State v. Brown
| Decision Date | 02 July 1981 |
| Docket Number | No. 52536,52536 |
| Citation | 630 P.2d 731,6 Kan.App.2d 556 |
| Parties | STATE of Kansas, Appellee, v. Harvey BROWN, Jr., Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The primary purpose of the motion in limine is to prevent prejudice during trial. Its use should be strictly limited to accomplish that purpose. It must not be used to choke off a valid defense in a criminal action.
2. The order resulting from a motion in limine may prohibit reference during trial proceedings to material which is irrelevant or prejudicial to a fair trial. The order is a temporary protective order. It is subject to change during the trial; and to predicate error thereon it will be necessary to again present the material or proffer the evidence during trial on motion to reconsider.
3. It is incumbent upon the appellant to designate a record sufficient to present issues on appeal, and to establish claimed error.
4. As used in K.S.A. 21-3716, the phrases "entering into" and "remaining within" refer to distinct factual situations. "Entering into" refers to the situation where a defendant enters without authorization. The specific intent to commit a felony or theft must exist at the time of the unauthorized entry. "Remaining within" refers to the situation where defendant's initial entry is authorized, but at some later time that person's presence becomes unauthorized.
5. A term which is widely used and which is readily comprehensible need not have a defining instruction.
6. In an appeal from conviction of aggravated burglary, the record is examined and it is held: (1) The trial court did not err in granting the State's motion in limine. (2) An instruction which contained the phrase "knowingly entered and remained," although technically incorrect, was not prejudicial error. (3) The trial court did not err in its refusal to define the word "theft" in its instruction regarding aggravated burglary.
Don W. Riley, Wichita, for appellant.
Jack Peggs and Geary N. Gorup, Asst. Dist. Attys., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before REES, P. J., and ABBOTT and SPENCER, JJ.
Following trial to a jury, defendant was adjudged guilty of aggravated burglary (K.S.A. 21-3716).
Inasmuch as the issues on appeal relate only to asserted trial errors and not to the sufficiency of the evidence, a statement of facts leading to the arrest and conviction of defendant is deemed unnecessary. Defendant was charged with unlawfully, willfully, knowingly, and without authority entering into and remaining within a building located at 2510 East Stadium, Wichita, Sedgwick County, Kansas, occupied at the time by Roosevelt Frazier, Jr., and Valirae M. Dupree, with intent to commit theft therein. The offense was alleged to have been committed on or about April 28, 1980.
After the jury had been selected but prior to introduction of evidence, the State presented a motion in limine seeking to prevent cross-examination by defendant of Frazier and Dupree, who were to be witnesses in the case, regarding earlier convictions of arson and attempted arson. The trial judge, out of the presence of the jury, examined the files of the district attorney, which evidently contained police reports in the two arson cases, and arrived at the conclusion the charges in those cases did not involve dishonesty. The judge announced he was not going to allow cross-examination as to those charges. Defense counsel made no objection to the ruling of the court, but announced: "If they say they are of good character, we feel we should be able to cross-examine them, if they say they are of good moral character." The court indicated if the prosecutor raised that issue, defendant would be entitled to cross-examine. The credibility of the two witnesses was not thereafter made an issue in the trial and defendant was not afforded the opportunity to examine as to credibility. He now argues it was error to grant the motion in limine.
As stated in State v. Quick, 226 Kan. 308, 597 P.2d 1108 (1979):
226 Kan. at 313, 597 P.2d 1108.
Defendant did not at any time during trial make any proffer of evidence regarding the credibility of the two witnesses, nor did he move for reconsideration of the motion in limine. Under the circumstances, unless it can be said the crime of arson in and of itself is one involving dishonesty or false statement and/or the motion in limine was used to "choke off a valid defense," there was no error.
K.S.A. 60-421 provides in part:
"Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility."
In considering what constitutes the crime of dishonesty within the meaning of K.S.A. 60-421, the court in State v. Laughlin, 216 Kan. 54, 55, 530 P.2d 1220 (1975), stated:
As defined by K.S.A. 21-3718, arson is knowingly, by means of fire or explosive: (a) damaging any building or property in which another person has any interest without the consent of such other person; or (b) damaging any building or property with intent to injure or defraud an insurer or lienholder. Certainly, the crime or arson as defined by (b) of the statute is inherently dishonest. However, the crime defined by (a) of the statute might conceivably have been impulsive or committed in the heat of passion, and not reflect on the credibility of a witness.
Apparent from the record before us is the fact that certain records and reports were made available to the trial judge, from which it was concluded the charges of arson and attempted arson which had been brought against the two witnesses did not involve dishonesty. Those records are not a part of the record on appeal.
It is incumbent upon the appellant to designate a record sufficient to present issues on appeal, and to establish claimed error. Farmers Ins. Exchange v. Schropp, 222 Kan. 612, Syl. P 8, 567 P.2d 1359 (1977). In the absence of an adequate record on appeal, it is not possible for this court to determine whether the prior crimes of the two witnesses did in fact involve dishonesty. Such being the case, we conclude the trial court did not err in granting the protective order.
Defendant next complains the trial court erred in failing to instruct the jury that the intent to commit a theft must precede the illegal entry into the victim's dwelling.
At the close of all the evidence, defendant proposed the following instruction:
"It is a defense in this case, if by reason of ignorance or mistake, the defendant did not have at the time the mental state which the statute prescribes as an element of the crime."
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State v. Vasquez, No. 95,400.
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State v. Reed, s. 54326
...aggravated burglary statutes has been held to describe different factual situations concerning the conduct of the burglar. In State v. Brown, 6 Kan.App.2d 556, Syl. p 4, 630 P.2d 731 (1981), this Court "As used in K.S.A. 21-3716, the phrases 'entering into' and 'remaining within' refer to d......