State v. Jones

• Decision Date: 07 December 1990
• Docket Number: No. 63850,63850
• Citation: 802 P.2d 533,247 Kan. 537
• Parties: STATE of Kansas, Appellee, v. Keith A. JONES, Appellant.
• Court: Kansas Supreme Court

Page 533

802 P.2d 533

247 Kan. 537

STATE of Kansas, Appellee, v. Keith A. JONES, Appellant.

No. 63850.

Supreme Court of Kansas.

Dec. 7, 1990.

Syllabus by the Court

1. When sufficiency of the evidence is challenged on appeal, this court must determine if the evidence is sufficient to justify a rational trier of the facts to find guilt beyond a reasonable doubt.

2. An automobile cannot be damaged to an extent greater than its total value. Criminal damage to an automobile is a felony only if the damage is to the extent of $150 or more and the automobile damaged is valued at $150 or more.

3. Where an automobile is the property damaged in an action for criminal damage to property, the extent of damages is the cost to restore the automobile to its previous condition, including the cost to replace and install parts, if necessary, but not to exceed the total value of the automobile.

4. The record is examined in a criminal action in which the defendant was convicted of three counts of criminal damage to property and one count of burglary, and it is held: (1) The evidence was insufficient to support the convictions of felony criminal damage to the 1977 Dodge automobile; (2) the district court erred in sentencing the defendant for felony criminal damage to the 1977 Dodge automobile; and (3) the district court did not err in ruling the evidence of defendant's prior conviction was admissible independent of K.S.A. 60-455.

Rick Kittel, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen Chief Appellate Defender, was with him on the brief, for appellant.

Thomas J. Robinson, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the briefs, for appellee.

ALLEGRUCCI, Justice:

This is an appeal by the plaintiff, Keith A. Jones, from his conviction by a jury of one count of burglary and three counts of criminal damage to property. The Kansas Court of Appeals, in an unpublished opinion, filed May 11, 1990, 791 P.2d 753, affirmed all four convictions. We granted the plaintiff's petition for review.

The first and fourth counts against the defendant involved criminal damage to property for breaking the windows in Stephanie Walker's 1977 Dodge Diplomat. Ms. Walker is the defendant's former girlfriend. The windows were replaced following the first incident; defendant then broke out the new windows, plus a "little bitty one." Counts 2 and 3 involved a burglary of Ms. Walker's apartment and criminal damage to her property contained therein. All these incidents occurred within a three-day period. At trial, the State presented no evidence regarding the value of the 1977 Dodge automobile; it did present evidence to establish the cost to replace the windows after the first incident but not the second.

On appeal, the Court of Appeals held the windows had a value separate from and independent of the value of the Dodge automobile. The Court of Appeals also found that, even though no evidence was introduced concerning the value of the car, the evidence as to the cost of replacing the windows after the first incident was sufficient evidence of value to sustain the second conviction. In addition, the Court of Appeals found the district court did not err in admitting evidence of defendant's prior municipal court conviction for misdemeanor criminal damage to property. Additional facts will be stated as are relevant to the issues raised by the defendant.

The first issue is whether the evidence was sufficient to establish damage of $150 or more for the two convictions of felony criminal damage to the Dodge automobile. Defendant argues that he is entitled to reversal of his conviction of felony criminal damage to property for breaking the windows of the car because a rational factfinder could not have found the evidence proved each element of the offense charged, in particular that the damage exceeded $150. In support of his case, defendant cites Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, the United States Supreme Court held that under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the role of a federal habeas corpus court is not to consider whether any evidence exists to support a state court conviction, but instead the court must determine whether sufficient evidence justifies a rational trier of the facts to find guilt beyond a reasonable doubt. The Court stated:

"Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof--defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." 443 U.S. at 316, 99 S.Ct. at 2787.

The offense of criminal damage to property is defined at K.S.A. 21-3720, as follows:

"(1) Criminal damage to property is by means other than by fire or explosive:

"(a) Willfully injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property in which another has an interest without the consent of such other person; or

"(b) Injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property with intent to injure or defraud an insurer or lienholder.

"(2) Criminal damage to property is a class E felony if the property is damaged to the extent of $150 or more. Criminal damage to property is a class A misdemeanor if the property damaged is of the value of less than $150 or is of the value of $150 or more and is damaged to the extent of less than $150."

Defendant does not challenge his conviction of the offense of criminal damage to property but, rather, the sufficiency of the evidence to establish that the value of the damage was $150 or more. In State v. Smith, 215 Kan. 865, 867, 528 P.2d 1195 (1974), this court stated that to convict an individual of felony criminal damage to property, the State must prove: "1) an act or impairment in using the property, done without consent of the owner or person having an interest in the property; 2) the value of the property was more than $50, and 3) the amount of damage done to the property was $50 or more." The amount of damage required to make the offense a felony was increased by the Kansas Legislature in 1978, from $50 to $100. L.1978, ch. 120, § 31, p (2). In 1984, the amount was increased by the legislature from $100 to $150. L.1984, ch. 119, § 7, p (2). This is the version of the statute that was in effect at the time of the offense in the present case and that is set forth in the statute quoted above.

Defendant first contends that, in determining a value of the amount of damages here, the cost of replacement of the glass only should be considered and the amount paid for installation should be disregarded or considered in figuring restitution. After the first incident, one of Ms. Walker's friends who works on cars as a hobby and for additional income was able to get replacement windows for $99, even though the salvage yard had initially quoted him a price of $175. Ms. Walker's friend charged her $55 for his labor and approximately $4.00 for glue and a glue gun.

Defendant argues that the $55 in labor should be awarded as restitution and not considered part of the value of the damaged property. In support of this argument, defendant cites State v. Robinson, 4 Kan.App.2d 428, Syl. p 1, 608 P.2d 1014 (1980), which provides:

"The rule that fair market value is the value to be used in determining whether a theft is a felony or a misdemeanor does not exclude other methods of determining value. Where the stolen property has a unique or restricted use and an extremely limited market, the actual or replacement cost to the one from whom it was stolen is proper evidence of value."

Defendant argues that the reasoning used in Robinson to determine whether a theft is a felony or misdemeanor should be extended to determine if an offense of criminal damage to property is a felony or misdemeanor. Because no evidence indicated the glass here had a unique or restricted use, defendant argues that the fair market value of the glass itself should be used to determine if the offense was a felony or a misdemeanor. The cost of the glass was $99, less than the statutory requirement of $150 for a felony.

We agree that fair market value is the value to be used in determining value in the present case. However, the value of the 1977 Dodge automobile, not the replacement value of the window glass, is the determining factor. In order to restore the Dodge automobile to its condition prior to the defendant's breaking out the windows, new window glass must be installed in the car. Therefore, for purposes of determining if the offense is a felony or misdemeanor, the value of the damage is the cost of replacement plus installation.

Defendant further argues that if the value of the damage to the property is the glass installed in the car, the State must establish that the damage to the car was of a value of $150 or more. This would require the State to prove that the car itself had a value of $150 or more to establish damage to the car in that amount. As previously noted, no evidence was introduced to indicate a dollar value of the car. Nor was evidence presented concerning the condition of the car's engine, body, brakes, or tires.

To support this argument, defendant asserts that a similar situation occurred in State v. Towner, 202 Kan. 25, 446 P.2d 719 (1968), which involved a conviction of felony larceny of an automobile. Defendant attacked his conviction because no evidence was produced at trial regarding the car's value, and, therefore, the evidence was insufficient to prove the felony amount of $50. This court reversed the conviction, stating:

"All that was shown was the make, year and model of the automobile, that it was second hand and operable. At the time taken...