Opinion
111,280.
07-31-2015
STATE of Kansas, Appellee, v. Eric J. WILSON, Appellant.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant. Patrick Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Patrick Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Eric J. Wilson appeals his conviction for felony criminal damage to property. First, he argues that the district court erred by failing to instruct the jury on a lesser included offense. Second, he argues that the evidence presented at trial was insufficient to support his conviction. Finally, he 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 sentencing him based on a criminal history score that was not proved to a jury beyond a reasonable doubt.
Facts
On January 12, 2012, Wilson was charged with criminal damage to property with damage of at least $1,000 but less than $25,000. The charging document identified Elizabeth Cox as the owner of the property allegedly damaged by Wilson.
At trial, Wilson and Cox agreed they had previously been in a relationship. They agreed on little else. Wilson testified that he met Cox in September 2009 and that the two dated off and on for a year and half. Cox testified that she met Wilson in October 2010 and that they dated off and on for 6 or 7 months.
On December 31, 2011, Wilson called Cox to wish her a happy new year. Cox testified that she hung up on him and that he called several times after that, but she did not answer the phone. The following night, Wilson called Cox again, and Cox answered. Wilson testified that he told her he was having a rough time during the holidays because he had lost his mother in 2009 and needed a friend. Cox, on the other hand, testified that Wilson did not mention his mother but told her that he had changed his lifestyle, apologized for everything that had happened in the past, and said he wanted to make amends with her. She agreed to let him come over to her house.
Wilson arrived at Cox's house between 7 and 8 p.m. They spent the evening talking. Wilson testified that at some point Cox made a sexual advance, but he rejected it. He went on to testify that the two did not have sex, that Cox offered to let him sleep on the couch, and that he did so. Conversely, Cox testified that Wilson slept in her bed and that the two were intimate.
Cox testified that she had to work on January 2, 2012. When she left the house that morning, Wilson was still in bed sleeping. Cox tried to rouse him, but he would not get up. Cox eventually told him that he could stay and that she would be home between 4 and 5 p.m. Wilson testified that Cox woke him up and requested that he stay at her house so that he could take care of her dog.
When Cox arrived home from work, Wilson was asleep in her bed. She decided not to wake him up. Cox then went into the other room to watch television. After seeing his phone on the coffee table, Cox picked it up and started reading through some of his text messages. She ultimately came across some texts Wilson sent to another woman that mentioned Cox. After reading these texts, Cox confronted Wilson and asked him to leave. The accounts from Wilson and Cox as to what happened next differed significantly.
Cox testified that when she confronted him, Wilson got up cussing and started stomping around. She said he knocked over a table with some vases on it. She testified that he was in a “fit of rage” and that she kept asking him to leave. She said he eventually left the house and, after getting into his car, he ran the car into Cox's shed. Cox then testified that he backed the car up and ran the car into the shed two more times. After Wilson left, Cox called the police.
Wilson testified that Cox was irate when she shook him awake. She told him she wanted him out of the house so he began grabbing things and leaving. During this time, Wilson said Cox was throwing things at him, including his clothes and one of his shoes. He denied breaking Cox's vases, but he admitted to bumping into the kitchen table as he was leaving through the kitchen. Wilson testified that after he got into his car to leave, he attempted a three-point turn to rotate the car and in the process clipped the comer of the shed causing damage. After he left, he drove home.
Cox testified that she paid a total of $35 or $40 for the glassware that was broken when the kitchen table was knocked over. Cox also testified that there was a tanning bed inside her shed, which became damaged as a result of Wilson running into the shed with his car. Cox purchased the tanning bed in October 2008 from a woman who used it in a salon that went out of business. The tanning bed was a 2005 model, and Cox purchased it for $900. As a result of Wilson's car running into the shed, the tanning bed sustained a crack. And when Cox tried to turn it on after the incident, the lights flickered for 2 or 3 minutes, then the unit shut off. Cox testified she had last used the tanning bed 1 month earlier, and it worked fine at that time.
Cox did not get an estimate on how much it would cost to repair the tanning bed, but she spoke with a person who worked at a retail store who told her that it would cost more money than the tanning bed was worth to repair it. Cox did not have anyone examine the bed to determine exactly what was wrong with it. She did get an estimate for the damage to the shed itself, but she never testified as to the estimated cost of repair. Instead, Cox had her brothers repair the shed for her. She testified that it took her two brothers 3 or 4 hours to repair the shed. Although Cox was renting the house and shed, she did not tell her landlord what had happened.
Rick Rowland, one of Cox's brothers, testified at trial. He helped Cox prepare a list of all the materials that were purchased in order to repair the shed. Rowland testified that the materials cost a total of $208. This figure did not include some lumber that a neighbor gave to them free of charge. Rowland testified that he did not give Cox a bill, and he did not have any intention of ever charging his sister for the work he performed.
After the State rested its case, Wilson moved for acquittal on grounds that the State had failed to prove Wilson caused over $1,000 in damage to Cox's property or that he had caused the damage intentionally. The district court denied the motion. Wilson then testified. After the defense rested, the jury convicted Wilson of criminal damage to property and found the damage to the property to be at least $1,000 but less than $25,000. The jury also found that the criminal damage to property was an act of domestic violence. The district court sentenced Wilson to probation for a term of 12 months with an underlying prison sentence of 7 months.
Analysis
1. Lesser included instruction
Wilson claims the district court erred by failing to instruct the jury on a lesser included offense of felony criminal damage to property. Under K.S.A.2014 Supp. 22–3414(3), a district court must instruct the jury as to the crime charged and any lesser included crime. When the failure to give a lesser included offense instruction is challenged for the first time on appeal, then the court must determine if the failure to give the instruction was clearly erroneous. K.S.A.2014 Supp. 22–3414(3). This is a two-step analysis. The court first must determine if the failure to give the instruction was erroneous. To do so, we must consider whether it would have been legally and factually appropriate to give the lesser included offense instruction. Whether an instruction on the lesser offense was legally appropriate is a question of law subject to unlimited review. To determine if such an instruction was factually appropriate, this court must determine if, after review of all the evidence viewed in the light most favorable to the prosecution, it is convinced that a rational factfinder could have found the defendant guilty of the lesser crime. State v. Armstrong, 299 Kan. 405, 432–33, 324 P.3d 1052 (2014). If we determine that the district court erred by failing to give an appropriate instruction, we then consider whether reversal is required. To reverse, the court must be “firmly convinced that the jury would have reached a different verdict had the instructional error not occurred.” 299 Kan. at 433.
We begin our analysis with the criminal damage to property statute, K.S.A.2014 Supp. 21–5813, which provides:
“(a) Criminal damage to property is by means other than by fire or explosive:
(1) Knowingly damaging, destroying, defacing or substantially impairing the use of any property in which another has an interest without the consent of such other person; or
(2) damaging, destroying, defacing or substantially impairing the use of any property with intent to injure or defraud an insurer or lienholder.
“(b) Criminal damage to property if the property:
(1) Is damaged to the extent of $25,000 or more is a severity level 7, nonperson felony;
(2) is damaged to the extent of at least $1,000 but less than $25,000 is a severity level 9, nonperson felony; and
(3) damaged is of the value of less than $1,000 or is of the value of $1,000 or more and is damaged to the extent of less than $1,000 is a class B nonperson misdemeanor.”
Based on the clear language in this statute, the severity level of the crime is determined solely based on the value of the damage that is sustained to the property. K.S.A.2014 Supp. 21–5813.
Wilson was charged and convicted under K.S.A.2014 Supp. 21–5813(b)(2), a level 9 nonperson felony. Wilson argues on appeal that the district court committed reversible error by failing to instruct the jury on the lesser included offense of misdemeanor criminal damage to property under subsection (b)(3) of the statute because the parties disputed the value of the damage sustained to the property. He admits that he did not request the instruction at trial but argues that the failure to give such an instruction was clearly erroneous because the jury could have found that the value of the property damaged was less than $1,000. His claim, however, cannot survive the first step of this court's analysis because the district court did instruct the jury on the lesser included offense of misdemeanor criminal damage to property.
As to the elements of the charge against Wilson, the district court instructed the jury, in pertinent part, as follows:
“The defendant is charged with criminal damage to property. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. Elizabeth Cox had an interest in property described as a shed, tanning bed and glassware.
2. The defendant knowingly damaged, destroyed, defaced or substantially impaired the use of property by means other than by fire or explosive.
3. The defendant did so without the consent of Elizabeth Cox.
4. The property was damaged to the extent of at least $1,000 but less than $25,000 or the damage was less than $1,000.
5. This act occurred on or about the 2nd day of January, 2012, in Douglas County, Kansas.” (Emphasis added.)
In a separate instruction, the jury was informed:
“The State has the burden of proof as to the value of the property which defendant allegedly damaged or impaired.
“The State claims that the value of the property was at least $1,000 but less than $25,000.
“It is for you to determine the amount and enter it on the verdict form furnished.”
Finally, the jury received a verdict form on which it was required to find either that Wilson was guilty or not guilty of criminal damage to property. If the jury elected to find him guilty, the form further required the jury to determine whether the value of the damage to the property was (1) at least $1,000 but less than $25,000 or (2) less than $1,000.
As noted above, the only element that differentiates felony criminal damage to property from misdemeanor criminal damage to property is the value of the damage sustained to the property. K.S.A.2014 Supp. 21–5813. The jury was explicitly instructed that it was required to determine the value of the property, and it was given the opportunity to make findings on the verdict form that would have resulted in a conviction of a class B nonperson misdemeanor under K.S.A.2014 Supp. 21–5813(b)(3). Therefore, and contrary to Wilson's assertion on appeal, the district court properly instructed the jury on the lesser included offense of misdemeanor criminal damage to property.
2. Sufficiency of the evidence
When reviewing the sufficiency of the evidence following a conviction in a criminal case, the appellate court looks at all the evidence in a light most favorable to the prosecution and determines whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). This court will not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. A conviction may be based entirely on circumstantial evidence and the reasonable inferences deducible from that evidence. State v. McCaslin, 291 Kan. 697, 710–11, 245 P.3d 1030 (2011), overruled on other grounds by State v. Astorga, 299 Kan. 395, 402, 324 P.3d 1046 (2014).
Wilson argues there was insufficient evidence presented at trial to support the jury's conclusion that he caused more than $1,000 in damage to the property at issue. He does not challenge the sufficiency of the evidence as to any element of the offense other than the value of the damage.
The following items owned by Cox were damaged: a tanning bed, a shed, and some glassware. The State argues there is evidence in the record to support a conclusion that the total amount of damage sustained was more than $1,000. Cox, however, argues that there was no evidence presented to establish the value of the damage sustained to the tanning bed. Before considering the tanning bed, we find it helpful to first review the damage values presented at trial relating to the other two items.
“Except for certain unique types of personal property, the damages needed to support a conviction for criminal damage to property are measured by the cost to restore the damaged property, unless the repair costs exceed the fair market value of the property, in which case the fair market value at the time of the loss is the measure. [Citation omitted.]” In re D.A., 40 Kan.App.2d 878, 882, 197 P.3d 849 (2008).
Further, mathematical precision in calculating the amount of damage is not required, but the jury may not rely on rank speculation. 40 Kan.App.2d at 882.
Cox testified that she purchased the glassware damaged by Wilson for $35 to $40. The record does not indicate when the glassware was purchased or if its value had changed at all before it was damaged. But Cox testified that she purchased the items from her mother's friend and that the price was “nominal.” Based on the evidence, a rational factfinder could have fixed a maximum value of $40 to the glassware.
With regard to the value of the damage to the shed, Rowland testified that the materials used to fix the shed cost $208. He did not remember exactly how long it took to repair but stated that it took “[m]ost of the day.” Cox, however, testified that her brothers spent 3 to 4 hours working on the shed. Because the $208 did not include the value of the brothers' labor, the State argues on appeal that the jury could have concluded that the total value of the repair work was more than $208. But no evidence appears on the record establishing the value of the labor. In fact, the State appears to have intentionally avoided presenting such evidence. It argued in closing, “The value that we are assessing to the damage of the shed was what it cost to rebuild this, $208.”
The cost of labor can properly be considered as part of the repair cost necessary to determine if Wilson's offense was a felony or misdemeanor. See State v. Jones, 247 Kan. 537, 540–41, 802 P .2d 533 (1990), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). (“Therefore, for purposes of determining if the offense is a felony or misdemeanor, the value of the damage is the cost of replacement plus installation.”). The State, however, presented no evidence that would establish a dollar amount or hourly wage that should have been ascribed to this work. A jury is entitled to make reasonable inferences from circumstantial evidence. McCaslin, 291 Kan. at 710–11. But without any evidence as to what a laborer would likely be paid per hour repairing a shed, a rational factfinder could not have made a reliable inference as to the value the brothers' work in this case. Any value the jury inferred would be improperly based on rank speculation. See In re D.A., 40 Kan.App.2d at 882. Further, the State argued in closing that the jury should only assess $208 in damage to the shed. Therefore, $208 is the maximum amount of damage a rational factfinder could have determined was done to the shed based on the evidence.
Because the State only established that $208 in damage was done to the shed and, at most, $40 in damage was done to the glassware, the value of damage sustained to the tanning bed was critical to meeting the $1,000 threshold needed to convict Wilson of felony criminal damage to property. But Cox never sought an estimate of what it would cost to fix the tanning bed. In fact, Cox never even learned what precisely was wrong with the bed.
Notwithstanding a lack of evidence as to the dollar amount of damage that was sustained to the tanning bed, the State argues in its brief that a reasonable jury could have concluded from the evidence presented at trial that the damage to the tanning bed was equal to or greater than $752. Citing to Cox's testimony that she was told it would cost more to fix the tanning bed than it was worth, the State argues the tanning bed's fair market value on the date it was damaged was the proper measure for the jury to use in determining the amount of damage sustained to the bed. But the State's argument is grounded in impermissible inference stacking. The rule against inference-stacking prohibits a jury from speculating on unjustifiable inferences and is applicable when the evidence is so uncertain or speculative that it amounts only to mere conjecture or possibility. State v. Cruz, 15 Kan.App.2d 476, 490–91, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). It applies here because there was no evidence to establish what precisely was wrong with the tanning bed; thus, the information provided by the retail sales clerk to Cox that it would cost more to fix the tanning bed than it was worth is without any evidentiary support and speculative. To then rely on this speculative evidence to support a conclusion that the value of the damage sustained to the bed is the fair market value of the bed on the day it was damaged impermissibly stacks an inference upon an inference.
Because there is absolutely no evidence in the record from which a jury could have determined the value of the damage sustained to the tanning bed, we conclude Wilson's conviction must be reversed. Based on the evidence in the record, the proper remedy is to remand the case with directions to resentence Wilson for a class B nonperson misdemeanor conviction for criminal damage to property in accordance with K.S.A.2014 Supp. 21–5813(b)(3).
3. Criminal history
Finally, Wilson argues his criminal history was not proved to a jury beyond a reasonable doubt, and therefore his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), were violated. Because we are reversing and remanding with directions to resentence, this issue is moot, and we decline to address it.
Reversed and remanded with directions.