State v. Bennett, 083019 KSCA, 119, 185

Docket Nº:119, 185
Opinion Judge:PER CURIAM
Party Name:State of Kansas, Appellee, v. Bradley Earl Bennett, Appellant.
Attorney:Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Stephen P. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Judge Panel:Before Bruns, P.J., Malone, J., and Steven E. Johnson, District Judge, assigned.
Case Date:August 30, 2019
Court:Court of Appeals of Kansas
 
FREE EXCERPT

State of Kansas, Appellee,

v.

Bradley Earl Bennett, Appellant.

No. 119, 185

Court of Appeals of Kansas

August 30, 2019

NOT DESIGNATED FOR PUBLICATION

Appeal from Labette District Court; Fred W. Johnson Jr., judge.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Stephen P. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Malone, J., and Steven E. Johnson, District Judge, assigned.

MEMORANDUM OPINION

PER CURIAM

After a jury trial, Bradley Earl Bennett was found guilty of one count of burglary and one count of theft. Bennett directly appeals his convictions and sentences, arguing (1) the State presented insufficient evidence to support his conviction of burglary under K.S.A. 2015 Supp. 21-5807(a)(1); (2) the State committed prosecutorial error during closing argument; and (3) the district court erred in denying the application of jail time credits to his sentences in this matter. For reasons we explain below, we affirm Bennett's convictions and sentences.

Factual and Procedural Background

In February 2016, the State charged Bennett in case 16 CR 17 with committing four crimes between the dates of August 18 and 20, 2015: two counts of burglary by entering into or remaining within a dwelling with the intent to commit a theft therein and two counts of theft of property worth less than $1, 000. The State presented the following evidence at Bennett's jury trial.

On August 18 or 19, 2015, John P. Leon returned home from work to find two suitcases and another bag lying on the floor stuffed full of jerseys, jackets, and shoes. He noticed his dog did not greet him as usual. He believed whoever broke in might still be inside. As Leon walked through the house, he noticed a lot of his bags were missing, such as cologne and duffel bags. He soon realized no one was inside and called the police. Leon testified he saw no one run from the home. When the police arrived, Leon informed them someone had broken in, entered his house, and taken various items.

Corporal Waylon Kepley of the Parsons Police Department was the first officer to arrive at Leon's home to investigate the reported burglary and theft. Leon met Kepley outside, took him to the side of the house, and showed Kepley where he believed the individual entered. Kepley saw a screen had been removed and was located a little farther away by a bush. Leon then led Kepley inside the house. Once inside, Kepley observed that a window had been removed and placed inside of the bedroom. Kepley found the house ransacked, stating there were clothes and items scattered all over the place. Leon told Kepley he believed whoever came into his home went into and took beer from his refrigerator, and Leon pointed out various other missing items, including a PlayStation 4; a PlayStation 3; a Blu-Ray player; about 20 PlayStation 3 and PlayStation 4 games; an HP laptop; a cordless Dewalt drill, its attachments and charger; a gray Nike hoodie; a checkbook; his prescription medication; a 30-pack of Bud Light; spare keys to his truck; a Samsung Galaxy phone; and a Samsung Galaxy 3 phone.

On August 19 or 20, 2015, Heather Jacquinet called the police to report a burglary and theft at her home. Kepley was dispatched to Jacquinet's home. Jacquinet told Kepley she was in the process of moving out and had not been at the home for some time. When she returned, the front door was locked, but when she walked inside she noticed her things were scattered throughout the house, her couch cushions had been moved, and food from the kitchen freezer was on the floor. As she went to the utility room, she saw the back door was wide open; she exited the house, called her mother, and then called the police. She told Kepley she did not believe many items were missing but noticed a missing jewelry box and antique watch. Police recovered fingerprints from the back door but testing later revealed the fingerprints did not match Bennett.

During the burglary investigations, law enforcement officers obtained a warrant to search Megan Houghton's apartment. At trial, the district court found Houghton unavailable to testify, and the parties presented Houghton's testimony from Bennett's preliminary hearing in a joint exhibit. Houghton admitted the State had given her an immunity offer.

Houghton testified she had been in a relationship with Bennett for a little over two years. She first asked Bennett about Leon when she found Leon's pay stub in the trash can at her apartment. Houghton did not know Leon and had not heard of him before, but Bennett knew Leon through his child's mother. Bennett told Houghton that he and Brandon Perez brought the paystub from Leon's house to the back door of her apartment. Houghton stated they brought other items she did not know belonged to Leon at the time. Houghton remembered seeing a package of bacon, pay stubs, a bunch of paperwork with Leon's name on it, and a cell phone. Houghton was unaware or did not know whether anyone else was involved. Houghton allowed the Parsons Police Department to search her home when the police arrived with a warrant. Houghton testified that the police found items belonging to Leon.

Parsons Police Department Detective Shannon Vail investigated the burglaries, conducted the search of Houghton's apartment, and recovered property from her apartment. Vail and Lieutenant Detective Sherri McGuire completed evidentiary custody receipts (ECRs) of numerous items recovered from Houghton's apartment that were later returned to Jacquinet and to Leon. The police also recovered some of Leon's property from outside of an apartment complex, from inside an apartment in the same complex, and from Perez' grandparents' home. All the property was returned to Leon by the police on August 20 or 21, 2015.

At trial, Leon testified he knew Bennett's family and got to know Bennett when he hired Bennett's ex-girlfriend to work for him. He had also hired Bennett to work for him for about a month or two. Leon later terminated Bennett from the job. Leon stated he is an avid video gamer and had played Call of Duty online with Bennett a few times. He never gave Bennett permission to enter his house and did not grant Bennett permission to take or borrow items from his house. His house had been broken into only that one time. While some of his missing property was returned to him, Leon testified he never received three cell phones, a jar of money he saved for vacations, his prescription medications, some Nike shoes, and a Nike jacket. He also discovered there were items taken from his storage closets that he did not realize were missing until he later moved.

Following the presentation of evidence, the jury found Bennett guilty of counts one and two-the burglary of Leon's home and theft of Leon's property worth less than $1, 000-but acquitted Bennett of counts three and four-the burglary of Jacquinet's home and the theft of her property worth less than $1, 000.

The district court later held a sentencing hearing for this case as well as a previous case, 15 CR 194, where Bennett had been convicted of possession of a controlled substance, possession of drug paraphernalia, and criminal trespass. Bennett requested the district court divide his jail time credits between the two cases and apply some jail time credits to other cases that remained pending for trial. The State argued the district court should apply all the jail time credits to Bennett's first sequential sentence ordered, 15 CR 194, as the presentence investigation (PSI) report for 15 CR 194 recommended. The record on appeal does not contain the PSI for 15 CR 194. The PSI for this case reflected that Bennett had jail time credits for 196 days in custody from 01/28/2016 to 08/10/2016 and 416 days in custody from 11/19/16 to 01/08/2018. The district court held Bennett had acquired a total of 646 days of jail time credit in 15 CR 194 at the time of the sentencing hearing.

Ultimately, the district court sentenced Bennett to a 24-month underlying prison sentence in 15 CR 194 but granted him 12 months' probation. The district court applied all 646 days of Bennett's jail time credit to the 15 CR 194 sentence. In 16 CR 17, the...

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