State v. Boeschling

• Citation: 458 P.3d 234
• Decision Date: 14 February 2020
• Docket Number: No. 116,757,116,757
• Parties: STATE of Kansas, Appellee, v. Morgan L. BOESCHLING, Appellant.
• Court: United States State Supreme Court of Kansas

458 P.3d 234

STATE of Kansas, Appellee,

v.Morgan L. BOESCHLING, Appellant.

No. 116,757

Supreme Court of Kansas.

Opinion filed February 14, 2020.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Andrew R. Davidson, assistant district attorney, argued the cause, and Keith Schroeder, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by Beier, J.:

Morgan L. Boeschling and a friend burglarized a restaurant and stole a pickup truck. Police also discovered that Boeschling owned two guns despite being prohibited from owning firearms because of a previous adjudication. The State tried Boeschling for all these offenses in one trial. The jury convicted Boeschling on all counts.

Boeschling appeals, arguing that the district court judge's response to the jury's mid-deliberation question about jury nullification was reversible error. We hold that the judge's response was not error. Boeschling also takes issue with two jury instructions: one defining the elements of burglary and one cautioning the jury about accomplice testimony. We hold that the burglary instruction was erroneous but not reversible; the accomplice instruction was not error. Boeschling's convictions are affirmed.

FACTUAL AND PROCEDURAL HISTORY

When employees came to work at the Bull's Eye Grill in Yoder, Kansas, on the morning of July 28, 2015, they discovered that the restaurant had been burglarized. The cash register was missing; a safe had been broken into; and a bank bag containing about $600 was gone. The same night that the restaurant was burglarized, a pickup was stolen from a mechanic's shop next door.

The Reno County Sheriff's Office investigated. The State charged Boeschling and Cody Osborn in the case. Osborn pleaded guilty to burglary of the restaurant, theft of the money, and theft of the pickup. Boeschling went to jury trial on charges of nonresidential burglary, felony theft, and two counts of criminal possession of a firearm.

At trial, Detective David Post testified that he posted a still image taken from a security camera near the restaurant on the Reno County Sheriff's Office Facebook page. The image showed two people walking near the restaurant about 1:30 a.m. the night of the break-in. Post asked for the public's help identifying the individuals. Post received tips pointing him to Boeschling and Osborn.

While investigating Boeschling, Post discovered that Boeschling pawned two guns in the weeks before the break-in. Post also learned that Boeschling had a juvenile adjudication that prohibited him from legally owning firearms.

Post interviewed Boeschling. Boeschling admitted that he was pictured in the surveillance footage but declined to identify the other person in the picture. He ultimately admitted that he burglarized the restaurant and stole the pickup from the mechanic's shop. He also told Post that he pawned the two guns.

Osborn, who had already entered his guilty pleas, testified on Boeschling's behalf. He said that he broke into the restaurant by himself, broke into the safe, and took the register; Boeschling came into the restaurant only to get him to stop. Osborn also testified that he was the one who stole the pickup. On cross-examination, he admitted that when Post first interviewed him, he hesitated to admit that Boeschling was with him that night.

Boeschling also testified in his defense. He said that Osborn was very drunk the night of the burglary. Boeschling drove the pair to downtown Yoder and parked; the pair wandered around together. According to Boeschling, Osborn then said he had to urinate; so Boeschling watched Osborn walk away by himself. After waiting a period of time, Boeschling noticed that a building's lights were on. Boeschling went into the building and found Osborn trying to open the cash register. Boeschling "got [Osborn] out" of the building and into the car but said he did not realize until he was driving that Osborn had the cash register with him. Boeschling told Osborn he needed to get rid of it, and Osborn threw it out the car window.

The pair went to Osborn's girlfriend's house, where Osborn drank more alcohol. Osborn decided to leave and, rather than letting Osborn drive while drunk, Boeschling drove Osborn back into Yoder. According to Boeschling, Osborn "kept talking about what he wanted to do." Boeschling let Osborn out of the car and left because he "didn't want no part of it." Then Osborn stole the pickup.

Boeschling said that he refused to identify Osborn to Post when interviewed because he did not want to snitch, and he confessed to the burglary and thefts only "because [he] didn't want to see [Osborn] go to jail for being stupid."

Before closings, the State and Boeschling's counsel discussed jury instructions with the district judge. Although neither the State nor Boeschling requested it, the district judge included an accomplice instruction in his packet of proposed jury instructions. The instruction read: "An accomplice witness is one who testifies that he was involved in the commission of the crime with which the defendant is charged. You should consider with caution the testimony of an accomplice." Boeschling objected to this instruction, arguing, despite caselaw to the contrary, that an accomplice instruction is not appropriate when "the accomplice provides supportive testimony" to the defendant. The district judge overruled Boeschling's objection.

The first instruction given jurors informed them that it was the district judge's duty to instruct the jury "in the law that applies to this case, and it is your duty to consider and follow all of the instructions. You must decide the case by applying these instructions to the facts as you find them." The district judge also gave the accomplice instruction to which Boeschling had objected.

The judge instructed the jury on burglary by saying the State must prove:

"1. That Morgan Boeschling knowingly entered or remained within a building, which is not a dwelling ...;

"2. That Morgan Boeschling did so without authority;

"3. That Morgan Boeschling did so with the intent to commit a theft therein; and

"4. That this act occurred on or about [the] 28th day of July, 2015, in Reno County, Kansas.

"The elements of theft are set forth in Instruction No. 8.

"The state must prove that Morgan Boeschling committed the crime of burglary knowingly. A defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains about."

At no point did Boeschling object to the content or the giving of this instruction.

During deliberations, the jury sent a question to the district judge, asking "can jury nolification [sic ] be applied to counts #3 and #4?" Counts three and four were the firearms charges. Without objection from the State or Boeschling, the district judge responded: "You took the oath as jurors at the start of the case to follow the law in the case that you were instructed by the case."

The jury convicted Boeschling on all counts. The district judge sentenced Boeschling to 24 months' probation with an underlying sentence of 27 months for burglary, 6 months for theft, and 8 months for each firearm possession count.

Boeschling appealed. A panel of our Court of Appeals found no reversible error and affirmed Boeschling's convictions. State v. Boeschling , No. 116,757, 2017 WL 6625546 (Kan. App. 2017) (unpublished opinion). We granted Boeschling's petition for review.

DISCUSSION

The district judge's response to the jury's nullification question was not error.

As set forth above, the members of Boeschling's jury asked if nullification can "be applied" to the firearm charges. The district judge responded: "You took the oath as jurors at the start of the case to follow the law in the case that you were instructed by the case." Boeschling asserts that the district judge's answer "affirmatively misinform[ed]" the jury and "clearly implies that jury nullification did not apply."

The State argues for the first time before this court that Boeschling did not preserve this issue for our review. Boeschling asserts that the State cannot contest preservation before us because the State did not argue that point to the Court of Appeals and did not cross-petition the panel's decision reaching the merits of the issue. Boeschling is correct. Under this court's rules in effect at the time the petition for review was submitted, the issue of preservation is not properly before this court. The State failed to argue lack of preservation before the Court of Appeals and failed to cross-petition for review of the Court of Appeals' opinion. See State v. Brosseit , 308 Kan. 743, 746-47, 423 P.3d 1036 (2018) ; State v. Gray , 306 Kan. 1287, 1292, 403 P.3d 1220 (2017) ; Supreme Court Rule 8.03(b), (h)(1) (2018 Kan. S. Ct. R. 53).

This court recently outlined the relevant standards of review for answers to jury questions in State v. McLinn , 307 Kan. 307, 341, 409 P.3d 1 (2018) :

"A district court has a ‘mandatory duty to respond to a jury's request for further information as to the law of the case,’ although ‘[t]he manner and extent of the trial court's response rest in the sound discretion of the trial court.’ ....

" ‘In deciding whether error occurred, a district court's response to a mid-deliberation jury question is reviewed for abuse of discretion.’ ... In making this determination, we apply an unlimited standard of review to the determination of whether the district court's response was a correct statement of the law—a legal question. ‘But when looking at which legally appropriate response the court should have made, [this court] accord[s] the trial court the deference of looking to whether no reasonable person would have given the response adopted by the trial court.’ [Citations omitted]."

The party alleging an abuse of discretion has the burden to establish that it occurred. State v. Garcia , 295 Kan. 53, 61, 283 P.3d...