Opinion
110,626.
05-15-2015
STATE of Kansas, Appellee, v. Marcus GRANT, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
In the early hours of a December morning, two men knocked on the front door of Tony Penry's girlfriend's house and asked whether Penry remembered them. After a long back-and-forth conversation in which Penry insisted he did not know either man, one of the visitors pulled a shotgun on Penry and divested him of his wallet. The men fled but were later apprehended at a traffic stop. The man who did not pull the gun, Marcus Grant, was charged with aggravated robbery under the theory that he aided and abetted the gunslinger, and a jury convicted him.
Grant raises two issues on appeal. First, he argues that the State presented no evidence that he actively participated in, encouraged, or supported the robbery and that, therefore, his conviction is supported by insufficient evidence. But the evidence shows that Grant accompanied his companion to the house in the wee hours of the morning, attempted to gain entry into that house, and never attempted to stop or discourage the robbery. Moreover, Grant knew that his companion had the gun before they exited the car. These surrounding circumstances indicate that Grant wanted the venture—that is, the robbery—to succeed. This constitutes sufficient evidence of aiding and abetting an aggravated robbery.
Next, Grant contends that the district court violated his constitutional rights when it refused to instruct the jury on the lesser-included offense of robbery. Because the evidence at trial made it clear a dangerous weapon was used in the commission of the crime, it necessarily excluded the lesser-included crime of robbery and precluded the jury from convicting on that offense. Accordingly, the district court did not err when it refused to give the lesser-included offense instruction.
Factual and Procedural History
Shortly after 5 a.m., Penry and his girlfriend, Dee Ballew, arrived at Ballew's house. A loud car pulled up outside. Two men, later identified as Grant and Jerimy Carlson, exited the car, attempted to enter the house, and ultimately engaged Penry in a conversation outside the house. The conversation lasted for some time before Penry started shooing the men toward the car. At that time, Carlson pulled a shotgun on Penry and robbed him. Ballew exited the house and told them the men she had called law enforcement, and the men fled. They were later apprehended. The State subsequently charged Grant with aggravated robbery under the theory that he aided and abetted Carlson.
Penry testified first at Grant's trial. He stated that when the car pulled up in front of Ballew's home, he asked her whether she expected any visitors. Ballew said no. The couple elected against answering the door, and Penry watched through a slat in the window as two men walked up and knocked. When no one answered, the men stepped down off the porch and began walking around the side of the house. A moment later, Penry heard them checking the house's side door. At that time, Penry decided to leave the house “ ‘to see what's going on with these guys,” ‘ and he engaged the men in conversation in the front yard. Although Penry initially only knew the men as “a white guy and a black guy,” they were later identified as Carlson and Grant, with Carlson being the white man. Penry testified that Grant had a coat on with the hood pulled up “like he's trying to hide or something.” Penry had “never seen these guys before in [his] life.”
When Penry greeted the men, Carlson introduced himself as “ ‘Curtis C.’ “ and claimed he and Penry had met “ ‘the other night.” ‘ Penry testified that both men smelled like alcohol. When he said that he did not recognize either of them, Grant chimed in, echoing Carlson's sentiment that they had previously met and adding that he and Carlson knew Ballew. Grant then suggested that the three of them “ ‘get a beer” ‘ and go inside the house to talk. Penry replied that he wanted to go inside and confirm that Ballew knew them. Both men attempted to follow Penry into the house to “ ‘stand inside the door” ‘ while Penry and Ballew talked, but Penry stopped them and asked them to back away.
After Carlson and Grant backed up, Penry slipped inside the house. He testified that Ballew told him she did not know either man and requested that Penry “ ‘[g]et them out of here.” ‘ Stepping back outside, Penry relayed this message and began “trying to get them to go towards their car and get in because [he] thought they were just drunk guys, mistaken identity.” During this time, Grant asked to use the bathroom. Penry testified that Grant offered to let Penry follow “ ‘all the way to the bathroom and all the way out.’ “ Penry suggested he go to a gas station or use a nearby tree instead. Regardless, the men each continued to pester Penry about entering the house, saying that Ballew knew them and that they could not believe Penry did not remember meeting them. However, Penry could not pinpoint what statements came from which man.
As they progressed into the yard, Carlson interrupted Penry and said, ‘ “Man, I can't believe you don't remember me.” ‘ When Penry again reiterated that he did not know Carlson, Carlson reached under his coat and pulled out a small sawed-off shotgun, saying, “ ‘Well, you're going to remember this.” ‘ Penry testified that Carlson pointed the gun directly at him and ordered him to back up. When Penry asked Carlson what he wanted, Carlson demanded Penry empty his pockets. Penry pulled out his wallet, car keys, and a pocketknife, and when he thought “it just didn't seem like enough” for Carlson, he removed his coat and offered that as well. Carlson took the wallet but knocked the keys and knife to the ground.
Before the incident could escalate further, Ballew stepped out of the house and informed the men that the police were coming. At the time Ballew exited the house, Grant was standing 6 or 8 feet away from Penry, whereas Carlson was closer. Penry testified that after Ballew warned them about the police, Carlson and Grant glanced at one another and then headed back to the car. Carlson sat in the driver's seat, Grant got in the passenger's seat, and they drove away.
On cross-examination, Penry testified that Carlson spoke to him first and that during the course of the conversation concerning whether they knew one another, Carlson referenced a woman named “Jalina.” Penry later realized that a friend's ex-girlfriend was named Jolina, and he suspected that Carlson meant that individual. However, at the time, the reference “just wasn't really clicking with [him].” Penry testified that he never really felt threatened but rather just assumed the two men were drunk. Regarding Grant specifically, Penry testified that Grant “was just standing there with his hands in his pockets ... trying to look down and stuff like that.” During the robbery itself, Grant “just kind of stood there” and never said anything. Penry specifically recalled only a few of Grant's comments: the one concerning the bathroom, and one about whether Penry knew anyone named Scott Ballentine.
In terms of the actual moment of the robbery, Penry testified that while Carlson took his wallet, Grant “was standing ... right there.” And although Penry testified that Grant was out of the car and with Carlson at the time, he also testified that it was Carlson and not Grant who took his wallet.
Ballew testified next. Her account of the evening mostly echoed Penry's testimony. She too recalled Grant wearing the hood of his jacket “pulled tight around his face.” However, she testified that Grant was closer to Penry than Penry recalled, only “[m]aybe 3 feet” away and “off to the side.” On cross-examination, Ballew stated that when the men arrived at her home, Carlson was driving. Regarding the somewhat elusive Jolina, Ballew revealed that she knew Jolina and had in fact purchased DVDs from Jolina a few days earlier. However, Ballew insisted that she did not know Carlson or Grant. During the actual robbery, Ballew witnessed Grant “just kind of moving, kind of pacing right there.” But she also confirmed that it was Carlson, not Grant, who took Penry's belongings.
Next, Officer Randy Constantino of the Salina Police Department testified. Constantino responded to the robbery call and took statements from both Penry and Ballew. After reviewing several photos of the crime scene for the jury, Constantino testified that, later that night, he learned that two suspects matching the descriptions of Carlson and Grant had been apprehended during a traffic stop near Solomon, Kansas. Constantino collected their jackets at that time, including the hooded jacket that Grant wore.
Investigator Scott Hogeland testified next, explaining that he conducted the investigation into the robbery at Ballew's home. Hogeland testified that he interviewed all four people involved—namely Penry, Ballew, Grant, and Carlson—on the day in question. While recounting Penry's account of the robbery, Hogeland noted in his interview Penry said that “Carlson did most of the talking.”
Regarding Grant, Hogeland reported that after Grant was in custody and advised of his Miranda rights, he agreed to speak to Hogeland—a conversation which Hogeland recorded digitally. In the interview, Grant told Hogeland that Carlson woke up him up in the early morning while he slept at his girlfriend's home in Abilene, Kansas, and “asked if he wanted to go for a ride.” Grant reported that Carlson wanted to see a friend in Salina. Initially, Grant claimed that the traffic stop occurred before they ever arrived in Salina and that he knew nothing of a robbery, but his story shifted when Hogeland told Grant that he knew Grant to be involved. At that time, Grant acknowledged going to Ballew's house with Carlson. He also admitted knowing that Carlson had a shotgun, as Carlson “took the shotgun out [from] next to the ... driver's seat ... and laid it on his lap” when they arrived at Ballew's house. Grant provided conflicting statements about his location during the robbery itself, saying first that he stood beside the car and next that he remained in the car. Grant then told Hogeland that, after the robbery, they stopped at a gas station, where Grant used the bathroom.
Hogeland testified that after speaking to Carlson he actually recovered Penry's wallet from a trash can at one of the gas pump islands at the gas station Grant mentioned. Grant denied knowing anything about the wallet. Hogeland reviewed photographs and physical evidence from his investigation for the jury. Hogeland testified that the shotgun was recovered “between the center console and the passenger seat” in the car Carlson drove.
Hogeland also testified regarding the recording of a jail phone call Grant placed some time after the robbery. During the call—which was digitally recorded as a matter of course—Grant essentially admitted to being at the scene of the robbery with Carlson and to Carlson taking Penry's wallet. At that time, both Grant's interview and phone call were played for the jury.
In the interview recording, Grant repeatedly stated that he did not know what Carlson's plans were, as Carlson simply told him he was bored and wanted to go for a ride. In fact, according to Grant, Carlson only told him that he planned to go to a friend's house once they were en route to Salina. Grant also said Carlson provided no information about his friend and never mentioned robbing anyone. Grant denied seeing the gun at first but admitted to noticing it on the side of the driver's seat when Carlson pulled it out. Grant said that by the time Carlson threatened Penry with the gun, he was back in the car with the windows rolled up. Grant also stated that it was Carlson who walked around to the side of the house and who suggested that they go inside and drink beer. Despite minor alterations to his story, Grant maintained throughout the interview that Carlson never referenced a plan to rob anyone. Carlson also did not say anything about having planned to rob Penry after the fact, although Grant told Hogeland that, to his understanding, Penry owed Carlson money. Grant also revealed that he knew a Jolina: his ex-girlfriend (who was not to be confused with Jolene, his current girlfriend).
On the jail call, Grant informed the woman on the other end, “I ain't do anything, it was all [Carlson].” After the woman referenced a rumor that Grant orchestrated the robbery “to get the twenty-five dollars,” Grant assured her that he knew nothing, that he was urinating outside the house when Carlson pulled out the gun, and that he did not participate in the robbery. Grant stated that he was in the car during the robbery itself but did admit to seeing Carlson take Penry's wallet. The woman at that time referred to Penry by his first name, and Grant confirmed that Penry was there. Grant appeared to demonstrate slightly more knowledge of whatever brought Carlson to Ballew's home, however, as he noted to the woman that Carlson attempted multiple times to mention the woman by name and “to bring up everything.” However, he maintained throughout that he had nothing to do with the robbery itself.
On cross-examination, Hogeland testified that Carlson was the only person who handled the gun at Ballew's home and that the money recovered from the robbery was found on Carlson's person.
After the State rested, Grant moved for judgment of acquittal. He argued that the State failed to show that he knowingly participated in the robbery and that, as such, he could not have aided and abetted Carlson. In response, the State contended that the evidence showed Grant's participation “in all of the events up to the moment when [Carlson] pulled the shotgun out of his jacket” and that Grant's involvement up to that point combined with the amount of time he and Carlson spent together on the drive from Abilene demonstrated that Grant participated in the robbery. The district court agreed and denied the motion.
Grant elected not to testify on his own behalf, at which time the defense rested. The parties and district court then proceeded to finalize the jury instructions. At that time, Grant requested an instruction for the lesser-included offense of robbery. Because the district court found that the evidence showed that the incident “either was an aggravated robbery with a shotgun or it was not a robbery,” it denied the request. After receiving instructions, hearing closing argument, and asking to hear some testimony a second time, the jury found Grant guilty. The district court sentenced Grant to 77 months' imprisonment.
Grant timely appealed.
Analysis
There was sufficient evidence to convict Grant of aggravated robbery.
On appeal, Grant argues that although the evidence demonstrates that he was at Ballew's home when Carlson robbed Penry and did not act to stop him, the evidence was insufficient to convict him under the theory that he aided and abetted Carlson. In response, the State contends that sufficient evidence demonstrates Grant's knowledge of the robbery and his intent to help Carlson carry it out.
When the sufficiency of the evidence is challenged in a criminal case, this court reviews the claim by looking at all the evidence in the light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support the conviction, this court generally will not reweigh evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). Importantly, a verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008).
The State charged Grant with aggravated robbery based on a theory that he aided and abetted Carlson. An individual aids and abets another—and is therefore criminally liable for that person's crime—if he or she “advises, hires, counsels or procures the other to commit the crime or intentionally aids the other in committing the conduct constituting” that crime. K.S.A.2014 Supp. 21–5210(a). That individual must also act “with the mental culpability required for the commission” of the crime in question. K.S.A.2014 Supp. 21–5210(a). As presented in the jury instructions, the State pursued the theory that Grant “intentionally aided another to commit the crime.”
Many Kansas cases have considered what behaviors constitute aiding and abetting. Specifically, “the law requires that the person knowingly associates with the unlawful venture and participates in a way which indicates that such person is furthering the success of the venture.” State v. Baker, 287 Kan. 345, Syl. ¶ 7, 197 P.3d 421 (2008). As such, “[m]ere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is itself insufficient to establish guilt.”287 Kan. 345, Syl. ¶ 7. However, “ ‘if from the facts and circumstances surrounding the defendant's presence at the time and from the defendant's conduct it appears that the defendant's presence did in fact encourage someone else to commit the criminal act, guilt may be inferred.’ “ State v. Bland, 33 Kan.App.2d 412, 417–18, 103 P.3d 492 (2004), rev. denied 279 Kan. 1008 (2005). If there is no direct evidence showing that the defendant planned “ ‘to encourage, incite, aid, abet, or assist in the crime,’ “ the jury is still permitted to consider the defendant's failure “ ‘to oppose the commission of the crime in connection with other circumstances' “ and to therefore conclude ‘ “that the [defendant] assented to the commission of the crime ... and thereby aided and abetted the commission of the crime.” ‘ 33 Kan.App.2d at 418. That said, “failing to stop or report a crime is not the basis for liability under an aider and abettor theory” without additional indicators of the defendant's intention to “ ‘further[ ] the success of the venture.’ “ State v. Simmons, 282 Kan. 728, 738, 148 P.3d 525 (2006).
A look at a few cases distinguishing mere presence from actual intent to aid and abet is helpful in considering Grant's argument. In State v. Llamas, 298 Kan. 246, 311 P.3d 399 (2013), Michael Navarro shot and killed Omar Flores during an altercation in a motel parking lot. Llamas was charged with felony murder and criminal discharge of a firearm at an occupied vehicle based on this incident but contended on appeal that he was merely a bystander to the shooting. When reviewing the record, our Supreme Court determined the evidence indicated that Navarro's friends, including Llamas, knew Navarro disliked Flores and had previously threatened to kill him. 298 Kan. at 256. The court also determined the evidence showed that Llamas helped Navarro find Flores and, on the day of the shooting, Llamas knew Navarro had a rifle in the car. 298 Kan. at 256. Moreover, at the actual crime scene, Llamas either blocked Flores' ability to escape or moved to drive the car away from the scene—two other acts that served to aid and abet the offense. 298 Kan. at 257. Llamas' behavior and demeanor, including participating in the conflict that led up to the shooting, also led the court to find that sufficient evidence supported Llamas' conviction. 298 Kan. at 257–58.
Similarly, in State v. Herron, 286 Kan. 959, 189 P.3d 1173 (2008), the defendant was charged with several offenses under an aiding and abetting theory after a woman died during a drive-by shooting. Throughout the proceedings, Herron maintained that although he and the others involved wished to confront a young man who lived at address of the shooting, they never planned to commit a crime. Herron argued on appeal that because he was merely in the van with the responsible party when the shooting took place, he did not aid and abet the shooting. But in reviewing the evidence, our Supreme Court determined that Herron “participated in the planning, the mobilization, and the actual attack.” 286 Kan. at 968. Important to the court's analysis were also the following facts: (1) The other people in the van had traded gunfire with the object of their attack that day; (2) Herron's house “had been fired on earlier”; (3) one of his friends was injured in an attack on a car the same day; (4) the van Herron and the others rode in was stolen and loaded with weapons; and (5) the group abandoned the van and scattered after the attack.
Likewise, evidence that the defendant participated in the planning of a murder, arranged the offenders' transportation to and from the crime scene with knowledge of the plan, and provided the gun constituted sufficient evidence of aiding and abetting in State v. Williams, 299 Kan. 509, 531–32, 324 P.3d 1078 (2014). Similarly, sufficient evidence to convict under an aiding and abetting theory existed when the defendant willingly participated in the burglary that precipitated the murder and acquiesced to the murder itself after he and the other burglar discussed killing the victims. See State v. Wakefield, 267 Kan. 116, 121–23, 977 P.2d 941 (1999).
Of course, the instant case is not as clear-cut as most of those discussed above. Here, there is almost no direct evidence of Grant's intent to aid Carlson in the robbery. In fact, the interview tape is the only piece of evidence that provides any direct insight into Grant's knowledge or mindset, and Grant insisted throughout the recording that he knew nothing of the impending robbery. All witnesses agreed that Grant never handled the gun, never demanded that Penry hand over any of his belongings, and never really involved himself in the robbery itself but instead stood silently off to the side.
But that said, circumstantial evidence of Grant's involvement certainly exists. Grant arrived with Carlson in the early hours of the morning, attempted to some extent to gain entry into the house, and stood by while Carlson robbed Penry at gunpoint. He wore his hood tight around his face in such a way that suggested to Penry that he intended to hide his identity. He said nothing to discourage Carlson from carrying out the robbery. And according to Grant's interview tape, he knew Carlson had the gun at the time they pulled up in front of Ballew's house but still followed Carlson up to the door.
Moreover, Penry testified that Grant was fully engaged in the conversation outside the house and that he remained outside the car during the robbery—testimony that conflicts with Grant's recorded interview. This court cannot reconsider the credibility of these statements on appeal. See Hall, 292 Kan. at 859. And Grant's statements on the recorded jail call imply that he knew of some ongoing issue between the woman on the phone, Carlson, and Penry, as he said Carlson tried “to bring up everything” on the morning in question. The woman also knew Penry's first name, and Grant clearly understood who she meant when she called him “Tony.”
To conclude, Grant traveled to the crime scene with Carlson, climbed out of the car knowing Carlson had a gun, attempted to gain entry into Ballew's house, and stood by silently while Carlson robbed Penry. He never voiced any opposition to the crime, never disassociated himself from Carlson before or during the actual event, and appeared to know at least some of the underlying issues that brought Carlson to Ballew's house. In short, the circumstances leading up to the crime and Grant's behavior during it demonstrate his intent to encourage Carlson and further the robbery. See Baker, 287 Kan. 345, Syl. ¶ 7 ; Bland, 33 Kan.App.2d at 417–18. As such, we find the evidence was sufficient to support his conviction.
The district court did not err in failing to instruct the jury on the lesser-include crime of robbery.
Next, Grant argues that the district court erred by not instructing the jury on robbery, which is a lesser-included crime of aggravated robbery. Failure to instruct the jury on this offense he contends violated both his federal and state constitutional rights and requires that his conviction be reversed.
Our Kansas Supreme Court recently reiterated the multi-tiered standard of review our appellate courts employ to analyze jury instruction issues:
‘ “[T]he progression of analysis and corresponding standards of review on appeal are:
(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless ... State v. Smyser, 297 Kan. 199, 203–04, 299 P.3d 309 (2013).
Specifically in the area of lesser-included offenses, a defendant is entitled to an instruction on those offenses provided that “(1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with the defendant's theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense.” State v. Williams, 268 Kan. 1, Syl. ¶ 5, 988 P.2d 722 (1999).
Starting with the question of preservation, Grant clearly requested an instruction on robbery at the jury instruction conference. As such, Grant properly preserved the issue for this court's review. In terms of whether the instruction was legally appropriate, both Grant and the State agree on appeal that robbery is a lesser-included crime of aggravated robbery, and our Kansas caselaw supports this conclusion. See Simmons, 282 Kan. at 742 (noting that “robbery and certain types of theft have been deemed to be lesser included offenses of aggravated robbery”). Therefore, the next question this court must answer—and the question that will determine whether the district court erred in failing to give the instruction—is whether evidence supported the instruction. Or, to put it another way, this court must now consider whether the instruction was factually appropriate.
Grant was specifically charged with aggravated robbery under K.S.A.2014 Supp. 21–5420(b)(1), which defines the offense as a robbery that is “committed by a person who ... [i]s armed with a dangerous weapon.” Robbery itself is defined in the previous subsection as “knowingly taking property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A.2014 Supp. 21–5420(a). Grant contends that, as a matter of law, evidence supporting an aggravated robbery conviction also supports a robbery conviction and that, as such, the district court needed to instruct the jury on that offense. But this analysis is overly simplistic and overlooks the rule that a lesser-included offense instruction is not appropriate if the trial evidence excludes guilt on that lesser offense. See Williams, 268 Kan. 1, Syl. ¶ 5.
A few examples demonstrate the flaw in Grant's logic. For instance, in Simmons, the defendant attacked and beat his son's employer before robbing him of several thousand dollars, and a jury convicted him of aggravated robbery and aggravated kidnapping. On appeal, he contended that he was entitled to jury instructions on several lesser-included offenses, including robbery. After determining that both charges required the State prove the defendant inflicted bodily harm in their commission, our Supreme Court reviewed the evidence and found “overwhelming evidence of bodily harm suffered by [the victim].” 282 Kan. at 742. Moreover, the defendant never argued that the victim's injuries did not constitute bodily harm or presented a defense theory that would support that finding. As such, the evidence “clearly excluded the lesser included offenses ... because the jury could not have reasonably convicted [the defendant] of the lesser offenses.” 282 Kan. at 743. Similarly, instructions for lesser-included offenses of firstdegree murder were not appropriate in a case in which a child was in the sole care of the defendant and died from intentionally, not recklessly or accidentally, inflicted injuries. State v. Rodriguez, 295 Kan. 1146, 1153–54, 289 P.3d 85 (2012).
On appeal, Grant offers no argument that the shotgun did not constitute a dangerous weapon or that the robbery was not committed using the gun. In fact, all the witnesses at trial agreed that Carlson robbed Penry at gunpoint. Accordingly, the evidence at trial excluded the lesser-included offense of robbery because the jury could not have convicted Grant of committing that offense. As such, the facts of this case precluded instruction on robbery, and the district court did not err in denying the requested instruction. Grant's conviction is affirmed.
Affirmed.