Opinion
No. 108,716.
2013-11-1
STATE of Kansas, Appellee, v. Michael C. DAWS, Appellant.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Christopher Mann, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Christopher Mann, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., SCHROEDER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Michael C. Daws appeals from his jury convictions and sentences for aggravated burglary and attempted aggravated burglary alleging trial and instruction errors.
We have examined each of Daws' arguments and find none of them to justify any relief. Consequently, we affirm the district court.
Factual and Procedural Background
On November 20, 2011, Raul Flores Ramos went to check on the home he and his wife were moving out of in Kansas City, Kansas. Ramos noticed when he went to open the front door that it had been “kicked in.” When he went inside, he saw Daws walking out of a hallway toward the living room. Ramos asked Daws what he was doing there and told him to get out. Daws told Ramos he was just there spending the night because he did not have anywhere to stay. Daws then grabbed his personal things and left. Ramos then called the police. Ramos said his boxed-up property had been moved toward one end of the living room and items had been taken out of boxes, but nothing was missing.
Officer Sean Behen investigated the crime. Ramos gave him a description of the suspect. Officer Behen was familiar with someone who matched that description whom he had seen and spoken with in the neighborhood earlier that day. That person had already given his name to Officer Behen as Michael Daws. Officer Behen showed a picture of Daws to Ramos, who immediately identified Daws as the person he had seen in his house. Officer Behen was unable to locate Daws that day.
Two days later on November 22, 2011, Patricia Baker was walking out of her kitchen when she heard a noise. She turned and saw Daws opening her back door with his foot on the threshold. She said Daws asked her in a calm voice if he could come inside because someone was chasing him. She also testified Daws was not sweating or out of breath and did not seem excited or concerned. Baker told Daws to get out of her house, threatened to shoot him, slammed the door shut, and locked it. Baker then called her neighbor and the police. The neighbor and his wife confronted Daws in the street in front of Baker's home. Daws told them he was running from someone. When the neighbor's wife told Daws the police had been called, he took off running. The neighbor then got into his vehicle and followed Daws until the police apprehended him. The neighbor's wife testified that she did not see anyone in the area who could have been chasing Daws.
Officer Behen responded to the call. He recognized Baker's description of the suspect as that of Daws. Shortly after speaking with Baker, Officer Behen saw Daws in the street in front of the home and recognized him as matching Baker's description. After approaching him, Officer Behen knew it was Daws and apprehended him. Baker then identified Daws as the person who was at her door.
The State originally charged Daws with two counts of aggravated burglary but later filed an amended information charging him with attempted aggravated burglary of Baker's residence under K.S.A.2011 Supp. 21–5301 and K.S.A.2011 Supp. 21–5807(b) alleging that he “did open a door and start to enter the residence ... but failed in the perpetration thereof or was prevented or intercepted in executing said crime.”
Daws testified at his trial. He admitted that he entered Ramos' home but said that it was on November 19, 2011, and that he went in because he had witnessed someone kick the door in. He said when he went inside that person ran out the back door. Daws stated he then spent the night in the home because he needed a place to stay. He said Ramos confronted him there the next day. Daws also testified that he knocked on Baker's door on November 22, 2011, because he believed someone was chasing him to harm him. He denied stepping inside her home.
During the trial, Detective Daniel Villalpando testified that Ramos said Daws told him “not to call the police because he was on probation.” Daws' attorney moved for mistrial, but the district court denied the motion because it did not feel “one comment was sufficient for a mistrial.” Daws' attorney also stated he did not want the district court to give the jury a limiting instruction because he did not want to “make anymore big a deal out of this.” Per Daws' attorney's request, the district court did not give the jury an admonition or limiting instruction, although it stated it had intended to do so. Detective Villalpando last testified on cross-examination that another detective and Daws knew each other from “past meetings.” At that point, Daws' attorney renewed his motion for mistrial. However, the district court denied the motion because Daws' attorney had brought the issue up himself during his continued questioning of Detective Villalpando.
During the instruction conference, Daws' attorney requested the district court to instruct the jury on the lesser included offense of burglary. He argued Ramos had not been inside the home when Daws had entered it, which he claimed was required under the aggravated burglary statute, sc the jury could only convict him of simple burglary. The district court denied the request because it said the caselaw does not differentiate between whether the victim came into the property before or during the defendant's entry. Daws' attorney also did not object to the proposed reasonable doubt instruction during this instruction conference. The district court therefore instructed the jury, “If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” It also instructed the jury it could convict Daws of aggravated burglary of Ramos' home if it concluded Daws had knowingly “entered” the dwelling without authority and with the intent to commit theft therein while there was a human being present.
The jury convicted Daws of both counts; aggravated burglary, a severity level 5 person felony and attempted aggravated burglary, a severity level 7 person felony. Based on his criminal history of B, Daws was sentenced to a standard 120–month prison sentence for the aggravated burglary conviction and a concurrent 12–month prison sentence for the attempted aggravated burglary conviction, with 24 months of postrelease supervision for each conviction.
Daws has timely appealed.
Analysis of Appellate Arguments
Daws raises five arguments on appeal which we will consider in the order he presents.
Was there sufficient evidence to support Daws' conviction for aggravated burglary?
Daws first claims there was insufficient evidence to convict him of aggravated burglary of Ramos' house. He contends that the district court, in instructing the jury it could convict Daws of aggravated burglary if it found he had “entered into” Ramos' dwelling when there was a human being present therein, allowed him to be convicted erroneously because Ramos was not in the building when he entered and, therefore, the evidence was insufficient to support his conviction for aggravated burglary.
When the sufficiency of evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–375, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or evaluate the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). To the extent this question involves statutory interpretation, that is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). Any reasonable doubt as to the meaning of the statute is decided in favor of the accused, subject to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Coman, 294 Kan. 84, 96, 273 P.3d 701 (2012).
Aggravated burglary is “without authority, entering into or remaining within any building ... in which there is a human being with intent to commit a felony, theft or sexual battery therein.” K.S.A.2011 Supp. 21–5807(b).
In this case, the State charged Daws with “entering into a building” and the jury instructions similarly stated that to establish the charge, it must be proved that Daws entered a building. Daws argues that under this option, it is statutorily necessary that a human be present at the time of the defendant's entry. He further argues that we should at least find K.S.A.2011 Supp. 21–5807(b) ambiguous and interpret that ambiguity strictly in his favor.
However, as the State contends, this is contrary to the plain language of the statute and also contrary to repeated and consistent holdings of this court. See State v. May, 39 Kan.App.2d 990, Syl. ¶ 1, 186 P.3d 847,rev. denied 287 Kan. 768 (2008); State v. Romero, 31 Kan.App.2d 609, 610–12, 69 P.3d 205 (2003); State v. Fondren, 11 Kan.App.2d 309, 310–12, 721 P.2d 284.rev. denied 240 Kan. 805 (1986); and State v. Reed, 8 Kan.App.2d 615, 616–19, 663 P.2d 680,rev. denied 234 Kan. 1077 (1983).
The facts in these cases are all similar to ours. For example in May, an unoccupied house was entered without authority and the homeowner returned while May was still inside the home. When confronted by the homeowner, May tried to explain his presence but fled. The homeowner noted items stacked and apparently ready to be removed from the house. May was prosecuted and convicted based on entering into language and theory.
In response to May's argument that he could only be guilty of simple burglary because the crime is committed at the moment of entry, the later arrival of a person does not transform simple burglary into aggravated burglary, Judge McAnany opined:
“May's construction would frustrate the purpose of the distinction between simple burglary and aggravated burglary, which is to recognize as a more serious crime those burglaries which can result in a dangerous and unexpected confrontation between the burglar and an occupant. See Fondren, 11 Kan.App.2d at 310–12. In Reed, 8 Kan.App.2d at 616–17, the court observed:
“The purpose behind the aggravated burglary statute is to describe a more serious offense than simple burglary where there is the possibility of contact between the victim and the burglar and the accompanying potential for a crime against the person to occur. This danger is just as great regardless of when during the burglary the victim comes to be in the building.... [T]he severity of the crime depends upon the mere presence or absence of any human being in the same structure.'
To that end, aggravated burglary does not require proof that the defendant knew there was a person present in the building at the time it is burgled. The mere presence of a person during the crime is sufficient. See State v. Watson, 256 Kan. 396, 400–01, 885 P .2d 1226 (1994); Fondren, 11 Kan.App.2d at 311.” Mays, 39 Kan.App.2d at 993.
Daws in this case argues that the holding in State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973), necessarily contradicts the holdings of the Court of Appeals cases previously cited. However, Daws does not recognize the difference in these cases and ours from Lora. There, the defendant entered into the victim's unoccupied home, waited for her, and then raped her when she returned. Lora was charged with both “entering into or remaining within.” The Lora court seemed to rely on the “remaining within” language to conclude that aggravated burglary had been committed. 213 Kan. at 195.
But, the argument Daws makes here was also made in May, and the opinion there states:
“May points out that in his case, unlike in Lora, he was not charged with remaining within Orth's home. We fail to appreciate the compelling thrust of this argument. Neither did this court in Reed.
“In Reed, the court noted that the remaining in provision in the statute deals with circumstances quite different from those in the “ ‘entering into’ “ scenario. One may be guilty of burglary by entering into the premises without authorization. Even if one enters the premises with authorization, one may still be guilty of burglary by remaining within the premises when authority has been withdrawn. See State v. Brown, 6 Kan.App.2d 556, Syl. ¶ 4, 630 P.2d 731 (1981). May did not overstay his welcome. His entry into the Orth's home was unauthorized and unlawful from the start.” 39 Kan.App.2d at 994.
We find the reasoning of Reed, Fondren, Romero, and May is sound. The danger to Ramos was just as great irregardless of when he entered into his home. It was not reversible error to not include the “remaining within” language in the charge and instruction. There was clearly sufficient evidence to convict Daws of aggravated burglary.
Daws also makes a brief multiple acts argument in his appellate brief. But, this is clearly not a multiple acts case. The State did not allege several acts, any one of which could constitute the crime charged. See State v. Voyles, 284 Kan. 239, 244, 160 P.3d 794 (2007). All the State alleged and proved was that Daws entered Ramos' unoccupied house in which Ramos was later present.
Did the district court err in refusing to instruct the jury on the lesser included offense of burglary?
Daws next contends the district court erred under K.S.A.2011 Supp. 22–3414(3) by refusing to instruct the jury or the lesser included offense of burglary.
Actually, to uphold this argument, we would have had to agree with Daws' arguments in the first issue. They fail there, and it also fails here for the same reasons previously stated.
The district court shall instruct the jury on lesser included offenses where there is some evidence that would reasonably justify a conviction of the lesser included offense. K.S.A.2011 Supp. 22–3414(3); see K.S.A.2011 Supp. 21–5109(b); State v. Kirkpatrick, 286 Kan. 329, 334, 184 P.3d 247 (2008), overruled on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013). There is no duty to give a lesser included offense instruction if the jury could not reasonably convict the defendant of the lesser offense based upon the evidence presented. When reviewing a district court's refusal to give a requested lesser included offense instruction, the appellate court must view the evidence in the light most favorable to the requesting party. State v. Harris, 293 Kan. 798, 803, 269 P.3d 820 (2012).
Daws requested the burglary instruction at the instruction conference for the Ramos' count because Ramos had not been in the home when Daws entered. The court correctly refused.
We have ruled against Daws' specific argument in previous cases. See May, 39 Kan.App.2d at 990;Jenkins v. State, 32 Kan.App.2d 702, 87 P.3d 983,rev. denied 278 Kan. 845 (200A). The court in Mays ruled: “[T]here is-no-evidence that he was alone in the home throughout the crime so as to support a verdict of simple burglary.” (Emphasis added.) 39 Kan.App. at 995. Jenkins, quoting Fondren, also acknowledged that evidence showing that the victim came to the building while the defendant was still present frustrates the argument for the lesser included instruction. Jenkins, 32 Kan.App.2d at 704–05.
In our case, it was undisputed Ramos entered the residence while Daws was still present. This is consistent with the district court's holding that there was no reasonable justification for the lesser included instruction on burglary. The district court correctly denied the requested instruction.
The district court did not abuse its discretion in denying Daws' motion for a mistrial.
Daws further contends the district court erred in denying his motion for a mistrial after testimony was given indicating he was on probation for a previous crime or crimes. He argues this prejudiced his defense which was entirely dependent on his credibility and character. He claims this prejudice implicated his fundamental right to a fair trial.
On appeal, a district court's decision denying a motion for a mistrial is viewed under an abuse of discretion standard. Our Supreme Court recently clarified the application of the abuse of discretion standard to a three-part test, finding abuse only when
“judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Under K.S.A. 22–3423(1)(C), a district court may terminate the trial and order a mistrial at any time it finds termination is necessary because prejudicial conduct makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution. In evaluating a motion for mistrial, an appellate court must first determine whether the district court abused its discretion in deciding if there was a fundamental failure in the proceeding. Secondly, the appellate court must decide whether the district court abused its discretion in deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition, instruction, or other action. State v. McCullough, 293 Kan. 970, 980–81, 270 P.3d 1142 (2012).
An appellate court reviewing the second step for an injustice will review the entire record to determine if the fundamental failure affected a party's substantial rights. To that end, it must apply K.S.A.2011 Supp. 60–261 and K.S.A. 60–2105 or the constitutional harmless error analysis defined in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 (1967), depending on whether the error infringes upon a right guaranteed by the United States Constitution. Ward, 292 Kan. at 569–70.
In the present case, Detective Villalpando was asked if Daws said anything to the victim. Villalpando responded, stating that Daws “told Mr. Flores not to call the police because he was on probation .” An objection and request for mistrial followed. The court denied the motion for mistrial and offered a limiting instruction. That was rejected by the defense saying they did not want to “make anymore big a deal out of this.”
Later, in Detective Villalpando's testimony, he responded to a question from Daws' counsel that another detective and Daws knew each other from past meetings. Daws' counsel renewed his motion for a mistrial. The district court again denied the motion because Daws had brought up the issue himself through his questioning of the detective.
Although Daws mentions both of these statements in his introduction of this issue in his appellate brief, in the analysis he only discussed the probation statement. Thus, that appears to be the only error he is challenging on appeal. An issue not briefed by the appellant is deemed waived and abandoned. State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012). A point raised incidentally in a brief and not argued therein is also deemed abandoned. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011).
We do not agree with the State's argument that the statement was not K.S.A.2011 Supp. 60–455 evidence. Clearly, it was an improper statement but, as was held in State v. Tatum, 281 Kan. 1098, 1111, 135 P.3d 1088 (2006), “[t]he erroneous admission of other crimes evidence will not require reversal if it did not affect the substantial rights of the defendant.
We have previously cited McCullough, where the jury was admonished to disregard evidence of bad character and this was utilized as one of the reasons to find the district court did not abuse its discretion in denying a motion for a mistrial. 293 Kan. at 984. Because a limiting instruction may well have cured the unsolicited testimony, and such an admonition was rejected by Daws, this fact must also be given consideration in our abuse of discretion/ K.S.A.2011 Supp. 60–261 and K.S.A. 60–2105/ Chapman analysis of who has the burden in cases like this and which of the various tests are to be applied.
Our appellate opinions do not seem to have firmly established the obligations of the defendant and the State as is shown by language in Ward, 292 Kan. at 556–71,McCullough, 293 Kan. at 980–84, and even going back to State v. Goodson, 281 Kan. 913, 295–28, 135 P.3d 1116 (2006), where the same discussion involved the admission of gang evidence, which was deemed error, but spawned the argument as to whether the K.S.A. 60–261 harmless error rule or the constitutional harmless error was to be applied. Ultimately, the question was held not to be well settled, but our Supreme Court said: “[W]e will assume but not determine that due process is implicated and apply the dual standard of the Chapman constitutional harmless error test and the harmless error test of K.S.A. 60–261.” 281 Kan. at 927.
It is clear to us that, no matter which, or both, test or tests are utilized, the inadvertent inclusion of the language which Daws complained of was harmless.
The State persuasively and correctly asserts that any damage to Daws' credibility from Detective Villalpando's testimony was contradicted by the substantial evidence presented that disputed Daws' defense. Ramos said his property had been moved toward one end of the living room and items had been taken out of boxes. This indicates Daws was planning to take the property and was not just in the house because he needed a place to stay. Furthermore, Baker testified Daws was not sweating or out of breath and did not seem excited or concerned when he was at her door. Baker's neighbor also testified she did not see anyone in the area who could have been chasing Daws. This testimony belies Daws' claim that someone was chasing him. Furthermore, Baker's neighbor testified that when she and her husband told Daws the police had been called, he took off running. This behavior discredits Daws' innocent explanation for being at Baker's house because someone being chased would likely want to talk to the police, not run from them. In light of this substantial evidence presented to the State, there was no reasonable probability the prior crimes evidence affected the outcome of the trial under K.S.A.2011 Supp. 60–261.
In addition, the record indicates Detective Villalpando's probation statement was inadvertent and unexpected. The prosecutor told the district court that Daws' comment to Ramos was not in any of the reports, so he did not anticipate Detective Villalpando would make such a statement while testifying. See State v. Wilson & Wentworth, 221 Kan. 359, 364, 559 P.2d 374 (1977) (noting it was obvious State did not intend to offer testimony of prior crimes and it came in as an inadvertent statement of witness); State v. Quintero, No. 96, 786, 2008 WL 2186070, at *4 (Kan.App.2008) (unpublished opinion) (finding defendant did not establish substantial prejudice where witness' response implying defendant possessed drugs was unexpected, follow-up questions were quickly halted, and response may actually have favored defendant). Thus, even under the Chapman standard, the State proved beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record.
The district court did not abuse its discretion in denying Daws' motion for a mistrial.
Did the giving of an outdated reasonable doubt instruction violate Daws' constitutional rights?
Daws next claims the district court violated his Fifth and Sixth Amendment rights of the United States Constitution when it instructed the jury that it could return a guilty verdict upon proof of any element of the charged offenses rather than upon proof of each element of the charged offense.
The district court instructed the jury on reasonable doubt using the pre–2005 version of PIK Crim.3d 52.02, and the instruction given read:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find defendant guilty.” (Emphasis added.)
See State v. Womelsdorf, 47 Kan.App.2d 307, 332–34, 274 P.3d 662 (2012), (noting PIK committee modified reasonable doubt instruction in 2005 to change the second ‘any’ to ‘each’), rev. denied 297 Kan. (August 19, 2013).
There was no objection made by Daws or his counsel to the instruction so we apply a clearly erroneous standard of review on appeal. State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012).
Daws argues the word “any” in the reasonable doubt instruction was ambiguous and thus constitutes structural error requiring the reversal of his convictions. But, after Daws filed his brief, the Kansas Supreme Court has twice rejected his arguments in State v. Smyser, 297 Kan. 199, 203–06, 299 P.3d 309 (2013), and State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013), which held that an identical reasonable doubt instruction was legally appropriate and not error.
Nothing in Daws' arguments to us changes the conclusions of the Kansas Supreme Court in the above cases that the older PIK instruction was not erroneous because the jury was instructed that it needed to find each element of the charges in order to establish guilt. Thus, Daws' contention on appeal fails because we are duty bound to follow the Supreme Court's precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). Did the district court violate Daws' Sixth and Fourteenth Amendment rights under Apprendi by sentencing him to an increased sentence based on his prior criminal history?
In order to preserve the issue for federal review, Daws asserts his Sixth and Fourteenth Amendment constitutional rights were violated pursuant to the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when his final sentence was enhanced by his criminal history without having his prior criminal convictions proved to a jury beyond a reasonable doubt.
Daws has acknowledged that our Supreme Court has previously ruled that Apprendi “does not apply where the sentence imposed was based in part upon a defendant's criminal history score under K.S.A.2001 Supp. 21–4704 of the Kansas Sentencing Guidelines Act.” State v. Ivory, 273 Kan. 44, Syl., 41 P.3d 781 (2002). There is no indication our Kansas Supreme Court is inclined to change this ruling and it will be followed by our court until a change is made. See Ottinger, 46 Kan.App.2d at 655.
For all the reasons stated in this opinion, we affirm the convictions and sentences of Daws.