IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
ANTONIO C. MOORE,
SYLLABUS BY THE COURT
1. Robbery is the taking of property from the person or presence of another by force or
by threat of bodily harm.
2. In determining whether there is a threat of bodily harm to a victim during a robbery,
the court looks at three factors: (1) whether the situation appeared dangerous; (2)
whether defendant intended to intimidate the victim; and (3) whether the victim's fear
of death or injury was reasonable.
3. A conviction of theft does not require evidence of force or threat of bodily harm.
4. Where a defendant has been convicted of the greater offense of robbery but the
evidence supports only the lesser included offense of theft, the conviction for robbery
should be vacated and the case remanded for defendant to be resentenced on the
conviction of theft.
5. A verdict shall not be set aside, nor shall the judgment based thereon be reversed, by
reason of the erroneous admission of evidence unless there appears of record a timely
objection to the evidence, stating clearly the grounds for the objection.
6. Improper remarks made in closing argument are grounds for reversal only when they are
so gross and flagrant as to prejudice the jury against the defendant so that defendant is
denied a fair trial.
Appeal from Johnson District Court; ROBERT G. JONES, judge. Opinion filed April 16,
in part, reversed in part, and remanded with directions.
Mary D. Prewitt, assistant appellate defender, and Jessica R. Kunen,
chief appellate defender, for appellant.
Steven J. Obermeier, assistant district attorney, Paul J. Morrison,
district attorney, and Carla J. Stovall,
attorney general, for appellee.
Before LEWIS, P.J., GREEN and MARQUARDT, JJ.
MARQUARDT, J.: Antonio C. Moore appeals his convictions for robbery
Returning to their car after shopping in August 1995, Christie Brown and her fiance, Chad
Schieb, saw a car parked diagonally next to theirs that looked "suspicious." As Brown neared the
trunk of her car, Moore emerged from his vehicle. Moore approached Brown and said, "Give me
your keys." Brown tossed her keys to Moore, because she felt "threatened." Moore entered
Brown's car and took her car stereo. Moore returned to his car and drove away with Brown's
stereo and her keys.
Two days later, Angela Bryant went to her part-time job. She left her purse, a cellular
phone, and some other personal items locked in her car. When Bryant returned to her car after
work, she noticed that her cellular phone was missing, her purse was open on the back seat, and
her wallet was missing.
Later that day, Moore was arrested. Officers found pay stubs belonging to Bryant in
Moore's vehicle. After Moore was in custody, Brown and Schieb were shown a photo lineup.
Brown and Schieb identified Moore.
Moore was convicted of robbery and theft after a jury trial. Moore appeals his
When the sufficiency of the evidence is challenged, the question is whether, after a review
of all the evidence, viewed in a light most favorable to the prosecution, a rational factfinder could
have found defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan.
940 P.2d 27 (1997).
Moore argues that there is no objective evidence of any threat to Brown. Moore asserts
that relying on subjective evidence of fear does not provide evidence that he is guilty of robbery
beyond a reasonable doubt.
"Robbery is the taking of property from the person or presence of another by force or
by threat of bodily harm to any person." K.S.A. 21-3426. "Theft is any of the following acts
done with intent to deprive the owner permanently of the possession, use or benefit of the
owner's property: (1) Obtaining or exerting unauthorized control over property." K.S.A.
Kansas has not defined what constitutes threat of bodily harm. Generally, actual fear
need not be strictly proven; the law will presume fear if there are adequate indications of the
victim's state of mind. 67 Am. Jur. 2d, Robbery § 24, p. 79. In U.S. v.
Mitchell, 113 F.3d 1528
(10th Cir. 1997), the court held that there was sufficient evidence to prove robbery when
Mitchell merely approached the teller's window and said, "This is a holdup." The court looked
to three factors in making its decision: (1) whether the situation appeared dangerous; (2) whether
defendant intended to intimidate; and (3) whether the victim's fear of death or injury was
reasonable. 113 F.3d at 1531.
There is no question that Moore intended to intimidate Brown to get her keys; however,
there is a question as to whether there was a threat of bodily harm. Brown was 18 years old
when she was approached by Moore. She testified that it was between 7:30 and 8 p.m. and
starting to get dark. She said that Moore was "out there going to do something, but we kind of
caught him in the middle of his tracks so he didn't know what to do." When asked, "How did
the man take your keys from you?" Brown answered, "He just asked generally for my keys and
I just gave them up because I didn't want any kind of a problem." She stated that she was afraid
so she tossed the keys to him when he was about 5 feet away. When asked, "Why [did] you do
that, why did you give him your keys?" Brown responded, "Well, whenever someone asks for
my things that I don't know, I'm going to give it to them if I feel threatened." On
cross-examination, Brown said that no one threatened her, there were no weapons involved, no
said, "I've got a gun", "I've got a knife", or "I'm going to kill you." The question is whether being
scared and feeling threatened rises to the level of reasonable fear of death or injury.
In State v. Bateson, 266 Kan. 238, 970 P.2d 1000 (1998), the Supreme
Court held that it
is not robbery when the thief gains peaceable possession of the property and uses no violence
except when resisting arrest or escaping. Moore obtained possession of the car keys peaceably
and without violence to Brown. There was no resistance by Brown. Under these circumstances,
there is no basis for concluding that Moore took Brown's keys by force or by threat of bodily
harm; therefore, we cannot affirm Moore's conviction for robbery, and the sentence for that
conviction must be vacated. There was, however, sufficient evidence to support the lesser
included offense of theft. Where a defendant has been convicted of the greater offense of robbery
but the evidence supports only the lesser included offense of theft, the conviction for robbery
should be vacated and the case remanded for defendant to be resentenced on the conviction of
theft. See State v. Kingsley, 252 Kan. 761, 782, 851 P.2d 370 (1993). Moore's case
is remanded to
the district court for resentencing for the conviction of theft.
Moore asserts that the State violated his due process rights by commenting on his
post-arrest silence in its cross-examination of him and in its closing argument. A verdict shall not
set aside, nor shall the judgment based thereon be reversed, by reason of the erroneous admission
of evidence unless there appears of record a timely objection to the evidence, stating clearly the
grounds for the objection. K.S.A. 60-404.
Kansas courts have considered this statutory bar to be absolute. In State v.
Kan. 252, 254, 874 P.2d 623 (1994), the court was asked to set aside the contemporaneous
objection rule in favor of a clearly erroneous standard. The court refused, citing the statutory
obligation to have a contemporaneous objection on the record before the admission of evidence
may be considered on appeal. Accord State v. Sims, 265 Kan. 166, 960 P.2d 1271
(1998); State v.
Littrice, 23 Kan. App. 2d 1016, 940 P.2d 78, rev. denied 262 Kan. _____
Moore objects to questioning by the prosecutor regarding Moore's statements to the
police after he was arrested. Moore initially claimed that he was not present while the crimes
were being committed. The prosecutor attempted to impeach Moore's testimony at trial
concerning his whereabouts while the crimes were being committed. The prosecutor also
mentioned during closing argument Moore's failure to tell the truth to the police.
Reversible error cannot be predicated upon a complaint of misconduct of counsel in
closing argument to the jury when no contemporaneous objection was made. State v.
244 Kan. 275, 280, 768 P.2d 290 (1989). Improper remarks made in closing argument are
for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant
so that defendant is denied a fair trial. State v. Baker, 249 Kan. 431, 446, 819 P.2d
There is no evidence in the record that Moore's counsel made a contemporaneous
objection to any statement made by the prosecution. Moore admits that his counsel did not
object during questioning by the prosecution. The issue of whether the evidence was correctly
admitted has not been preserved for appeal. K.S.A. 60-404. No objection was made to the
cross-examination of Moore and, therefore, his claim of denial of constitutional due process rights
without merit. The statements made by the prosecutor during closing argument were not so
gross and flagrant as to prejudice the jury against Moore and did not deny him a fair trial. The
theft conviction is affirmed.
Affirmed in part, reversed in part, and remanded for resentencing.