State v. Dunn

• Decision Date: 25 October 1991
• Docket Number: No. 65730,65730
• Parties: STATE of Kansas, Appellee, v. Brenda K. DUNN, Appellant.
• Court: Kansas Supreme Court

Page 412

820 P.2d 412

249 Kan. 488

STATE of Kansas, Appellee, v. Brenda K. DUNN, Appellant.

No. 65730.

Supreme Court of Kansas.

Oct. 25, 1991.

Syllabus by the Court

1. When the sufficiency of the evidence is challenged in a criminal case, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses.

3. The use of PIK instructions is not mandatory, but is strongly recommended. They should be the starting point in the preparation of any set of jury instructions. Absent a need under the particular facts of a given case to modify a PIK instruction or add an instruction not included in PIK, PIK instructions and recommendations should be followed.

4. An instruction on reasonable doubt that fails to define reasonable doubt is neither erroneous nor an incorrect statement of the law. The concept of "reasonable doubt" does not need to be defined because the words themselves describe the meaning.

5. The admission of evidence of prior crimes to establish a relationship between parties is appropriate. When evidence of prior crimes is admitted for that purpose, the admission is independent of K.S.A. 60-455.

6. The law allows the admission of evidence as part of the res gestae for acts made before, during, or after the principal event.

7. Improper remarks made by the prosecuting attorney in closing summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to be incurable.

8. In deciding whether prosecutorial misconduct requires reversal, an appellate court determines whether there was little or no likelihood the error changed the result of the trial.

Michael B. Myers of Carpenter, Weir & Myers, Chtd., Topeka, argued the cause and was on the brief for appellant.

Julie McKenna, County Atty., argued the cause, and Eric Godderz, Asst. County Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

LOCKETT, Justice:

Brenda Kay Dunn appeals her convictions by a jury of aggravated arson (K.S.A. 21-3719), conspiracy to commit arson (K.S.A. 21-3302, K.S.A. 21-3718), and criminal solicitation (K.S.A. 21-3303). Dunn claims: (1) There was insufficient evidence for a rational factfinder to conclude she was guilty beyond a reasonable doubt; (2) the trial judge improperly instructed the jury on reasonable doubt; (3) the trial court erred in overruling her motion in limine and admitting evidence of her prior crimes; (4) the prosecutor's prejudicial statements during closing argument entitled her to a new trial; and (5) the trial judge's admission of evidence of her prior crimes placed her in double jeopardy.

At approximately 3:30 a.m. on November 29, 1988, firefighters and police officers responded to a fire call at 110 West Republic in Salina. The house was rented and occupied by John Morton. Morton, Michelle Massaro (now Fasse), Robert Loop, and Allen Unselt were in the residence when a smoke grenade was thrown through the front window of the house, causing a fire. The remaining facts are disputed and are conveyed by outlining the trial testimony of several principal actors.

Robert Loop had noted that James Blair and another man had been around Morton's house approximately two hours prior to the incident. John Morton was suspicious that Blair, the State's main witness, was responsible for the fire.

Blair, who had been granted immunity by the State, implicated Brenda Dunn (now Cottam) as the person responsible for the fire. Blair testified that he and Dunn were involved in a drug operation. Dunn supplied Blair with drugs and Blair, in turn, supplied Morton, who sold the drugs on the street. Morton owed Blair money; consequently, Blair owed Dunn money. After discussing with Blair how to obtain the money from Morton, Dunn left town for four days and returned with a man named Scott. The three discussed ways to smoke Morton out of the house and kidnap him. Blair testified Mark Ryan delivered some smoke grenade canisters to Dunn. Ryan, who also received immunity, testified he had purchased the smoke grenades for Dunn at her request. Blair said Dunn told him that after Scott threw the grenade into the house she picked Scott up and they left the scene.

Dunn requested Blair to help her get rid of the remaining smoke grenades. At the time of the request, Blair was working as an informant for the Salina Police Department. He called and informed the police of Dunn's request. The police instructed Blair to try to save the evidence. Dunn and Blair took the grenades to Milford Lake, where Blair tossed them into the lake. The following day Blair returned to the lake, retrieved the grenades, and turned the grenades over to the police. During the trial Blair and Ryan implied that Dunn was a top drug dealer who brought in outside help to strong-arm Morton for money owed.

In contrast to Blair's testimony, Dunn testified that she and Missy Hafner drove to Osawatomie on the night of November 28, 1988, to check up on Dunn's husband, who was working there at the time. Dunn stated they did not return to Salina until 3:45 or 4:00 a.m. Hafner produced a daily journal which recorded the trip. Hafner estimated they returned to Salina around 3:30 or 3:45 a.m.

Dunn denied being at the 110 West Republic address that night, denied talking to Blair about the incident, and denied any involvement with the smoke grenades. Although Dunn denied delivering drugs, she admitted that she previously had been convicted of drug-related offenses. Dunn was convicted on all counts and sentenced to 10 years to life for aggravated arson, 1 to 5 years for conspiracy to commit arson, and 1 to 5 years for criminal solicitation.

Dunn first contends the testimony given by Blair and Ryan was inconsistent, uncorroborated, contradictory, and patently unbelievable. The State argues that, although the testimony of Blair and Ryan was inconsistent, it is for the jury to decide whether the State's witnesses are credible.

When the sufficiency of the evidence is challenged in a criminal case, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).

A verdict of guilty in a criminal case will not be disturbed on appeal if there is substantial evidence even though the evidence is entirely circumstantial. Dunn asserts that Blair changed his story several times and notes that the police department sought no independent substantiation of Blair's story. Likewise, Dunn claims Ryan was not totally forthcoming in relating his account of the purchase of the smoke grenades for her and, again, that the police did not seek independent corroboration of his account. Blair testified Dunn admitted involvement. Dunn testified she did not. Ryan testified Dunn asked him to obtain some smoke grenades for her. Dunn testified she did not. It is the jury's prerogative to determine which testimony it will believe and which it will discard.

When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988). The jury was well aware that Blair and Ryan had been granted immunity for their testimony. Even so, the jury, by its verdict, believed their account of the events. It is clear a rational factfinder could have believed Blair and Ryan and not believed Hafner and Dunn and found Dunn guilty beyond a reasonable doubt.

Dunn next argues the jury was not properly instructed concerning the presumption of innocence, burden of proof, and reasonable doubt standard. She asserts the judge's failure to properly instruct the jury on the presumption of innocence was reversible error. The State argues the instruction given properly states the law and notes Dunn failed to object to the instruction; therefore, she is raising the issue for the first time on appeal.

A party may not assign as error the giving or failure to give an instruction unless the party timely objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court's failure to give the instruction was clearly erroneous. State v. Moore, 230 Kan. 495, Syl. p 2, 639 P.2d 458 (1982). The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).

PIK Crim.2d 52.02 states:

"The State has the burden of proving the defendant is guilty. The defendant is not required to prove he is not guilty. You must assume the defendant is not guilty unless the evidence convinces you of the defendant's guilt.

"Your determination should be made in accordance with these instructions, and this is the test you should apply: If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty. If you have reasonable doubt as to any of the claims made by the State, you should find the defendant not guilty."

The corresponding "Notes on Use" section provides:

"This instruction must be given in each criminal case and should follow the element...