State v. Fondren

• Decision Date: 19 June 1986
• Docket Number: No. 58187,58187
• Parties: STATE of Kansas, Appellee, v. Larry Joe FONDREN, Appellant.
• Court: Kansas Court of Appeals

Page 284

721 P.2d 284

11 Kan.App.2d 309

STATE of Kansas, Appellee, v. Larry Joe FONDREN, Appellant.

No. 58187.

Court of Appeals of Kansas.

June 19, 1986.

Syllabus by the Court

1. The duty of the trial court to instruct the jury on lesser crimes arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge. Following State v. Royal, 234 Kan. 218, Syl. p 4, 670 P.2d 1337 (1983).

2. The only distinction between the crime of burglary and the crime of aggravated burglary is the presence of a human being in the structure. Aggravated burglary contains the requirement that the place of the burglary be occupied by a human being at some point during the course of the burglary.

3. The transcript of the preliminary hearing testimony of a witness may be received in evidence when, by the exercise of reasonable diligence, the witness cannot be produced at trial. The right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. State v. Alderdice, 221 Kan. 684, Syl. p 1, 561 P.2d 845 (1977).

4. Both burglary and aggravated burglary may be committed in "any building" provided the other elements of the crime are present.

5. Authority to enter a public building may be either express or implied.

6. Authority to enter a public building is linked to the purpose or business for which the public building is held open. Thus, entry into a public building is impliedly authorized to the extent it is consistent with the purpose of or business transacted in the building.

Bob Forer, Public Defender, and Charles R. Clack, Junction City, for appellant.

Lloyd R. Graham, Asst. Co. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before ABBOTT, C.J., and BRISCOE and DAVIS, JJ.

ABBOTT, Chief Judge:

This is a direct appeal by the defendant, Larry Joe Fondren, from a felony conviction of aggravated burglary (K.S.A. 21-3716) and a misdemeanor conviction of theft (K.S.A.1985 Supp. 21-3701[a].

The charges against this 20-year-old defendant stem from a purse-snatching incident at the Washington Elementary School in Junction City on September 13, 1984, while school was in session.

The alleged theft occurred in an annex building of the school. The annex consists solely of classrooms and was occupied by approximately sixty students. The purse stolen was taken from the closet of a classroom in the annex building.

The defendant fled with the purse when he was confronted in the classroom by a teacher at the school. Several witnesses identified the defendant as the individual who ran from the school grounds. The purse and its contents were retrieved from an alley in the vicinity of the school where defendant had fled. The defendant was apprehended at a nearby residence and his clothing matched the description given by several witnesses. Defendant was positively identified at the scene by school personnel who had pursued him.

Defense counsel requested an instruction on simple burglary as a lesser included offense of aggravated burglary, the crime charged. The trial court refused the requested instruction.

After deliberating about 20 minutes, the jury returned guilty verdicts for misdemeanor theft and aggravated burglary.

The defendant's first point on appeal is that the court erred in not instructing the jury on burglary. The defendant's sole argument for an instruction on simple burglary is that the only unauthorized entry was of the classroom itself, and that room was not occupied by a human being. This evidence, defendant contends, entitles him to an instruction on simple burglary.

The trial court's duty to instruct on lesser crimes was recently recited in State v. Galloway, 238 Kan. 415, Syl. p 1, 710 P.2d 1320 (1985): "The duty of the trial court to instruct the jury on lesser crimes arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge. Following State v. Royal, 234 Kan. 218, Syl. p 4, 670 P.2d 1337 (1983)."

The only distinction between the crime of burglary and the crime of aggravated burglary is the presence of a human being in the structure. Aggravated burglary contains the requirement that the place of the burglary be occupied by a human being at some point during the course of the burglary. See K.S.A. 21-3716 and K.S.A. 21-3715; State v. Reed, 8 Kan.App.2d 615, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983).

The occupancy requirement of aggravated burglary has been considered in previous decisions of the Kansas courts. In State v. Lora, 213 Kan. 184, 195, 515 P.2d 1086 (1973), an aggravated burglary conviction was upheld despite the fact that the house was unoccupied when the defendant entered. The owners of the house returned while defendant was in the residence. The occupancy requirement is satisfied so long as there are human beings present when the ulterior felony or theft is committed. See also State v. Reed, 8 Kan.App.2d 615, 663 P.2d 680, which held that the crime of aggravated burglary occurs whenever a human being is present in the building during the course of the burglary. It is irrelevant at what point in time the human being is present so long as the presence is sometime during the course of the burglary. And as observed in the notes to PIK Crim 2d 59.18: "When a person enters the premises after the burglary has commenced but before the defendant has left the premises, the offense constitutes aggravated burglary."

Moreover, it has been held that the burglar need not know that someone else is present in the structure entered, nor must he intend to enter an occupied structure to be guilty of aggravated burglary. Knowledge by the accused of the presence of a human being is not required in order to be guilty of the crime of aggravated burglary. State v. Price, 215 Kan. 718, 721, 529 P.2d 85 (1974). In fact, a burglar may enter and leave the structure without ever realizing human beings were present. See State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976) (owners of burglarized house were asleep upstairs when defendant burglarized the house).

None of the foregoing authorities suggest that the presence of the human being must be confined to that area of the structure where the burglar is committing the theft.

In addition, the evidence is undisputed that a teacher at the school interrupted and confronted defendant during the crime. The teacher's subsequent presence in the classroom, which was previously unoccupied, standing alone, established the presence of a human being and elevated the offense to aggravated burglary.

The unexpected confrontational situation between the defendant and the teacher is precisely what the more serious offense of aggravated burglary is designed to protect against. This court noted in State v. Reed, 8 Kan.App.2d at 616-17, 663 P.2d 680:

"The purpose behind the aggravated burglary statute is to describe a more serious offense than simple burglary where there is the possibility of contact between the victim and the burglar and the accompanying potential for a crime against the person to occur. This danger is just as great regardless of when during the burglary the victim comes to be in the building.... Thus, neither the knowledge nor the conduct of the burglar elevates his offense to aggravated burglary; rather, the severity of the crime depends upon the mere presence or absence of any human being in the same structure."

In sum, the evidence is undisputed that a human being was present in the building. Hence, the evidence would only indicate the offense of aggravated burglary. There being no evidence upon which defendant could reasonably be convicted of simple burglary, he was not entitled to the requested instruction. The trial court did not err in refusing defendant's request.

The defendant next challenges the use of the preliminary hearing transcript of the testimony of Alvin Ferguson, the school principal and a prosecution witness. He contends use of the absent witness's prior testimony violates his right of confrontation under the Sixth Amendment.

The State moved to use the preliminary hearing transcript of Ferguson's testimony on the day of trial due to Ferguson's illness. Ferguson, who had been subpoenaed, suffered a heart attack the week before trial. Defense counsel does not contend otherwise. The trial court admitted the prior testimony of Ferguson over defendant's objection. The defendant was present at the preliminary hearing on October 5, 1984, and his counsel cross-examined Ferguson. Kansas appellate courts have permitted the use of an absent witness's prior testimony from a preliminary hearing wherein the defendant was afforded the opportunity to cross-examine the witness in the prior proceeding. See, e.g., State v. Henderson, 226 Kan. 726, 603 P.2d 613 (1979); State v. Watie, Heard and Heard, 223 Kan. 337, 574 P.2d 1368 (1978); State v. Alderice, 221 Kan. 684, 561 P.2d 845 (1977).

For purposes of the Sixth Amendment's Confrontation Clause the test for "unavailability" is the "reasonable diligence" rule. The rule was stated in State v. Davis, 2 Kan.App.2d 10, 12, 573 P.2d 1124 (1978):

" 'Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a "good faith effort" to obtain the witness's presence at trial (Barber v. Page, 390 U.S. 719, 20 L.Ed.2d 255, 88 S.Ct. 1318). Consistent with the federal mandate is our long-standing rule that before the state may use the testimony of an absent witness given at a former trial or preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial (State v. Lesco, 194 Kan. 555, 400 P.2d 695; State v. Guthrie, 192 Kan. 659, 391 P.2d 95; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Bonskowski, 180 Kan. 726, 308 P.2d 168; ...