Opinion
No. 110832.
2015-03-13
STATE of Kansas, Appellee, v. Christopher J. GILMORE, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.Lydia Krebs, of Kansas Appellate Defender Office, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Christopher J. Gilmore was convicted of burglary and attempted theft following an incident in September 2012 at the Automotive Diagnostic Center (ADC) in Wichita when the police responded to the report of a burglary in progress. Looking into the building, Officer Cody Smith could see an individual inside crouching down next to a tool box. The individual looked at Smith and then stood up and ran out of the building. Smith followed on foot and maintained visual contact with the runner. When Smith threatened to use his taser, the runner, later identified as Gilmore, stopped and was apprehended. Gilmore was wearing gloves and a stocking cap. He was carrying a backpack with several tools including a crowbar. The door to ADC had been forced open. Inside of the business, one of the garage doors had a lock that had been tampered with as well.
Inside ADC was a Corvette owned by David Hutchinson. The driver's door was open, and the car's hood was raised. There was a battery charger was next to the car, and the car's engine was running.
Gilmore testified that on the evening of this incident he went to ADC with Michael Finley and a man knows as Roo Bear in order to get the Corvette as part of an insurance fraud scheme. Gilmore brought his backpack full of tools to help break into the shop. The plan was to take the Corvette and deliver it to Hutchison, apparently so Hutchinson could make a fraudulent claim on his auto insurance policy that the car had been stolen. But, according to Gilmore, when it became apparent that the other men intended to steal other items in the shop, Gilmore withdrew from the plan and never entered the building. A minute or so later, Gilmore heard an alarm go off. At that point, Finley ran around the building and threw a hat and the crowbar down on the ground and told Gilmore to go. An officer then came running around the building, pointed a taser at Gilmore, and ordered him to the ground.
According to Gilmore, he was never inside the ADC building, never touched the Corvette, and never pried open the business door. He contended that he never intended to enter the building without the owner's permission or to permanently deprive the owner of his vehicle. The jury rejected Gilmore's version of the incident and found him guilty on both counts.
On appeal Gilmore argues that the district failed to give the jury a limiting instruction regarding his testimony that he intended to participate in insurance fraud, not burglary or theft. Gilmore did not request a limiting instruction at trial, so on review we apply the clearly erroneous standard. See K.S.A.2014 Supp. 22–3414(3). The failure to give an instruction is clearly erroneous only if failing to give the instruction was error and we are firmly convinced that the jury would have reached a different verdict if the error had not occurred. See State v. Tully, 293 Kan. 176, 196, 262 P.3d 314 (2011).
Gilmore relies on State v. Davis, 213 Kan. 54, 515 P.2d 802 (1973), to support his contention that a limiting instruction was legally appropriate in order to ensure that the jury did not punish him for crimes other than those charged. Davis addresses the issue of K.S.A. 60–455 evidence of other crimes or bad acts.
When such evidence of prior bad acts or crimes is admitted at trial, the Kansas Supreme Court requires the trial court to give a limiting instruction informing the jury of the specific purpose for its admission. State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006). But K.S.A.2014 Supp. 60–455 does not apply when the evidence at issue relates to crimes or civil wrongs committed concurrently with the events surrounding the crimes for which the defendant is on trial. State v. King, 297 Kan. 955, 963–64, 305 P.3d 641 (2013).
Here, Gilmore testified that during the time of the events forming the basis for the burglary and attempted theft charges, he thought he was participating in insurance fraud. King teaches us that K.S.A.2014 Supp. 60–455 does not apply to this contemporaneous conduct. Further, Gilmore does not contend that K.S .A.2014 Supp. 60–455 applies. The testimony about insurance fraud was relevant to Gilmore's defense that he did not have the requisite intent to commit the charged crimes. It was Gilmore who introduced this evidence, not the State. A limiting instruction simply was not legally appropriate here. Thus, there is no need for further analysis under the clearly erroneous standard.
For his second point of error on appeal, Gilmore argues that the prosecutor, a legal intern assisting in the State's prosecution, committed misconduct by misstating the law in the initial portion of the State's closing argument. The prosecutor told the jury:
“The only evidence to support the defendant's version of this crime is his testimony regarding his state of mind. Ladies and gentlemen, there has to be factual evidence to prove a matter, and the fact is when the defendant's beliefs are not supported by evidence, they are just beliefs, not facts.”
The fact that Gilmore did not object at the time does not affect our consideration of this issue. See State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014).
Gilmore asserts that the prosecutor essentially told the jury that, as a matter of law, Gilmore's testimony was legally insufficient, without more, to constitute evidence sufficient to establish reasonable doubt. Gilmore argues that this comment prejudiced the jury and denied him a fair trial because the comment undermined his only defense by misstating the law.
When reviewing allegations of prosecutorial misconduct, we must first determine whether the prosecutor's comments were outside the wide latitude allowed the prosecutor in discussing the evidence. If so, we must determine whether the improper comments constitute plain error, meaning that the statements prejudiced the jury against Gilmore and denied him a fair trial. If we reach this second step, we consider three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence against Gilmore was of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. See State v.. Jones, 298 Kan. 324, 335, 311 P.3d 1125 (2013). None of these three factors is individually controlling, and due to the nature of the error claimed here the third factor cannot override the first two factors unless we can say that the harmlessness tests of both K.S.A.2014 Supp. 60–621 and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967), have been met. Jones, 298 Kan. at 335. That is, the error can be deemed harmless only if the State shows beyond a reasonable doubt that the prosecutor's improper remark did not affect the outcome of the trial in light of the entire record. State v. Phillips, 299 Kan. 479, 503, 325 P.3d 1095 (2014).
A prosecutor steps outside of the considerable latitude given to prosecutors if he or she deliberately misstates the controlling law. The alleged misstatement of the law should be reviewed in the context of the entire closing argument and the instructions given to the jury. See State v. Burnett, 293 Kan 840, 850–51, 270 P.3d 1115 (2012).
We need not dwell on the first step in our analysis. It is clear that the prosecutor misstated the law in closing argument. Gilmore's contention was that he understood the prearranged plan was to take the Corvette and give it to its owner who could then make a false insurance claim for its loss. Gilmore's testimony about his intent and his state of mind at the time of these events was proper evidence to defeat the claim that he broke into the garage without Hutchison's permission with the intent to take the Corvette without Hutchison's permission and permanently deprive Hutchison of the Corvette. The prosecutor's argument misstated the law and was improper.
We move to step two of the analysis. On balance, it does not appear that the prosecutor's improper argument was either gross or flagrant. The misstatement of law was made once and not repeated elsewhere in closing argument. It was not emphasized in the closing argument.
Further, there is no indication the misstatement was the product of any ill will directed at Gilmore by the prosecutor.
Finally, the evidence against Gilmore was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. The police officer saw Gilmore crouched next to a tool box in the ADC building. He never lost sight of Gilmore as Gilmore ran from the building. Gilmore was apprehended with burglary tools still in his possession. Gilmore's defense was predicated upon the contention that he withdrew from the scheme before entering the ADC building and, in fact, never entered the building. If the jury believed the officer, then it had to conclude that Gilmore's story was entirely contrived. The jury rejected Gilmore's contention based on the clear testimony of the police officer.
We note that in its jury instructions the district court placed the burden of proof on the State to prove Gilmore's guilt and instructed the jury on the presumption of Gilmore's innocence. The jury was properly instructed on the elements of each of the charged crimes the State had to prove and was further instructed that the State had to prove that Gilmore committed each crime intentionally. That instruction stated that “[a] defendant acts intentionally when it is the defendant's desire or conscious objective to do the act complained about by the State.” Additionally, the jury was instructed that it could determine the weight and credit to give the testimony of the witnesses and was instructed on the factors it could consider regarding the reliability of eyewitness identification testimony. We presume the jury followed the court's instructions, and the court's guidance here likely mitigated any harm caused by the prosecutor's misstatement of the law.
Our Supreme Court has addressed misstatements of the law by prosecutors in other cases. In Williams, 299 Kan. at 548, the prosecutor's misstatements were found to be harmless in light of jury instructions, the facts of the case, and the prosecutor's theme regarding when premeditation occurred. In State v. Hebert, 277 Kan. 61, 85, 82 P.3d 470 (2004), the prosecutor's improper comment regarding premeditation was not reversible error when there was no evidence that the prosecutor deliberately misstated the law, the jury was given the proper PIK instruction, and the jury was told arguments of counsel are not evidence. In State v. Doyle, 272 Kan. 1157, 1165–66, 38 P.3d 650 (2002), the court had no indication the prosecutor purposefully misstated the law and the State's evidence was strong.
Based on all the foregoing, we are satisfied beyond a reasonable doubt that the prosecutor's misstatement of the law did not affect the outcome of the trial in light of the entire record.
Gilmore's final point of error on appeal is that his Sixth and Fourteenth Amendment constitutional rights were violated because the State's charging document did not include his prior convictions and the State did not prove those convictions to a jury beyond a reasonable doubt as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This argument raises a question of law over which we have unlimited review. See State v. Gaona, 293 Kan. 930, 957, 270 P.3d 1165 (2012).
The Kansas Supreme Court has held that prior convictions can be used to enhance sentencing under the Kansas Sentencing Guidelines Act without violating Apprendi. State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Ivory is controlling precedent on this issue. We are duty bound to follow Ivory absent some indication the court is departing from its holding in that case. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The Kansas Supreme Court has repeatedly declined to reconsider its holding in Ivory. See State v. Brown, 300 Kan. 565, 590, 331 P.3d 797 (2014). We perceive no indication that our Supreme Court intends to depart from its holding in Ivory. Accordingly, this contention fails.
Affirmed.