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STATE v. SPEARS

March 2, 1990.

STATE OF KANSAS, Appellee,
v.
JACK LEROY SPEARS, Appellant.



The opinion of the court was delivered by

Jack Leroy Spears appeals his jury trial convictions of first-degree felony murder (K.S.A. 21-3401), aggravated robbery (K.S.A. 21-3427), theft (K.S.A. 1987 Supp. 21-3701), and forgery (K.S.A. 21-3710).

[246 Kan. 284]

     

Defendant arrived in Garden City on October 25, 1986, without money, means of transport, or possessions other than the clothes he was wearing. He went to the residence of a friend, Courtney Johnson. He asked Johnson to take him to Randy Bolay's home on Kello Street. Johnson complied and saw defendant enter the Bolay residence.

  That evening, Bolay and defendant attended a party. Considerable drinking occurred and Bolay boasted of having $600 in cash in his possession for his planned vacation. Bolay and defendant left the party in Bolay's pickup at approximately 3:30 a.m. on October 26. Defendant was seen leaving the Bolay residence at 10:30 a.m. He went to a local drive-in where he paid for his purchases with money taken from a large roll of bills. That morning defendant came across another friend, Robert Guerttman. While the two were together, Guerttman received word his mother had died in Iowa. Defendant stated he had a pickup truck and offered to drive Guerttman to Iowa for the funeral. The following day, defendant cashed a $100 check drawn on Bolay's account. On the same day, defendant had another friend pawn a television set for $55 on his behalf. Defendant drove to Ottumwa, Iowa, on October 28 in a yellow Toyota pickup truck. He went to the home of a friend, James Breeding. That evening he told Breeding he had beaten a man to death and that the victim would not be found for a while. On October 30, 1986, defendant was arrested for DUI in Iowa while driving the pickup. He told a passenger that he might be using a different name when he talked to the arresting officer.

  On November 5, 1986, Randy Bolay's body was found in his Garden City residence. Cause of the death of the decomposing body was found to be multiple head wounds from a bladed object. Defendant was arrested in Iowa and returned to Garden City.

  The pickup defendant was driving belonged to Bolay. Bloody palm prints and fingerprints in the Bolay residence belonged to defendant. The pawned television set was the property of Bolay. Belongings of Bolay were found in the pickup. In defendant's duffel bag were cards belonging to Bolay and some bloody items. The blood was identified as being Bolay's. The signature on the check cashed by defendant on Bolay's account was found to have

[246 Kan. 285]

      been forged by defendant. Other facts will be stated as necessary for the discussion of particular issues.

  For his first issue, defendant contends the language employed in the amended information on the count charging aggravated robbery was insufficient. The count states:
"That on the 26th day of October, 1986, in said County of Finney and State of Kansas, one Jack Leroy Spears did then and there unlawfully, feloniously and willfully take property, cash money, wallet, bank deposit slip, and pick-up from the person or presence of Randall C. Bolay by inflicting great bodily harm to the person of Randall C. Bolay. Contrary to and in violation of K.S.A. 21-3427, Aggravated Robbery, a Class B felony."
K.S.A. 21-3427 provides:
"Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery."
  The underlying crime of robbery is defined by K.S.A. 21-3426 as follows:
 
"Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force."
  K.S.A. 22-3201 provides that the indictment, information, or complaint shall be a plain and concise written statement of the essential facts constituting the crime charged and when drawn in the language of the statute shall be deemed sufficient. However, the exact statutory words need not be used if the meaning is clear. State v. Vakas, 242 Kan. 103, Syl. ¶ 3, 744 P.2d 812 (1987).

  Defendant challenged the sufficiency of the count in a motion for arrest of judgment, which motion was denied.

  Is the aggravated robbery count fatally flawed? We believe not. The count states defendant took property from Randy Bolay by inflicting great bodily harm to the person of Randy Bolay. This is a clear statement that the taking was by force and bodily harm occurred from the application of that force.

  Defendant next argues that, inasmuch as his conviction for aggravated robbery is invalid, then the felony-murder conviction must also fall as aggravated robbery is the underlying felony in the felony-murder charge. This ...


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