Defendant Douglas Plummer challenges his conviction for aggravated robbery in what began as an audacious shoplifting spree at a Hutchinson Target store and ended in a slugfest with company employees. Because of instructional errors on lesser included offenses, we reverse the verdict of the Reno County jury — jurors materially misinformed on the law generally have a tough time getting to a legally sustainable conclusion. We cannot tell whether the jurors here would have come to another result had they received sufficient instructions, but they certainly might have evaluated the facts differently. Defendant Plummer, therefore, gets a new trial.
I.
The significant facts can be laid out succinctly. On March 24, 2008, Plummer entered the Target store and almost immediately attracted the attention of security personnel because of his furtive conduct. He seemed fidgety, and he closely watched other people in his vicinity as if trying to spot loss-prevention agents. Over the next 2 hours or so, Plummer navigated throughout the store under the observation of a couple of the agents and the store’s security cameras. Initially, Plummer picked up a pair of sunglasses and put them in his pocket. Later he filched a backpack, removed the paper *702 packaging from inside, and began to fill it with other Target merchandise. Plummer took a Target knife to cut the packaging from a shaver that he put in the backpack. The duration of Plummer’s enterprise and his use of Target’s own property — the backpack and the knife — to facilitate the crime seem noteworthy for their brazenness.
Plummer finally pushed a shopping cart with the backpack toward the store exit. He grabbed the backpack and moved past the checkout registers without stopping. As Plummer entered a set of double doors leading outside, Target security officer Tony Schwabuer accosted him. Schwabuer grabbed Plummer’s arm and told him to stop. In an effort to bréale Schwabuer’s hold, Plummer punched the agent in the shoulder. The set-to was on. Another security agent and several other Target employees joined the effort to detain Plummer. Somebody called the police.
Plummer continued to physically struggle until the first police officers rolled up about 2 minutes later. By then the scrum had migrated from between the double doors to an area just outside both doors. Several participants, including Plummer and Schwabuer,. emerged with cuts, braises, and tom clothing. After restoring order, the police searched Plummer. The police inventoried just over $300 worth of Target merchandise recovered from his pockets and the backpack.
The Reno County District Attorney charged Plummer with a single count of aggravated robbeiy. The case was tried to a jury on July 22 and 23, 2008. Various police officers and Target employees testified to the events they saw. Plummer chose not to recount his version for the jury. Plummer requested that the trial court instruct the jury on theft and robbery as lesser offenses. He also asked that the court instruct the jury on the legal distinction between theft followed by a use of force to retain possession of the purloined property, on the one hand, and robbeiy in its various degrees, on the other. After hearing argument of counsel and weighing the matter overnight, the district judge declined to give an instruction on theft. Accordingly, the judge also determined any instruction on the legal difference between theft and robbeiy to be superfluous. The judge did instruct the jury on robbery as a lesser included *703 offense. The jury convicted Plummer of aggravated robbery. The trial court sentenced him in due course, and he has timely appealed.
II.
We generally address the issues as the parties have framed them. Plummer principally rests his appeal on the failure of the trial court to instruct on theft, attempted aggravated robbery, and legal distinctions between robbery and theft coupled with a later use of force. He also suggests, alternatively we suppose, that this court reverse with directions that the trial judge enter a judgment of conviction for attempted aggravated robbery. Finally, Plummer raises an issue regarding use of his past convictions at sentencing. We consider the last two issues moot in light of our decision to reverse his conviction and remand for a new trial.
When a criminal defendant has requested a jury instruction that the trial court declines to give, we review that failure as a question of law.
State v. Gallegos,
III.
The parties presume that theft is a lesser offense of aggravated
*704
robbery for purposes of instructing a jury. The State argues that the particular facts of this case fail to warrant an instruction on theft. Historically, the Kansas appellate courts have considered theft to be a lesser degree of the offense defined by the various forms of robbery because both crimes are rooted in a person taking property in one way or another that doesn’t belong to him or her.
State v. Long,
Despite some differences in the strict elements of theft and robbery, the appellate courts continue to treat theft as a lesser offense for purposes of instructing juries.
Simmons,
The crimes of theft, on the one hand, and robbeiy and aggravated robbery, on the other, share several characteristics that are significant in this case. First, each crime requires the taking or controlling of property.
For robbery, the offender must accomplish a “taking” of property from a person or in a person’s presence “by force or by threat of bodily harm.” K.S.A. 21-3426. The crime escalates to aggravated robbeiy if the perpetrator uses a dangerous weapon or “inflicts” bodily harm on a person in the course of the offense. K.S.A. 21-3427.
Second, neither crime requires the perpetrator to move the property to complete the offense. The courts invoke the hoary legal concept of asportation in explaining what is
not
required. See
State v. Kunellis,
In some circumstances, a criminal who starts out intending to be a thief may become a robber. If the thief s effort to obtain
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control of the property is immediately challenged or contested and he or she brandishes a weapon or resorts to the use of force to complete the taking, the crime becomes robbery or aggravated robbery. In differentiating theft and robbery, the Kansas Supreme Court has stated: “[W]e conclude a thief does not obtain the complete, independent and absolute possession and control of money or property adverse to the rights of the owner
where the taking is immediately resisted
by the owner before the thief can remove it from the premises or from the owners presence.” (Emphasis added.)
Long,
The facts of
Long
and
Aldershof
illustrate circumstances under which a thief may or may not become a robber. In
Aldershof,
the defendant was in a dimly lit Wichita club. He grabbed the purses of two female patrons and left the establishment. One of the women confronted the defendant outside the bar in the parking lot. He punched her in the face, got into a pickup truck, and drove off. The Supreme Court held that the facts demonstrated only a theft because the defendant had secured possession of the purses before the physical confrontation.
The difference, of course, can have substantial implications for a criminal defendant. Here, for example, Plummer would have been guilty of misdemeanor theft based on the value of the property he took. See K.S.A. 21-3701(b)(5) (theft of property worth less than $1,000 is a class A nonperson misdemeanor). Instead, he was convicted of an aggravated robbery, a level 3 person felony. See K.S.A. 21-3427.
IV.
The courts have recognized vexing factual issues may arise in determining if the crime is a theft or a form of robbery based on whether the taking of the property has been completed at the point a defendant uses force or the threat of force.
Long,
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,
We will address other points on appeal as they may be implicated in a retrial. Before turning to that task, we look briefly at the State’s arguments against giving a lesser offense instruction. And we discuss Plummer’s argument for alternative relief in the form of remand with a direction that a judgment of conviction be entered for attempted aggravated robbeiy.
The State cites
State v. Randle,
The
Randle
decision cites
Long’s
observation that a criminal does not obtain control of property if the owner immediately resists the taking before the property can be removed from the premises or the presence of the owner.
But the decision goes on to say that the result is also supported because Randle applied force to the vending employee before he left the “premises” with the property.
In essence,
Randle
seems to treat leaving the premises as an alternative or additional requirement for effecting a taking. By doing so, the decision discounts the temporal component that the taking be immediately contested, but such close proximity in time is a necessary condition for the crime of robbery. Indeed, it is a legally essential ingredient.
Aldershof,
Moreover, that reasoning imposes a requirement that the perpetrator actually carry the property away from or off the “premises,” however that may be defined, to complete the offense. But Kansas law categorically rejects asportation or movement of the property as a requirement for the completed crimes of theft and robbery.
Long,
Here, too, as we have noted, the Target employees did not immediately contest Plummer’s taking of the store merchandise. They waited an extended period, well over an hour with respect to some items, before confronting Plummer. The State argues that the Target employees could not be sure of Plummer’s intent until he walked past the registers and began to leave the store. Thus, according to the State, the theft had not been completed. The premise itself reflects a debatable proposition in this particular case given some of Plummer’s actions, such as removing merchandise from its packaging, that look to be wholly inconsistent with an intent to purchase. The State’s argument fares no better as a general proposition. The crime of theft is completed once the perpetrator takes the property with the specific intent to permanently deprive the owner. Saylor,
We, therefore, reject the State’s argument that no theft instruction was necessary on the theory Plummer used force during the course of the theft, as opposed to after it had been completed, *711 making the crime a form of robbery as a matter of law. That determination requires an assessment of detailed factual circumstances and should be left for the jury.
Finally, the State invokes the “skip” rule to argue that the giving of a theft instruction was unnecessary because the jury declined to convict Plummer of the lesser offense of robbery on which it was instructed. But the argument proves too little. In broad terms, the skip rule suggests that if a jury convicts of an offense and, thus, rejects a lesser included offense on which it was instructed, then no error results from failing to instruct on an offense that is even lesser still.
State v.
Horn,
Here, however, the skip rule offers no insight into how a jury would have considered a theft instruction. As noted earlier, the difference between aggravated robbery and simple robbeiy is the perpetrator’s use of a dangerous weapon or infliction of bodily harm. There was no weapon involved here, but a jury could have found that Schwabuer suffered bodily harm in the confrontation with Plummer — he had scrapes and scratches. That says nothing about whether the jurors, properly informed on the law, might have concluded that Plummer completed a theft before the confrontation. The skip rule, therefore, sheds no light on whether Plummer incurred some actual prejudice by the failure to instruct on theft. The jury was given a forced choice between convicting Plummer of some form of robbery, on the one hand, and acquitting him, on the other. On the facts of this case, the choice was a legally deficient one.
As noted, the trial court ruled Plummer’s taking of the property had not been completed at the time of the confrontation with the *712 store security officers and, therefore, no theft instruction was warranted. On the facts of this case, however, the issue was one for the jury. Plummer argues here that in light of the trial court’s ruling, he could have been convicted only of attempted aggravated robbery rather than the completed offense. Plummer summarizes his argument this way: “Under the findings made by the trial court, and as a matter of law, this court must vacate the aggravated robbeiy conviction and enter a conviction for attempted aggravated robbery.”
Plummer’s position, of course, is premised on the legal correctness of that ruling below. And we presume the argument is also premised on the assumption that we would agree with the trial court on that point. The way Plummer has framed the request for remand for conviction of attempted aggravated robbery it need not and should not be addressed further given our determination that the issue on which the request has been based ought to be decided by a properly instructed jury. In short; we view Plummer’s argument and the resulting relief as his less desired alternative to getting a new trial to remedy the error in failing to instruct the jury on theft.
V.
On appeal, Plummer raises two other issues related to jury instructions. First, he requested a jury instruction delineating the difference between a theft, when the thief uses force to escape, and a robbery. In light of our ruling remanding for a new trial because the jury was not instructed on theft, we consider this related point. The pattern instructions for criminal cases do not address the distinction between theft and robbery based on when a perpetrator employs force or the threat of force.
The appellate courts recognize that in a given case, a trial judge may be required to use a nonstandard instruction.
State v. Dixon,
An instruction covering that law ought to be given, since the issue goes to the central point of Plummer’s defense. And, as we have said, reasonable jurors might conclude Plummer committed theft rather than robbeiy.
State v. Anderson,
On appeal, Plummer has suggested that the trial court should have instructed on attempted aggravated robbery. He did not request an instruction on that lesser offense at trial. We do not consider whether that failure was clearly erroneous, the standard for reversal when a party has failed to request an instruction and then argues for relief on appeal.
State v. Martinez,
The State has argued that Plummer’s taking of the merchandise was not complete at the point he was stopped by the Target employees. Thus, the argument goes, his use of force converted a theft in progress into a robbeiy. But consistent with that position, Plummer then never gained full dominion or control over the property, since the intervention of the store employees thwarted his efforts. That sounds much like an attempt, rather than a completed crime. K.S.A. 21-3301(a) (“An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but ... is prevented or intercepted in executing such crime.”).
*714
The State’s rejoinder is an elusive argument that Plummer’s unauthorized control of the store merchandise was incomplete for purposes of a theft yet somehow complete as a taking for an aggravated robbery, thereby negating any possibility of a verdict for attempted aggravated robbeiy. The Kansas courts have rejected that sort of abstraction and treat the contours of the taking required for robbery as uniform with the control required for theft. See
Long,
Reversed and remanded with directions for a new trial.