Opinion
No. 111759.
07-24-2015
STATE of Zimbelman, Appellee, v. Christopher S. ZIMBELMAN, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., STANDRIDGE and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher S. Zimbelman appeals his convictions for two counts each of felony aggravated burglary and misdemeanor theft, arguing: First, the State did not present sufficient evidence that he knowingly entered the Walmart without authorization; and second, the district court erred in failing to instruct the jury that to convict him of aggravated burglary, the State was required to prove he was aware his entry into the Walmart was unauthorized. We disagree and affirm Zimbelman's convictions.
Factual and Procedural Background
On January 8, 2012, police were dispatched for a suspicious character at a Walmart in Wichita, Kansas. As Officer Taylor Smith arrived on the scene, she observed a man later identified as Zimbelman exiting the Walmart carrying a computer. Smith stopped and arrested Zimbelman for shoplifting.
After his arrest, Zimbelman was brought back inside the store and Alex Kope, a Walmart asset protection associate, filled out a “Notification of Restriction from Property” form used by Walmart to notify and prohibit shoplifters from entry and access to all Walmart properties, or be subject to possible trespass charges. The notification, which was admitted into evidence, read:
“Walmart can prohibit individuals from entering its property who interfere with its business, shoplift, destroy property, or otherwise behave in a manner that is unacceptable to Walmart. Walmart has determined you have engaged in conduct sufficient to necessitate limiting your access to Walmart property. This document constitutes formal notice and warning that you are no longer allowed on Walmart property or in any area subject to Walmart's control. This restriction on entry includes, but is not limited to, all Walmart retail locations. Should you elect to ignore this notice and enter Walmart property, Walmart may contact law enforcement and request you be charged with criminal trespass.
“Acknowledgement of Receipt
“I have read and understand this notice or, in the alternative, have had it read to me and understand and acknowledge that as of 8 day of Jan, 2012 I am prohibited from entering Walmart property. I understand this notice will remain in effect until Walmart rescinds it.”
Following the acknowledgement portion, the notification contained a line labeled “Name of Recipient (Print)” on which Zimbelman's name was handwritten.
Kope testified he read the contents of the notification verbatim to Zimbelman and explained to Zimbelman that if he shoplifted from Walmart again, he could be charged with aggravated burglary. The notification contained a line for the signature of the recipient, but Zimbelman did not sign it because he was handcuffed. Instead, Kope indicated on the signature line that Zimbelman was handcuffed. Smith signed the notification as a witness, and Kope signed it for Walmart.
While being questioned during the arrest, Zimbelman stated he had been awake for 14 days using cocaine and methamphetamine. However, Kope testified that Zimbelman appeared awake, alert, and responsive during the incident. Smith, an officer with experience dealing with people on narcotics, testified that Zimbelman responded appropriately to questions asked, was awake and aware of his surroundings, and gave no indication he was currently under the influence of drugs. When Smith asked Zimbelman whether he understood what Kope had told him regarding the trespass form, Zimbelman answered yes.
Just 9 days later, on January 17, 2012, Zimbelman again entered a Walmart, this time a store in Derby, Kansas, and walked out with an X–Box game console without paying. He repeated this act on February 26, 2012.
The State charged Zimbelman with aggravated burglary and misdemeanor theft for the January 17 incident in case 12CR656 and again in case 12CR829 for the incident on February 26. The cases were consolidated for trial on motion by the State, and a jury convicted Zimbelman on all counts. The district court granted Zimbelman a downward durational departure to 60 months in prison with 24 months' postrelease supervision.
Zimbelman timely appeals.
Did the State Present Sufficient Evidence to Support the Convictions for Aggravated Burglary?
Zimbelman first challenges the evidence supporting his convictions for aggravated burglary. In reviewing a sufficiency of the evidence challenge, our duty is to determine, when viewing the evidence in the light most favorable to the State, whether “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).
“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 sexually motivated crime therein.” K.S.A.2012 Supp. 21–5807(b). Focusing on the “without authority” element of the statute, Zimbelman first claims that Walmart's notification form was ineffective to revoke his implied authorization as a member of the general public to enter the store during normal business hours. Next, Zimbelman argues that even if the notification was sufficient, the State failed to present sufficient evidence that he was aware his authority to enter the Walmart had been revoked.
Specifically, Zimbelman argues Walmart's notification was ineffective because (1) it did not specify a time period for the ban, (2) Kope did not possess the authority to ban Zimbelman, and (3) the notification did not apply to him because he did not sign it. We will review each argument in order.
First, Zimbelman asserts the notification was inadequate and could not effectively advise him that he lacked authority to enter any Walmart store because it lacked a clear delineation of a time period. This argument was previously rejected in State v. Acevedo, 49 Kan.App.2d 655, 660, 315 P.3d 261 (2013), where another panel of this court found “[t]he implied authority to enter a store's premises is a ... license the owner of the property ... extends to members of the public in order to transact business.... There is nothing ambiguous about an absolute revocation of a license to enter upon property.” Here, the notice's acknowledgement stated: “I understand this notice will remain in effect until Walmart rescinds it.” Thus, Walmart's notification banning Zimbelman from its stores was not ineffective due to its apparent indefinite time period.
Second, Zimbelman argues the State failed to establish that Kope had the authority to ban Zimbelman from entering all Walmart properties. Specifically, Zimbelman asserts that it is unlikely every Walmart employee had authority to exclude a person from Walmart properties indefinitely. The State counters that the record contains specific information about Kope's responsibilities, which included safety of the store, inventory shrinkage, and the investigation of both internal and external thefts. Notably, Kope's responsibilities also included alerting other Walmart stores of banned individuals, and the notification form provided by Walmart for Kope's use specified that the restriction applied to all Walmart properties.
“[A] store owned by a corporation must be conducted through its agents, that such agents must not only be responsible for seeing that the merchandise to be sold is offered for that purpose and when sold the consideration received, but for seeing that the merchandise is not rendered unsalable by the acts of the customers, and that it is not stolen by shoplifters and thieves.” Lewis v. Montgomery Ward & Co., 144 Kan. 656, 660, 62 P.2d 875 (1936).
We find that Kope, based on the nature and breadth of his job duties and acting as an agent of Walmart, could revoke Zimbelman's license to enter Walmart stores. See Acevedo, 49 Kan.App.2d at 660–61.
Third, Zimbelman argues the notice was legally deficient to ban him from the Walmart because he did not sign it. While a signed document perhaps may have provided more probative evidence than Kope's and Smith's testimony that Walmart had communicated its revocation of an implied license to enter the store, “[t]his does not mean the communication was ineffective without the signed document.” See 49 Kan.App.2d at 661. Here, as in Acevedo, the notification itself clearly applied to Zimbelman because his name was written on it. Additionally, both Kope and Smith testified the notification was read to Zimbelman. Thus, we have no trouble concluding that the notification was sufficient to inform Zimbelman that his authority to enter the store had been revoked.
Finally, even if the notification form were somehow invalidated as a result of one or more of Zimbelman's arguments, the State produced evidence that Zimbelman was orally advised that he was no longer welcome on any Walmart property.
“There is no requirement in the aggravated burglary statute or otherwise that a person receive written notice of revoked authority to enter a particular building. Kansas caselaw supports an opposite conclusion. See, e.g., State v. Fondren, 11 Kan.App.2d [309,] 316[, 721 P.2d 284 (1986) ] (finding that authority to enter a building may be express or implied and may depend on the character of the building); [State v.] Adams, [No. 106,935,] 2013 WL 4046396, at *5 [ (Kan.App.2013) (unpublished opinion) ] (oral notice of rescission, if proved, was sufficient to revoke general authority to enter store). This is consistent with general principles of license; a license is generally revocable at any time, and oral notice of the creation and/or termination of the license is adequate. See 25 Am.Jur.2d, Easements and Licenses § 117, p. 612.” Acevedo, 49 Kan.App.2d at 661–62.
Therefore, Zimbelman's argument that Walmart's notification was legally defective lacks merit.
Zimbelman alternatively argues the State provided insufficient evidence he was personally aware of his ban from all Walmart stores because he did not sign the notification indicating he understood the document and “that someone who had been binging on drugs for two weeks might have difficulty comprehending oral warnings.” The record fails to support Zimbelman's contention.
The jury heard testimony from Kope and Smith that Zimbelman appeared awake, alert, and coherent during the January 8 incident. Kope read the contents of the notification to Zimbelman, and Smith later asked Zimbelman whether he comprehended what was said to him. Zimbelman indicated to Smith that he understood. Viewing this evidence in the light most favorable to the State, we find the State presented sufficient evidence by which a reasonable factfinder could conclude that Zimbelman understood he was banned from entering all Walmart properties following the January 8 incident.
Did the District Court Fail to Properly Instruct the Jury?
For the first time on appeal, Zimbelman claims the district court committed reversible error in instructing the jury on aggravated burglary such that the State was not required to prove that Zimbelman knowingly entered the Walmart without authority. Because Zimbelman did not object at trial, we review this claim under the clear error standard. See K.S.A.2014 Supp. 22–3414(3) ; State v. Clay, 300 Kan. 401, 408, 329 P.3d 484, cert denied 135 S.Ct. 728 (2014).
“Under this standard, we first consider whether the district court erred in failing to give the instruction. A court errs when we determine, using unlimited review, the instruction was both legally and factually appropriate. [Citation omitted.] Such an error requires reversal when the appellant firmly convinces the court that the omitted instruction was both legally and factually appropriate and that the jury would have reached a different verdict had the instruction been given. [Citation omitted.]” 300 Kan. at 408.
Zimbelman correctly acknowledges that the instructions given by the district court match the Pattern Instructions for Kansas. This notwithstanding, Zimbelman asserts that the word “knowingly” should have been inserted into the first two elements of the aggravated burglary instructions. Each jury instruction for the two counts of aggravated burglary contained the following language:
“To establish this charge, each of the following claims must be proved:
“1. The defendant entered a building.
“2. The defendant did so without authority.
“3. The defendant did so with the intent to commit a theft therein.
“4. At the time there was a human being in the building.”
In 2012, K.S.A.2012 Supp. 21–5807(b) defined aggravated burglary as: “[W]ithout authority, entering into or remaining within any building ... in which there is a human being with intent to commit a felony, theft or sexually motivated crime therein.” Previously, aggravated battery was “knowingly and 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.” (Emphasis added.) K.S.A. 21–3716. The word “knowingly” was omitted by the legislature from the version of the aggravated battery law in effect during the events of this case.
The intent of the legislature governs if that intent can be ascertained. See State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). Here, it would appear the legislature purposefully omitted the word “knowingly” from Kansas' recodified aggravated burglary statute in 2010, see L.2010, ch. 136, sec. 93 (effective July 1, 2011), and subsequent versions, leading to the conclusion that it is no longer required that a defendant knowingly enter a building without authority in order to commit an aggravated burglary. Rather, the only apparent requirement of intent in K.S.A.2012 Supp. 21–5807(b) is that the defendant act with intent to commit a felony, theft, or sexually motivated crime once the defendant is inside the building.
This leads to the conclusion that Zimbelman's proposed jury instruction—the addition of the word “knowingly” to the first two elements of the aggravated burglary instructions—does not appear legally appropriate. “[A]n instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm.” State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). To instruct the jury as Zimbelman contends would insert an additional element that the Kansas Legislature saw fit to omit from the version of the statute in effect at the time of the crimes. Zimbelman's proposed instruction was not legally appropriate; therefore, the district judge did not err in instructing the jury on aggravated burglary.
Affirmed.