State v. Crease, 53124

• Decision Date: 15 January 1982
• Docket Number: No. 53124,53124
• Citation: 230 Kan. 541,638 P.2d 939
• Parties: STATE of Kansas, Appellee, v. Kenneth A. CREASE, Appellant.
• Court: Kansas Supreme Court

Page 939

638 P.2d 939

230 Kan. 541

STATE of Kansas, Appellee, v. Kenneth A. CREASE, Appellant.

No. 53124.

Supreme Court of Kansas.

Jan. 15, 1982.

Syllabus by the Court

The record on appeal is examined in a criminal action and it is held (1) there was sufficient evidence of entry to the house to support a conviction for aggravated burglary; (2) there was sufficient evidence to identify the victims of the homicides; and (3) the trial court did not err in its instructions to the jury on felony murder and in refusing to give instructions on other types of homicides.

Steven C. Sherwood, Wichita, argued the cause and was on the brief for appellant.

Jack Peggs, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief for appellee.

PRAGER, Justice.

This case involves convictions on multiple counts of burglary and felony murder (K.S.A. 21-3401). The defendant, Kenneth A. Crease, was a juvenile, age 16. After his involvement in the crimes was discovered, defendant was certified for trial as an adult. Although convicted on fourteen counts, the defendant appeals only on three counts: Count 13, involving aggravated burglary of a private residence, and Counts 16 and 17, involving two homicides committed during the burglary of the Temple home in Wichita.

Defendant's first point on the appeal pertains to Count 13 charging aggravated burglary of the Billings residence in Wichita under K.S.A. 21-3716. The Billings break in occurred on August 30, 1979. According to the state's evidence, the defendant, Crease, and his accomplice, Edwards, went to the Billings home at about 3:30 a.m. on August 30. They cut the telephone wires and, as they were in the process of entering the home, were frightened away. On the appeal, the defendant contends that the trial court erred in failing to sustain the defendant's motion for acquittal because the State failed to prove two essential elements of aggravated burglary: (1) That there was a person on the premises at the time the burglary was committed, and (2) that there was a sufficient entry of the Billings residence to constitute the completed offense of burglary.

Although there was some uncertainty as to the exact date when the Billings burglary was committed, the owner of the premises, Billings, testified that he was at home on the evening of August 30, 1979, and the next morning he discovered that two storm windows had been removed and the telephone wires had been cut. Defendant's accomplice testified that he and the defendant were at the Billings residence early in the morning at which time the telephone wire cuts were made. This evidence was sufficient to establish that Mr. Billings was at home when the burglary was committed.

The defendant's second contention in regard to this point is that, although the defendant and his accomplice removed a storm window from the house and were beginning to remove the inside window, they did not actually raise or disturb the inside window and, therefore, no entry into the house had been completed sufficient to constitute the crime of burglary. In State v. Ervin, 223 Kan. 201, 573 P.2d 600 (1977), it was held that there was sufficient evidence to convict on a charge of burglary where the defendant reached into a convertible through a slit in the top of the passenger's side. In State v. Gatewood, 169 Kan. 679, 221 P.2d 392 (1950), it was held that opening a closed outer screen door of a dwelling house of another was sufficient to establish a felonious breaking and entering into the house, although the glass door on the house was not opened. Gatewood relied in part on State v. Moon, 62 Kan. 801, 64 Pac. 609 (1901). See also 13 Am.Jur.2d, Burglary § 19, p. 331, and the annotation in 23 A.L.R. 112. Here it is undisputed that the defendant invaded the...