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STATE v. BLOCKMAN9/16/1994
The opinion of the court was delivered by
This appeal comes before us on the State's petition for review of the Court of Appeals' decision in 19 Kan. App. 2d 56, 863 P.2d 372 (1993). Brian Blockman was convicted of robbery following a jury trial. The Court of Appeals reversed his conviction, concluding that the trial court's refusal to grant the defendant's request for an instruction on theft by threat required reversal. Because we hold that theft by threat is not a lesser included
offense of robbery, we reverse the decision of the Court of Appeals and affirm the trial court.
The defendant entered a convenience store in Lawrence and handed the clerk a note that read, "Give me the money." After giving the clerk the note, the defendant orally repeated the demand for money. Although he made no explicit threat of physical harm, the defendant kept his right hand in his pocket while demanding money.
The clerk gave the defendant the money in the register. The defendant then fled. At trial, the clerk testified that store policy was to comply when "somebody comes in and is robbing the store or demanding money." The clerk further testified that had he been able to determine that the defendant was not armed, he would not have given the defendant any money.
The defendant admitted that he gave the note to the clerk. He denied that he had threatened the clerk. The defendant testified that he kept his hand in his pocket because he was nervous.
Trial Court
The trial court instructed the jury on theft (K.S.A. 21-3701 ), but denied the defendant's request for an instruction on theft by threat (K.S.A. 21-3701 ). In denying the requested instruction, the court said:
"Now as far as the law goes itself on the instruction on theft, if the defendant takes property of the person in the presence of a victim by threat, it is robbery and not theft by threat. If we leave out the threat part, then it can be in this case, under the circumstances, theft by threat or theft by unauthorized control, which has been held in Kansas to be a lesser included, a crime of a lesser degree than robbery. Otherwise, the jury, as far as I am concerned, would be given incorrect law and would be totally confused with having two elements being the same. In other words, you take property from this man by threat and you can decide whether or not it's a robbery or a theft. It's confusing, utterly confusing, and I think totally wrong. So I will give the instructions on theft as indicated."
The trial court's statement underscores the real difficulty of classifying theft by threat as a lesser included offense of robbery. Essentially, the court would be giving the jury instructions on two offenses containing common elements. As the trial court notes, if the property is taken from the clerk by threat the jury would
be required to decide, without additional guidance, whether the taking was robbery or theft by threat. Such instructions would be "utterly confusing" to the jury.
Court of Appeals
The basis of the Court of Appeals' decision is that theft by threat is a lesser degree of the same crime which embraces robbery. In reaching this conclusion the Court of Appeals relies upon State v. Long, 234 Kan. 580, 675 P.2d 832 (1984). The Court of Appeals acknowledges that " one of the . . . opinions [relied upon by defendant] address the issue whether a court must instruct on theft by threat under 21-3701(c) in a robbery case." 19 Kan. App. 2d at 58. However, the Court of Appeals applies the following Long rationale in support of its conclusion that theft by threat is a lesser degree of the same crime
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