State v. Plummer
251 P.3d 102
Kan. Ct. App.2011Background
- Plummer was charged with aggravated robbery after a Target shoplifting spree in Hutchinson.
- Over ~2 hours, security observed Plummer concealing sunglasses, a backpack, and removing packaging to facilitate theft.
- He left the store with the backpack; security and employees detained him; police found about $300 in merchandise.
- The district court refused to instruct theft or theft/robbery distinctions as lesser offenses and instructed robbery as a lesser included offense, resulting in a conviction for aggravated robbery.
- On appeal, Plummer challenged the failure to instruct theft and related lesser offenses; the court reverses and remands for a new trial.
- The ruling requires assessing whether a theft instruction should have been given and whether alternative relief (e.g., attempted aggravated robbery) should be considered at retrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether theft should be a requested lesser offense instruction. | Plummer: theft should be instructed. | State: theft not warranted. | Yes; theft instruction required. |
| Whether the court should have given a distinct theft/robbery instruction. | Plummer: need nonstandard instruction distinguishing theft and robbery. | State: standard robbery instruction suffices. | Instruction distinguishing theft vs robbery needed. |
| Whether attempted aggravated robbery should be instructed or relief granted. | Plummer: alternative relief or attempted offense should be considered. | State: not essential to decide on appeal. | Remand for new trial; discuss attempted offense as potential issue. |
Key Cases Cited
- State v. Long, 234 Kan. 580 (1984) (theft is a lesser degree of robbery; asportation not required)
- State v. Aldershof, 220 Kan. 798 (1976) (robbery requires force to complete taking; possession before force may negate robbery)
- State v. Saylor, 228 Kan. 498 (1980) (theft completed when concealment with intent to deprive occurs; immediate restraint factors vary)
- State v. Randle, 32 Kan. App. 2d 291 (2004) (immediate contest of taking affects whether theft or robbery; premiss rejected to general rule)