State v. Ponds

• Citation: 340 P.3d 1236 (Table)
• Decision Date: 09 January 2015
• Docket Number: 109,965.
• Parties: STATE of Kansas, Appellee, v. Steven W. PONDS, Appellant.
• Court: Court of Appeals of Kansas

340 P.3d 1236 (Table)

STATE of Kansas, Appellee

v.Steven W. PONDS, Appellant.

109,965.

Court of Appeals of Kansas.

Jan. 9, 2015.

Review Denied August 20, 2015.

Heather Cessna and Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant, and Steven W. Ponds, appellant pro se.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.

MEMORANDUM OPINION

PER CURIAM.

Steven W. Ponds appeals his bench trial conviction for 14 felonies involving multiple burglaries and theft. We find no error and affirm the district court.

Facts

In the summer of 2009, a series of burglaries took place in rural Sedgwick County. All the burglaries had a similar modus operandi including:

• They took place at secluded homes in rural parts of the county between the hours of 9 a.m. and 3 p.m.;

• The front door or another door on the house was kicked in;

• The master bedroom was targeted, using pillowcases from the bed to remove the items;

• Jewelry, electronics, and other easily-movable items were taken;

• A waffle-style shoeprint was observed on many of the doors where entry was attempted or obtained to the houses;

• Some of the stolen property was recovered from local pawn shops; and

• Pawn shop receipts reflected either Steven Ponds or Gus Hankins pawned the stolen property either the day of the burglary or the next day.

Search warrants to place GPS tracking devices on Ponds' two vehicles, a GMC Envoy and a Pontiac, were obtained. The search warrants were ordered August 28, 2009, and were valid for 30 days.

On September 16, 2009, Ponds and Hankins knocked on the front door of H.V.'s house; however, when H.V. did not answer, the men kicked down the side door. H.V. locked herself in her bedroom and called 911. Once inside the house, one of the men kicked open her bedroom door. H.V. informed them she was on the phone with 911 and the men left. H.V. described the men as two black males driving a white vehicle, possibly a Grand Prix or Grand Am.

When Lieutenant Brad Hoch of the Sedgwick County Sheriff's Department heard the dispatch call of an aggravated burglary in progress, he began driving west on 21st Street towards the scene of the burglary. Over the radio, the suspects were described as dark-complexioned, possibly Hispanic, approximately 40 years old, and driving a small white vehicle, possibly a Chevy or a Pontiac. One of the suspects was described as wearing a plaid shirt, jeans, and a bandana around his head.

As Hoch approached Tyler Road on 21st Street, he saw a vehicle matching the description going the opposite direction. The vehicle's windows were down and Hoch could tell the driver and the passenger were dark-complexioned and the passenger had on some kind of bandana. Hoch made a U-turn and began following the vehicle from a distance. As Hoch attempted to catch up to the vehicle, the vehicle repeatedly switched lanes and eventually pulled off into a shopping center parking lot. Hoch went past the shopping center, made a U-turn, and pulled into the lot. Hoch parked at an angle behind Ponds' vehicle.

Before Hoch could exit his vehicle, Ponds exited his vehicle and approached Hoch asking what was going on. Hoch had not activated his lights or siren. Hoch informed Ponds that his vehicle matched the description from a burglary and asked him to provide identification. Hoch recognized Ponds' name as a suspect in the recent string of burglaries and asked Ponds to please return to his vehicle. Hoch waited for backup, and when backup arrived, the officers took Ponds and Hankins into custody.

H.V. was brought to the scene and asked to identify Ponds and Hankins. H.V. said she was 60% sure that Hankins was the man who kicked in the bedroom door. She could not identify Ponds. H.V. was also asked to identify the vehicle Ponds was driving. She identified the vehicle based off a black pin stripe running along the side of the vehicle.

Ponds and Hankins were transported to the Sheriff's Department for questioning where Deputy Alan Bennett collected Ponds' shoes as evidence. Ponds was charged with one count of aggravated burglary, six counts of burglary, one count of attempted burglary, and six counts of theft.

Given the similarity of each house trespass, we set out each of Ponds' burglary-related charges in chronological order:

1. On July 20, 2009, the back door to J. W.'s house was broken out.

a. Waffle-patterned shoe prints were on the front door of the house.

b. The back door glass was broken by a concrete yard ornament.

c. The master bedroom had been ransacked.

d. Pillowcases from the bed were missing.

e. A computer, digital camera, and a jewelry box were missing, with an estimated value of $12,000.

f. The house was located in rural Sedgwick County.

2. On July 24, 2009, P.D.'s house was entered through the garage door.

a. Jewelry, old coins, and other items with an estimated value of $10,000 were taken.

b. Steven Ponds and Gus Hankins were identified as selling some of P.D.'s jewelry at a local pawn shop the next day.

c. The house was located in rural Sedgwick County.

3. On July 31, 2009, D.E.'s house was entered.

a. Pillowcases were missing.

b. Several watches and jewelry pieces were taken, including her jewelry box with an estimated value of $4,000.

c. Ponds was identified selling several of D.E.'s items that day at a local pawn shop.

d. The house was located in rural Sedgwick County.

4. On August 10, 2009, an attempt was made to break into A.W.'s house.

a. A shoe print with a waffle pattern was observed on the ground near a window and door.

b. The French doors, garage door, and other items were damaged with an estimated repair cost of $8,000.

c. The house was located in rural Sedgwick County.

5. On August 17, 2009, the front door to T.V.'s house was kicked in.

a. A shoe print with a waffle pattern was observed on the tile floor just inside the door.

b. Pillowcases from the master bedroom were missing.

c. The bedroom was ransacked and all of T.V.'s guns were missing, along with a laptop, jewelry, and two or three hunting knives with an estimated value of $3,600.

d. Later that same day, Hankins was identified pawning some of T .V.'s jewelry at a local pawn shop.

e. The house was located in rural Sedgwick County.

6. On August 17, 2009, J.K.'s house was broken into.

a. A shoe print with a waffle-pattern was observed on the concrete to the house, the garage door, in her kitchen, and on her stairway.

b. The master bedroom was ransacked and the televisions in the house were damaged when an attempt was made to remove them from the wall.

c. The house was located in rural Sedgwick County.

7. On the same day as T.V. and J.K.'s home invasions, two African–American men appeared at J.L.'s house asking for directions. J.L.'s house was in the same rural neighborhood as T.V. and J.K.'s houses. When shown a photo lineup, J.L. identified Hankins as the man who came to her house and spoke with her while the second man remained in the vehicle.

8. On August 24, 2009, the back door to D.C.'s house was kicked in.

a. A shoe print with a waffle-pattern was observed on the back door.

b. The master bedroom was ransacked with pillowcases missing.

c. Jewelry, a flat-screen TV, DVD player, and other items were taken with an estimated value of $4,000.

d. Ponds was identified pawning several of the jewelry items that day.

e. The house was located in rural Sedgwick County.

9. On September 16, 2009, H.V. was home. The house was entered by kicking in the side door.

a. When the two men saw H.V., they left the house.

b. H.V. reported one of the men had on a plaid shirt, bandana, and jeans.

c. H.V. identified the two men as Hispanic or African–American.

d. H.V. said the two men left in a white vehicle with black trim and later identified Ponds' vehicle.

e. H.V. identified Hankins as the man who kicked in her bedroom door.

f. The house was located in rural Sedgwick County.

Ponds filed a motion to suppress the evidence obtained at the time of his arrest. The district court found Ponds' claims consisted of whether there was reasonable suspicion to support the car stop; the search of the defendant's vehicle was supported by consent and/or the officers had reasonable suspicion to investigate defendant; there was probable cause to support the search warrant to attach a GPS device to defendant's vehicle; and the scope of the GPS warrant was supported by probable cause.

The district court found that Ponds was arrested based on a probable cause determination and that the officers were within their rights to conduct a search incident to arrest. The district court denied Ponds' motion to suppress his footwear on the basis that personal effects may be seized when he was arrested and searched without a warrant. The district court also found the vehicle stop was either voluntary or there was reasonable suspicion to pursue the vehicle. Finally, the district court found that issuing a GPS search warrant was supported by probable cause.

Ponds waived his right to a jury trial and proceeded to a bench trial where he was found guilty by the district court on all 14 counts. He was sentenced with a criminal history score of A to 244 months' imprisonment with 24 months' postrelease supervision. On January 14, 2013, the district court ordered restitution in the amount of $22,841.26. During the bench trial, Ponds preserved the right to appeal the denial of his motion to suppress through timely evidentiary objections.

Analysis

Ponds appeals his conviction and sentence, arguing:

• His footwear should be suppressed because the officers lacked probable cause to support his arrest;

• There is insufficient evidence to support a guilty verdict on the burglary, theft, and attempted burglary counts;

• The search warrant application did not provide a substantial basis for the issuing magistrate to conclude there was a fair probability contraband or evidence would be found as a result of the GPS tracking devices attached to his vehicles;

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