harm on any person in the course of such conduct. See K.S.A. 21–3426; K.S.A. 21–3427; PIK Crim.3d 56.31. From the plain language of the statute, Robertson was convicted of taking the magazine by means of threat or force. Cf. State v. Finch, 223 Kan. 398, 402–03, 573 P.2d 1048 (1978) (interpreting the word “by” in the elements of theft by deception under K.S.A. 21–3701[b] ). Robertson asserts that threat or force were not causative factors in the taking of the magazine.
Both State v. Long, 234 Kan. 580, 585–92, 675 P.2d 832 (1984), disapproved in part on other grounds State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985), and State v. Aldershof, 220 Kan. 798, 800–04, 556 P.2d 371 (1976), contain detailed discussions of the historical relationship between theft and robbery. Neither theft nor robbery requires movement of the property in order to complete the offense. See State v. Kunellis, 276 Kan. 461, Syl. ¶ 5, 78 P.3d 776 (2003); Long, 234 Kan. at 585 (“[T]he element of asportation is no longer required to complete the crimes of theft or robbery.”).
To assess whether a robbery has occurred in the course of committing a theft, the inquiry focuses on the violence to the owner. Aldershof, 220 Kan. at 803. The fact-intensive inquiry for whether a robbery has occurred becomes “whether the taking of the property has been completed at the time the force or threat is used by the defendant. [Citation omitted.]” State v. Bosby, 29 Kan.App.2d 197, 204, 24 P.3d 193,rev. denied 271 Kan. 1038 (2001). A theft only becomes a robbery when force or threat is used to complete the taking. State v. Plummer, 45 Kan.App.2d 700, 705–06, 251 P.3d 102 (2011), (citing Aldershof, 220 Kan. at 800), ( rev. granted September 21, 2011). In order to constitute a taking, “ ‘the prospective robber must have obtained at some particular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein.’ [Citation omitted.]” State v. Randle, 32 Kan.App.2d 291, 293, 81 P.3d 1254,rev. denied 277 Kan. 927 (2004). In State v. Saylor, 228 Kan. 498, 500–01, 618 P.2d 1166 (1980), our Supreme Court stated that when a customer in a self-service store conceals property of the store, fails to make proper payment, and leaves with the property concealed a theft has occurred.
Here, the facts support a theft and not an aggravated robbery. Put simply, Robertson did not take the magazine by force or threat. See K.S.A. 21–3701(a)(1); K.S.A. 21–3426; K.S.A. 21–3427. Obviously, Robertson used force and threat when he wielded the knife—but not to take the magazine. Instead, Robertson used the knife to escape and resist arrest after the magazine had been relinquished. See Aldershof, 220 Kan. at 803. Although the State insists this is a factual question for the jury to decide, the facts are not truly in dispute. The taking was complete when Robertson placed the magazine down his pants—concealing merchandise on his person with the intent to permanently deprive the owner. See K.S.A. 21–3701(a)(1); Saylor, 228 Kan. at 500–01. Unlike in Long, Beavers and his colleague did not immediately resist the taking. See 234 Kan. at 586. Instead, they waited until Robertson had exited the store. The exact amount of time that passed is unclear from the record, but at least enough time elapsed for Beavers to meet the other employee outside the store. Just as in Aldershof, this was already a completed theft by that time. Robertson relinquished the magazine before using force and threat to escape. Accordingly, even in the light most favorable to the prosecution, the evidence here does not support a conviction for aggravated robbery.
Having concluded that Robertson's remaining aggravated robbery conviction was not supported by sufficient evidence, it must be reversed. Robertson argues that the appropriate remedy is to remand with directions to resentence him for misdemeanor theft or, in the alternative, attempted aggravated robbery.
Applicable caselaw supports Robertson's argument that remand for resentencing on a lesser included offense is the proper remedy. State v. Wilt, 273 Kan. 273, Syl. ¶ 3, 44 P.3d 300 (2002); see also State v. Kingsley, 252 Kan. 761, 779–82, 796, 851 P.2d 370 (1993) (reversing defendant's conviction for aggravated arson but remanding with directions that defendant be resentenced for arson because evidence, though insufficient to support aggravated arson conviction, was sufficient to support conviction for arson); State v. Moss, 221 Kan. 47, 50, 557 P.2d 1292 (1976) (reversing defendant's conviction for attempted felony theft but remanding with directions that defendant be resentenced for attempted misdemeanor theft because evidence, though insufficient to support attempted felony theft conviction, was sufficient to support conviction for attempted misdemeanor theft); State v. Smith, 4 Kan.App.2d 149, 152–53, 603 P.2d 638 (1979) (reversing defendant's conviction for possession of marijuana with intent to sell but remanding with directions that defendant be resentenced for possession of marijuana because evidence, though insufficient to support conviction for possession with intent to sell, was sufficient to support conviction for possession). In State v. Bateson, 266 Kan. 238, 247, 970 P.2d 1000 (1998), when the evidence supported theft but not robbery, the court reversed the robbery conviction and remanded to the district court with directions to resentence for a theft conviction.
Although there are some differences between the strict elements of theft and robbery, when theft involves obtaining or exerting unauthorized control over property, theft is considered a lesser included offense of robbery and aggravated robbery. Plummer, 45 Kan.App.2d at 704–05 (citing State v. Sandifer, 270 Kan. 591, 600–01, 17 P.3d 921 [2001] ); see also Long, 234 Kan. at 591–92 (“[T]heft is a ‘lesser degree of the same crime’ which embraces robbery.”). Based upon our analysis set forth above, we conclude that attempted aggravated robbery is not supported by the evidence, so we remand for resentencing on misdemeanor theft.
Did the Court Commit Reversible Error by Failing to Inquire Into Accuracy of Jury's Verdict?
As his last issue, Robertson argues that the judge's failure to inquire about the accuracy of the jury's verdict was reversible error. At trial, the verdict was read aloud, but the judge failed to ask whether the jurors agreed with it. Both parties declined an offer to poll the jury.
Issues of statutory interpretation and jury unanimity are questions of law over which appellate courts have unlimited review. See Arnett, 290 Kan. at 47 (statutory interpretation); State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005) (jury unanimity). A criminal defendant has a statutory right to a unanimous jury verdict. State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010); see K.S.A. 22–3421; K.S.A. 22–3423(1)(d). K.S.A. 22–3421 requires the judge to inquire about the jury's verdict:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.” (Emphasis added.)
Essentially, district courts are required to follow two distinct procedural steps: “First, the trial judge shall inquire whether the verdict read in open court is the jury's verdict. Second, the trial judge must poll the jury if either party requests that the jury be polled.” State v. Womelsdorf, 47 Kan.App.2d 307, Syl. ¶ 7, 274 P.3d 662 (2012), petition for rev. filed May 10,2012.
Robertson did not raise this issue below. Issues not raised before the trial court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Nonetheless, a new legal theory may be raised on appeal if (1) it involves only a question of law and is finally determinative of the case; (2) consideration is necessary to serve the ends of justice or prevent a denial of fundamental rights; or (3) the trial court is correct for the wrong reasons. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). We conclude that the issue may be addressed on appeal.
We recognize that our court has not been entirely consistent in determining whether an error of this nature is structural and requires a new trial or should be subjected to a harmlessness inquiry. In State v. Johnson, 40 Kan.App.2d 1059, 1073–81, 198 P.3d 769 (2008), a panel of this court found that the district court's failure to inquire into the accuracy of the jury verdict was reversible error. There, evidence in the record called into question the unanimity of the jury's verdict—including questions by the jury during deliberations asking what would happen if the jury could not reach a unanimous verdict and two posttrial affidavits from jurors indicating that they did not feel the verdict was truly unanimous. Accordingly, the panel held that the judge's failure to inquire into the verdict was “reversible error in this case.” 40 Kan.App.2d at 1081.
In more recent decisions, our court has divided on the question whether a failure of the trial judge to make the statutory inquiry is structural error requiring reversal. In State v. Gray, 45 Kan.App.2d 522, 524–25, 249 P.3d 465,rev. denied 292 Kan. 967 (2011), a panel of our court held that failure to strictly comply with K.S.A. 22–3421 was structural error requiring reversal. In contrast, another panel of our court held that failure to comply with the statute was not structural and was subject to the doctrines of waiver, invited error, and harmlessness, especially where the complaining party fails to request or rejects an invitation to poll the jury. State v. Dunlap, 46 Kan.App.2d 924, 930–31, 266 P.3d 1242 (2011), petition for rev. filed December 30, 2011.
We join other panels of our court in adopting the reasoning and outcome of Dunlap rather than Gray. See Womelsdorf, 47 Kan.App.2d at 329 (defendant could not challenge procedure for accepting verdict for first time on appeal because defense counsel declined jury polling); see also State v. Romero, No. 105,158, 2012 WL 2924537, at *2–4 (Kan.App.2012) (unpublished opinion), petition for rev. filed August 13, 2012; State v. Gindlesberger, No. 105,604, 2012 WL 2620552, at *4–5 (Kan.App.2012) (unpublished opinion); State v. Martin, No. 105,564, 2012 WL 2148177, at *1–2 (Kan.App.2012) (unpublished opinion), petition for rev. filed July 9, 2012; State v. Stangl, No. 105,400, 2012 WL 924831, at *2–3 (Kan.App.2012) (unpublished opinion), petition for rev. filed April 11, 2012; State v. Demler, No. 104,840, 2011 WL 6943076, at *2–3 (Kan.App.2011) (unpublished opinion), petition for rev. filed January 23, 2012. Gray has been cited only four times by Kansas courts, and no other panel has decided to follow its approach to the issue.
Here, the judge failed to inquire into the verdict, as required under K.S.A. 22–3421. But no juror expressed disagreement, and neither party elected to have the jury polled when invited by the judge. Unlike in Johnson, Robertson has not alleged any fact that calls the unanimity of the jury's verdict into question; Robertson's only argument is that the judge failed to follow the statutory procedure. Essentially, the facts are identical to Gray, Dunlap, and Womelsdorf. We follow Dunlap and Womelsdorf in concluding that because Robertson declined to have the jury polled, the issue was either waived or the error was invited.
Moreover, any error was harmless. An error is harmless if it did not affect the defendant's substantial rights, meaning it did not affect the trial's outcome. K.S.A. 60–261; State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). Because the right to a unanimous jury verdict is statutory and not constitutional, the court's error was harmless if there is no reasonable probability that it affected the outcome of Robertson's trial. In making this determination, we consider the sufficiency of the evidence supporting the verdict and, more importantly, whether anything in the record casts doubt on the verdict's unanimity. Dunlap, 46 Kan.App.2d at 937. Here, the evidence supporting theft, aggravated assault, and aggravated battery is not challenged, and nothing in the record calls the jurors' unanimity into question. There is no reasonable probability that the trial's outcome was affected by the judge's failure to follow K.S.A. 22–3421. Consequently, any error was harmless and Robertson's remaining convictions must be affirmed.
Affirmed in part, reversed and vacated in part, and remanded with directions.