State v. Johnson

• Decision Date: 29 August 2008
• Docket Number: No. 96,111.,96,111.
• Citation: 190 P.3d 995
• Parties: STATE of Kansas, Appellee, v. Jerry D. JOHNSON, Appellant.
• Court: Kansas Court of Appeals

190 P.3d 995

STATE of Kansas, Appellee, v. Jerry D. JOHNSON, Appellant.

No. 96,111.

Court of Appeals of Kansas.

August 29, 2008.

Lydia Krebs, of Kansas Appellate Defender Office, for appellant.

Elizabeth J. Dorsey, legal intern, Steven J. Obermeier, assistant district attorney, Phill Kline, district attorney, and Paul J. Morrison, attorney general, for appellee.

Before McANANY, P.J., GREEN and CAPLINGER, JJ.

CAPLINGER, J.

Jerry D. Johnson appeals his conviction of felony obstruction of official duty and his two convictions of identity theft, challenging the sufficiency of the evidence with respect to those convictions. Asserting constitutional grounds, Johnson also appeals the sentence imposed by the district court. We affirm Johnson's conviction of identity theft of John Dale, however we reverse his conviction of identity theft of Michael Robinson, finding the evidence insufficient for the jury to have found beyond a reasonable doubt that Johnson possessed Robinson's identification with the intent to defraud for economic benefit.

Factual and procedural background

Jerry Johnson and Marshall Cooper attempted to make a purchase for $483 using a check in the name of John Lewis at the Home Depot Store in Merriam. When the store's check-scanning system flagged the check and indicated it contained a bad routing number, the store's head cashier, Marilyn Angle, requested a driver's license from Cooper, who had provided the check. Angle could see that the driver's license had been altered, and she contacted Assistant Store Manager Wesley McLaughlin. McLaughlin had previously assisted Johnson in another aisle. While assisting Johnson, McLaughlin noticed he was carrying a black backpack.

Cooper gave McLaughlin a driver's license which did not match the information on the check. In the course of his duties, McLaughlin had reviewed hundreds of drivers' licenses, and he believed this one had been altered and relaminated. The letters "DL" on the face of the license overlapped with the word "Kansas," which McLaughlin knew to be incorrect.

McLaughlin informed Cooper the check had a bad routing number and asked whether Cooper could provide another form of payment. McLaughlin also advised Cooper that he would hold the check to give to the police. At that point, Johnson instructed Cooper to retrieve his check from McLaughlin. Cooper snatched the check from McLaughlin and began walking toward the exit. McLaughlin instructed the phone center to telephone the police and followed Cooper to the door. Johnson walked with McLaughlin and engaged him in small talk along the way, ostensibly for the purpose of delaying his advance towards Cooper.

Merriam police officer Shannon Goodnight responded to a call regarding a verbal disturbance between the manager and a customer at Home Depot. Upon arriving at the store, she was informed by McLaughlin that customers had attempted to purchase approximately $500 worth of merchandise with a bad check. At that point, Goodnight believed she was investigating a forgery or bad check offense with a value in excess of $500. Upon their arrival at Home Depot, the officers were directed by McLaughlin to Cooper and Johnson, who were located approximately 100 yards away in the parking lot in a tan pickup truck.

When Goodnight approached the truck, Cooper was sitting inside and Johnson was standing next to the truck. As Goodnight began talking to the men, Johnson, who was carrying a backpack, took off running. Goodnight ordered Johnson to stop, and at one point, Johnson said over his shoulder, "I didn't do anything, I didn't do anything." Goodnight caught up with Johnson while another officer, Sergeant Mike Daniels, stopped a patrol car in front of him.

Sergeant Daniels ordered Johnson to the ground, and when Johnson failed to comply, Daniels grabbed him by the arm. Johnson told him, "You got the wrong person, I didn't do anything." Johnson dropped an identification card bearing the name of Dennis Hanna. As Daniels bent down to pick it up, Johnson again took off running.

Goodnight pursued Johnson on foot while Daniels gave chase in the patrol car. At one point, Johnson turned and moved towards Goodnight and she sprayed him with pepper spray. Johnson swung the backpack at Goodnight's head but did not hit her. Goodnight sprayed Johnson again, and he took off running, disappearing over a fence into a residential area. Goodnight lost sight of Johnson and ended the chase pursuant to department policy, as she did not know whether he had a weapon. She radioed her location and police set up a perimeter. Johnson eventually was apprehended by Corporal Todd Sparks.

Sparks searched Johnson and discovered an envelope containing four business checks bearing the name RGIS Inventory Specialist and a fraudulent Kansas identification card in the name of John Dale, the name on the check. Sparks also found an identification card on Johnson bearing the name Michael Robinson. Sparks believed the Dale identification was fraudulent because the photo had been tampered with and the card appeared to have been relaminated. The Robinson identification was expired and also appeared to have been relaminated. Johnson told Sparks his name was Michael Robinson, a claim he later repeated at the police station.

When Goodnight arrived at the Merriam police station, she learned Johnson had identified himself as Michael Robinson. However, Goodnight had spoken with Michael Robinson the previous day, and she told Johnson she knew he was not Robinson. When Officer Goodnight attempted to telephone Robinson, Johnson admitted Robinson was his brother.

The following day, Carl Kauffman, who lived near the Home Depot, found a black backpack under some shrubs in his backyard. He turned the bag over to police, and Sergeant Daniels identified the backpack as the one carried by Johnson. The backpack contained a pistol, loose ammunition rounds, and cocaine.

A few days later, Kauffman saw two men, one of whom he later identified as Johnson, walking in the yard next door, approximately 5 feet from where Kauffman had found the backpack. Johnson informed Kauffman he had lost his wedding ring in the area and the homeowner had given him permission to look around.

Kimberly Southard, a federal agent with the Inspector General's Office of the Social Security Administration, testified that the social security numbers and dates of birth on the identification cards of Michael Robinson and John Dale belonged to those individuals and not to Johnson.

Johnson testified at trial that he tried to avoid police because he had an outstanding warrant, and the backpack he carried, that he thought contained tools, belonged to Cooper, who asked him to carry it while the men were in the store. Johnson also testified he carried his brother's identification card because they looked alike and Johnson intended to assume Robinson's identity if he was approached by law enforcement.

In an amended complaint, Johnson was charged with making a false information, felony obstruction of official duty against Goodnight and/or Daniels while investigating "a forgery and/or making false information and/or passing a worthless check w/a value of $500 or more," assault of a law enforcement officer, criminal trespass, possession of cocaine, and one count of identity theft each with regard to John Dale and Michael Robinson.

At the close of the State's evidence, Johnson moved for acquittal on the felony obstruction charge on the basis that the amount of the check was less than $500. He also sought acquittal on the identity theft charges arguing there was no evidence that he intended to defraud someone for economic benefit. The district court denied the motions without elaboration.

Johnson was convicted of felony obstruction of official duty, assault of a law enforcement officer, criminal trespass, and two counts of identity theft. He was acquitted of making false information, and the jury could not reach a verdict on the possession of cocaine charge.

Johnson appeals his conviction and sentence.

Denial of motion for acquittal of felony obstruction charge

Johnson first argues the evidence is insufficient to support a conviction for felony obstruction of official duty because the State chose not to charge him with forgery and he was acquitted of making false information, the only possible felony underlying the obstruction charge. Absent the commission of an underlying felony, Johnson reasons, there can be no felony obstruction of official duty.

Johnson phrases the issue as one of statutory construction and suggests this court's standard of review as unlimited. However, at trial, Johnson's counsel moved for judgment of acquittal. In reviewing the denial of a motion for judgment of acquittal, we examine the sufficiency of the evidence to support the conviction. State v. Cavaness, 278 Kan. 469, 479, 101 P.3d 717 (2004). Specifically, we consider whether, after a review of all the evidence viewed in a light most favorable to the State, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. 278 Kan. at 479, 101 P.3d 717.

Johnson was charged with obstructing Officer Goodnight and/or Sergeant Daniels in the performance of their official duty in violation of K.S.A. 21-3808. That statute provides in relevant part:

"(a) Obstructing legal process or official duty is knowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process . . . in the discharge of any official duty.

"(b) (1) Obstructing legal process or official duty in the case of a felony, or resulting from parole or any authorized disposition for a felony, is a severity level 9, nonperson felony.

(2) Obstructing legal process or official duty in a case of misdemeanor, or resulting from any authorized disposition for a misdemeanor, or a civil case is a class A nonperson misdemeanor."

Whether Johnson could be charged with felony obstruction is controlled...