kansas appellate practice handbook - Kansas Judicial Branch

Forms 12-95
9
money from the cash register, let alone conceal it on his person and leave the store before
the violence occurred, Mr. Doe not only hid the magazine in his pants, but walked out of
the store before Jones and Drew confronted him. Second, unlike the victim in Long, who
confronted the defendant before he could leave the sale building and attempted to block the
defendant’s exit, it appears that Jones and Drew purposefully allowed Mr. Doe to exit the store
before confronting him, and made no effort to block the door. Third, the facts in the present
case would only be similar to those in Dean if Mr. Doe had gone through the checkout line
with the magazine clearly visible, but, instead of paying for it, had menaced the cashier and
then left the store. Even under those facts, of course, Mr. Doe would have only been guilty
of the aggravated robbery of the cashier, not the aggravated robbery of any individuals who
subsequently confronted him outside the store.
Finally, one additional fact sets this case apart from other cases in which our Supreme
Court has considered whether the use of force or threat of bodily harm has either preceded
or occurred contemporaneously with a taking: in the present case, Drew’s uncontroverted
testimony establishes that Mr. Doe actually gave the magazine back to Jones before any violence
occurred. At that point, according to that uncontroverted testimony, the magazine was in
Jones’ possession, not Mr. Doe’s. (R. XIII, 328, 334, 336). And, under our Supreme Court’s
holding in Finch, a defendant does not take property by force or the threat of bodily harm if
the force or threat occurs after the defendant has abandoned the property. Finch, 223 Kan. at
402-03.
This Court must reverse Mr. Doe’s convictions for aggravated robbery and remand to
the district court with directions to resentence him.
Because the evidence the State presented at trial would support a conviction for
misdemeanor theft, but not aggravated robbery, this Court should reverse Mr. Doe’s
convictions for aggravated robbery and remand to the district court with directions to
resentence him on the lesser included offense of misdemeanor theft under K.S.A. 21-
3701(b)(5). Bateson, 266 Kan. 238 at 246-47 (citing State v. Kingsley, 252 Kan. 761, 782, 851
2013