State v. Scott, 82,829.

28 Kan. App.2d 418

17 P.3d 966

STATE OF KANSAS, Appellee, v. VINCENT E. SCOTT, Appellant.

No. 82,829.

Court of Appeals of Kansas.

Opinion filed January 5, 2001.

Craig Durham assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.

Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, for appellee. Before BEIER, P.J., PIERRON, J., and TOM MALONE, District Judge, assigned.

BEIER, J.:

Defendant-appellant Vincent E. Scott challenges his robbery and obstruction of official duty convictions. He argues that he was entitled to a lesser included instruction on criminal deprivation of property, that the trial court's instruction regarding obstruction was erroneous, and that one of the prosecutor's cross-examination questions was an unconstitutional comment on his post-Miranda silence. We affirm.

The noteworthy events leading to Scott's convictions are these:

Victim Julie Dickinson was sitting in the driver's seat of her car, preparing to leave a convenience store parking lot, when a man later identified as Scott invited himself into the passenger side of the front seat. Scott testified at trial that he merely wanted to ask for a ride home. Dickinson, understandably, did not interpret his intentions as benign.

Dickinson began to scream as Scott grabbed her arm and attempted to prevent her from leaving the car. When Dickinson broke free and managed to jump out, Scott, in what he described as a panic brought on by Dickinson's hysterics, slid over into the driver's seat and drove away. This maneuver knocked Dickinson to the ground, because she had been holding onto the handle of the driver's door and attempting to summon help from those who remained in and around the store.

Scott was apprehended a short while later, but not before leading the police and a canine assistant on a foot chase from the place where he stopped Dickinson's car. During the chase, the police momentarily lost sight of Scott, but they followed his footprints into a vacant apartment. After the police issued several commands for Scott to surrender, the dog eventually found Scott hiding in a closet.

During cross-examination of Scott during trial, the prosecutor asked whether Scott had mentioned his version of how he ended up taking Dickinson's car to police on the night of his arrest. Before Scott answered, his counsel immediately objected and asked to approach the bench. At the ensuing bench conference, Scott's counsel stated in part, "[W]e are treading very close to whether my client asserted any rights to remain silent." Although the prosecutor initially argued that Scott opened the door, he then proposed to withdraw the question. The judge replied, "I think it would be better," and the matter was never brought up again.

At Scott's request, the trial court instructed the jury to consider the lesser included offense of theft, but Scott did not seek a further lesser included instruction on criminal deprivation of property.

Scott also did not object to the wording of the instruction on the elements of obstruction of official duty. The instruction read in pertinent part:

"To establish [obstruction of official duty], each of the following claims must be proved:

"1. That [the police who apprehended Scott] were authorized by law to investigate reported felony crimes;

"2. That the defendant knowingly and willfully obstructed, or resisted or opposed uniformed law enforcement officers, ... in the investigation of felony crimes which was the official duty of [the officers];

"3. That the act of the defendant substantially hindered or increased the burden of the officer(s) in the performance of the officer(s)'s official duty;

"4. That at the time the defendant knew or should have known that [the officers] were law enforcement officers."

The jury found Scott guilty of the lesser included offense of robbery and of obstruction of official duty.

Lesser Included Instruction

Scott asserts that criminal deprivation of property occupies the lowest rung in the offense hierarchy that descends from his original charge of aggravated robbery. In his view, criminal deprivation is a lesser included offense of theft, which in turn is a lesser included offense of robbery, which in turn is a lesser included offense of aggravated robbery. He argues for the first time on appeal that the trial court's failure to give a criminal deprivation of property instruction was error and requires reversal of his robbery conviction.

The determination of whether a crime is a lesser included offense is a question of law over which an appellate court exercises unlimited review. State v. Belcher, 269 Kan. 2, 4, 4 P.3d 1137 (2000). Under K.S.A. 21-3107(2)(d), as it existed at the time of Scott's alleged offense, a defendant could be convicted of a lesser included offense as an alternative to the crime charged in the complaint when the lesser offense necessarily would be proved by proving the crime charged. State v. Williams, 268 Kan. 1, 17, 988 P.2d 722 (1999). Williams recited the following two-prong test from State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), for determining whether a lesser included crime existed under that version of K.S.A. 21-3107(2)(d):

"Under the first prong, the statutory elements of the crime charged and the alleged lesser included crime are examined. If all of the statutory elements of the alleged lesser crime will automatically be proved if the State establishes the elements of the charged crime, the alleged lesser crime is an included crime of the greater. If no included crime is found under the first prong, there may still be an included crime under the second prong of the test. Under the second prong, the charging document is examined to determine whether the evidence that must be adduced at trial to prove the crime charged would also necessarily prove another crime. If another crime is necessarily proved by proving the charged crime, the former is an included crime. [Citation omitted.]" 268 Kan. at 17.

The elements of the crime of aggravated robbery are set forth in K.S.A. 21-3427: a robbery "committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery." See State v. Holt, 260 Kan. 33, 38, 917 P.2d 1332 (1996). "Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person." K.S.A. 21-3426. See Holt, 260 Kan. at 38. Robbery is a lesser included offense of aggravated robbery. State v. Davis, 256 Kan. 1, 23, 883 P.2d 735 (1994).

The definition of the crime of theft is found in K.S.A. 21-3701. The subsection of this statute relevant to Scott's appeal is (a), which defines theft in substance as the obtaining or exerting unauthorized control over property with the intent to permanently deprive the owner of the possession, use, or benefit of the property. State v. Long, 234 Kan. 580, 588, 675 P.2d 832 (1984). Theft, under K.S.A. 21-3701(a) is a lesser included offense of robbery under K.S.A. 21-3426. State v. Blockman, 255 Kan. 953, 881 P.2d 561 (1994). The Blockman court stated its rationale as follows:

"As we concluded in Long, larceny is a crime against property. Robbery, however, is not only a crime against property but is also a crime against the person. The gravamen of both offenses is the unlawful taking of the property. There may be larceny without robbery, but there can be no robbery without larceny." 255 Kan. at 956.

Criminal deprivation of property under K.S.A. 21-3705(a) is obtaining or exerting unauthorized control over property, with intent to deprive the owner of its temporary use. See State v. Keeler, 238 Kan. 356, 364, 710 P.2d 1279 (1985). Although criminal deprivation of property and theft involve different degrees of intent to deprive, Keeler held that their essential elements were the same and that criminal deprivation of property was a lesser included offense of theft. 238 Kan. at 365.

We conclude that the first prong of the Fike test is met. Both aggravated robbery under K.S.A. 21-3427 and criminal deprivation of property under K.S.A. 21-3705(a) require a taking of property. When the first prong of the Fike test, the statutory elements test, is met, an analysis under the second prong is unnecessary. See State v. Wickliffe, 16 Kan. App.2d 424, 426, 826 P.2d 522 (1992).

The next question is whether the evidence in Scott's case would have supported a criminal deprivation of property instruction. If not, no duty to instruct arose. See State v. Lee, 263 Kan. 97, 99, 948 P.2d 641 (1997). The parties debate the appropriate standard of review for this issue.

The State argues, pursuant to K.S.A. 1999 Supp. 22-3414(3), that the clearly erroneous standard applies in reviewing jury instructions given without objection. K.S.A. 1999 Supp. 22-3414(3) provides:

"No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous." (Emphasis added.)

Scott, for his part, contends K.S.A. 1999 Supp. 22-3414(3) does not apply to his case because he went to trial almost 3 months before it was enacted. If he is right, a more lenient standard of review would govern on appeal. See State v. Sanders, 258 Kan. 409, 413, 904 P.2d 951 (1995) (trial court required to instruct on all lesser included crimes supported by evidence even if instructions not requested).

Generally, criminal statutes in effect at the time of a criminal offense are controlling. State v. Sisk, 266 Kan. 41, 44, 966 P.2d 671 (1998). "`[A] statute operates prospectively unless its language clearly indicates that the legislature intended it...