Kansas Criminal Cases: February 28, 2020; Single Larceny Rule



Under the single larceny doctrine, "[i]f property is stolen by a succession of takings from the same owner and from the same place, each taking is a separate crime if it results from a separate impulse or intent. If it appears, however, that a single incriminating impulse or intent is involved in the successive takings, the takings constitute a single larceny." State v. Grissom, 251 Kan. 851, Syl. ¶ 9, 840 P.2d 1142 (1992). The single larceny doctrine is also known as the single impulse theory or single impulse rule. See State v. McClanahan, 251 Kan. 533, Syl. ¶ 1, 836 P.2d 1164 (1992) (single impulse rule); Grissom, 251 Kan. at 896 (single impulse theory).

1. A series of larcenous acts, regardless of the amount and value of the separate parcels or articles taken, and regardless of the time occupied in the performance, may and will constitute, in contemplation of law, a single larceny, provided the several acts are done pursuant to a single impulse and in execution of a general fraudulent scheme.

2. The single larceny doctrine is a rule of evidence, not a rule of law, which permits but does not require the trier of fact to consider a series of larcenies, embezzlements, or other thefts to be the result of a single larcenous scheme.

3. The two key elements of the single larceny doctrine are: (1) Separate acts of theft or embezzlement may constitute felony theft if the acts were the result of one larcenous impulse or plan and (2) whether the separate acts were the result of one larcenous impulse or plan is a question of fact to be determined by the jury.

4. The single larceny doctrine is not only limited to instances where multiple misdemeanor takings are charged as a single felony but also permits multiple instances of felony takings to be charged as a single higher severity level felony.

5. K.S.A. 2019 Supp. 21-6604(b)(1) provides that the district court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable.

6. Restitution is the rule and a finding that restitution is unworkable is the exception. The defendant bears the burden of coming forward with evidence of compelling circumstances that render the restitution plan unworkable.

7. K.S.A. 2019 Supp. 21-6604(b)(1) does not define "unworkable." Courts are to evaluate the workability of a restitution plan on a case-by-case basis. Some of the factors relevant to the court's inquiry will be the defendant's income, present and future earning capacity, living expenses, debts and financial obligations, and dependents. In some circumstances, the amount of time it will take a defendant to pay off a restitution order will also be relevant, especially if the defendant is subject to probation until the restitution is paid in full. In all circumstances, the district court should keep in mind the ultimate goals of restitution: compensation to the victim and deterrence and rehabilitation of the guilty.

8. If a defendant is ordered to pay full or partial restitution, K.S.A. 2019 Supp. 21- 6608(c)(7) specifically allows for probation to be continued indefinitely as long as the amount of restitution ordered has not been paid.


STATE V. GRAY, NO. 117747:

A jury convicted Marvin Gray of first-degree premeditated murder, rape, and aggravated burglary.  The Kansas Supreme Court Affirmed.

Gray claims the district court should have sentenced him for intentional second degree murder even though he was convicted of first-degree premeditated murder. Gray asserts that these crimes are identical offenses and points out that, under the identical offense doctrine, a court can only sentence him based on the offense that carries a lower sentence.  But, Gray did not raise this issue at the district court.  Accordingly, the Kansas Supreme Court declined to review the issue.

1. The decision to review an unpreserved claim under an exception is a prudential one. Even if an exception would support a decision to review a new claim, this court has no obligation to do so.

2. Kansas courts presume jury members follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence.


A jury found Anthony Raymond Becker guilty of first-degree premeditated murder. On direct appeal, Becker asserts a claim of prosecutorial error, three claimed errors related to jury instructions, and an illegal sentence of lifetime postrelease supervision. Upon review, we conclude that (1) the prosecutor did not err in his comments in closing argument; (2) the district court did not commit reversible error in failing to instruct on lesser included crimes and on voluntary intoxication; (3) Becker's newly raised constitutional claims are without merit; and (4) there are not cumulative errors that require reversal; but (5) the district court erred in ordering lifetime postrelease supervision following Becker's indeterminate life sentence.

1. In determining whether a particular statement falls outside of the wide latitude given to prosecutors, the court considers the context in which the statement was made, rather than analyzing the statement in isolation.

2. Even if a requested lesser included offense instruction would have been both factually and legally appropriate, a district court's failure to give such instruction may still be harmless if the court is convinced there was no reasonable probability that the failure affected the verdict.

3. Under the facts of the case, a district court's failure to give a requested lesser included offense instruction of second-degree homicide was harmless when no evidence was presented to enable the jury to conclude that the homicide was anything other than premeditated.

4. In a noncapital case, a district court's failure to instruct on a lesser included offense does not impair a defendant's constitutional right to a trial by jury or right to due process.

5. Evidence of consumption of an intoxicant near the time of the commission of a crime does not automatically warrant the giving of a voluntary intoxication instruction.

6. When no direct evidence of a defendant's impairment was presented to the jury in a premeditated first-degree homicide trial, a district court does not necessarily err in failing to give a voluntary intoxication instruction even when evidence of consumption of an intoxicant is presented.

7. Relief under the cumulative error doctrine cannot be predicated upon a single error.

8. A sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid, indeterminate life sentence.