(1) "Person or presence" requires that the defendant and the victim have or be able to have immediate physical contact with each other at the time of the taking"; (2) "The word 'taking' must be contemporaneous with the force or threat of bodily harm to [victim], in order for the Defendant to be found guilty of aggravated robbery or robbery"; and (3) "'Taking' means to acquire control over property of another."The COA acknowledged that the district court does not have to define every word, but it applied State v. Randle, 32 Kan. App. 2d 291 (2004), and held that the contemporaneous nature of the taking and the force are not always clear by the PIK instruction. And in a case where the defense is that the taking and the use of force or threat were distinct acts, failure to give the requested definitions matters:
In viewing the evidence in a light most favorable to Soule, his testimony supports a finding that he had complete, absolute, and indepedent possession of the money and had left the scene before [victim] arrived. Soule admitted to taking money from [victim's] car, which was parked in the back of his restaurant. Nevertheless, he testified that he had left the car and fled the scene before [victim] arrived to avoid recognition.The COA reversed and remanded for new trial. The COA did not that the exact language of the requested instructions was not approved, but that the district court should craft appropriate definitions in conformity with Randle.
Another good example of the difference between requesting instructions and not requesting instructions. No request in Randle, no clear error and affirmed. Request in the current case, reversed on appeal. This is a critical stage as far as potential appellate error, so be assertive about requesting instructions that further your trial theory.
[Update: the state did not file a PR and the mandate issue on May 21, 2009].
No comments:
Post a Comment