State v. Burhans

• Decision Date: 14 May 2004
• Docket Number: No. 90,441.,90,441.
• Citation: 89 P.3d 629,277 Kan. 858
• Parties: STATE OF KANSAS, Appellee, v. CHARLES K. BURHANS, Appellant.
• Court: Kansas Supreme Court

277 Kan. 858

89 P.3d 629

STATE OF KANSAS, Appellee, v. CHARLES K. BURHANS, Appellant.

No. 90,441.

Supreme Court of Kansas.

Opinion filed May 14, 2004.

Jessica R. Kunen, of Lawrence, argued the cause and was on the brief for appellant.

Bradley R. Burke, assistant district attorney, argued the cause, and Christine E. Kenney, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.:

Charles Burhans, a bail bondsman, was convicted of criminal trespass and misdemeanor assault for his efforts in attempting to apprehend Michael Austin after revoking his bond. Following Burhans' appeal to the Court of Appeals, we transferred the case on our own motion pursuant to K.S.A. 20-3018(c).

The issues on appeal and this court's accompanying holdings are as follows:

1. Did the district court fail to properly apply the bondsman privilege? No.

2. Did Burhans' convictions violate his due process rights? No.

3. Did sufficient evidence support Burhans' convictions? Yes. Accordingly, we affirm.

FACTS:

Jerome and Margaret Williams, husband and wife, own 2722 Rawhide Lane in Lawrence and have lived there for 20 years. Charles Burhans, a bail bondsman, was seeking to apprehend Mrs. Williams' brother, Michael Austin, whose bond had been revoked. According to Burhans, a bail agent for ABC Bail Bonds named Michelle Hattemer had asked him to help find Austin and had given him some paperwork, including an application for a bail bond filled out by Hattemer that listed 2722 Rawhide Lane as Austin's address.

Burhans did not have the actual bail bond, but he testified that Hattemer told him she believed Austin lived at 2722 Rawhide Lane. Burhans did not do a title search, did not check the utilities bills for that address, and did not talk to Yvonne Smith, whom Hattemer listed as the indemnitor on Austin's bond. Burhans did contact Cablevision, where the bail bond application indicated that Austin worked, but discovered that Austin had never worked there.

Burhans testified that he made several phone calls to 2722 Rawhide Lane, but never spoke to Austin. He had first called under the pretext that he was a landlord returning a deposit for Austin and needed to know where to send the check. According to Burhans, Mrs. Williams told him to send the check to 2722 Rawhide Lane, which she said was Austin's physical address. Mrs. Williams testified, however, that she never received a call from someone purporting to be Austin's former landlord. Moreover, she testified that Austin is homeless, has never had a job, and, while welcome to visit her home, has not been welcome to spend the night.

Mrs. Williams also testified that at the beginning of 2002, she had received several calls from a woman named Michelle, who told her that Austin was requesting Mrs. Williams to post bond. Mrs. Williams declined to do so. Michelle later called to see if Austin was there or lived there. Mrs. Williams told Michelle that Austin did not live there, but offered to take a message. She advised Michelle she did not know when she would hear from Austin. She had not seen him for several months. Around 4 p.m. on April 24, 2002, Burhans came to 2722 Rawhide Lane and falsely told Mrs. Williams he was there to install a house security system. Mrs. Williams responded that she had not requested one and was sure her husband had not either. Burhans stated his appointment was with Mike Austin, and Mrs. Williams said Austin was not there. Continuing with his deception, Burhans then asked if he could step inside the house to use the Williams' phone to call his security company to verify he had the correct address. Mrs. Williams allowed him inside and handed him a cordless phone.

Halfway through the pretense of making a call, Burhans threw the phone down and announced, "I'm here to arrest Mike Austin." Mrs. Williams told him that Austin did not live there and asked Burhans to leave. Burhans refused, so Mrs. Williams pushed him out of the doorway with the door and shut the door.

Burhans told Mrs. Williams that he had the right to search for Austin. She warned him that if attempted to reenter the house, she would call the police. Burhans then said to go ahead and call the police. She also told him to get off the property. At about that time, Mr. Williams returned to the house after taking his grandson to baseball practice, and his wife told him what happened.

Burhans left the property and returned to his van, where he called the Lawrence Police Department for a courtesy standby. At 4:55 p.m., Officer Larry Lindsay arrived. Burhans told him he was trying to serve a revocation of bond on Michael Austin. Burhans showed Lindsay bond papers containing Austin's name and address, but told Lindsay that he did not know if Austin was in the residence. Burhans requested Lindsay's assistance because he anticipated problems when he went back to the house. Lindsay declined to standby because Burhans told him he had been to the residence, had made no attempts to verify whether Austin was in the residence, and had been asked to leave. Lindsay left at 5:11 p.m.

When Lindsay left, Burhans pulled his handgun from his van, stepped onto the Williams' driveway, and began heading toward the residence. Mr. Williams testified he came out his front door onto the driveway and held up his hand to stop Burhans. He told Burhans that Austin was not there and to stop at the end of the driveway. Additionally, Williams told Burhans that he was not welcome to come into the yard and was trespassing. Burhans, now pointing a can of mace at Williams, continued walking up the driveway and insisted that he had a right to come in the house. When Williams told Burhans that the mace did not scare him, Burhans said, "Well, I have this," pointing to the handgun in his waistband.

Burhans testified that he felt threatened because Williams was coming very fast and yelling obscenities at him. For that reason he pulled his can of mace from his pouch and pointed it at Mr. Williams, warning that he would defend himself if necessary. According to Burhans, since Mr. Williams continued to move toward him, he tapped the can of mace on his handgun for the purpose of stopping Williams. Burhans testified, "at which time he [Williams] pretty much froze in his tracks."

Mr. Williams testified that Burhans' tapping the handgun with the mace cannister made him believe Burhans might use either the mace or his gun. Mr. Williams then yelled to his wife to call the police.

As a result of the call, Officer Lindsay returned to the scene at 5:18 p.m. He testified that when he arrived, Burhans and Mr. Williams were having a heated argument in the driveway. He observed that Burhans had a semiautomatic pistol tucked into his waistband, while Mr. Williams appeared to be unarmed.

A second officer, Mike McAtee, then arrived and spoke with Burhans while Lindsay spoke with Mr. and Mrs. Williams. Burhans told McAtee that he had gained entry into the house by tricking the residents. He then showed McAtee the bond revocation papers and stated he had a right to enter the residence because he had the bond paper on Austin.

Mr. Williams then offered to let Burhans search the house for Austin if he was accompanied by an officer and if he left his can of mace and handgun outside. Burhans refused. According to the officers, Burhans said he refused because he knew Austin was not in the residence and that he did not want to go back in there. According to Officer McAtee, Burhans also told everyone present that he would or could return at any time looking for Austin and that he would enter the residence.

After a bench trial, the district court convicted Burhans of criminal trespass and misdemeanor assault, holding in relevant part:

"The individual, Mr. Burhans, given the information that Mr. Austin did not live there, the only information that he had to the contrary was the fact that Michelle Hattemer said that he had listed that address, but indicated that she had found out or at least was told that he wasn't — didn't live there, decided, in fact, that he did live there and proceeded back up to the driveway, indicating that he was going back into the place to look around, that [it] was his right to do so.

"The court does not believe under the laws of our state concerning a bail bondsman authority that under the facts of this matter that that was his right to do so. He was told to leave the premises. He came up armed with a can of mace and armed with a firearm and was told to leave.

"He indicated that he used — he tapped his mace onto the firearm in order to stop Mr. Williams from charging him. Of course, Mr. Williams was trying to prevent someone from trespassing onto his property, and he also indicated that he feared that this individual was trying to come back into his house and to his castle, so to speak.

"Certainly the idea of tapping a can of mace onto a firearm would result in what Mr. Williams indicated was a reasonable apprehension of bodily harm from this individual who had been told to leave. Under the facts of this case, the court does not find that the defense of a bail bondsman authority to apprehend or the self-defense apply."

ANALYSIS:

Several core facts are important to our analysis of the issues.

1. Before Burhans entered the property at 2722 Rawhide Lane, the only information he had that Austin resided there was (a) Michelle Hattemer informing him that this address was listed as Austin's residence on his bail application and (b) Mrs. Williams allegedly informing him it was Austin's physical address, which she later denied.

2. The only efforts Burhans himself made to confirm Austin resided at 2722 Rawhide Lane were unsuccessful, with the possible exception of his claim that Mrs. Williams said it was Austin's physical address, which she later denied. 3. Burhans never observed Austin at 2722 Rawhide Lane, nor communicated with anyone who...