Opinion
No. 110490.
05-29-2015
STATE of Kansas, Appellee, v. Jordan Erich SCHEWE, Appellant.
Gerald M. Jackson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Paul E. Brothers, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Gerald M. Jackson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Paul E. Brothers, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Jordan Schewe of felony theft, and the district court sentenced him to 15 months in prison. On appeal, Schewe argues three allegations of error: (1) There was insufficient evidence to convict him of felony theft; (2) the district court erred when it failed to give his proposed jury instruction on circumstantial evidence; and (3) the district court erred by answering a jury question with a written note. Finding no reversible error by the district court, we affirm Schewe's conviction.
Factual and Procedural Background
When Randall Arnold, a Morse Chevrolet dealership employee, arrived at work one morning in June 2011, he noticed eight vehicles had been tampered with. A total of 29 center cap covers—a decorative piece that covers the lug nuts/locking mechanism—and 10 wheels were missing. The vehicles with missing wheels were sitting on distinctive cinderblocks that did not belong to the dealership. Due to overnight rain, only a partial fingerprint was recovered.
Detective Brian Schnabel was assigned to investigate the theft. While watching traffic camera footage from the night in question, he observed a smaller, older-model, two-wheel drive, standard cab pickup near the dealership. The truck had a large toolbox that extended above the rails and a tailgate with markings or discoloration. The truck turned into one of the Morse Chevrolet entrances, went off camera, came back on camera, and then entered a second entrance of the dealership before finally leaving the property.
Around 1 a.m. in the early morning of July 7, 2011, Shannon Clarke, a private security guard hired by Morse Chevrolet, saw a truck pulling a trailer driving with no headlights. The truck went from a lighted parking lot into an unlit lot near the dealership and stopped. Clarke called the police and approached the driver, later identified as Schewe, who was standing outside of the truck. Schewe claimed he had stopped to work on his trailer lights. Both Clarke and the responding officer noticed several cinderblocks in Schewe's trailer. The blocks appeared the same size, same color, and had the same characteristics as the blocks found at the dealership the night property was stolen from Morse Chevrolet. In addition, a floor jack, bolt cutters, a tire iron, and other items that could be used to remove wheels from a vehicle were in the bed of Schewe's truck, along with both regular and locking lug nuts. The lug nuts appeared identical to lug nuts on vehicles at the dealership.
Later that day, Schnabel visited Schewe's residence and saw a purple, two-wheel drive pickup with a metal tool box in the back of the truck along with a connected trailer. The truck appeared identical to the truck he previously witnessed in the traffic camera footage from the night the theft occurred at the dealership. Both trucks had a tool box in the bed; had similar shape, size, and truck body formation; and had similar white marks on the tailgate. Schnabel also noticed that the trailer had cinderblocks in it appeared to be the same as the blocks in photographs taken of blocks left behind at the dealership. Both blocks had grooves cut on the sides, did not have mortar or cement affixed to them, and had the same textured surface. Schnabel also saw lug nuts inside the bed of the truck.
At some point, Schnabel sent the partial fingerprint for analysis and asked that it be compared to Schewe's fingerprint. The two prints matched.
The State charged Schewe with felony theft, a severity level 9 nonperson felony pursuant to K.S.A. 21–3701(a)(1), (b)(3) (later recodified; see K.S.A.2014 Supp. 21–5801 ). At trial, Schewe requested a jury instruction that the jury “should not find the defendant guilty on circumstantial evidence alone unless the facts and circumstances exclude every reasonable theory of innocence.” The district court denied the instruction request. During the jury's deliberations, it asked the court about the fingerprint evidence. Schewe and the State agreed to an answer, and the judge wrote the answer on a note which she gave to the bailiff to take to the jury room.
The jury convicted Schewe. Following his conviction, Schewe filed a motion for a new trial, claiming he was denied a right to a fair trial because his proposed jury instruction was denied, among other objections that were overruled during trial. After a hearing, the district court denied Schewe's motion.
Schewe timely appeals.
Did the State Meet its Burden of Proof Regarding Submission of Evidence?
Schewe argues that in order to satisfy the elements of felony theft the State had to show that he obtained or exerted control over Morse Chevrolet's tires and wheels with the intent to permanently deprive the owner. Schewe claims there was no evidence he obtained or exerted control over the tires.
When the sufficiency of evidence is challenged in a criminal case, we review all the evidence in the light most favorable to the prosecution and “must be convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [We] do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. See State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
At trial, facts can be established by direct evidence or circumstantial evidence. See State v. Scott, 271 Kan. 103, 108, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). Furthermore, circumstantial evidence is enough to sustain “a conviction of even the gravest offense.” State v. Smith, 268 Kan. 222, 236, 993 P .2d 1213 (1999). “Circumstantial evidence tends to prove a fact in issue by proving other events or circumstances which afford a basis for a reasonable inference by the jury of the occurrence of the fact in issue.” State v. Lopez, 36 Kan.App.2d 723, 725, 143 P.3d 695 (2006). “ ‘Black's Law Dictionary 917 (4th ed. rev.1968) defines an inference as “[a] process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted.’ “ “ State v. Cruz, 15 Kan.App.2d 476, 491, 809 P .2d 1233 (quoting State v. Williams, 229 Kan. 290, 623 P.2d 1334, reh. denied 229 Kan. 646, 649, 630 P.2d 694 [1981] ), rev. denied 249 Kan. 777 (1991).
The “ ‘corpus delicti’ “ of theft requires “ ‘(1) that property or an interest in property was lost by the owner, and (2) that it was lost as the result of the unlawful act of another who obtained or exerted control over such property.’ “ State v. Alexander, 12 Kan.App.2d 1, 5, 732 P.2d 814 (quoting Wilson, Thou Shalt Not Steal: Ruminations on the New Kansas Theft Law, 20 Kan. L.Rev. 385, 399 [1972] ), rev. denied 241 Kan. 839 (1987).
In this case, there was sufficient evidence to show that Schewe committed the felony theft. First, the cinderblocks propping up the Morse Chevrolet vehicles that had their tires stolen had decorative patterns that matched the cinderblocks found in Schewe's truck a few weeks later. Second, traffic camera footage showed a truck similar to Schewe's driving into a couple of the locked Morse Chevrolet entrances. Third, Schewe's truck was seen near the scene of the original theft around the time the June 2011 theft was likely committed. Fourth, a partial print was recovered from the scene and identified as a match to Schewe's fingerprint. And finally, as the prosecutor reminded the jury during trial:
“What are the odds that every single thing you would need to take off those wheels is in the bed of his truck, including those decorative cinderblocks, and that the items that would have to come off the wheels in order to take those wheels, the lug nuts, are back there as well as the hub nuts.... Mr. Arnold told you those were the same kind that were on the GM or the Chevy vehicles as well.”
Schewe claimed the tools and cinderblocks were related to his construction work, specifically breaking up a basement foundation. However, the blocks did not show signs of construction wear and tear; due to their decorative nature, it was unlikely they could be used in a building. He further testified that he used the tools to fix his own car and the lug nuts were from family vehicles. However, the jury was not obligated to believe Schewe's version of the facts and chose to convict him of felony theft.
During the hearing on Schewe's motion for a new trial, the trial judge held:
“[T]he evidence showed that a partial fingerprint belonging to the defendant was found at the location of this crime on June 17th of 2011 when numerous cars had wheels and tires removed from them. There was no logical explanation for his print being there since he wasn't employed there and had never been employed there; and less than a month later, he was found at the same location essentially behind the business late at night with all of the tools necessary for a repeat performance of the crime that occurred on June 17th. A reasonable juror could come to the conclusion beyond a reasonable doubt that the defendant was responsible for the crime that occurred on June 17th based upon that evidence alone. Therefore, the Court's ruling [denying] the defendant's motion for judgment of acquittal will stand.”
We agree. There was sufficient evidence that a rational factfinder could have found Schewe guilty beyond a reasonable doubt of committing the felony theft of Morse Chevrolet's property.
Did the District Court Err by Refusing to Give Schewe's Proposed Jury Instruction?
Schewe also alleges the district court should have given the jury his proposed instruction about circumstantial evidence. The State claims Schewe's proposed jury instruction was contrary to State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974), and the reasonable doubt instruction given to the jury was appropriate.
The standard of review when addressing challenges to jury instructions is based upon the following analysis:
“ ‘(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).’ [Citation omitted.]” State v. Roeder, 300 Kan. 901, 920, 336 P.3d 831 (2014), cert. denied ––– U.S. –––– (No. 14–8767, 2015 WL 1055925, May 18, 2015).
It is unnecessary to give an instruction on circumstantial evidence when a proper instruction on “ ‘reasonable doubt’ “ is given to the jury. Wilkins, 215 Kan. at 156. In Wilkins the defendant alleged the district court erred by refusing to give a circumstantial evidence instruction; proof of the defendant's guilt was based almost entirely or substantially on circumstantial evidence. However, the Wilkins court held: “In most if not all other cases in which the failure to give the instruction on circumstantial evidence has been raised no reversible error has been established.” 215 Kan. at 152. The court disapproved of any instruction a district court would use to attempt “ ‘to stress the comparative weight ... of any particular type of evidence.’ “ 215 Kan. at 152–53 (quoting State v. Murray, 200 Kan. 526, Syl ¶ 2, 437 P.2d 816 [1968] ).
The Wilkins court further held:
“A proper instruction on ‘reasonable doubt’ as applied to all kinds of evidence gives the jury an appropriate standard upon which to make a determination of guilt or innocence; to instruct further on the probative force of circumstantial evidence is to invite the confusion of semantics; and we disapprove statements to the contrary .” 215 Kan. at 156.
Schewe points out, however, that in State v. Powell, 220 Kan. 168, 173–76, 551 P.2d 902 (1976), the Kansas Supreme Court affirmed a conviction even though a circumstantial evidence instruction was provided to the jury. However, the Powell court held:
“An instruction that the jury should not find the defendant guilty on circumstantial evidence alone unless the facts and circumstances exclude every reasonable theory of innocence need not be given, but the giving of such an instruction is generally beneficial to the defendant and no reversible error accrues to a defendant-appellant if such instruction is given.” (Emphasis added.) 220 Kan. at 174.
In addition, PIK Crim.3d 52.16, provided: “The [PIK] Committee recommends that there be no separate instruction given as to circumstantial evidence.” Thus, the district court did not commit error by refusing to give an instruction to the jury regarding circumstantial evidence.
Did The District Court Err by Providing a Written Answer to a Jury Question that Was Read to the Jury Outside the Presence of the Defendant?
Finally, Schewe argues the judge essentially shut the courtroom door and did not allow Schewe or the public into the room when she wrote an answer to the jury's question on a note and had the note read in the closed deliberation room. Conversely, the State argues the question of whether the written answer to the jury was proper may not be considered for the first time on appeal and, even if considered, the written answer to the jury did not violate Schewe's constitutional right to a public trial.
“Resolution of this issue requires statutory and constitutional interpretation. This presents a question of law over which appellate courts have unlimited review. [Citation omitted.]
“... Generally, issues not raised before the district court cannot be raised on appeal. [Citation omitted.] ... Even trial errors affecting constitutional rights may be waived if there is not a proper, timely objection.” State v. Womelsdorf, 47 Kan.App.2d 307, 320, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013).
Furthermore, “[w]here the record affirmatively reveals the defendant's presence and an opportunity to participate in the formulation of the trial court's response to a jury's question during deliberations ..., our Supreme Court has found that a defendant's failure to contemporaneously object constitutes a waiver to raise the issue on appeal.” State v. Jones, 41 Kan.App.2d 714, 720, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099 (2010).
Schewe argues that even though he did not object to the procedure at trial, we can and should decide the issue for the first time on appeal if it (1) involves only a question of law arising on proved or admitted facts that is finally determinative of the case; or (2) if consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights. See State v. Puckett, 230 Kan. 596, 598, 640 P.2d 1198 (1982).
During deliberations, the jury had a question about whether the fingerprint was a partial fingerprint. In the presence of counsel and the defendant, in the courtroom, the following discussion took place:
“[THE COURT]: ... What I am proposing, and I'm certainly open to other ideas, is to put the following: Number 1, you must rely on your collective memories; number 2, you must rely on your notes; number 3, you may request the readback of a witness's testimony....
“[DEFENSE COUNSEL]: Readback of any witness' testimony.
....
“[THE COURT]: ... [T]hat's my proposal.
“[DEFENSE COUNSEL]: Judge, for the record, we prefer [the answer] go back as it is a partial print, but we're fine with readback.”
The district judge used the wording suggested by defense counsel regarding the readback of the testimony of any witness. The written note to the jury read:
“1. You must rely on your collective memory.
“2. You must rely on your notes.
“3. You may request the read-back of the testimony of any witness.”
Schewe had an opportunity to object or to request a different way of responding to the jury, but he acquiesced to the district court's course of action. Therefore, this issue is not properly before this court.
However, even if Schewe had properly objected to the procedure for answering the jury question, the district court's decision would be upheld.
Schewe argues that K.S.A. 22–3420(3) governs the manner in which a court should respond to a jury question; however, Schewe quotes the 2007 bound volume version of the statute. In part, K.S.A.2014 Supp. 22–3420(d) now states: “The court shall respond to all questions from a deliberating jury in open court or in writing. ” (Emphasis added.) The statute further provides: “The amendments to this section by this act establish a procedural rule, and as such shall be construed and applied retroactively.” K.S.A.2014 Supp. 22–3420(f).
Upon retroactive application of K.S.A.2014 Supp. 22–3420(d), the district court properly responded to the jury's question. In the presence of counsel and the defendant in the courtroom, the district court judge reviewed the jury's question, proposed a response, discussed a potential response with counsel, and even used some of the wording requested by defense counsel regarding the read-back of the testimony of any witness before she responded by sending a written response with the bailiff to the jury to be read in the deliberation room. Thus, the district court judge complied with K.S .A.2014 Supp. 22–3420.
Moreover, even under the 2007 bound volume version of K.S.A. 22–3420, we conclude the written note was harmless error. This case is similar to Womelsdorf where the defendant claimed the district court committed reversible error because it responded to a jury question in writing rather than calling the jury into the courtroom to provide an answer. The judge prepared a written answer and asked counsel if they had a problem with the answer, but counsel replied it was fine. The answer was delivered by the bailiff to the jury room, and neither party objected to the procedure. The Womelsdorf court found the district court failed to comply with the statute but concluded the error did not contribute to the verdict and was harmless. 47 Kan.App.2d at 320–23.
Here, Schewe was present with counsel in the courtroom when the district judge discussed a potential answer before sending a written response with the bailiff to be read to the jury in the deliberation room. The judge's response to the jury question did not misstate the law or evidence, nor did the answer provide additional information about the case. The district judge's actions did not impact the outcome of the trial, and any error was harmless.
Like Womelsdorf, Schewe also argues the district court's written answer to a jury question violated his right to a public trial as guaranteed by the Sixth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. However, the Womelsdorf panel held the written response to the jury question was not a violation of Womelsdorf's constitutional right to a public trial. 47 Kan.App.2d at 324–25. Like here, the response was not hidden from public view because the jury's question, along with the potential responses, was discussed in open court. Even though the public was not present when the bailiff delivered the written answer to the jury room, jury deliberations are never open to the public. 47 Kan.App.2d at 325. Thus, the district court's procedure did not violate Schewe's right to a public trial.
Affirmed.