STATE OF KANSAS, Appellant, v. THOMAS DEAN GREEN, Appellee.
No. 57,246
STATE OF KANSAS
April 5, 1985.
697 P.2d 1305
Mark Knight, assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, Jerry L. Harper, district attorney, and Steve Hopkins, legal intern, were on the brief for the appellant.
Craig W. Huntley, of Hamilton, Huntley, & McRorey, of Olathe, argued the cause and was on the brief for the appellee.
The opinion of the court was delivered by
SCHROEDER, C.J.: This is an appeal by the prosecution from an order of the court dismissing the complаint and discharging the defendant at the close of the preliminary hearing. The defendant, Thomas Dean Green, was charged with one count of theft in violation of
The sole issue on appeal is whether the State presented sufficient evidence to have the defendant bound over for trial.
Upon arriving at Turner‘s, Thuro and McDaniels proceeded to remove the tires and wheels from a Chevrolеt pickup truck. Meanwhile, the defendant took Thuro‘s car and left because he wanted nothing to do with the theft. Both Thuro and McDaniels testified that the defendant had nothing to do with taking the tires. The defendant later returned to pick up his companions. Thuro and McDaniels loaded the tires into the trunk of Thuro‘s car. McDaniels was unsure whether it was the defendant or Thuro who unlocked thе trunk, but Thuro remembered unlocking it himself. The defendant did not help load the tires.
Later, after leaving the scene, the car was stopped for minor traffic violations at which time the tires were discovered. The tires were worth over $100 making the theft a Class D felony. See
At the close of the hearing, the court said:
“The real issue here is not whether a crime was committed but whether there‘s probable cause to believe the defendant committed the crime. When there arе two different theories presented, the Court is to allow that matter to go to the trier of fact.
“Here, the State presented two witnesses who both indicated through their testimony that Mr. Green hаd nothing to do with planning the matter, nor was he involved in it other than being a tag-along or a spectator, basically.
“Passive observations of a crime when the crime is being committed is not
alone enough to bind the defendant over on an aiding and abetting charge, nor is it enough to convict him of that charge.” “The Court finds that the State has presented insufficient evidence to shоw probable cause. . . .”
The nature and purpose of the preliminary examination was set out in State v. Jones, 233 Kan. 170, 660 P.2d 965 (1983), and reiterated in State v. Huff, 235 Kan. 637, 639, 681 P.2d 656 (1984), as follows:
“If from the evidence it appears to the magistrate that a crime has been сommitted and there is probable cause to believe the defendant committed a felony, the magistrate binds the defendant over for trial. . . .
“A preliminary examination differs from a trial. This court stated in In re Mortimer, 192 Kan. 164, 166, 386 P.2d 261 (1963):
” ‘There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an оffense has been committed and that there is probable cause to believe the defendant is guilty.’ ” 233 Kan. at 172-73.
Additionally, in State v. Zimmerman & Schmidt, 233 Kan. 151, 158, 660 P.2d 960 (1983), we stated:
“It is a well-established principle of law that it is the prerogative of the jury to determine the credibility of the witnesses, the weight to be given the evidence, and to draw all reasonable inferences from the evidence. State v. Fenton, 228 Kan. 658, 666, 620 P.2d 813 (1980). Where the evidence tends to disclose that the offense charged was committed and the defendant committed it, the question is one for the jury to decide, even though the evidence is weak. State v. Townsend, 201 Kan. 122, Syl. ¶ 3, 439 P.2d 70 (1968).”
Probable cause was defined in State v. Huff, 235 Kan. at 640, quoting Coleman v. Burnett, 447 F.2d 1187, 1202 (D.C. Cir. 1973), as:
” ‘Probable cause signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused‘s guilt. Proof beyond a reasonаble doubt, on the other hand, connotes evidence strong enough to create an abiding conviction of guilt to a moral certainty. The gap between these two concepts is broad. A magistrate may become satisfied about probable cause on much less than he would need to be convinced. Since he does not sit to pass on guilt or innocence, he could legitimately find probable cause while personally entertaining some reservations. By the same token, a showing of probable cause may stop considerably short of proof beyond a reasonable doubt, and evidence that leaves some doubt may yet demonstrate probable cause.’ ”
In their argument, the State relies on two recent Kansas cases: State v. Wilson & Wentworth, 221 Kan. 359, 559 P.2d 374 (1977), and State v. Burton, 235 Kan. 472, 681 P.2d 646 (1984). Both of these cases involved а “wheel man” who was held to have intentionally aided and abetted in the commission of the crime. The “aiding and abetting” rule was stated in Burton as follows:
”
K.S.A. 21-3205(1) provides a person is criminally responsible for a сrime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime. It is the rule in this state that mere association with the principаls who actually commit the crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury. See State v. Williams, 229 Kan. [646, 661, 630 P.2d 694 (1981)]; State v. Payton, 229 Kan. 106, 111, 622 P.2d 651 (1981); State v. McDaniel & Owens, 228 Kan. 172, 178, 612 P.2d 1231 (1980); State v. Wilson & Wentworth, 221 Kan. at 367; State v. Edwards, 209 Kan. 681, 686, 498 P.2d 48 (1972).” 235 Kan. at 477.
Based on the evidence presented at the preliminary hearing, we find that the defendant was nothing more than a “mere associate” with the principals. There was no evidence, not even circumstantial, to indicate he was “willfully furthering the success of the venture.” Both of the State‘s witnesses testified that they believed the defendant wanted nothing to do with the theft. Therefore, we affirm the trial court‘s finding that there was insufficient evidence to establish probable cause that the defendant committed the crime charged.
The judgment of the lower court is affirmed.
MILLER, J., dissenting:
The majority in this case, in my opinion, has failed to draw prоper and reasonable inferences from the evidence, has ignored some of the evidence favorable to the State, and has taken as true that evidence adversе to the State. It has therefore reached an erroneous conclusion.
McDaniels, Thuro and Green, at midnight, drove from Wells-
I do not believe that we are required to accept as the truth the testimony of McDaniels, Thuro and Green that Green wanted nothing to do or had nothing to do with the theft, particularly when the facts show his active help, aid and cooperatiоn. Had Green walked away when the car first stopped at the Chevrolet dealership, or had he not returned when he was driving around in the car, his actions might have shown that he wanted nothing to do with the theft. What he actually did, however, demonstrates his intention more clearly than his words. This court is accepting the testimony as gospel, and is ignoring the facts.
In my judgment, Green should have been bound over for trial. His guilt or innocence should be left to a jury and not determined by a magistrate or this court.
MCFARLAND and HERD, JJ., join the foregoing dissent.