State v. Tapia, 100,596.

• Decision Date: 02 November 2012
• Docket Number: No. 100,596.,100,596.
• Parties: STATE of Kansas, Appellee, v. Alexander TAPIA, Appellant.
• Court: Kansas Supreme Court

287 P.3d 879

STATE of Kansas, Appellee,

v.Alexander TAPIA, Appellant.

No. 100,596.

Supreme Court of Kansas.

Nov. 2, 2012.

Syllabus by the Court

1. The State's failure to allege an overt act in furtherance of a conspiracy as required by K.S.A. 21–3302(a) does not raise an insufficiency of the evidence issue.

2. Under the facts of this case, it was legally and factually appropriate to give PIK Crim.3d 52.18, a cautionary instruction regarding accomplice testimony. Nevertheless, the failure to give the instruction was not clearly erroneous because the accomplices' testimony was corroborated by other evidence, the defendant's guilt was plain, and the jury was cautioned about the weight to be accorded testimonial evidence in other instructions.

3. Use of prior convictions in a criminal defendant's criminal history score to enhance the defendant's sentence without requiring the history to be included in the complaint and proved to a jury beyond a reasonable doubt does not violate the defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

4. An appellate court lacks jurisdiction to review a criminal defendant's complaint that a sentencing court abused its discretion by sentencing the defendant to any term within the applicable presumptive grid block, even if the sentence is the aggravated term.

Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Don L. Scott, county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.

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

A jury convicted Alexander Tapia of nonresidential burglary, theft, vehicular burglary, and conspiracy to commit nonresidential burglary. On appeal to the Court of Appeals, Tapia argued: (1) The evidence to support his charge of conspiracy to commit nonresidential burglary was insufficient due to a defect in the complaint; (2) the district court erred by denying his request for an accomplice jury instruction; (3) the district court violated his constitutional rights when it sentenced him to an enhanced sentence based upon his criminal history without first proving those facts to a jury beyond a reasonable doubt; and (4) the district court violated his constitutional rights when it sentenced him to the aggravated terms within the applicable sentencing grid boxes without first proving those facts to a jury beyond a reasonable doubt.

The Court of Appeals rejected Tapia's arguments and affirmed his convictions and sentences. State v. Tapia, 42 Kan.App.2d 615, 214 P.3d 1211 (2009), rev. granted September 8, 2010. On review of that decision, we affirm the Court of Appeals and district court.

Facts and Procedural History

Around midnight on June 11, 2007, Highway Patrol Trooper James Parr stopped a Chevy Tahoe for speeding. The Tahoe was occupied by Tapia, Aram Garcia, and Omar Fraire. Parr issued a warning to the driver and released him.

Approximately 1 hour later, law enforcement officers responded to a reported burglary at the residence of James Mongold. The passenger window had been broken out of a pickup truck parked outside the residence, and a computer jump drive, a cell phone, a garage door opener, and gas cards had been taken from the pickup truck. Also, Mongold's garage door had been opened and several items were stolen from the garage, including a tool box, several hand tools, and two floor creepers that are used to slide under a vehicle to change oil or perform other work.

Shortly after law enforcement officers were dispatched to the burglary, Parr heard radio transmissions that included a description of the burglar and the suspect's vehicle. Within a few minutes, Parr saw a vehicle, a Chevy Tahoe, matching that description. The Tahoe's driver was speeding and ran a red stoplight, causing Parr to initiate a traffic stop. When Parr approached the Tahoe, he realized it was the same Tahoe he had stopped earlier. He also noticed that the occupants were the same. Parr observed (1) a car jack, a floor creeper, and a tool box that he had not seen during the first stop; (2) Tapia's clothes matched the description the dispatcher had given of the burglar; and (3) Tapia was attempting to take off black baseball gloves, which Parr found unusual given that he did not see any other baseball equipment and it was very hot and muggy. At this point, Tapia, Garcia, and Fraire were arrested. As a search incident to arrest, Parr searched Tapia's pockets where he found gas cards and a jump drive. Mongold later identified the items found in the Tahoe and on Tapia's person as those taken from the pickup truck and garage.

After the arrest, when interviewed by law enforcement officers, Fraire denied any knowledge of the crimes. Garcia, however, gave a statement. His statement was described in an affidavit filed with the district court in support of a warrant for Tapia's arrest and later made available to Tapia through a discovery order entered by the court. According to information in the affidavit, Garcia stated that he was driving the Tahoe when Fraire told him to pull over near a white pickup truck. Tapia got out of the Tahoe, broke the pickup truck's window, and grabbed a cell phone and a garage door opener. Fraire or Tapia used the garage door opener to get into the garage, and both of them carried a tool box out of the garage and put it in the back of the Tahoe. Garcia then drove Fraire and Tapia from the scene.

Garcia, Fraire, and Tapia were all charged, but Garcia and Fraire entered into diversion agreements. Both testified at Tapia's jury trial. Garcia testified that Tapia saw Mongold's pickup truck and decided to break into it. Garcia served as a lookout and testified that he did not actually see Tapia break the pickup truck's window, but he heard the window shatter. Tapia returned to the Tahoe with a cell phone and a garage door opener, which Tapia used to open Mongold's garage. At Tapia's direction, Garcia pulled the Tahoe into the alley behind the garage. From his vantage point, Garcia did not actually see Tapia go into the garage, but when Tapia came back to the Tahoe, he was carrying a tool box. Tapia then went back to the garage and returned with two creepers. Garcia also testified that Tapia was wearing black baseball gloves when he headed toward the garage. Contrary to the statement Garcia had given to the officers on the night of the incident, Garcia told the jury that Fraire never exited the Tahoe. According to Garcia, when Parr stopped them the second time, they were driving to Tapia's residence so Tapia could get his truck because he planned to return and “wipe out the house [and] the garage.”

Fraire's testimony confirmed Garcia's version of events. Fraire also indicated that Tapia was the only individual who entered Mongold's truck and garage.

The jury convicted Tapia of nonresidential burglary, theft, vehicular burglary, and conspiracy to commit nonresidential burglary. The district court sentenced Tapia to serve 23 months' imprisonment for nonresidential burglary, 7 months for theft, 7 months for vehicular burglary, and 7 months for conspiracy to commit nonresidential burglary, all aggravated terms within the applicable sentencing grid boxes. The court ordered all of the felony sentences to be served consecutive to each other and to Tapia's sentences imposed in another case.

Tapia timely appealed. After the Court of Appeals affirmed his convictions and sentences, Tapia, 42 Kan.App.2d at 618–23, 214 P.3d 1211, Tapia filed a petition seeking this court's review of the Court of Appeals' decision. This court accepted review and has jurisdiction under K.S.A. 20–3018(b) and K.S.A. 22–3602(e).

Sufficiency of Evidence

Before the Court of Appeals, Tapia challenged the sufficiency of the evidence relating to his conspiracy conviction on the ground that the complaint failed to allege an overt act in furtherance of a conspiracy agreement as required by K.S.A. 21–3302(a) (conspiracy), which states:

“(a) A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.” (Emphasis added.)

Here, the complaint against Tapia failed to satisfy this requirement because the State failed to allege an overt act, instead reiterating that there was an agreement. Specifically, the complaint stated:

“That on or about the 11th day of June, 2007 the said above person named in the captioned ... of the complaint, within the above named jurisdiction in the State of Kansas, then and there being, did then and there contrary to statute or ordinance unlawfully, feloniously, and willfully agree with another person, to-wit: Aram Garcia and Omar Fraire to commit the crime of Burglary and an overt act in furtherance of the conspiracy was committed, to wit: agreed with Aram Garcia and Omar Fraire to break into a garage to commit a theft therein, in violation of K.S.A. 21–3302 and 21–3715(b) Conspiracy to Commit Burglary, a level 9 nonperson felony.” (Emphasis added.)

The Court of Appeals held the complaint against Tapia was “clearly ... defective” for failing to comply with the pleading requirement in K.S.A. 21–3302(a). Tapia, 42 Kan.App.2d at 618, 214 P.3d 1211. The State does not challenge this ruling. Hence, we accept that the complaint was defective and that the State failed to meet the allegation requirement of K.S.A. 21–3302(a).

Because the complaint was defective, the Court of Appeals addressed Tapia's potential remedy. In doing so, the panel concluded the defect in the complaint did not deprive the district court of jurisdiction to try Tapia on the conspiracy charge. Further, as we will discuss in more detail, the panel concluded that Tapia's insufficiency of evidence argument...