State v. Hall, 82,090.

• Citation: 14 P.3d 404,270 Kan. 194
• Decision Date: 08 December 2000
• Docket Number: No. 82,090.,82,090.
• Parties: STATE OF KANSAS, Appellee, v. CHARLES HALL, JR., Appellant.
• Court: Kansas Supreme Court

270 Kan. 194

14 P.3d 404

STATE OF KANSAS, Appellee, v. CHARLES HALL, JR., Appellant.

No. 82,090.

Supreme Court of Kansas.

Opinion filed December 8, 2000.

Patrick H. Dunn, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.

Jacqueline J. Spradling, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Defendant appealed three burglary convictions. The Court of Appeals found that the defendant's entries into a storeroom in a public building in which he was authorized to enter was not a violation of the burglary statute and reversed defendant's convictions. State v. Hall, 27 Kan. App.2d 313, 3 P.3d 582 (2000). The State's petition for review was granted. The State claims that an unauthorized entry into a nonpublic storeroom of a retail store is a burglary.

Hall, who was not an employee, was recorded on video surveillance on three separate occasions entering the stockroom of a Mart store and stuffing merchandise into his trousers. From the public retail area of the store, there were two closed doors that Hall had to pass through to get to the stockroom. The stockroom had three separate doors, two of which were locked. The third door was not locked to facilitate entrance into the stockroom by employees. K-Mart did not intend for its customers to enter into the stockroom.

During Hall's third foray into the stockroom, he was observed on the video camera taking cellular phones, a Sega Saturn game system, and a stack of prepaid calling cards. Hall was apprehended by employees and searched. When apprehended, Hall did not have a checkbook, cash, or credit cards to purchase the items from Mart.

Hall was convicted of three counts of burglary. He appealed his convictions. The Court of Appeals reversed, holding that the elements of burglary required by K.S.A. 21-3715 had not been established because Hall's entries into the building were authorized by K-Mart.

Statutory Crime

It is basic criminal law that the State has the burden to prove each element of a crime without a reasonable doubt. K.S.A. 21-3109. The elements of burglary relevant to this case are knowingly and without authority entering into or remaining within any building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein. K.S.A. 21-3715.

Kansas courts are required to strictly construe penal statutes in favor of the accused. This rule of strict construction, however, is subject to the rule that judicial interpretation of a statute must be reasonable and sensible to effect legislative design and intent. State v. Tyler, 251 Kan. 616, Syl. ¶ 15, 840 P.2d 413 (1992).

In concluding that Hall had not committed the crime of burglary, the Court of Appeals queried:

"The consent of K-Mart extended to the members of the general public to enter the K-Mart building for the purpose of shopping. As a member of the general public, Hall had the authority of K-Mart to enter the retail store building. Being inside the building with authority, did Hall's entry into the storeroom portion of the same building constitute a burglary under K.S.A. 21-3715?" 27 Kan. App.2d at 315.

In addressing the issue, the Court of Appeals discussed State v. Fondren, 11 Kan. App.2d 309, 721 P.2d 284,rev. denied 240 Kan. 805 (1986). In Fondren, the defendant, who was not a student, entered a school annex and took a purse from a closet in a building occupied by students. The defendant was charged with aggravated burglary and misdemeanor theft. Fondren argued that the criminal element of an "unauthorized entry" was not established because his entry into a public building during its regular hours was authorized.

The Fondren court noted that the Kansas burglary statute makes no distinction between private and public buildings, but there is no absolute right of every citizen to use public buildings or every part of a public building. 11 Kan. App.2d at 315. The court pointed out that an entry to a public building (school annex) is impliedly authorized only to the extent it is consistent with the purpose of the business transacted in the public building. 11 Kan. App.2d at 316. The Fondren court, in concluding that there was ample evidence to establish the element of an entry without authority and support the aggravated burglary conviction, cautioned that the key to this case was the defendant's (a nonstudent) knowingly entering the school (annex) without express or implied authority, with the intent to commit a theft. 11 Kan. App.2d at 316.

The Court of Appeals in Fondren observed that (1) authority to enter a public building may be either express or implied, and (2) authority to enter a public building is linked to the purpose or business for which the public building is open. Fondren, 11 Kan. App.2d 309, Syl. ¶¶ 5 and 6. In Hall, it distinguished Fondren's act from Hall's by noting that Fondren, a nonstudent, had no authority to enter the school annex, whereas Hall was authorized to enter the K-Mart building. The Court of Appeals observed that in State v. Harper, 246 Kan. 14, 21, 785 P.2d 1341 (1990), this court rejected the "California Rule," under which a defendant's criminal intent upon entry renders an authorized entry unlawful.

In Harper, the defendant's employer had given Harper a key and permission to enter the employer's building for a variety of purposes at all hours of the day and night. The Harper court observed that even though Harper had authority to enter the maintenance building where he worked, he had no authority to remove papers by forced entry into a locked file cabinet within the building.

The Harper court noted California had broadly interpreted its burglary statute and had determined that a defendant's criminal intent upon entry renders the authorized entry into the building an "unlawful" burglary. People v. Nunley, 168 Cal. App.3d 225, 214 Cal. Rptr. 82 (1985). The Harper court pointed out that the California rule has been criticized by other jurisdictions. For example, the Colorado Supreme Court had noted that under the California rule, "one who enters a building, even with the permission of the owner, but with intent to commit a theft therein, would a fortiori be guilty of burglary. Intent at the time of entry in Colorado is not the sole element of burglary under our statute." People v. Carstensen, 161 Colo. 249, 251, 420 P.2d 820 (1966).

The Harper court observed that under the California rule, any theft that occurs inside a building would be elevated to a burglary because no one would authorize an entry into a building for an individual to commit theft. It noted that the Kansas Legislature could have omitted the element in the burglary statute that the entry must occur "without authority," thereby making all entries to commit a felony or theft a burglary, but it did not do so. Therefore, the statute must be construed in a manner that gives meaning to all the provisions. 246 Kan. at 21. The Harper court found that Harper's authority to enter the building was not negated because he entered into the building for an unlawful purpose. 246 Kan. at 20.

State's Argument

Following the rationale of Harper, the Court of Appeals concluded that to interpret the Kansas burglary statute broadly would blur the line between burglary and other crimes such as shoplifting and criminal trespass. 27 Kan. App.2d at 318. The State asserts that Hall's intent to commit a burglary was evidenced by his string of thefts from the stockroom and, when apprehended, Hall had no ability to purchase the items taken. The State argues that the statutory elements of burglary were established because Hall had no authority or permission to enter the K-Mart stockroom to commit theft.

Discussion

K.S.A. 21-3715(b), under which Hall was charged, defines burglary as "knowingly and without authority entering into or remaining within any: ... building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein." To support its argument the State pointed to other jurisdictions which have determined that an unauthorized entry into a subunit of a building or rooms of a house constitutes burglary, even if the defendant was authorized to enter other portions of the building or home. Chief Judge Brazil, in his concurring opinion, answered the State's argument by suggesting that the Kansas Legislature should consider revising the Kansas burglary statute so that it treats the subparts of a structure as separate structures within the Kansas burglary statute. By doing so, the legislature can follow the lead of Texas and Oregon. 27 Kan. App.2d at 319.

Texas defines burglary as entering a building, or portion of a building, not then open to the public with the intent to commit a felony, theft, or assault. See Tex. Penal Code Ann. § 30.02 (West 2000). The Oregon legislature resolved this dispute by allowing portions of a building to be treated as separate buildings. Or. Rev. Stat. § 164.205 (1999). The relevant portion of the Oregon statute states:

"(1) `Building,' in addition to its ordinary meaning, includes any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein. Where a building consists of separate units, including, but not limited to, separate apartments, offices or rented rooms, each unit is, in addition to being a part of such building, a separate building.

....

"(3) `Enter or remain unlawfully' means:

"(a) To enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public or when the entrant is not otherwise licensed or privileged to do

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