State v. McKissack

• Decision Date: 27 April 2007
• Docket Number: No. 93,670.,93,670.
• Citation: 156 P.3d 1249
• Parties: STATE of Kansas, Appellee, v. Nicholas McKISSACK, Appellant.
• Court: Kansas Supreme Court

156 P.3d 1249

STATE of Kansas, Appellee, v. Nicholas McKISSACK, Appellant.

No. 93,670.

Supreme Court of Kansas.

April 27, 2007.

Carl A. Folsom, III, of Kansas Appellate Defender Office, argued the cause, and Nathan B. Webb, of the same office, was on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

DAVIS, J.:

Nicholas McKissack forcibly entered his estranged girlfriend's car and removed stereo equipment and compact discs that had been given to her by her ex-fiancé. He was charged with burglary and misdemeanor theft. A jury convicted him of burglary and criminal deprivation of property, based upon instructions from the trial court that criminal deprivation of property was a lesser included offense of theft. The Court of Appeals affirmed in State v. McKissack, Case No. 93,670, 2006 WL 619195, an unpublished opinion filed March 10, 2006. We granted McKissack's petition for review to consider three questions: (1) whether criminal deprivation of property is a lesser included offense of theft; (2) the sufficiency of evidence to establish burglary; and (3) the admissibility of hearsay evidence.

Facts

In April 2004, Nicholas McKissack forcibly entered the automobile of his estranged girlfriend Megan Bushell, in order to remove stereo equipment and compact discs that he knew were given her by her ex-fiancé. Earlier that evening, McKissack had been in Bushell's dorm room and had witnessed an online conversation between Bushell and her ex-fiancé, where the ex-fiancé informed Bushell that he still loved her and wished to resume their relationship. McKissack left Bushell's dorm room feeling hurt and "enraged"; he later text-messaged her that he wanted to break off their relationship.

An eyewitness testified at trial that she observed McKissack and another person approach Bushell's Dodge Neon in a white Ford Probe (whose license plate number she identified) with the headlights out. She explained that McKissack got out of the Probe and, wearing gloves, removed stereo equipment from the Neon and placed it in the Probe. After the Probe drove off, the witness contacted the police and reported the license plate number, which led the police to McKissack's residence.

A short time later, the police arrived at McKissack's residence, where McKissack opened the door. McKissack assisted the police in recovering the missing property and admitted to taking it. However, he explained that he had removed the property as a prank and intended to return it to Bushell.

The State originally charged McKissack with burglary and felony theft; the information later replaced the felony theft charge with a reduced charge of misdemeanor theft.

McKissack testified at trial that he returned to the parking lot where Bushell's car was parked on April 7 because he wanted "[r]evenge, prank, make — to make her feel emotionally hurt as I was." He used a screwdriver to pop out the passenger window of her Dodge Neon, reached in, and unlocked the door. McKissack explained that he knew how to do this because he had previously owned a Neon. He stated that he wore gloves in order to be "discreet." He then removed a box of CDs from inside the car and the speakers and amplifier from the trunk.

McKissack also identified the man driving the Probe that evening as "Guido." On cross-examination by the State, McKissack acknowledged that he had told the police that Guido had informed him that another man named "Dino" wanted Bushell's amplifier. This exchange was admitted over McKissack's counsel's objection, who argued outside the presence of the jury that the statement by Dino was double hearsay and impermissibly offered to prove the truth of the matter asserted — that "somebody had a conversation with somebody else about wanting this amp removed from the vehicle, and that's the fact in evidence [the State] want[s] to get in." The State claimed that "we're not offering [the statement] to prove whether or not Guido — or Dino told Guido to take the amps out. We're just saying that this is what the defendant told the officers that night when they were questioning him about the incident." The statement was admitted.

Also over the defense's objection, the trial court instructed the jury that criminal deprivation of property is a lesser included offense of misdemeanor theft. McKissack argued that criminal deprivation of property could not be considered a lesser included offense of theft because criminal deprivation of property only involves an intent to temporarily deprive someone's property, while theft involves an intent to permanently deprive. The State asserted that the intent to temporarily deprive is a "lesser intent" of the intent to permanently deprive. The court agreed with the State and overruled the objection, explaining that "[t]he intent to permanently deprive would include intent to temporarily deprive, so I think the lesser included [offense instruction] is proper."

During deliberations, the jury submitted the following question to the court: "Can we find defendant guilty of burglary and not guilty of theft but guilty of criminal deprivation of property?" The court answered that "[t]he jury is instructed to review Instructions No. 5, 6, 7, 8, and 11. Your verdict must be founded on the evidence presented." The jury subsequently found McKissack guilty of burglary and criminal deprivation of property.

Court of Appeals

The Court of Appeals affirmed, holding (1) that criminal deprivation of property is a lesser included offense of theft based upon our decision in State v. Keeler, 238 Kan. 356, Syl. ¶ 8, 710 P.2d 1279 (1985), Slip op. at 6-10; (2) that an insufficiency of the evidence claim cannot be upheld merely on the basis of inconsistent verdicts, Slip op. at 10-14; and (3) that the admission of Dino's statement was not hearsay evidence offered to establish the truth of the statement but rather was offered to show defendant's state of mind, Slip op. at 15-16.

(1) Is Criminal Deprivation a Lesser Included Offense of Theft?

Standard of Review

The question of whether criminal deprivation of property is a lesser included offense of theft is a purely legal question over which this court has unlimited review. See State v. Sandifer, 270 Kan. 591, 599, 17 P.3d 921 (2001).

Discussion and Analysis

The precise question raised by defendant has been answered by this court in Keeler, 238 Kan. 356, 710 P.2d 1279. At that time this court held that the crime of unlawful deprivation of property under K.S.A. 21-3705 (Ensley 1981) was a lesser included offense of the crime of theft under K.S.A.1984 Supp. 21-3701.

Prior to our decision in Keeler, the question of whether an unlawful (now criminal) deprivation of property was a lesser included offense of theft was a source of some tension in the Supreme Court (see Keeler, 238 Kan. at 364-65, 710 P.2d 1279) as well as the Court of Appeals. In State v. Burnett, 4 Kan.App.2d 412, 607 P.2d 88 (1980), overruled in Keeler, Burnett was charged with theft of bank deposits and complained on appeal that he was entitled to an instruction on the lesser included offense of unlawful deprivation of property. The Court of Appeals concluded in Burnett that unlawful deprivation of property was not a lesser included offense in that "an intent to temporarily deprive the owner of property is a distinct element from an intent to permanently deprive." 4 Kan.App.2d. at 418, 607 P.2d 88. In a dissenting opinion, adopted in Keeler, then Chief Judge Abbott opined that "unlawful deprivation of property and theft involve a different degree of intent; i.e., the intent to temporarily deprive versus the intent to permanently deprive. Thus, there is not a different element involved in unlawful deprivation. All of the essential elements are the same." 4 Kan.App.2d at 419, 607 P.2d 88 (Abbott, J., dissenting).

Although in this case the Court of Appeals followed our decision in Keeler, its opinion highlights the continuing tension between these opposing views in the following quote:

"We confess to some difficulty in grasping portions of the Keeler rationale. One would suspect that a person who steals for a living would commence each enterprise with the intent to permanently deprive the property owner, without progressing through an interim intent to temporarily deprive. Conversely, some unauthorized `borrowers' always intend to return the property to its owner, as McKissack contended was his plan. Further, as McKissack points out, the criminal deprivation of property statute specifically differentiates and excludes an intent to permanently deprive, which might suggest a legislative intent to create a separate intent element, rather than differing degrees of the general intent to deprive." Slip op. at 7.

The opinion of the Court of Appeals signals the need for this court to revisit the question in light of statutory and case law changes that have occurred since our 1985 Keeler decision.

Statutory Changes

The lesser included crime statute in effect at the time of the Keeler opinion read, in relevant part, as follows:

"(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.

"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

(a) A lesser degree of the same crime;

(b) an attempt to commit the crime charged;

(c) an attempt to commit a lesser degree of the crime charged; or

(d) a crime necessarily proved if the crime charged were proved." (Emphasis added.) K.S.A.1984 Supp. 21-3107(1), (2).

In 1998, the above statute was amended...