State v. Burton

136 P.3d 945, 35 Kan. App. 2d 876, 2006 Kan. App. LEXIS 537
CourtCourt of Appeals of Kansas
DecidedJune 9, 2006
DocketNo. 94,432
StatusPublished
Cited by6 cases

This text of 136 P.3d 945 (State v. Burton) 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. Burton, 136 P.3d 945, 35 Kan. App. 2d 876, 2006 Kan. App. LEXIS 537 (kanctapp 2006).

Opinion

Malone, J.:

Anthony B. Burton appeals his conviction and sentence for one count of aggravated robbery. Burton claims the trial court erred in instructing the jury on aiding and abetting aggravated robbery. Burton also claims there was insufficient evidence to support his conviction. Finally, Burton claims the trial court erred by basing his sentence on a criminal history score that was not proved to a jury beyond a reasonable doubt. We affirm.

On October 24, 2004, Jason Vaughn stopped at a bank to cash a $220 check on his way to work. Vaughn received the entire amount in denominations of $10s and $20s, and he left the cash in the bank envelope, along with his driver’s license, on the passenger’s seat of his car. He placed his wallet on top of the envelope and proceeded to work. Vaughn was unaware that he was being followed by another car occupied by Burton and driven by Eric Pettit.

Vaughn pulled into the parking lot of his place of employment. Pettit parked on the street. When Pettit exited the car, Burton slid over into the driver’s seat. Pettit contacted Vaughn as he stepped from his car and asked Vaughn to show him the stereo equipment in Vaughn’s car. However, Pettit ultimately lifted his shirt to display a gun in his waistband, and Pettit informed Vaughn that he wanted the car. Vaughn gave Pettit the keys. Pettit drove Vaughn’s car from the parking lot, and Burton followed him in the other car. When Vaughn notified his supervisor that his car had been taken, a coworker, Glenn Keith, offered to help Vaughn pursue his assailants.

Keith and Vaughn contacted police by cellular phone and started driving in the direction Pettit had fled. When they turned down a side street, they came upon Burton and Pettit standing behind [878]*878Vaughn’s car with the trunk open. When Pettit and Burton saw Keith’s car, they jumped into their original car and Pettit drove off. Keith continued to pursue Pettit and Burton, and Vaughn stayed behind with his car. Vaughn noticed that his wallet and the bank envelope were missing.

Keith remained in contact with police dispatch while he continued to pursue the other car. During the chase, Keith noticed a black object was tossed from the passenger window. He later returned to the location to recover the item and discovered it was Vaughn’s wallet. The pursuit concluded when five police officers descended on the area and stopped Pettit and Burton. Vaughn was transported to the area and positively identified Pettit as the man with the gun who took his car, and Burton as tire man driving the other car.

A search of tire car yielded a loaded gun, $100 in increments of $10s and $20s, Vaughn’s driver’s license, and other various cards and forms of identification that belonged to Vaughn. Burton was taken into custody and transported to the jail. A search of his person uncovered $120, consisting of six $20 bills.

The State charged Burton with aggravated robbery under the theory that he aided and abetted Pettit in the crime. At trial, Burton admitted that he was the man with Pettit, but he denied knowing about or being involved in the robbery. Burton testified that the money found on his person the day of the arrest was money he had made selling crack cocaine. He denied going through Vaughn’s wallet and taking any money. Burton testified that Pettit threw the wallet out the passenger side window during the chase.

A jury found Burton guilty as charged. The trial court imposed a presumptive sentence of 216 months’ imprisonment. Burton timely appeals.

Jury instruction on aggravated robbery

Burton first claims the trial court erred in instructing tire jury on aggravated robbery. The trial court modified Pattern Instructions for Kansas — Criminal 3d 56.31 (PIK Crim. 3d 56.31) on aggravated robbery by incorporating aiding and abetting language into the elements instruction. Burton claims this resulted in undue [879]*879emphasis on one instruction and focused the jury’s attention on Burton’s relationship with Pettit rather than his own intentions. Burton argues the trial court should have adhered to the standard PIK elements instruction on aggravated robbery.

“When reviewing challenges to jury instructions, this court must consider the instructions as a whole and not isolate any one instruction. ‘ “If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citations omitted.]” ’ [Citation omitted.]” State v. Mays, 277 Kan. 359, 378-79, 85 P.3d 1208 (2004).

Over Burton’s objection, the trial court instructed the jury on aggravated robbery as follows:

“The defendant is charged with die crime of aggravated robbery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant, or another for whose conduct he was criminally responsible, intentionally took property from the person or presence of Jason J. Vaughn;
“2. That the taking was by threat of bodily harm to Jason J. Vaughn;
“3. That the defendant, or another for tuhose conduct he was criminally responsible, was armed with a dangerous weapon; and
“4. That this act occurred on or about the 22nd day of October, 2004, in Sedgwick 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.” (Emphasis added.)

The trial court modified PIK Crim. 3d 56.31 by adding the language “or another for whose conduct he was criminally responsible” to the elements instruction on aggravated robbery. The trial court also gave a separate jury instruction on aiding and abetting based on PIK Crim. 3d 54.05. This instruction stated:

“A person who, either before or during its commission, intentionally aids, abets, advises, hires, [or] counsels another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.” (Emphasis added.)

The use of PIK instructions is recommended because the instructions were developed to bring accuracy, clarity, and uniformity [880]*880to jury instructions. They should be the starting point in tire preparation of any set of jury instructions. However, “[i]f the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition.” State v. Dunn, 249 Kan. 488, 492, 820 P.2d 412 (1991).

An argument similar to Burton’s has previously been rejected by this court. In State v. Buhr, 25 Kan. App. 2d 529, 966 P.2d 690, rev. denied 266 Kan.

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Cite This Page — Counsel Stack

Bluebook (online)
136 P.3d 945, 35 Kan. App. 2d 876, 2006 Kan. App. LEXIS 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burton-kanctapp-2006.