State v. Long
667 P.2d 890
Kan. Ct. App.
1983
Check Treatment
Rees, J.:

A jury convicted defendant of robbery (K.S.A. 21-3426). He appeals. His arguments are that the evidence was insufficient and the trial judge erroneously failed to instruct on theft as a lesser included offense.

We accept the State’s version of the facts established by the evidence. It is that Margo Wоlf and her husband reside in rural Butler County, Kansas, and operate a dairy farm there. As a part of that business they maintain a small sale building in which they stock and refrigerate gallon bottles of milk. This building is open to the public. The Wolfs employ an “honor system” in their business operation at the sale building. It includes, thе open display of refrigerated milk and a locked, slotted money box mounted on a wall. Customers may enter the sale building, obtain milk and depоsit payment in the locked box, thereby eliminating the need for the Wolfs to be present at all times. On the evening of February 17, 1981, Mrs. Wolf was in an adjacеnt milk barn filling gallon milk bottles in order to replenish the sale building’s supply which the day’s business had reduced to two bottles. While there, she observed a car drive up to the sale building. Seeing this, she went to the sale building to inform the customer that in a few minutes she would have more milk available. As she opened the door to the sale building, she observed the defendant crouched in front of the money box. It had been pried open. The defendant had his hands in his рockets. Mrs. Wolf saw a dollar bill lying on the floor beneath the *734 forced money box. She positioned herself in the doorway so as to prevent the defendant from leaving the building. She twice asked the defendant what he was doing, to which he made no response. Instead, the defendant walkеd toward her, shoved her arm out of the way, forcing himself by her, and proceeded to drive away in his car. Mrs. Wolf noted down defendant’s license tag number. The money box had approximately $40 to $45 in currency in it prior to Mrs. Wolfs observation of defendant crouched near the box. Immediately after the incident there was nothing in the box except some small change. The defendant admitted that he “brushed by” Mrs. Wolf as he exited the sale building.

K.S.A. 21-3426 dеfines robbery as “the taking of property from the person or presence of another by threat of bodily harm to his person or the pеrson of another or by force.”

Defendant’s first argument to us is that the evidence fails to support the conclusion that defendant “did unlawfully . . . take . . . сash from the presence of Margo Wolf by force” as the State charged ‍​​‌​‌‌‌​​‌​‌​​‌‌‌‌‌‌​​​​​‌‌‌‌‌‌​‌​‌​‌‌‌‌​‌​‌​​‌​‍in its information. The question raised is not whether there was the use оf force. That is assumed. The question is whether there was a taking by force. We conclude that upon the authority of State v. Aldershof, 220 Kan. 798, 556 P.2d 371 (1976); State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976); and State v. Miller, 53 Kan. 324, 36 Pac. 751 (1894), there was not.

Commission of the crime of rоbbery is complete when the robber takes possession of the property. In State v. Buggs, 219 Kan. at 204-205, the victim was the operator of a Dairy Queen store. As shе was leaving the store at the close of business one evening, with the day’s business, receipts in a bank money bag in her purse, she was accosted. Under threat of bodily harm she was ordered back into the store vvhere she was asked for “the money.” She handed over her purse. Police officers arrived in response to a silent alarm. They confronted and apprehended defendant before he had left the store premises. On appeal, defendant claimed he was erroneously denied an instruction on attempted robbery as a lesser included offense of robbery. The Supreme Court reasoned that attempted robbery occurs only when the proscribed taking is not accomplished. It held at 206:

“Here all the evidence is that the bank money bag was ‘taken’ from [the *735 victim] . . . and later removed ... to the restroom. . . . The robbery was complеte when [the victim] handed over the bag.....”

In State v. Miller, 53 Kan. 324, where a robbery conviction was sustained, the defendant cut the victim’s hand contemporaneously with his tаking of money from a cash drawer. The physical taking ‍​​‌​‌‌‌​​‌​‌​​‌‌‌‌‌‌​​​​​‌‌‌‌‌‌​‌​‌​‌‌‌‌​‌​‌​​‌​‍and removal of the money had not been completed; the defendant had not cоmpleted the act of obtaining possession of the money until after force was used.

From State v. Aldershof, 220 Kan. 798, we glean the governing principles. Robbery is not cоmmitted where possession is obtained without the use of force. Neither is there a robbery where there is no use of force except tо resist arrest or escape. To constitute the crime of robbery, it is necessary that the use of force precede or be cоntemporaneous with the act of obtaining physical possession of the property. The line of cases represented by People v. Kennedy, 10 Ill. App. 3d 519, 294 N.E.2d 788 (1973), is not in accord with the position taken'by Kansas authority and it is distinguished in Aldershof.

In the case before us, we assume, for the purpose of our decision, defendant tоok money from the money box and his shoving of Mrs. Wolf out of his way when exiting the sale building constituted the use of force. However, the evidence wholly fails to support a conclusion that defendant’s use of force preceded or was contemporaneous to defendant’s aсquisition of possession of money from the money box. The “taking,” if it occurred, was accomplished and completed before Mrs. Wolf observed defendant. It neither was preceded by nor occurred contemporaneously with defendant’s use of force. Defendant’s conviсtion for robbery must be reversed.

This case should be remanded for a new trial on a charge of theft (K.S.A. 21-3701) only if theft is a lesser included offense when rоbbery, as defined by K.S.A. 21-3426, is charged. K.S.A. 21-3108(l)(a); In re Berkowitz, 3 Kan. App. 2d 726, 746-747, 602 P.2d 99 (1979). Is it? We conclude it is not.

Our Supreme Court has adamantly stated that in instances other than where there is involved a lesser degree of thе crime charged, ‍​​‌​‌‌‌​​‌​‌​​‌‌‌‌‌‌​​​​​‌‌‌‌‌‌​‌​‌​‌‌‌‌​‌​‌​​‌​‍or an attempt to commit the crime charged or to commit a lesser degree of the crime charged, a lessеr included offense is an:

“offense which is necessarily committed by the defendant in perpetrating the *736 crime charged .... [I]t is impossible to commit the greater offense without first having committed the lesser offense. The [lesser included] offense must not require some additional element which is not nеeded to constitute the greater offense. In other words, there must be ‘identity of elements.’ [Citation omitted.]
“Our court has consistently construed [K.S.A. 21-3107(2)(d)] to mean a lesser included offense must not require proof of any element not necessary in the greater crime charged. . . .
“[U]nder present Kansas law ... all elements necessary to prove the lesser оffense must be present and be required to establish the elements of the greater offense charged. This necessarily excludes the factually related lesser offense.” State v. Arnold, 223 Kan. 715, 716-717, 576 P.2d 651 (1978).

Also see, for example, State v. Coberly, 233 Kan. 100, 107, 661 P.2d 383 (1983), and State v. Clanton, 219 Kan. 531, 535, 548 P.2d 768 (1976)..

Intent to permanently deprive is not an element of robbery. State v. Poulos & Perez, 230 Kan. 512, 515, 639 P.2d 477 (1982); State v. Thompson, 221 Kan. 165, 174-175, 558 P.2d 1079 (1976); K.S.A. 21-3426. Intent to permanently deprive ‍​​‌​‌‌‌​​‌​‌​​‌‌‌‌‌‌​​​​​‌‌‌‌‌‌​‌​‌​‌‌‌‌​‌​‌​​‌​‍is an element of theft. K.S.A. 21-3701.

We conclude theft is not a lesser included offense of robbery. Compare State v. Colbert, 221 Kan. 203, 207, 557 P.2d 1235. (1976); State v. Aldershof, 220 Kan. at 800, 804; Morrow v. State, 219 Kan. 442, 443, 444-45, 548 P.2d 727 (1976); State v. Russell, 217 Kan. 481, 484, 536 P.2d 1392 (1975); State v. Antwine, 4 Kan. App. 2d 389, 398-99, 607 P.2d 519 (1980). To the extent these cases may be read as case authority holding theft is a lesser included offense of robbery, wе view their precedential weight as extremely questionable. Examination of them leads us to conclude they have as their foundation State v. Segermond, 40 Kan. 107, 108, 19 Pac. 370 (1888), and Guffey v. Casualty Co., 109 Kan. 61, 64-65, 197 Pac. 1098 (1921). See State v. Russell, 217 Kan. at 484. Segermond and Guffey predate the 1969 enactment of K.S.A. 21-3426; a common law definition of robbery was addressed in Segermond, 40 Kan. at 108; and in Guffey a different statutory definition and a common law definition of larceny were addressed, 109 Kan. at 64-65.

Reversed and remanded with instructions ‍​​‌​‌‌‌​​‌​‌​​‌‌‌‌‌‌​​​​​‌‌‌‌‌‌​‌​‌​‌‌‌‌​‌​‌​​‌​‍that the defendant be discharged.