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STATE v. BLOCKMAN11/19/1993
Brian Blockman appeals from his conviction of one count of robbery.
During the early morning hours of March 3, 1992, Blockman entered a convenience store in Lawrence. He handed the store clerk, Ken Duncan, a note which said, "Give me the money." After giving Duncan the note, Blockman orally repeated the demand for money. Although he made no explicit threat of physical harm to Duncan, Blockman kept his right hand in his pocket while demanding the money. Duncan responded to the demand by placing $25 in a paper bag and giving it to Blockman.
Duncan testified at Blockman's trial that store policy requires employees to comply when "somebody comes in and is robbing the store or demanding money." Duncan said that he would not have given Blockman the money, however, if he had been able to determine that Blockman did not have a weapon.
Blockman testified on his own behalf. He admitted he had given Duncan the note, but he denied that he had threatened the clerk. Blockman claimed he had kept his hand in his pocket because he was nervous. At the conclusion of the trial, the jury found Blockman guilty of the charge of robbery.
Blockman argues on appeal that the trial court erred by refusing to instruct the jury on the crime of theft by threat, K.S.A. 21-3701(c), as a lesser included offense of robbery. The trial court indicated at the instructions conference that it would give an instruction on theft as defined by K.S.A. 21-3701(a). The court explained its refusal to instruct on theft by threat by saying that theft by threat was inapplicable under the facts and that the jury would be confused by instructions on such similar offenses.
A trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. K.S.A. 21-3107(3). This duty arises only when the evidence introduced at trial is such that the defendant might reasonably have been convicted of the lesser offense. State v. Deavers, 252 Kan. 149, 151, 843 P.2d 695 (1992).
K.S.A. 21-3107(2) establishes the criteria for an included crime:
"An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved."
The crime of robbery is defined in K.S.A. 21-3426 as "the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force." K.S.A. 21-3701 sets forth the definition of theft:
"Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property:
(a) Obtaining or exerting unauthorized control over property; or
(b) Obtaining by deception control over property; or
(c) Obtaining by threat control over property; or
(d) Obtaining control over stolen property knowing the property to have been stolen by another."
The legislature enacted K.S.A. 21-3701 as a consolidated theft statute, combining the following crimes: larceny and embezzlement (codified in subsection of the present theft statute); false
pretenses (subsection ); extortion (subsection ); and receiving stolen property (subsection ). Judicial Council Comment, 1968, to K.S.A. 21-3701; Wilson, Thou Shalt Not Steal: Ruminations on the New Kansa
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