State v. Bateson

958 P.2d 44, 25 Kan. App. 2d 90, 1998 Kan. App. LEXIS 50
CourtCourt of Appeals of Kansas
DecidedMay 8, 1998
DocketNos. 77,155; 77,156
StatusPublished
Cited by1 cases

This text of 958 P.2d 44 (State v. Bateson) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bateson, 958 P.2d 44, 25 Kan. App. 2d 90, 1998 Kan. App. LEXIS 50 (kanctapp 1998).

Opinion

Lewis, J.:

This appeal involves two consolidated cases and defendant’s convictions in both cases. In case No. 95-CR-214, defendant appeals from his conviction for robbery, for which he re[91]*91ceived a sentence of 61 months. In case No. 95-TR-1371, defendant appeals from his conviction as a habitual violator for driving while his license was revoked. Defendant was ordered to serve a 12-month sentence in the custody of the Secretary of Corrections, and that sentence was to run consecutive to his sentence in the robbery conviction.

CASE NO. 95-CR-214

Defendant was convicted of robbery in this case and argues, among other things, that the evidence was insufficient to sustain his conviction.

The crime of robbery is defined by K.S.A. 21-3426 as follows: “Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person .” (Emphasis added.)

Defendant’s argument on appeal is that the evidence did not show that he forced or threatened bodily harm to take property from the victim. He therefore argues that this crime was, at the very most, a theft and that we should reverse his robbery conviction and remand for sentencing on a theft conviction.

June Huston walked into her office on the day in question and found a stranger leaning over her desk and looking into the drawer where she kept her purse. Defendant was that stranger.

Huston asked defendant what he was doing and received an equivocal answer. She then emphatically told defendant to stay in her office while she checked her purse, and he did so. Huston checked her purse, discovered cash missing, and accused defendant of taking it. Defendant then advised Huston that he had to go, and he left the office and began walking quickly down the hall and up the stairs of the courthouse.

As defendant walked out the door of the office, Huston followed him down the hallways at a distance of 6 to 8 feet. When they reached an entrance to the first floor of the courthouse, defendant went through the entrance ahead of Huston. When Huston attempted to pass, the door slammed abruptly back, hitting her in the shoulder and head and knocking off her glasses. By the time [92]*92Huston had recovered from her contact with the door, defendant was nowhere to be seen.

After reporting these events to. the sheriff, Huston encountered defendant again on the sidewalk. She again accused him of taking her money, and he denied it and offered her a $100 bill. She told defendant to wait for the sheriff, but he declined and left in a car driven by Barbara Tomich.

Later that day, an address book belonging to Huston was found at a construction site, and it contained the missing cash.

Based on this highly summarized version of the facts, defendant was convicted of robbery and sentenced to an upward departure of 61 months.

Defendant’s principal argument is that there was no evidence at trial to indicate that force or threat of bodily harm was used by him to take Huston’s property.

Initially, we find that a rational factfinder could have concluded beyond a reasonable doubt that defendant stole Huston’s money and that defendant pushed the courthouse door backwards into Huston’s face in an effort to dissuade her from continuing her pursuit. The question is whether the force applied occurred during the robbery or after a theft had been completed.

To prove robbery, it must be shown that property was taken from another either by force or by threat of bodily harm. State v. Aldershof, 220 Kan. 798, 800, 556 P.2d 371 (1976). A taking is complete when the thief has obtained the complete, independent, and absolute possession and control of the property of another. State v. Long, 234 Kan. 580, 585, 675 P.2d 832 (1984), overruled in part on other grounds State v. Keeler, 238 Kan. 356, 365, 710 P.2d 1279 (1985).

In the instant matter, the evidence indicates that defendant did not threaten Huston, nor did he use physical force in taking the money out of her purse. The only force involved in this case is defendant’s act of slamming a door shut in the face of the pursuing victim, thus causing her some physical injury and further causing her to' temporarily abandon the effort of recovering her property from defendant.

[93]*93Was the slamming of the door in Huston’s face sufficient force to convert the crime of theft into one of robbery? Ultimately, we must decide whether the taking of the property had been completed prior to the application of force.

We have a number of Supreme Court cases on this issue. However, the resolution of the issue depends primarily on the facts of each case. Our Supreme Court in State v. Long, 234 Kan. at 583, said: “Prior Kansas cases are not in accord with one another and as such do not provide much assistance in determining when a taking is completed.”

However, there are some principles of law which we believe apply to the instant matter. In State v. Miller, 53 Kan. 324, 328, 36 Pac. 751 (1894), the court said:

“Nice questions may and do arise as to just when the possession of the owner of articles not attached to his person, but under his immediate charge and control, is divested, and it may well he doubted whether a thief can be said to have taken peaceable possession of money or other thing of value in the presence of the owner, when the taking is instantly resisted by the owner, before the thief is able to remove it from his premises or from his immediate presence.” (Emphasis added.)

Some 90 years later, the Kansas Supreme Court in State v. Long, 234 Kan. 580, Syl. ¶ 2, said:

“A thief does not obtain the complete, independent and absolute possession and control of the money or property adverse to the rights of the owner necessary to constitute a taking where the taking of the property is immediately resisted by the owner before the thief can remove it from the premises or from the owners presence.” (Emphasis added.)

This rule was most recently applied by the Supreme Court in State v. Dean, 250 Kan. 257, Syl. ¶ 4, 824 P.2d 978 (1992).

In this case, the evidence shows that the taking of the property was immediately resisted by the owner of the property, who pursued defendant until he slammed the door in her face.

In State v. Dean, the initial possession of the thief was a good deal more secure than it was in the case at bar. In Dean, the defendant ordered and was given $3 worth of gasoline pumped into his car. After the gasoline had been pumped, the station owner asked for payment, and the defendant put his hand in his pocket and made it appear as if he had a gun. Upon sighting the alleged [94]*94"weapon,” the owner was dissuaded from continuing to stop the defendant from leaving without paying for the gas, and the defendant drove away.

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Related

State v. Bateson
970 P.2d 1000 (Supreme Court of Kansas, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
958 P.2d 44, 25 Kan. App. 2d 90, 1998 Kan. App. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bateson-kanctapp-1998.