State v. Storey

Citation179 P.3d 1137
Decision Date04 April 2008
Docket NumberNo. 95,592.,95,592.
PartiesSTATE of Kansas, Appellee, v. Donald D. STOREY, Appellant.
CourtUnited States State Supreme Court of Kansas
179 P.3d 1137
STATE of Kansas, Appellee,
Donald D. STOREY, Appellant.
No. 95,592.
Supreme Court of Kansas.
April 4, 2008.

[179 P.3d 1138]

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and 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.

The opinion of the court was delivered by NUSS, J.:

Donald Storey was convicted at a bench trial of burglary and theft for entering an unfinished medical center and taking a band saw. On appeal, Storey primarily argued that taking property from a structure under

179 P.3d 1139

construction did not constitute burglary under K.S.A. 21-3715(b). A majority of the Court of Appeals panel affirmed his convictions and sentences. State v. Storey, 37 Kan. App.2d 555, 154 P.3d 1148 (2007). We granted Storey's petition for review; our jurisdiction is under K.S.A. 20-3018(b).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did Storey's entry into the unfinished medical center with intent to commit a theft constitute burglary as a matter of law? Yes.

2. Did the district court violate the Sixth and Fourteenth Amendments by imposing an enhanced sentence based upon prior convictions, without requiring that they be proven to a jury beyond a reasonable doubt? No.

Accordingly, we affirm the district court and the Court of Appeals.


On the night of May 15, 2005, Storey entered the Wesley Medical Center construction site in Wichita. The structure under construction was approximately 70% complete. Specifically, it had a roof, a concrete floor, installed electrical work, and four brick walls with openings for yet-to-be-installed windows and doors. Storey entered the unfinished structure, cut the lock on a "job box" inside, and removed a band saw. The police stopped him after he put the saw in his car trunk. Storey was charged with burglary of a nondwelling in violation of K.S.A. 21-3715(b) and with misdemeanor theft in violation of K.S.A. 21-3701.

Storey agreed to a bench trial on stipulated facts. The issue at trial was whether an unfinished medical center was covered by the burglary statute, K.S.A. 21-3715. Storey argued that he could not be convicted of burglary because no barriers existed to prevent him from entering. The district court determined that was not a critical factor, noting the "four brick walls, and a roof, but no doors or windows." The court construed the statute as including unfinished medical centers, found Storey guilty, and entered convictions on both counts.

The presentence investigation indicated that Storey had a criminal history score of "F" based upon various prior convictions. These convictions were not included in the complaint, nor were they part of the stipulated facts at the bench trial. Given Storey's criminal history score, the district court sentenced him to probation with an underlying sentence of 17 months for the primary offense of burglary and a concurrent sentence of 6 months for the theft.

Before the Court of Appeals, Storey argued that his entry into an unfinished and unsecured building is not burglary as proscribed by K.S.A. 21-3715(b) and, therefore, insufficient evidence existed to support that conviction. The Court of Appeals concluded that based upon a plain reading of the statute, general legal authorities, and case law from other states, the medical center qualified as a building. Consequently, the court concluded that sufficient evidence supported Storey's conviction. Storey, 37 Kan.App.2d 555, 154 P.3d 1148.

Storey also argued that the use of his criminal history, without putting the prior convictions to a jury and proving them beyond a reasonable doubt, increased the maximum possible penalty for his conviction in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Citing State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), and its progeny, the Court of Appeals rejected this claim. We granted Storey's petition for review on these two issues.

Additional facts will be provided as necessary to the analysis.


Issue 1: Storey's entry into the unfinished medical center with intent to commit a theft constituted burglary as a matter of law.

Consistent with his position at the Court of Appeals, Storey contends that his entry into an unfinished, unsecured building with intent to commit a theft does not constitute a burglary under K.S.A. 21-3715(b) and, therefore, there was insufficient evidence to convict him of that offense.

He recites our typical standard of review:

179 P.3d 1140

"`When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.' [Citation omitted.]" State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005).

We believe that Storey's argument more accurately depends upon interpretation of the burglary statute, a question of law over which we have unlimited review. See State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005).

The burglary statute, K.S.A. 21-3715, provides in relevant part as follows:

"Burglary is knowingly and without authority entering into or remaining within any:

"(a) Building, manufactured home, mobile home, tent or other structure which is a dwelling, with intent to commit a felony, theft or sexual battery therein;

"(b) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein." (Emphasis added.)

"Dwelling," as mentioned in subsection (a), is defined in K.S.A. 21-3110(7) as "a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence." Burglarizing a dwelling under K.S.A. 21-3715(a) is a level 7 person felony. By contrast, burglarizing a nondwelling under subsection (b) is a level 7 non person felony. K.S.A. 21-3715.

Storey primarily argues that to qualify as a "building," a structure must be an enclosed space and have physical barriers to entry. He further argues that the classification of a structure under the burglary statute depends upon its condition at the time of the alleged crime. In support, Storey relies upon State v. Moler, 269 Kan. 362, 2 P.3d 773 (2000); State v. Vinyard, 32 Kan.App.2d 39, 78 P.3d 1196 (2003), and State v. Alvis, 30 Kan. App.2d 889, 53 P.3d 1232 (2002).

In Moler, this court determined that a lean-to did not qualify as an "other structure" under K.S.A. 21-3715(b). As Storey points out, in so holding the court stated that the enumerated items in the burglary statute are

"intended to present a barrier to entry, which in turn provide an enclosed space for the security of persons or property which may be contained therein. The lean-to herein is permanently and entirely open on one side. Its purpose was, apparently, to protect or shield vehicles from weather. It was not designed for, or intended to, exclude entry of persons from its area, nor was it capable of being so utilized. When strictly construed, `other structure' does not include this lean-to." (Emphasis added.) 269 Kan. at 369, 2 P.3d 773.

By contrast, we conclude that the medical center obviously was "designed for" excluding entry, was "intended to" exclude entry, and once complete or nearly complete would be "capable of being so utilized." We observe that the language italicized above, while phrased negatively, is nevertheless consistent with authorities expressed in Moler for what positively constituted a building, e.g.: "`A building is a structure that has capacity for, and is designed for the habitation of, man or animals, or the sheltering of property, even though the building is unfinished . . . .' 13 Am.Jur.2d, Burglary § 6." (Emphasis added.) 269 Kan. at 365, 2 P.3d 773.

The Court of Appeals also found Moler unhelpful to Storey, further distinguishing it factually and legally from the instant case:

"The facts there are distinguishable, however, as well as the legal issue involved. In Moler, the court dealt with a lean-to that was entirely open on one side. The edifice was completely constructed. In that completed form it had only three walls, a dirt floor, and a roof. Also, the court there had to determine whether the lean-to was an `other structure' as opposed to a building under subsection (b) of the burglary statute. Here, we have an edifice with four walls, a roof, a concrete floor, and completed electrical work with windows and doors yet to be installed. Here, we are concerned with whether the site of the intrusion was a building under the

179 P.3d 1141

statute and not whether it was an other structure. Moler offers Storey no support." (Emphasis added.) 37 Kan.App.2d at 559, 154 P.3d 1148.

The Court of Appeals not only rejected Storey's physical "barrier to entry" and "enclosed space" arguments by distinguishing Moler, but also by examining the plain language of the burglary statute. Citing, inter alia, State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006), it found no statutory basis for his arguments:

"[W]e find no support within the wording of the burglary statute for Storey's contention that a structure must present a barrier to entry or that it must provide an enclosed space for protection of persons or property located inside to qualify as a building under the statute. We do note the legislature defined a dwelling as `a building or portion thereof, a tent, a vehicle or other enclosed space . . .' under K.S.A.2006 Supp. 21-3110(7). (Emphasis added.) However, it did not similarly define a non-dwelling building. A plain reading then of our burglary statute suggests...

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