Opinion
No. 106,361.
2012-06-1
STATE of Kansas, Appellee, v. Douglas Anthony KLING, Appellant.
Appeal from Marshall District Court; John L. Weingart, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Laura E, Johnson–McNish, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Marshall District Court; John L. Weingart, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Laura E, Johnson–McNish, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Anthony Kling appeals his convictions and sentences for one count of aggravated escape from custody, one count of burglary, and two counts of theft. Kling claims: (1) The district court erred by improperly instructing the jury on reasonable doubt, (2) there was insufficient evidence to convict him of burglary and one of the theft charges, and (3) the district court violated his constitutional rights by using his criminal history to enhance his sentence without first requiring his criminal history to be included in the complaint and proven to a jury beyond a reasonable doubt. For the reasons set forth herein, we affirm the district court's judgment.
On June 14, 2009, Kling and Weston Canfield were cellmates incarcerated in the Marshall County jail. At 11 p.m., Corrections Officer Derek Martin went to secure the inmates in their cells for the night. As Martin walked through the door that led from the front of the jail into the area by the cells, Canfield pushed Martin against the door, and both Kling and Canfield ran outside. Martin chased the two men and grabbed Canfield's jumpsuit, but ultimately Canfield got away and ran down the street after Kling. Canfield told Kling he knew where they could get a car, and the two men ran to Boss Motors, a local car dealership.
When they arrived at the dealership, Canfield told Kling, “Just go to the front, stand there, look out, let me know if you see headlights, [or] police cars.” While Kling went to the front of the building, Canfield grabbed a battery and threw it through the glass doors of the dealership building. Canfield went inside and took two sets of car keys. Kling got into a Mercury Milan, Canfield got into a Ford Focus, and they drove out of town. After driving a short distance with Kling following Canfield, Kling indicated that his car was out of gas, so he got into the Focus with Canfield. They drove to Beatrice, Nebraska, where Kling knew of a house at which they could stay. The two men stayed in the house until early the next morning, when they were apprehended by police.
The State charged Kling with one count of aggravated escape from custody; one count of burglary; and two counts of theft, one related to each car. The case proceeded to a jury trial on July 12, 2010. The State presented testimony by Martin; Sheriff Dan Hargrave, who was working at the jail on the night in question; and Marshall County Undersheriff Timothy D. Ackerman, who took part in the search and investigation of the burglary at Boss Motors. Greg Boss, owner of Boss Motors, testified to the value of the Milan and the Focus. Boss also testified that Canfield had previously worked at the dealership and knew where the car keys were kept, but that neither Canfield nor Kling had permission to enter the dealership or take the cars. Finally, Canfield testified for the State, and he acknowledged his involvement and Kling's participation in the crimes.
Kling testified on his own behalf and stated that on the day in question he found a threatening letter on his bed at the jail. He thought that the letter might have come from the jail staff. Kling testified that the letter made him fear for his safety, so he escaped in order to avoid the situation. Kling testified that Canfield followed him out of the jail and said he knew where to get a car, but that Kling thought Canfield had a vehicle of his own at the dealership. Further, Kling did not recall Canfield saying anything about Kling acting as a lookout while they were at the dealership and that he intended to ultimately return both cars to the dealership. After hearing the evidence, the jury found Kling guilty of all four counts. Based on Kling's criminal history score, the district court imposed a controlling sentence of 36 months' incarceration and granted probation for 24 months. Kling timely appealed.
Kling first claims the district court committed reversible error by improperly instructing the jury on reasonable doubt. Kling did not object to the instruction before the district court. No party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous. K.S.A. 22–3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
The jury instruction of which Kling now complains stated:
“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 the defendant guilty.” (Emphasis added.)
This instruction is identical to the approved PIK 3d Crim. jury instruction except for one word. PIK Crim.3d 52.02 reads:
“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 each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Kling argues that the word “any” used in the final sentence of his jury instruction creates unconstitutional ambiguity. Specifically, Kling argues that, based on the jury instruction, he could be found guilty as long as the jury had no reasonable doubt as to the truth of any one of the claims required to be proved by the State.
In State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004), the defendant challenged a reasonable doubt jury instruction identical to the one given by the district court herein in which the word “any” was used in the final sentence of the instruction. The defendant argued that “the use of the word ‘any’ in this context allows for a conviction even if there are insufficient facts to support each element of the crime.” 32 Kan.App.2d at 787. The Beck court rejected this argument and stated:
“Again, Beck is focusing on one word of the instruction in isolation from its context. The word ‘any’ is used consistently in the instruction. The sentence immediately preceding the language Beck finds objectionable states: ‘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.’ (Emphasis added.) We reject Beck's argument that the word ‘any,’ as used in this context, could somehow create ambiguity or result in Beck being convicted if only one element of the crime is proven. Furthermore, Instruction No. 11, listing the elements of the crime of aggravated escape from custody, contains the language: ‘To establish this charge, each of the following claims must be proved.... (Emphasis added.) This language negates any potential confusion that may have been caused by the use of the word ‘any’ in Instruction No. 6.” 32 Kan.App.2d at 787–88.
Here, the jury instruction on aggravated escape from custody stated: “To establish this charge, each of the following claims must be proved,” and listed the elements of the crime. (Emphasis added.) The jury instructions on burglary and theft also contained this language. As in Beck, this language negates any potential confusion that may have been caused by the use of the word “any” in the final sentence of the instruction. Kling contends that because the elements instructions given at his trial did not state “each of the following claims must be proved beyond a reasonable doubt,” these instructions allowed the jury to find Kling guilty as long as the State provided “some proof” of each element. But this argument is unconvincing, as the reasonable doubt instruction stated that Kling must be found not guilty if a juror has “a reasonable doubt” as to the truth of any of the claims required to be proved by the State.
The current approved version of PIK Crim.3d 52.02 provides the most accurate test for reasonable doubt, and the current instruction is an improvement on the jury instruction given at Kling's trial. However, we note with significance that the language of the jury instruction on reasonable doubt given at Kling's trial was identical to the instruction recommended in PIK Crim.3d 52.02 prior to 2005. In fact, the Kansas Supreme Court had previously held that version of PIK Crim.3d 52.02 accurately reflected the law of this state and properly advised the jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt. See State v. Clark, 261 Kan. 460, 475, 931 P.2d 664 (1997).
In reviewing jury instructions for error, an appellate court generally examines the instructions as a whole to determine if the instructions properly and fairly state the law as applied to the facts of the case. State v. Hall, 292 Kan. 841, 857, 257 P.3d 272 (2011). Applying the reasoning in Beck and considering the jury instructions given at Kling's trial as a whole, rather than isolating any one instruction, we find that the instructions were substantially correct and the jury could not reasonably have been misled by them. We conclude that the jury instruction on reasonable doubt provided at Kling's trial, while not in keeping with the best practice, was not reversible error. Accordingly, Kling is not entitled to a new trial based on the jury instruction.
Next, Kling claims there was insufficient evidence to convict him of either the burglary or the theft of the Ford Focus under a theory of aiding and abetting. The State, on the other hand, asserts that the evidence presented was sufficient.
“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ‘ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
K.S.A. 21–3205(1) states that “[a] person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” At Kling's trial, the district court instructed the jury that “[a] person, who, either before or during its commission, intentionally aids another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed, regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
Kling contends that he merely associated with Canfield and did not aid or abet him in the commission of the crimes. Kling points to Canfield's testimony that although he remembered telling Kling to act as a lookout, he did not remember what Kling's response was or if Kling responded at all. Kling points to his own testimony that he did not recall Canfield telling him to act as a lookout and that he did not agree to do so. Kling also emphasizes that he did not actually alert Canfield to anything happening outside the dealership while Canfield was inside the building.
Nevertheless, we are required to review the evidence in the light most favorable to the State. McCaslin, 291 Kan. at 710. Here, one reasonable conclusion or inference the jury could have drawn from the evidence presented at trial was that Kling acted as a lookout in order to aid Canfield in the burglary of the auto dealership and the theft of both cars. The jury may not have believed Kling's testimony that he thought Canfield was going to retrieve his personal car from the dealership. Additionally, Kling voluntarily went to the dealership with Canfield and drove away in the Milan, following Canfield, who was driving the Focus. When the Milan ran low on gas, Kling got into the Focus with Canfield and the two drove together to Nebraska, where Kling knew of a place they could hide. Viewed in the light most favorable to the State, there was sufficient evidence to support the jury's finding that Kling aided and abetted the commission of the burglary and the theft of the Focus.
Finally, Kling argues that the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his criminal history to enhance his sentence without first requiring his criminal history to be included in the complaint and proven to a jury beyond a reasonable doubt. Kling concedes that the Kansas Supreme Court has already rejected this argument in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). There is no indication that the Kansas Supreme Court is departing from its position in Ivory. Therefore, Kling's sentencing issue fails.
Affirmed.