State v. Holt, 106,711.

• Decision Date: 08 February 2013
• Docket Number: No. 106,711.,106,711.
• Citation: 293 P.3d 815
• Parties: STATE of Kansas, Appellee, v. Gary A. HOLT, Jr., Appellant.
• Court: Kansas Court of Appeals

293 P.3d 815

STATE of Kansas, Appellee,

v.Gary A. HOLT, Jr., Appellant.

No. 106,711.

Court of Appeals of Kansas.

Feb. 8, 2013.

Appeal from Sedgwick District Court; Terry L. Pullman, Judge.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, and Melissa Tucker Pope, legal intern, for appellant.

Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., HILL and BRUNS, JJ.

MEMORANDUM OPINION

PER CURIAM.

Gary Holt appeals his theft conviction for knowingly possessing stolen property. Holt claims the district court erred by admitting evidence of his prior convictions for impeachment and substantive purposes. He also claims the district court erred by instructing the jury that the crime could be proven by showing that Holt had a “reasonable suspicion from all the circumstances” that the property was stolen. Next, Holt claims the district court erred by instructing the jury that the State must prove he “exerted unauthorized control” rather than “obtained control” over the stolen property. Finally, Holt contends that cumulative error denied him a fair trial. We find that each of Holt's claims are without merit, and we affirm the judgment of the district court.

On February 9, 2011, Holt was arrested and charged with felony theft by knowing possession of stolen property in violation of K.S.A. 21–3701(a)(4). At trial, the State presented the testimony of Officer Robert Henning of the Wichita Police Department. Henning testified that in the early morning hours of February 8, 2011, he was dispatched to a suspicious character call at the intersection of 14th and Yale in Wichita. At the intersection, he located a vehicle with two occupants, a male in the driver seat identified as Holt and a female in the passenger seat. Henning called in the license plate number and dispatch indicated that the vehicle had been reported as stolen.

Henning spoke to the occupants of the vehicle until another police officer arrived, at which time the officers placed the occupants in custody and searched the vehicle. The condition of the vehicle led Henning to believe it was stolen: the key in the ignition was not the key to the vehicle, and its messy interior was consistent with someone living in a vehicle that had been passed around among many people. Henning then spoke to Holt about how he had come to be in possession of the vehicle. Holt told Henning that he had rented the vehicle from an individual named Joe Michaels and that Holt “had a feeling” the vehicle was stolen. Finally, the owners of the vehicle arrived and identified it as their vehicle that had been stolen.

Holt testified on his own behalf. On direct examination, Holt stated that he had verbally agreed to pay $50 to rent the vehicle for a few days from Michaels, whom he knew from the neighborhood. Holt acknowledged that the stereo was missing but denied that there was anything else about the condition of the vehicle that indicated that it had been stolen. Holt and his counsel then had the following exchange:

“Q. Now, you spoke to the officer about—about ... whether that you knew the car was stolen; is that right?

“A. Yes, ma‘am.

“Q. Okay. Can you tell me about that conversation.

“A. Well, the officer asked me, he said, well, so you—he asked me of the person that I rented the car from. I told him the name. Naturally. And he said, well, Mr. Holt, this car is stolen. Didn't you know this car was stolen. You can't tell me that you didn't know this car was stolen. I said, I didn't tell—what I said was anything is possible.

“Q. But you didn't say that you knew the car was stolen?

“A. No, ma‘am. I don't think— I wouldn't do nothing of that nature because why would I give my money for something that I know is stolen.” (Emphasis added.)

On cross-examination, the State questioned Holt about the existence of Michaels and their alleged verbal agreement for Holt to pay $50 to rent the vehicle for a few days. Holt stated: “[I]n the neighborhood, it's like underground things goes on. I mean, and it's—I'm just saying how it is. And you can get things for a little or nothing around the neighborhood.” But Holt denied telling Henning he “had a feeling” the car was stolen.

Before the completion of cross-examination, the State requested a bench conference. The State argued that Holt's statement that he “wouldn't do nothing of that nature” opened the door for the admission for impeachment purposes of Holt's two prior convictions of theft by knowing possession of stolen property, specifically motor vehicles. Holt argued that the prior convictions were not sufficiently factually similar to the present charges to be relevant. He also argued that his statement was not offered to bolster his credibility but merely to explain that he did not know the vehicle was stolen, and therefore that he had not opened the door for the admission of his prior convictions.

The district court reviewed the affidavit of probable cause for Holt's prior convictions. The affidavit indicated that Holt had been stopped in a vehicle that was reported stolen. When questioned, Holt stated that he had rented the vehicle for $50 from a man named Richard and that he did not know it was stolen. A few weeks later, Holt was stopped in a different vehicle that was reported stolen. Holt stated that he had rented it from a man named Slim and that, because Slim had the key to the vehicle, Holt did not think it was stolen. The district court ruled: “I'm going to find those are sufficiently similar under Gunby evidence of prior bad acts under [K.S.A.2011 Supp. 60–455]. Certainly they have relevance to motive, knowledge, intent, and plan, I'm going to allow them.” Holt made no further objection but asked that the facts surrounding the prior convictions be excluded. The district court ruled that facts related to the vehicles and Holt's claims that he had rented them without knowing they were stolen were admissible.

At the close of the evidence, the district court instructed the jury on felony theft by knowing possession of stolen property with an alternative instruction on misdemeanor theft of property worth less than $1000. The district court instructed the jury that the State must prove that Holt “ exerted unauthorized control over the property knowing the property to have been stolen by another.” (Emphasis added.) Neither party objected to the elements instructions. The district court also instructed the jury under PIK Crim.3d 59.01–A that “[k]nowledge that property has been stolen by another must exist at the time control first occurs and may be proven by a showing that the defendant either knew or had a reasonable suspicion from all the circumstances known to the defendant that the property was stolen.” (Emphasis added.) Holt did not object to the instruction. Finally, the district court provided a limiting instruction, to which neither party objected, that the evidence of Holt's prior convictions was admitted solely for the purpose of proving Holt's intent, knowledge, or plan.

The jury found Holt guilty of felony theft by knowing possession of stolen property. The district court sentenced Holt to a presumptive term of 16 months' imprisonment. Holt timely appealed his conviction.

Evidence of Prior Convictions

Holt argues that his statements on direct examination were not attempts to bolster his credibility and therefore he did not open the door to admission of his prior convictions for impeachment purposes under K.S.A. 60–421. He also argues that the district court erred by allowing the prior convictions to be used for substantive purposes where the evidence was introduced on cross examination and the State had not previously sought to admit the evidence. The State contends that Holt did not preserve for appeal his objection to the admission of his prior convictions for substantive purposes, but in any case the prior convictions were admissible for both impeachment and substantive purposes.

An appellate court applies a multistep analysis when reviewing a district court's decision on the admission of evidence. The first question is relevance. K.S.A. 60–401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard whereas materiality is judged under a de novo standard. The second step is to determine which rules of evidence or other legal principles apply. On appeal, this conclusion is reviewed de novo. Under the third step of the analysis, the district court applies the applicable rule or principle. An appellate court's standard of review of the third step depends upon the rule or principle applied: some rules grant the district court discretion whereas other rules raise matters of law. Finally, an analysis under K.S.A. 60–445 may be required. Under that statute, a district court may in its discretion exclude evidence when the probative value is substantially outweighed by the risk of unfair surprise to the opposing party. On appeal, the district court's determination is reviewed for abuse of discretion. State v. Shadden, 290 Kan. 803, 817–18, 235 P.3d 436 (2010).

Holt does not argue on appeal that evidence of his prior convictions for theft by knowing possession of stolen property (specifically motor vehicles) was irrelevant for either impeachment or substantive purposes, and thus this court need not address the first step of the multistep evidentiary analysis. Under the second step, the parties agree that K.S.A. 60–421 is the applicable statute governing the admissibility of prior convictions for impeachment purposes and that K.S.A.2011 Supp. 60–455 governs the admissibility of prior convictions for substantive purposes. Under the fourth step, Holt does not argue that the probative value of admitting his prior convictions for impeachment and substantive purposes was substantially outweighed by...