State v. Dunn

• Decision Date: 18 September 2015
• Docket Number: 112,020.
• Citation: 356 P.3d 436 (Table)
• Parties: STATE of Kansas, Appellee, v. Wade DUNN, Appellant.
• Court: Kansas Court of Appeals

356 P.3d 436 (Table)

STATE of Kansas, Appellee
v.
Wade DUNN, Appellant.

112,020.

Court of Appeals of Kansas.

Sept. 18, 2015.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Wade Dunn appeals from his convictions of one count of burglary, two counts of theft, and one count of criminal threat. On appeal, Dunn argues that the district court erred in failing to instruct the jury on the definition of the word knowingly, as that term is used in the burglary instruction. But Dunn has failed to show that excluding the definition from the jury instructions was clearly erroneous. Dunn also argues that the district court erred in calculating his jail credit. Because it is unclear from the record whether the time Dunn spent in jail was properly credited to another case, we vacate his sentence and remand for clarification of the actual amount of jail time credit to be applied in this case.

Facts

On May 24, 2012, 17–year–old Brittany Dean and 23–year–old Wade Dunn went to a party at Dunn's brother's apartment in Wichita. Before going to the party, Dunn and Brittany had spent a short period of time at her parents' house. During the party, Brittany's friend, Jocelyn, received a text saying that her mother was in the hospital. Brittany, who had been drinking alcohol, told Jocelyn to take her car and go to the hospital. Eventually, Dunn left with Jocelyn.

At some point later in the evening, Dunn came back to his brother's apartment. According to Brittany, he was “yelling and he was mad.” Dunn took Brittany's cell phone without her permission and left again. Brittany stayed the night at the apartment, and Dunn brought her car back the next day around noon. Brittany's keys were in the car's middle compartment, but her cell phone and wallet—which had been in the glove box—were gone.

Brittany drove to a Dillons store, where she called the police. While she was waiting for the police to come, she went to her grandmother's house that was near the grocery store. While there, Brittany learned from her grandmother that someone had broken into the Deans' house.

Specifically, on the morning of May 25, 2012, two neighbors noticed an out-of-place car in the driveway of the Deans' house. Both neighbors saw two males and a female get out of the car and return with items from the house. They both noted the car's license plate, and one of them called the police. By the time the police arrived, the car was gone. When Brittany's mother, Joey Dean, arrived at her house, she determined that someone had broken in and stolen jewelry, a gun, and several other items. Also, she observed that several items—including a television from one of her son's bedroom—had been moved around within the house.

Subsequently, it was discovered that Brittany's debit card had been used at a Quick Trip at 6:18 a.m. on May 25, 2012. It was used again at Wal–Mart at 6:36 a.m. and then at an ATM at 7:10 a.m. In addition, someone attempted to use her debit card at Sonic at 9:43 a .m. Photographs taken by security cameras at Wal–Mart showed that it was Dunn who used Brittany's debit card. Moreover, the cameras revealed that Dunn was with Michelle Roberts and Nathan Gibson when the debit card was used.

On May 26, 2012, police located the suspect car, which belonged to Sharanda Stackley—Gibson's ex-wife. In processing the vehicle, officers found a pillowcase full of jewelry and other items. Also in the car was a wallet containing Brittany's identification and a purse containing Roberts' identification. Officers located Roberts, and she told them that she had been at a house in Goddard with two males—whom she refused to identify—the day before. Although she indicated that the men had removed property from the house, Roberts stated that she had nothing to do with the items being taken. Officers arrested Roberts and also arrested Gibson.

Dunn called Brittany on May 30, 2012. When she told him about the break-in at her parent's house and stated that her mother wanted her ring back, Dunn told her he was going to burn the house down. When she responded, “ ‘Whatever,’ “ Dunn replied, “ ‘Watch me, Bitch.’ “

On September 28, 2012, Dunn was arrested and ultimately charged in a second amended complaint with one count of burglary, three counts of theft, and one count of criminal threat. A jury trial was held in September 2013. During the trial, Brittany and her mother both testified along with the two neighbors who witnessed the suspicious activities at the Deans' house. Also testifying were a Wal–Mart asset protection manager and a records custodian for the bank from which Brittany's debit card was issued. In addition, several police officers testified about their investigation.

A crime scene investigator testified that she collected latent finger and palm print impressions on a safe and on the television that had been moved from the bedroom of Brittany's brother to another location within the house. A fingerprint examiner compared the impressions taken off the television to known finger and palm prints of Dunn and determined that they matched. Brittany testified that Dunn had never gone into her brother's room while he was at her house on May 24, 2012. In his defense, Dunn called only one witness, Raven Sutter. She testified that Dunn was with her on May 25, 2012, from around 7 a.m. to sometime between noon and 3 p.m.

After deliberations, the jury found Dunn guilty of all of the counts except one of the theft counts relating to Brittany's wallet. Following the verdict, Dunn filed a motion for a new trial or mistrial, in which he argued that the evidence against him was insufficient to prove his guilt beyond a reasonable doubt. On October 24, 2013, the district court denied the motion and sentenced Dunn to a total of 38 months of imprisonment. Thereafter, Dunn timely filed a notice of appeal.

Analysis

Jury Instructions

Dunn contends that the district court erred in failing to instruct the jury on the definition of the word “knowingly” as used in the instructions given to the jury on burglary. In response, the State argues that we should not even consider this issue because Dunn invited any error in failure to give the instruction by agreeing to the instructions given to the jury by the district court. See State v. Jones, 295 Kan. 804, 811–12, 286...