Failure to give instruction requires reversal

Michelle Davis won in State v. Plummer, No. 101,684 (Kan. App. April 11, 2011), obtaining a new trial in a Reno County aggravated robbery case. During trial, Mr. Plummer requested a lesser-included offense instruction for theft; the district court refused to give the instruction. The COA engaged in a lengthy discussion of the relationship between theft and robbery but ultimately concluded Mr. Plummer was entitled to the requested instruction:

Based on the facts in this case, we believe reasonable jurors could find Plummer guilty of theft, though they might reach some other conclusion. Plummer spent about 2 hours in the Target store picking up merchandise. Some of his actions, as observed by store security personnel, were indicative of an intent to steal, rather than to purchase. Plummer commandeered Target property to facilitate the crime—the knife and backpack—and tampered with other property—he took the shaver out of its packaging. But the security personnel did not immediately challenge Plummer and instead waited until he had begun to leave the store, long after he had taken possession of much of the merchandise. As the Kansas Supreme Court noted in Saylor, the crime of theft is completed once a store patron "conceals" merchandise "on his person" with the intent to permanently deprive the owner of that property. The thief needn't leave or attempt to leave the store.

Accordingly, the trial court erred in failing to charge the jury on theft, as a lesser degree of robbery, in conformity with Plummer's request. We, therefore, reverse and remand for a new trial.

The COA also directed that the district court carefully consider giving lessers for attempt on retrial. Another in a line of cases that causes me to ask: "Why not give the lesser? What is the harm?" Why is there so much reluctance among the judiciary? If we believe in the right to a jury trial, why not let the jury do its work and let the chips fall where they may?

[Update: the state file a PR on May 16, 2011.]

[Further update: the KSC granted the state's PR on September 21, 2011.]

[Further update: on August 24, 2012, as blogged about here, the KSC ordered a new trial..]