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May 25, 1990.

TERRY ALIRES, Appellant.

The opinion of the court was delivered by

Terry Alires was convicted after a jury trial of one count of aggravated robbery (K.S.A. 21-3427) and one count of kidnapping (K.S.A. 21-3420). He appeals, claiming there was insufficient evidence to support the kidnapping conviction as alleged in the complaint and the trial court erred by not suppressing the identification obtained during an unnecessarily suggestive confrontation.

On October 13, 1988, at approximately 9:30 p.m., a female entered a convenience store and ordered the clerk, Carmela R. Frerichs, to open the cash register and to put money into a brown paper bag. To insure cooperation, the female robber raised her arm to reveal a sharp shiny object which Frerichs believed to be a knife. A male accomplice then entered the store. After the male threatened to physically harm the clerk and place her in the

[246 Kan. 636]

      cooler, the female accomplice called the male "Terry" and told him to stop frightening Frerichs.

  At this point in the robbery an elderly male customer entered the store. To hide the fact that a robbery was occurring, the female robber told the clerk to act naturally and to hand over cartons of Marlboros, Kools, and Winston One Hundreds cigarettes. Frerichs was then forced out of the store and instructed to get under a combine in the parking lot. Instead, she climbed up on the combine. After the two robbers drove away, Frerichs returned to the store, activated the alarm, and asked the elderly male customer, William Parrish, to remain with her.

  Officers arrived and obtained descriptions of the robbers and their vehicle. Based on a glimpse, Parrish described the man and woman as either Hispanic or black and the car as white and probably a Chevrolet model. Frerichs described the male as a Hispanic with black feathered-back hair and a mustache, who was shorter than the female. She stated the female was white, had a tattoo, and was wearing large earrings and a tan sweater. She described the car as a white older model with dark color striping — possibly a Mustang. About fifteen minutes after the descriptions were broadcast, a white Rambler occupied by a male and female was stopped by law enforcement officers about two miles into Oklahoma.

  Frerichs was driven by Officer Ralston to the location where the suspects' car had been stopped. At the side of the road, illuminated by police car lights, were two individuals, handcuffed and surrounded by law enforcement officers. As Ralston slowly drove by, Frerichs observed the two suspects through the car window. Frerichs identified both suspects and stated, "I'd recognize that sweater anywhere." Frerichs was then asked to look at an object laying on the ground. She observed a screwdriver on the ground. Frerichs stated the screwdriver "could very well have been the weapon." A later search of Alires' vehicle produced three cartons of cigarettes, one each of Marlboro, Kool, and Winston, along with four packs of Marlboros scattered in the rear of the car, an open bottle of malt liquor, a six-pack of beer, a brown paper sack of coins, an open box of laundry soap, and a wad of small denomination bills.

[246 Kan. 637]


  At trial, Alires testified that he and his girlfriend left their home in Garden City and drove to Liberal to visit relatives. After obtaining marijuana from a relative, they made several beer stops prior to eating at a truck stop. Shortly after they left the truck stop, the police stopped them. When ordered to throw the car keys out the window, Alires threw the screwdriver he used as a key onto the ground.

  Prior to trial, Alires' motion to suppress the evidence of the arrest scene identification and any in-court identification was denied. At trial, Alires testified that he had not been in the convenience store that night. The jury found Alires guilty of both the kidnapping and aggravated robbery charges. Pursuant to the State's request, Alires was sentenced as a habitual criminal to not less than 30 nor more than 60 years for kidnapping and not less than 30 nor more than 60 years for aggravated robbery, the sentences to run concurrently. Alires appeals.

  K.S.A. 21-3420 provides:
"Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
"(a) For ransom, or as a shield or hostage; or
"(b) To facilitate flight or the commission of any crime; or
"(c) To inflict bodily injury or to terrorize the victim or another; or
"(d) To interfere with the performance of any governmental or political function." (Emphasis added.)
  K.S.A. 21-3420(b) describes two distinct methods of perpetrating the crime of kidnapping, i.e., to facilitate flight or the commission of any crime. The complaint charges Alires with kidnapping "to facilitate the commission of a crime." In addition, the jury was also instructed "[t]hat it [the kidnapping] was done with the intent to hold such person to facilitate the commission of any crime." Alires contends that, while the evidence may have shown the kidnapping was done to "facilitate flight," the taking of Frerichs occurred after the robbery was completed; therefore, the evidence introduced at trial was insufficient for a conviction of kidnapping to "facilitate the robbery." If the evidence introduced at trial does not support a conviction of the offense charged in the complaint, an accused cannot be found guilty of some other offense neither charged in the complaint nor instructed to the jury. State v. Houck, 240 Kan. 130, 136, 727 P.2d 460 (1986).

[246 Kan. ...

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