State v. Daws

• Decision Date: 19 February 2016
• Docket Number: No. 108,716.,108,716.
• Citation: 368 P.3d 1074
• Parties: STATE of Kansas, Appellee, v. Michael C. DAWS, Appellant.
• Court: Kansas Supreme Court

368 P.3d 1074

STATE of Kansas, Appellee,

v.Michael C. DAWS, Appellant.

No. 108,716.

Supreme Court of Kansas.

Feb. 19, 2016.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of the same office, was on the brief for appellant.

Edmond D. Brancart, chief deputy district attorney, argued the cause, and Christopher Mann, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

There are two ways of committing aggravated burglary under K.S.A. 2015 Supp. 21–5807(b) : a person can either "enter into" or "remain within" the dwelling. Michael C. Daws was convicted of aggravated burglary after a homeowner returned to discover the front door kicked in and Daws inside. The jury was instructed it had to find Daws "knowingly entered ... a residence ... without authority ... with the intent to commit theft ... at the time there was a human being in the dwelling. " (Emphasis added.) In other words, the jury was instructed as to the first of the two ways of committing aggravated burglary. Daws argues his conviction should be reversed because the evidence is undisputed that the homeowner was not in the dwelling when he entered it.

The Court of Appeals affirmed his conviction based upon its existing caselaw that the victim does not have to be in the dwelling at the time defendant enters it—so long as the victim arrives before defendant leaves. State v. Daws, No. 108,716, 2013 WL 5925960, at *3–5 (Kan.App.2013) (unpublished opinion), rev. granted January 15, 2015. A majority of this court reverses the aggravated burglary conviction and overrules the line of cases the Daws panel relied on. See State v. May, 39 Kan.App.2d 990, Syl. ¶ 1, 186 P.3d 847, rev. denied 287 Kan. 768 (2008); State v. Romero, 31 Kan.App.2d 609, 610–12, 69 P.3d 205 (2003) ; State v. Fondren, 11 Kan.App.2d 309, 310–12, 721 P.2d 284, rev. denied 240 Kan. 805 (1986); State v. Reed, 8 Kan.App.2d 615, 616–19, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983). Under the aggravated burglary statute and these facts, the State should have charged Daws with "remaining within" the dwelling, which it did not do.

FACTUAL AND PROCEDURAL BACKGROUND

During the middle of the day on November 20, 2011, Raul Flores Ramos stopped by the house he was moving out of. The front door was shut, but it had been kicked in and the door jamb broken. He entered and discovered Daws in the living room. Ramos told Daws to leave, and Daws complied. Afterwards, Ramos discovered some boxes had been moved around and property removed from them. Ramos also noticed two grocery bags containing property that did not belong to him. The State charged Daws with aggravated burglary based on the intent to commit theft. The information alleged Daws "did unlawfully without authority enter into a building ... which is a dwelling, in which there was a human being, to wit: Raul Flores, with the intent to commit a theft therein." (Emphasis added.)

At trial, Daws admitted he was in the house. He testified he saw someone kick in the front door, followed that person inside, and then stayed for a night because he thought the house was abandoned. Daws confirmed Ramos found him inside the next day and that he left when asked. Daws testified he never intended to take any property.

At the jury instruction conference, Daws requested a lesser included offense instruction for simple burglary because the victim was not in the house when Daws entered it.

The State argued it did not matter when the victim was in the house as long as he was there while the burglary was occurring. The district court refused the simple burglary instruction, noting "the caselaw does not differentiate" between circumstances when the victim was present at the time of entry or arrived later.

Consistent with the charge as described in the information, the jury was instructed on aggravated burglary based on the State's theory that Daws "knowingly entered a building" without authority. This instruction was consistent with PIK Crim. 4th 58.130, and stated in relevant part:

"To establish this charge, each of the following claims must be proved:

1. That the defendant knowingly entered a building ... which is a dwelling;

2. That the defendant [ ] Daws did so without authority;

3. That the defendant did so with the intent to commit Theft therein;

4. That at the time there was a human being in the dwelling, to-wit: Raul Flores; and

5. That this act occurred on or about the 20th day of November, 2011, in Wyandotte County, Kansas."

The district court also issued what is referred to as the any/any reasonable doubt instruction, which states in relevant part:

"The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty." (Emphasis added.)

The jury convicted Daws of aggravated burglary. The district court sentenced Daws to the standard term in the applicable grid box, factoring in his criminal history score.

Daws timely appealed to the Court of Appeals, raising five issues: (1) There was insufficient evidence of aggravated burglary because the victim was not present upon entry; (2) the district court should have instructed the jury on simple burglary; (3) the district court erroneously denied a motion for mistrial; (4) the jury was improperly instructed on reasonable doubt; and (5) the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used Daws' criminal history to enhance his sentence. The Court of Appeals affirmed in Daws, 2013 WL 5925960, at *5–9.

Daws petitioned for this court's review of all his claims except the denial of the motion for mistrial. We granted review, and jurisdiction is proper. See K.S.A. 60–2101(b) (review of Court of Appeals decisions).

Before proceeding, we note the last two issues have already been decided adversely to Daws in other cases. We upheld the "any/any" reasonable doubt instruction in State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013) ( "While the older PIK instruction used in Herbel's trial was not the preferred instruction, it was legally appropriate."). And, as Daws concedes, this court has repeatedly held the State is not required to prove a defendant's criminal history to the jury beyond a reasonable doubt. See, e.g., State v. Hall, 298 Kan. 978, Syl. ¶ 6, 319 P.3d 506 (2014). We dispose of those latter two issues based on these prior decisions.

REVERSAL OF THE AGGRAVATED BURGLARY CONVICTION

Aggravated burglary requires a human being's presence in the dwelling, but the crime can be committed either by "entering into" or "remaining within" the structure. Since Daws was convicted under the "entering into" means, the issue is whether his conviction must be reversed because there was no human being present in the house when he entered it.

Standard of Review

When sufficiency of the evidence is challenged, an appellate court reviews all evidence in a light most favorable to the prosecution. The court must be convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).

Discussion

The distinction between burglary and aggravated burglary is that aggravated burglary requires an additional element—the presence of a human being. Compare K.S.A. 2015 Supp. 21–5807(a) and K.S.A. 2015 Supp. 21–5807(b). The aggravated burglary statute provides:

"Aggravated burglary is, without authority, entering into or remaining within any building, manufactured home, mobile home, tent or other structure, or any vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is a human being with intent to commit a felony, theft or sexually motivated crime therein." (Emphasis added.) K.S.A. 2015 Supp. 21–5807(b).

"[T]he phrases ‘entering into’ and ‘remaining within’ refer to legally distinct factual situations." State v. Gutierrez, 285 Kan. 332, Syl. ¶ 2, 172 P.3d 18 (2007). Stated another way, these phrases constitute alternative means of committing the crime. State v. Frierson, 298 Kan. 1005, 1011, 319 P.3d 515 (2014). The entering into element is satisfied when the evidence shows a defendant crossed the plane of a building's exterior wall. In contrast, the remaining within element refers to a defendant's presence in the building's interior after entry has occurred. Gutierrez, 285 Kan. at 337, 172 P.3d 18. Both situations may take longer than a mere moment, but "remaining within connotes at least briefly continuous behavior." 285 Kan. at 337–38, 172 P.3d 18.

The focus on these alternative means is dictated by the State's decision to prosecute Daws for unlawfully entering the dwelling, as opposed to pursuing the alternate approach that Daws committed aggravated burglary by remaining within the dwelling. He argues that under the State's entering into theory, a human being must be present when the defendant enters the building. And since it is undisputed that the homeowner was not present when Daws entered, he contends there is insufficient evidence to support his conviction.

The Court of Appeals caselaw the Daws panel relied on to affirm the conviction under these facts stems from State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973). In Lora, the defendant was convicted of two counts of aggravated burglary based on a fact pattern in which Lora was lying in wait to commit rape when the victims returned home. Lora argued it was error to convict him of aggravated burglary because there were no...