State v. Charles

• Decision Date: 28 February 2014
• Docket Number: No. 102,981.,102,981.
• Citation: 318 P.3d 997,298 Kan. 993
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Calvin CHARLES, Appellant.

298 Kan. 993

318 P.3d 997

STATE of Kansas, Appellee,

v.Calvin CHARLES, Appellant.

No. 102,981.

Supreme Court of Kansas.

Feb. 28, 2014.

Syllabus by the Court

1. Aggravated burglary under K.S.A. 21–3716 does not restrict application of its “remaining within” language to instances when an initial entry is lawful. In this case, the State presented sufficient evidence that the defendant both entered into and remained within the victim's home.

2. Kansas law presumes that all personal property has some value. To prove misdemeanor theft, the State need not prove the value of stolen property was less than $1,000. In this case, despite the testimony of two burglary victims that their stolen property was worth more than $1,000, there was sufficient evidence of misdemeanor theft.

3. On the facts of this case, an additional restitution award set only by order following the defendant's sentencing hearing must be vacated because the judge was without subject matter jurisdiction to enter the order.

4. A sentencing judge's use of a defendant's criminal history to arrive at his or her sentence, despite no jury finding of that history beyond a reasonable doubt, does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Meryl Carver–Allmond, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Amanda G. Voth, assistant district attorney, Keith R. Schroeder, district attorney, and Steve Six, attorney general, were on the brief for appellee.

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

A jury convicted Calvin Charles on eight of nine counts of aggravated burglary and eight of nine counts of misdemeanor theft. At a sentencing hearing, the district court judge ordered Charles to pay restitution “as contained within the presentence report.” The report indicated that restitution for one of the victims was “to be determined.” A restitution order filed 3 weeks later set the amount for the victim at $1,192.69. The order also included restitution for the victim on the charges that led to acquittal.

On appeal to the Court of Appeals, among other challenges, Charles argued that the district judge lacked subject matter jurisdiction to impose restitution for these two victims and, in the alternative, that the judge abused his discretion by ordering restitution on charges that led to acquittals. The State conceded the restitution award tied to the acquittals must be vacated. We granted Charles' petition for review on the Court of Appeals' remaining rulings affirming Charles' convictions and sentence.

Factual and Procedural Background

During the summer of 2008, the Hutchinson Police Department received several reports by victims claiming that their purses, wallets, and other small items had been stolen from their homes at night while they were sleeping. Along with the reports, investigators had several photos, taken by ATM surveillance cameras, of a man attempting to withdraw money using the victims' bank and credit cards. Police began investigating Charles after an officer saw him riding a bicycle and thought Charles resembled the man in the surveillance photos. Personal property belonging to several of the victims was later discovered in a dumpster outside of Charles' residence and inside his apartment.

The State charged Charles with nine counts of aggravated burglary, severity level 5 person felonies, and nine counts of theft, class A nonperson misdemeanors. On each of the aggravated burglary charges, the complaint alleged that Charles “intentionally, and without authority enter[ed] into or remain[ed] within a residence.” See K.S.A. 21–3716. The theft charges each alleged that Charles “unlawfully, and intentionally obtained[ed] or exert[ed] unauthorized control over property ... with the intention to permanently deprive the owner ... of the possession, use, or benefit of said property, of a value of less than one thousand dollars ($1,000.00).” See K.S.A. 21–3701(a)(1), (b).

The complaint identified the nine victims, each of whom testified at trial. The State charged Charles with one count of aggravated burglary and one count of misdemeanor theft for each.

Two of the victims testified that the value of their stolen items exceeded $1,000. One, the victim named in Counts I and X, testified that her stolen purse and its contents—which included $100 in cash, a billfold, cell phone, cell phone charger, prescription glasses, perfume, makeup, driver's license, keys, gift cards, Social Security and medical cards, and eight credit cards—had an approximate replacement value of $1,280. She testified that the actual value of the items may have been “a little less.” The other victim, named in Counts IX and XVIII, testified that the approximate value of his wallet, his wife's purse, and the contents of each was approximately $1,482. He testified that the purse contained his wife's billfold, cell phone, coin purse, $250 to $300 in cash, $2 to $3 in coins, a $330 gift card to Dillons, another gift card with “about $36 left on it,” credit cards, insurance cards, discount cards, coupons, keys, lipstick, and various other “things.”

The district court judge instructed the jury that, in order to find Charles guilty on the aggravated burglary and theft charges, it had to find that he “knowingly entered or remained in” the residences without authority and “the value of the [stolen] property was less than $1000.” The jury found Charles guilty on all counts, except for the aggravated burglary and theft charges tied to the residence that was the subject of Counts VII and XVI.

At Charles' sentencing hearing, the district judge stated that restitution “as contained within the presentence report will be ordered.” The presentence investigation report assigned a restitution amount of $1,184.77 to the victim named in Counts I and X. It designated the amount for the victim named in Counts IX and XVIII as “to be determined.” The restitution amounts for each of the other victims were specific and less than $1,000, the threshold between misdemeanor and felony theft. See K.S.A. 21–3701(b)(3) and (b)(5).

At the conclusion of the sentencing hearing, the district judge directed Charles' counsel to file a notice of appeal. The notice of appeal was filed later that day.

The judge's restitution order, filed August 27, 2009, ordered Charles to pay the amount set out for each victim other than the one named in Counts IX and XVIII in the presentence investigation report. For the victim named in Counts IX and XVIII, the judge ordered $1,192.69.

Charles raised four issues on appeal in the Court of Appeals. First, he argued that there was insufficient evidence to support alternative means of committing aggravated burglary, both “entering into” and “remaining within” each home. Charles conceded that the State proved he entered each home; he contended there was no evidence that he remained within each home. Second, Charles argued there was insufficient evidence to convict him on two of the misdemeanor theft charges because “the uncontroverted evidence showed [he] took property worth more than $1,000.” Third, he argued that the district court lacked subject matter jurisdiction to impose an additional restitution amount for the victim named in Counts IX and XVIII after his sentencing hearing ended. Finally, Charles argued that the district judge erred when he relied on Charles' criminal history score to increase his sentence without first requiring the criminal history to be proved to the jury beyond a reasonable doubt.

The Court of Appeals panel affirmed in part and vacated the restitution order for the victim named in the charges that led to the acquittals. State v. Charles, No. 102,981, 2011 WL 1196912, at *1, *9–10 (Kan.App.2011) (unpublished opinion).

The panel rejected Charles' first argument, relying on this court's decision in State v. Gutierrez, 285 Kan. 332, 337–38, 172 P.3d 18 (2007), and its view that sufficient evidence supported a finding that Charles remained within each home with the intent to commit a theft therein. Charles, 2011 WL 1196912, at *2–3.

On Charles' second argument, the panel first drew guidance from State v. Carpenter, 228 Kan. 115, 121–26, 612 P.2d 163 (1980), which held that a defendant could be convicted of second- degree murder upon proof of facts that would support a conviction of first-degree murder. The panel concluded: “Although Charles was not charged with felony theft but rather charged with and found guilty of misdemeanor theft, the fact that evidence may show he was guilty of the greater offense was not so prejudicial that it warranted reversal [of two] of his conviction[s].” Charles, 2011 WL 1196912, at *6. The panel also noted that jurors are charged with determining the weight and credit to be given the testimony of each witness and may use common sense, knowledge, and experience in regard to any matter about which a witness has testified. Using these tools available to every juror, the panel reasoned, a rational factfinder could have found that the values of the stolen property on Counts X and XVIII were less than $1,000 per victim, despite the victims' contrary valuations. 2011 WL 1196912, at *6–7.

The panel rejected Charles' subject matter jurisdiction argument on restitution and instead followed State v. Cooper, 267 Kan. 15, Syl. ¶ 2, 977 P.2d 960 (1999) (district court retains jurisdiction to set restitution amount after sentencing). Charles, 2011 WL 1196912, at *8.

And, finally, the panel deemed Charles' criminal history argument without merit under State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). Charles, 2011 WL 1196912, at *10.

Discussion

Sufficiency of Evidence on Aggravated Burglary

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