State v. Crichton

• Decision Date: 29 December 1988
• Docket Number: No. 61380,61380
• Citation: 766 P.2d 832,13 Kan.App.2d 213
• Parties: STATE of Kansas, Appellee, v. Dan CRICHTON, Appellant.
• Court: Kansas Court of Appeals

Page 832

766 P.2d 832

13 Kan.App.2d 213

STATE of Kansas, Appellee, v. Dan CRICHTON, Appellant.

No. 61380.

Court of Appeals of Kansas.

Dec. 29, 1988.

Review Denied March 14, 1989.

Syllabus by the Court

1. The information is the jurisdictional instrument on which the defendant stands trial.

2. A conviction based on an information which does not sufficiently charge the offense is void.

3. Whether an information is sufficient depends on whether it contains the elements of the offense intended to be charged, whether it sufficiently informs the defendant of what he must be prepared to meet, and whether it is sufficiently specific to make a plea of double jeopardy possible.

4. An information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied. State v. Micheaux, 242 Kan. 192, 199, 747 P.2d 784 (1987).

5. For theft to constitute a class E felony, the value of property taken must be $150 or more; or, if less than $150, the defendant must have been convicted of theft two or more times within five years immediately preceding the present crime. K.S.A.1987 Supp. 21-3701.

6. An information charging the defendant with felonious theft of 8,434 gallons of regular gasoline in violation of K.S.A.1987 Supp. 21-3701, a class E felony, and which did not allege that the defendant had been convicted of theft two or more times in the last five years, when read in its entirety, construed according to common sense, and interpreted to include facts necessarily implied, sufficiently informed the defendant that the value of the gasoline taken was $150 or more.

7. An authenticated judgment form and information indicating the defendant had previously been convicted of a felony in another state was competent evidence and sufficient to support an enhancement of sentence under K.S.A.1987 Supp. 21-4504, absent an affirmative showing on appeal that the documents were not sufficient.

Charles D. Dedmon, Asst. Appellate Defender, and Benjamin C. Wood, Chief Appellate Defender, for appellant.

John Shirley, Deputy County Atty., Edward J. Gaschler, County Atty., Scott City, and Robert T. Stephan, Atty. Gen., for appellee.

Before BRAZIL, P.J., and PAGE W. BENSON and FREDERICK WOLESLAGEL, District Judges Retired, assigned.

BRAZIL, Presiding Judge:

Dan Crichton appeals from the district court's decision to enhance his sentence under the Habitual Criminal Act (K.S.A.1987 Supp. 21-4504) and from the court's decision to overrule Crichton's motion for judgment of acquittal. Crichton also contends the district court lacked jurisdiction to convict him of felony theft (K.S.A.1987 Supp. 21-3701) because the information was allegedly defective. We affirm.

1. The Information.

Crichton contends that the information was fatally defective because it failed to allege that the value of the property taken was in excess of one hundred fifty dollars. The information stated in part:

"Dan Crichton did then and there UNLAWFULLY, FELONIOUSLY willfully, obtain or exert unauthorized control over property, to wit: 8434 gallons of regular gasoline, with the intention to permanently deprive the pwoer, to-wit: Chase Terminal, El Dorado, Kansas, of the use, benefit or possession thereof, in violation of K.S.A. 21-3701, a Class E Felony."

The information is the jurisdictional instrument on which the defendant stands trial. State v. Barncord, 240 Kan. 35, 38, 726 P.2d 1322 (1986); State v. Slansky, 239 Kan. 450, 452, 720 P.2d 1054 (1986). The information must allege each essential element of the offense charged. State v. Bishop, 240 Kan. 647, 652, 732 P.2d 765 (1987). A conviction based on an information which does not sufficiently charge the offense is void. State v. Slansky, 239 Kan. at 452, 720 P.2d 1054; State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985). An information which omits an essential element of the crime it charges is jurisdictionally and fatally defective, and a conviction of that offense must be reversed. State v. Wilson, 240 Kan. 606, 607, 731 P.2d 306 (1987). Such defense can be raised at any time, even on appeal. State v. Jackson, 239 Kan. 463, 465, 721 P.2d 232 (1986); State v. Bird, 238 Kan. at 166, 708 P.2d 946. Whether an information is sufficient depends on whether it contains the elements of the offense intended to be charged, whether it sufficiently informs the defendant of what he must be prepared to meet, and whether it is sufficiently specific to make a plea of double jeopardy possible. State v. Jones, 242 Kan. 385, 393, 748 P.2d 839 (1988). "[A]n information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied." State v. Micheaux, 242 Kan. 192, 199, 747 P.2d 784 (1987). If an information reasonably charges a crime, the information will be held sufficient. See State v. Bishop, 240 Kan. at 647, 732 P.2d 765.

K.S.A.1987 Supp. 21-3701 provides in part:

"Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property:

"(a) Obtaining or exerting unauthorized control over property; ...

....

"Theft of property of the value of $150 or more is a class E felony. Theft of property of the value of less than $150 is a class A misdemeanor, except that theft of property of the value of less than $150 is a class E felony if committed by a person who has, within five years immediately preceding commission of the crime, been convicted of theft two or more times."

The value of the property stolen in the present case was not specifically included in the information charging the felony theft. Crichton contends the omission renders the information fatally defective because it amounts to an omission of an essential element of felony theft, i.e., value.

Kansas courts have implied that value is an essential element of theft. State v. Nesmith, 220 Kan. 146, 152, 551 P.2d 896 (1976) (Failure to instruct on "the element of value " in a theft case was not error under the circumstances. [Emphasis added.]; State v. Piland, 217 Kan. 689, 693, 538 P.2d 666 (1975) (In theft case, "the jury should have been instructed as to the element of value."); State v. Hanks, 10 Kan.App.2d 666, 669, 708 P.2d 991 (1985), rev. denied 238 Kan. 878 (1986) ("In a theft prosecution, the value of the property taken is an element of the crime which the jury must determine."). Furthermore, under PIK Crim.2d 59.01, to establish the defendant is guilty of theft, it must be shown the property was either one hundred fifty dollars or more or less than one hundred fifty dollars.

Although the information in the present case did not expressly state whether the value of the stolen gas was $150 or more, the information reasonably charged this element because it stated Crichton was charged with theft of 8,434 gallons of regular gasoline, a class E felony. By statute, to constitute a class E felony, the property stolen had to be worth $150 or more since the information did not indicate Crichton had been convicted of theft two or more times in the last five years. K.S.A.1987 Supp. 21-3701. Common sense would indicate that regular gasoline is worth more than $.018 per gallon. Not only did the information reasonably charge the element of value, it also sufficiently apprised Crichton of what he had to be prepared to defend and was specific enough to make a plea of double jeopardy possible. State v. Jones, 242 Kan. 385, 392-95, 748 P.2d 839.

The information is not fatally defective, and the court had jurisdiction to convict Crichton of felony theft.

2. Enhancement of Sentence.

Crichton contends the evidence admitted for enhancement of sentence purposes showed only that he had previously been convicted of breaking and entering with the intent to commit a misdemeanor and failed to show he had a prior felony conviction. Consequently, Crichton argues the conviction is not sufficient to support an enhancement of sentence under K.S.A.1987 Supp. 21-4504.

The Kansas Habitual Criminal Act, K.S.A.1987 Supp. 21-4504, may be imposed once the trial court finds from competent evidence that the defendant has previously been convicted of a felony in or out of state. State v. Crispin, 234 Kan. 104, 111, 671 P.2d 502 (1983).

A prior foreign conviction need not, however, be a felony under the laws of Kansas so long as it was a felony under the laws of the foreign jurisdiction. State v. Crispin, 234 Kan. at 111, 671 P.2d 502. Furthermore, it is the conviction of a prior felony which triggers the imposition of the Habitual Criminal Act, not the punishment imposed at the time of the prior conviction. State v. Robertson, 225 Kan. 572, 575, 592 P.2d 460 (1979). Certified and authenticated copies of court orders reflecting the prior felony conviction constitute competent evidence of the former conviction. State v. Crispin, 234 Kan. at 112, 671 P.2d 502. Documentary evidence is not necessary, however, where the defendant testified and admitted the felony conviction. State v. Hicks, 11 Kan.App.2d 76, 86, 714 P.2d 105 (1986).

In the present case, the evidence of the Florida conviction consisted of three documents: a judgment form indicating Crichton was convicted of breaking and entering with the intent to commit a misdemeanor and was sentenced to three years; a Florida information charging Crichton with possession of a short-barrelled rifle and breaking and entering with the intent to commit a misdemeanor; and the Florida clerk's and judge's authentication of the documents.

Crichton objected, contending the documents did not indicate there was a conviction for a felony, as opposed to a misdemeanor. The State pointed out that the Florida judgment form indicated Crichton had been convicted of burglary requiring a confinement in the Florida State Prison of three years. The State also noted that the information described the crime in felonious terms and that Crichton was...