State v. Mogenson

• Citation: 701 P.2d 1339,10 Kan.App.2d 470
• Decision Date: 27 June 1985
• Docket Number: No. 57356,57356
• Parties: STATE of Kansas, Appellee, v. Paul MOGENSON, Appellant.
• Court: Court of Appeals of Kansas

Page 1339

701 P.2d 1339

10 Kan.App.2d 470

STATE of Kansas, Appellee, v. Paul MOGENSON, Appellant.

No. 57356.

Court of Appeals of Kansas.

June 27, 1985.

Syllabus by the Court

1. Rules concerning admissibility of evidence of other crimes or civil wrongs are reviewed and applied.

2. Evidence of prior acts between the accused and the victim may be admissible independent of K.S.A. 60-455 to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged.

William H. Seiler, Jr. of Bremyer & Wise, P.A., McPherson, for appellant.

Charles I. Prather, Asst. Co. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before PARKS, P.J., and ABBOTT and MEYER, JJ.

ABBOTT, Judge:

This is a direct appeal by the defendant, Paul Mogenson, from his convictions of aggravated battery (K.S.A. 21-3414), aggravated burglary (K.S.A. 21-3716), and terroristic threat (K.S.A. 1984 Supp. 21-3419(1)[a]. The victim of these crimes was Mogenson's estranged wife, Jeanne.

The defendant asserts two errors were committed by the trial court: (1) admitting evidence of prior incidents between the defendant and his estranged wife; and (2) the response given to the jury's question regarding the aggravated burglary instruction.

I. Evidence of Other Crimes or Civil Wrongs.

The trial judge overruled defendant's motion in limine and permitted the defendant's wife to testify about numerous incidents which occurred during the couple's stormy marital relationship and impending divorce. The trial judge admitted the evidence pursuant to K.S.A. 60-455 for the purpose of proving the defendant's intent and motive. A corresponding limiting jury instruction was given in compliance with PIK Crim. 2d 52.06.

K.S.A. 60-455 is an evidentiary rule providing for limited admissibility. As set forth in the statute, evidence of other crimes or civil wrongs is admissible only for certain purposes.

The evidence must satisfy three criteria as determined by the trial court to be admissible. The other crimes must be relevant to proving a material fact; the material fact must be a substantial issue in the case; and, under a balancing test, the probative value of the evidence must outweigh its prejudicial effect. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974).

The defendant concedes that his intent is a substantial issue in the case. He has insisted throughout the proceedings that his presence in the house on the day in question was to retrieve his hairbrush which was in his son's possession and not to inflict injury upon his wife. The defendant's contentions on appeal go to the first and third prongs of the test discussed in Bly. He contends the other crimes evidence is not relevant to prove intent because of dissimilarities between the admitted evidence and the present charges. The defendant's chief complaint, however, is that the prejudicial effect of the evidence outweighs its probative value.

Defendant's relevancy argument is without merit. The previous incidents need only provide a basis for an inference of intent to injure. Prior incidents, which included choking the victim, holding her at gunpoint, and threatening her with death if the divorce proceeded, are probative to show defendant's intent. The remoteness in time of some of the incidents affects the weight, and not the admissibility, of the evidence. State v. Carter, 220 Kan. 16, 20, 551 P.2d 821 (1976). As we view the evidentiary record, the previous occurrences between defendant and his wife were relevant on the critical issue in this case--defendant's intent. State v. Rupe, 226 Kan. 474, 601 P.2d 675 (1979); State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977).

With regard to defendant's contention of undue prejudice, we conclude that the probative value of the evidence outweighs any prejudicial effect. The dangers noted in State v. Davis, 213 Kan. 54, 515 P.2d 802 (1973)--confusion of the issues, misleading of the jury, undue delay, and needless presentation of cumulative evidence--are not present here. The continuing course of conduct established by the prior incidents clearly aided the jury in ascertaining the defendant's intent on this occasion. Thus, no error has been demonstrated in admitting the evidence pursuant to 60-455.

In any event, the evidence of prior incidents is admissible independent of 60-455. Kansas courts have allowed evidence of prior acts of a similar nature between the defendant and the victim independent of 60-455 so long as the evidence is not offered for the purpose of proving distinct offenses. The evidence is admissible to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged. State v. Reeves, 234 Kan. 250, 255, 671 P.2d 553 (1983).

II. Aggravated Burglary Instruction.

The aggravated burglary instruction, as originally submitted to the jury, was not objected to by the defendant. It is modeled after PIK Crim.2d 59.18 and states:

"The defendant is charged with the crime of aggravated burglary. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

1. That the defendant knowingly entered or remained in the house at 409 North McKinley 2. That the defendant did so without authority;

3. That the defendant had the intent to commit aggravated battery, a felony, therein;

4. That at the time there was a human being in the house; and

5. That this occurred on or about the 2nd day of December, 1983, in McPherson County, Kansas."

During deliberations, the jury asked the following question:

"In reference to Instruction 9, Item 3: Does the intent have to be only, at the time he entered the house, or at the time he remained in the house in the course of the argument, or could intent include ongoing intent which had been there previously."

The defendant objected on the basis that Kansas law requires the requisite intent to be present at the time of the entering. The trial court responded:

"The intent must exist at the time the defendant entered the house or at the time he remained in the house in the course of the argument."

The defendant contends that the trial court's response in the alternative was not a correct statement of the law in Kansas. He maintains that in Kansas, the requisite intent must be present upon entry or at the time the express or implied authority to enter is withdrawn.

Our aggravated burglary statute, K.S.A. 21-3716, states:

"Aggravated burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is some human being, with intent to commit a felony or theft therein."

This court has previously recognized that the crime of aggravated burglary may be committed by two alternative methods, as "entering into" and "remaining within" indicate two distinct factual situations. State v. Brown, 6 Kan.App.2d 556, Syl. p 4, 630 P.2d 731 (1981). The use of the disjunctive "or" in the statute requires a construction that aggravated burglary consist of:

"(1) knowingly and without authority entering into a building in which there is some human being, with intent to commit a felony or theft therein, or

"(2) knowingly and without authority remaining within a building in which there is some human being, with intent to commit a felony or theft therein." State v. Reed, 8 Kan. App. 2d 615, 622, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983).

Ordinarily, the aggravated burglary instruction should employ only the phrase which is descriptive of the factual situation when the evidence is clear. If the evidence is not clear as to which proscription the defendant's conduct falls under, an instruction in the alternative is proper. See PIK Crim. 2d 59.18, Notes on Use.

In the case before us, the trial court properly instructed in the alternative in the original aggravated burglary instruction. Either form of aggravated burglary, "entering into" or "remaining within," is supported by the evidence adduced at trial. A material factual dispute was presented by the evidence regarding defendant's authority to initially enter the home. The victim testified that she did not authorize the defendant to come into the home. However, the defendant's son indicated he unlocked the door for the defendant. It is undisputed that the victim, upon discovering the defendant's entry, demanded that he leave the house.

The question remains whether the formation of intent must occur at the time of entry, or at the time the express or implied consent to enter is withdrawn, or whether it can be formed in a "remaining within" form of aggravated burglary after consent is withdrawn. We reach the conclusion that to constitute the crime of aggravated burglary by "remaining within," there must be a concurrence of the criminal act and criminal intent. In this form of aggravated burglary, the accused remains after authority has terminated. People v. Vallero, 61 Ill.App.3d 413, 19 Ill. Dec. 48, 378 N.E.2d 549 (1978).

Kansas' aggravated burglary statute is modeled after Illinois law which contains similar statutory language. Ill.Ann.Stat. ch. 38, § 19-1 (Smith-Hurd 1985 Supp.). Illinois case law interpreting their burglary statute is therefore persuasive. The ...