Opinion
No. 105,978.
2012-12-7
STATE of Kansas, Appellee, v. Theotis LASTER, Appellant.
Appeal from Wyandotte District Court; Ernest Johnson, Judge. Corrine E. Johnson, legal intern, and Randall L. Hodgkinson, Kansas Appellate Defender Office, for appellant. Cathy A. Eaton, assistant district attorney, Jerome Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Ernest Johnson, Judge.
Corrine E. Johnson, legal intern, and Randall L. Hodgkinson, Kansas Appellate Defender Office, for appellant. Cathy A. Eaton, assistant district attorney, Jerome Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM:
Following a jury trial, Theotis Laster was convicted of aggravated robbery. On appeal, Laster raises four issues for our consideration. First, he argues that the evidence was insufficient to support the language of the information that he and his companions were armed with dangerous weapons. Second, he contends that the trial court erred when it failed to provide the jury with supplementary instruction on the law of aiding and abetting. Third, he asserts that the prosecutor committed misconduct during closing argument. Finally, Laster argues that the trial court erred in ordering him to register as a violent offender. We find no merit in these contentions. Accordingly, we affirm.
As Major Morton was walking home from Family Dollar in Kansas City, Kansas, in May 2010, a light blue car pulled up next to him. Laster was in the passenger seat of the car. Morton recognized Laster as a former middle school classmate.
Laster lowered the car window and began talking to Morton. Next, someone rolled down the back passenger window and pointed an M16 assault rifle at him. Morton testified that another person exited the car and ran behind him. That person put a .9 mm gun to Morton's head and began to go through his pockets. Morton heard Laster tell the person with the .9 mm gun to go through Morton's pockets and take everything he had. The person proceeded to take Morton's cell phone and charger, his house keys, $18 and some change, and a wallet containing Morton's ID and social security card. Laster told Morton, “Nice doing business with you, boy,” and Laster and the other car occupants drove away.
Morton testified that during the incident, it did not seem that Laster was trying to protect him in any way. Morton further testified that Laster was “involved” in the incident, and he seemed to be the person “in control.” Morton called the police and made a report. He identified Laster in a police line-up as one of the individuals who accosted him.
Based on these events, Laster was charged with one count of aggravated robbery in violation of K.S.A. 21–3427. The information alleged that Laster and his unidentified companions unlawfully took property from Morton by threat of bodily harm to Morton while Laster and his companions were armed with dangerous weapons—guns. Following Laster's conviction by a jury, the trial court sentenced Laster to 94 months' imprisonment. The court also found that Laster had committed a person felony with a firearm.
Does Sufficient Evidence Support the Conviction?
On appeal, Laster first argues that there was insufficient evidence to support his conviction because the State did not show he was armed with a dangerous weapon. Laster notes that the State's information alleged that he and his companions took property from Morton while Laster and his companions were armed with guns. But at trial, the State presented no evidence that Laster was armed with a gun. Laster argues that the State must prove each fact it alleges in its charging document with sufficient evidence.
We first note our standard of review over Laster's claim. When the sufficiency of the evidence is challenged in a criminal case, an appellate court reviews all the evidence in the light most favorable to the State to determine whether the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009).
Here, the State alleged that Laster and his companions took property from Morton while Laster and his companions were armed with guns. At trial, the State presented no evidence that Laster was armed. Yet, the State presented evidence that Laster's two companions were armed. Specifically, Morton testified that one person pointed an M16 assault rifle at him and another person put a .9 mm to his head. The State makes no assertion that Laster was actually armed with a gun.
The question becomes: Was the State required to prove at trial that Laster was armed with a gun?
Laster bases his argument primarily on State v. Robinson, 27 Kan.App.2d 724, 8 P.3d 51 (2000). In that case, Robinson was charged with aggravated robbery after pointing a shotgun at the victim, telling the victim he was going to take his car, and driving off in the victim's car. At Robinson's trial, the jury was instructed that to prove aggravated robbery, the State must show Robinson took property from the person of the victim. 27 Kan.App.2d at 725. The State's information likewise alleged Robinson took the car from the victim's person. Significantly, aggravated robbery is defined as the taking of property from the person or presence of another by force or threat of bodily harm. 27 Kan.App.2d at 726.
Noting the distinction between a taking from the person and a taking from the presence, this court reversed Robinson's conviction, because the evidence presented at trial did not support that Robinson took property from the person of the victim as reflected in the information and the jury's instruction. 27 Kan.App.2d at 726–29. The court noted that neither the State nor the trial court or jury realized the significance of the omission of the “presence” language in the information and the instructions, so no modification was made before the end of deliberations. The court emphasized that although the State proved the car was taken from Jones' presence, it failed to ensure that the jury was properly instructed to obtain a conviction. 27 Kan.App.2d at 729.
In Robinson, this court emphasized the State's failure to correct its omission in the information when it later instructed the jury. Robinson, however, is distinguishable from the present case.
Here, the jury was instructed that to establish the crime of aggravated robbery, the State must prove that (1) Laster or another person for whose conduct Laster was criminally responsible took property from the person of Morton, (2) the taking was by threat of bodily harm to Morton, and (3) Laster, or another person for whose conduct Laster was criminally responsible, was armed with a dangerous weapon. Those instructions conformed to the aiding and abetting theory presented by the State at trial. Despite the language of its information, the State in this case did not set out at trial to prove Laster was armed with a gun. Instead, the State wanted to show that Laster's companions—for whose conduct Laster was criminally responsible—were armed with guns. And this is what the State demonstrated at trial.
Unlike in Robinson, the jury's instructions in this case conformed to the evidence presented at trial. For this reason, Robinson is not persuasive.
Here, the State's case against Laster was presented under an aiding and abetting theory. At trial, the jury was instructed that a person who intentionally aids and abets another person to commit a crime with the intent to promote or assist in the commission of that crime is criminally responsible for the crime committed. Under Kansas law, Laster was criminally responsible for taking property from Morton while armed with a dangerous weapon even if he was not actually armed with a dangerous weapon. See State v. Johnson, 230 Kan. 309, 311, 634 P.2d 1095 (1981) (stating it is not necessary for both defendants to possess a gun to justify both being convicted of aggravated robbery under an aiding and abetting theory). Thus, even though the State alleged in its information that Laster and his companions were armed with guns, the State did not have to prove that Laster was actually armed in order to sustain his conviction for aggravated robbery.
In summary, the jury was correctly instructed that the State need only prove that Laster or another person for whose conduct Laster was criminally responsible was armed. Because the State undisputedly proved this, substantial evidence supports Laster's conviction for aggravated robbery.
Did the Trial Court Err in Failing to Provide a Supplementary Instruction on the Law of Aiding and Abetting?
Laster next argues that the trial court should have provided the jury an additional instruction regarding aiding and abetting as it pertains to unintended crimes. Laster states that if the jury had any doubt as to whether he specifically intended to aid and abet the aggravated robbery, the jury needed to determine whether the robbery was foreseeable under these circumstances. According to Laster, if the jury ended up concluding that the aggravated robbery was foreseeable, it could convict Laster under the aiding and abetting theory. Laster complains that the jury here was not instructed to this effect.
We first note our standard of review over Laster's claim. Laster concedes he did not object to the omission of the aiding and abetting instruction below. If a defendant fails to request the trial court to give a particular jury instruction and does not object to its omission from the court's instructions, the defendant's claim that the court erred in failing to give the challenged instruction is reviewed under a clearly erroneous standard. State v. Cook, 286 Kan. 1098, Syl. ¶ 4, 191 P.3d 294 (2008); see K.S.A. 22–3414(3). Instructions are clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred. State v. Brown, 291 Kan. 646, 654, 244 P.3d 267 (2011).
Laster's instruction claim fails because he has not shown there is a real possibility the jury would have rendered a different verdict had the proposed instruction been given. By convicting Laster, the jury must have determined that Laster specifically intended to aid and abet the aggravated robbery. On appeal, Laster provides no basis for concluding that the jury actually had any reasonable doubt as to whether he had the requisite specific intent. Laster simply speculates that the jury may have had reasonable doubt and fails to support this idea with any evidence from the record. Curiously, the instructions proposed by Laster would only give the jury another basis upon which it could convict him ( i.e., under the foreseeability basis).
As the State points out in its brief, the jury was instructed on Laster's defense theory of compulsion and obviously rejected this defense. The jury had an opportunity to find Laster not guilty if it determined that he acted under the threat of imminent infliction of death or great bodily harm but did not do so. This jury obviously determined that Laster did not act under compulsion but instead intended to aid and abet the aggravated robbery.
To support his claim of instructional error, Laster focuses on his own trial testimony that he had no knowledge there were guns in the car and was shocked when his companions displayed guns. But the jury in this case was clearly unpersuaded by Laster's testimony, as it found Laster guilty of the crime charged. Obviously, the jury believed that Laster was intimately involved in the aggravated robbery based on Morton's testimony. Morton testified that Laster said, “Nice doing business with you, boy,” as they drove away from Morton. This clearly indicates that Laster participated in the aggravated robbery of Morton.
As a result, there is no real possibility the jury would have rendered a different verdict had the trial court given an instruction regarding aiding and abetting with regard to unintended crimes.
Did the Prosecutor Commit Misconduct in Closing Argument?
Laster next argues the prosecutor committed misconduct in closing argument by providing the jury with an “inaccurate definition of ‘beyond a reasonable doubt’ “ which diluted the State's burden of proof. Laster contends that the prosecutor's statement was flagrant and that evidence of his guilt was not overwhelming.
We first note our standard of review over Laster's claim of misconduct.
When reviewing an allegation of prosecutorial misconduct involving improper comments to the jury during closing argument, this court conducts a two-step analysis. First, the court must decide whether the prosecutor's comments were outside the wide latitude the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Huerta–Alvarez, 291 Kan. 247, 261, 243 P.3d 326 (2010).
In the second step of the analysis, the court considers three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct demonstrated ill will on the part of the prosecutor; and (3) whether the evidence was so direct and overwhelming that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. The third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60–261 (the refusal to grant a new trial is inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967) (concluding beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial), have been met. Huerta–Alvarez, 291 Kan. at 261. When a defendant alleges the prosecutor committed reversible misconduct, the prejudicial nature of alleged errors is analyzed in the context of the trial record as a whole. 291 Kan. at 262.
Here, Laster did not object to the prosecutor's comment about the burden of proof. Nevertheless, a contemporaneous objection is not required to review a prosecutor's statements during closing argument. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
Turning to the merits of Laster's claim, we first set forth the comment Laster complains about. During closing argument, the prosecutor stated:
“The judge was right when he said beyond a reasonable doubt is pretty self-explanatory, and it really is. You guys will know that. The only thing I can tell you is beyond a reasonable doubt, a reasonable doubt is not an imaginary doubt. It's not some doubt you think some other person could have. A reasonable doubt is a doubt you honestly have about whether or not the defendant committed the acts that are alleged in the elements you find there in instruction number 6.
“If you don't actually honestly have a reasonable doubt, then you must find the defendant guilty. This case really is as simple as it seems. It really is that clear. You know what happened, now I ask you to go back and find the defendant guilty.”
Laster argues that the prosecutor's proposed definition of the burden of proof “lessened” the actual burden and suggested the jury hold the State to a subjective rather than objective standard. Laster contends the prosecutor's statements suggested the case was “so black and white” that no juror could have an honest doubt about Laster's role in the case. Laster likens the prosecutor's statements to those made in State v. Brinklow, 288 Kan. 39, 200 P.3d 1225 (2009).
This case is distinguishable from Brinklow. In Brinklow, the prosecutor repeatedly utilized the phrase “sometimes you just know” during closing argument. 288 Kan. at 48. For example, the prosecutor argued:
“ ‘But I submit to you that as you evaluate the testimony of [A .C.] it fits with the totality of what you heard in this case. It fits and sometimes, ladies and gentlemen, you do just know and we ask you to find a guilty verdict against the defendant.’ “ 288 Kan. at 49.
On appeal, Brinklow argued that the prosecutor's repeated use of the phrase, “sometimes you just know,” urged the jury to decide the case based upon what must have happened rather than on what the evidence proved, thus diluting the State's burden of proof. 288 Kan. at 49. Brinklow relied on State v. Mitchell, 269 Kan. 349, 360–61, 7 P.3d 1135 (2000), where the court determined that a prosecutor had misstated the law and misled the jury by advising it the State's burden was a “common sense burden.”
The Brinklow court held the prosecutor's statements constituted misconduct. The court first distinguished the remarks made in that case from those made in State v. Wilson, 281 Kan. 277, 286, 130 P.3d 48 (2006), where the court held it was not misconduct for the prosecutor to advise the jury to look at the evidence and “go back” to the definition of reasonable doubt, and to tell the jurors they would intuitively know it when they saw it. The court explained that in Wilson, the prosecutor was referring to the definition of reasonable doubt and explaining that a juror has to “intuit” when the evidence has eliminated the juror's reasonable doubt as to the defendant's guilt, whereas here the prosecutor was suggesting jurors will sometimes “just know” a defendant committed the alleged acts and that he or she is guilty. Brinklow, 288 Kan. at 49–50. The court concluded that it is improper to convict when a jury “just knows” a defendant committed the acts alleged and that such a suggestion is contrary to the concept of proof beyond a reasonable doubt, approaching the level of gross and flagrant argument. 288 Kan. at 50. The court also noted that in that case, the prosecutor's repeated use of the phrase, “sometimes you just know” indicated an intentional theme supporting the ill-will factor, and—given the evidence of Brinklow's guilt was not overwhelming—the court could not say that the prosecutor's statements did not affect the case.
Unlike Brinklow, the prosecutor in this case did not urge the jurors to find Laster guilty if they “just knew” he committed the act of aiding and abetting the aggravated robbery. Instead, like in Wilson, the prosecutor was referring to the definition of reasonable doubt, stating the trial court judge was correct that reasonable doubt is “pretty self-explanatory.” And like in Wilson, the prosecutor was explaining that the jury must decide whether the evidence presented eliminated any reasonable doubt as to Laster's guilt, emphasizing that reasonable doubt is a doubt the jurors honestly have “about whether or not [Laster] committed the acts that are alleged in the elements” found in the instructions.
The prosecutor's statements in this case are not like those made in Brinklow. Thus, Laster has not demonstrated in his brief that the first prong of the prosecutorial misconduct test has been met ( i.e., that the prosecutor's comments were outside the wide latitude the prosecutor is allowed in discussing the evidence). Huerta–Alvarez, 291 Kan. at 261. And even if Laster had done so, he has also not demonstrated the second prong of the test—that the prosecutor's improper comments constituted plain error by prejudicing Laster and denying him a fair trial. 291 Kan. at 261.
First, Laster has not shown the prosecutor's comments were gross and flagrant. In his brief, Laster states the prosecutor's comments were “flagrant” but does not explain why. In Brinklow, the court concluded the prosecutor's repeated use of the offensive phrase indicated an intentional theme supporting the ill-will factor. 288 Kan. at 50. Here, the prosecutor commented about the jurors' honest doubts only twice. Laster points to no other alleged misconduct by the State.
Second, Laster has not shown ill will on the part of the prosecutor. As noted, Laster alleges no other acts of misconduct during this 2–day trial.
Third, contrary to Laster's contention, the evidence against Laster was direct and overwhelming. The evidence advanced at trial was that while Laster was talking with Morton, another person rolled down a window and pointed a rifle at him while another person exited the car and put a .9 mm gun to his head. Morton heard Laster tell the person to go through Morton's pockets and take everything he had. Morton testified that during the above incident, it did not seem as if Laster was trying to protect him in any way and that Laster appeared to be the person in control. Morton said that before his assailants drove away, Laster said, “Nice doing business with you, boy.”
Laster's trial testimony was that he did not know the other persons in the vehicle had guns and he thought they were just engaging in “horseplay.” Laster stated that as one man was going through Morton's pockets, he told him to “hurry up” because he didn't want to be there and didn't want them to shoot or hurt Morton. The jury obviously disbelieved Laster's version of the events.
Laster's only arguments regarding the sufficiency of the evidence are that he never used a gun and never possessed any of the items taken from Morton. These arguments are unpersuasive. First, because Laster was convicted under an aiding and abetting theory, it is irrelevant, as discussed earlier, whether he used or even possessed a gun during the aggravated robbery. Second, to support his claim that he never possessed any of the items taken from Morton, Laster seems to rely on his own trial testimony that he told law enforcement he did not recieve any of the money taken from Morton. Possession of items taken is not an element of the crime of aggravated robbery. See K.S.A. 21–3427.
Because Laster has not shown the prosecutor's comments in closing argument constituted misconduct or that Laster was prejudiced or denied a fair trial as a result of those comments, his argument fails.
Did the Trial Court Err in Ordering Laster to Register as a Violent Offender?
At sentencing, the trial court ordered Laster to serve 94 months' imprisonment. It also found that Laster had committed a person felony with a firearm. Thus, Laster was required to register as a violent offender under the provisions of K.S.A.2010 Supp. 22–4902(a)(7). The definitions section of the Kansas Offender Registration Act (K.S.A.2010 Supp. 22–4901 et seq.) defines an “offender” as: “any person who, on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony.” K.S.A.2010 Supp. 22–4902(a)(7).
On appeal, Laster argues that because there was no evidence he used a firearm during the aggravated robbery, he should not be required to register as a violent offender.
Since the filing of the briefs in this case, this issue has been considered and rejected by our Supreme Court. In State v. Nambo, 294 Kan. 1, 281 P.3d 525, 527–28 (2012), our Supreme Court held that an unarmed accomplice is indeed required to register as an offender under K.S.A.2010 Supp. 22–4902(a)(7). In Nambo, Gabriel Nambo, Jr., pled guilty to aggravated robbery after he and two other individuals participated in the armed seizure of one vehicle and the attempted armed seizure of another vehicle. 281 P.3d at 528–29. At sentencing, the State conceded that Nambo never possessed a firearm during the commission of the crimes, but the trial court nevertheless ordered Nambo to register as an offender under K.S.A.2010 Supp. 22–4902(a)(7). Slip op. at 3.
On appeal, our Supreme Court addressed the same arguments made by Laster regarding K.S.A. 21–4618(a) and K.S.A. 21–4704(h), but rejected the argument that an unarmed accomplice is not subject to the registration requirement. Slip op. at 8–9. Based on this clear precedent, this court rejects Laster's arguments. The trial court properly ordered Laster to register as a violent offender.
Affirmed.