Opinion
No. 107,945.
2013-05-24
STATE of Kansas, Appellee, v. Clay N. BLADES, Appellant.
Appeal from Sumner District Court; R. Scott McQuin, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Evan C. Watson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sumner District Court; R. Scott McQuin, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Evan C. Watson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Clay N. Blades argues the aiding and abetting jury instruction resulting in conviction for burglary of a nondwelling created an alternative means case. He also challenges the use of his criminal history to increase his sentence. We find this is not an alternative means case and his criminal history was determined in compliance with the Kansas Sentence Guidelines Act. We affirm the conviction.
Facts
On May 14, 2011, Deputy Roths was on patrol in northern Sumner County at the request of a local landowner, Kenneth Defore, who believed his storage buildings were being broken into. Around 11 p.m., Deputy Roths stopped a vehicle and learned the driver was one of Defore's neighbors going to investigate sounds coming from Defore's property.
Deputy Roths called for backup and went to Defore's property. He found a white pickup truck backed up to a tree row near a storage building. The door to one of the buildings was open. The truck's engine was warm. Deputy Patterson heard rustling in the bushes and announced he was a sheriff's deputy and for anyone present to show themselves. The deputies began to search the area.
Deputy Patterson found David Keene and arrested him. Deputy Patterson asked Keene if he was alone, and Keene shook his head no. Later, Deputy Bristor, guarding Keene, shined his flashlight and saw Clay Blades “crouched down” near one of the buildings. On the ground a foot or two away from where Blades was crouching, Deputy Bristor found a penlight.
Blades' driver's license was located in the truck. The bed of the truck held various items, including a gray storage container. Defore was called and said the storage container in Blades' truck was his uncommon weatherproof box from a Boeing surplus sale labeled with the words “bore sight.”
After his constitutional rights were explained to him, Blades waived his right to an attorney. During his interview with Deputy Roth, Blades said he was looking for his daughter who had fallen in with a bad crowd and he thought she might be walking the roads near Defore's property. At trial, Keene testified Blades drove them out to Defore's property in Blades' truck.
Did the Jury Instruction Given on Aiding and Abetting Create an Alternative Means Case?
On appeal, Blades argues the jury was improperly instructed on the alternative means of committing the crime of burglary of a nondwelling when the jury was instructed on the criminal liability for aiding and abetting according to K.S.A. 21–3205(a). There must be jury unanimity as to guilt for the single crime charged, but not as to the particular means by which the crime was committed, so long as substantial evidence supports each means. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010). Blades contends the evidence presented by the State to convict him as either a principal or as an aider and abettor was insufficient. Alternative Means
The jury instruction repeated the language of K.S.A. 21–3205(a), and thus whether the instruction as given presents an alternative means of committing a crime is a question of law over which this court exercises unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Different panels of this court have come to different results when considering whether aiding and abetting creates an alternative means for committing the crime charged. Compare State v. Boyd, 46 Kan.App.2d 945, 268 P.3d 1210 (2011) (aiding and abetting creates an alternative means), petition for rev. filed January 23, 2012 with State v. Snover, 48 Kan.App.2d 298, 287 P.3d 943 (2012), petition for rev. filed December 10, 2012 (aiding and abetting does not create alternative means).
In Boyd, the defendant was charged as both principal and as aider and abettor. The Boyd panel worried the jury faced “three options: (1) convict as an aider and abettor; (2) convict as a principal; or (3) acquit.” Boyd, 46 Kan.App.2d at 954. In Snover, the defendant was only charged as a principal, and the jury was subsequently instructed on both principal liability and aider and abettor liability. The Snover panel framed the issue as “not whether Snover committed the crime in a different way, i.e., by aiding and abetting, but whether he committed the crime at all, albeit by participation.” Snover, 48 Kan.App.2d at 302.
Here, Blades was charged as principal, requiring the State show he (1) knowingly entered a building which is not a dwelling, (2) did so without authority, and (3) did so with the intent to commit a theft therein. The jury was then instructed on the criminal liability of an aider and abettor.
This is factually analogous to Snover, lacking the potential juror confusion cited in Boyd. Like Snover, Blades was charged as principal. The jury was instructed the defendant could be found criminally liable regardless of whether he did it himself or if he intentionally aided or abetted another to do so. The legal reasoning is also analogous to our Supreme Court's decision in State v. Ahrens, 296 Kan. 151, 290 P.3d 629, 635 (2012), wherein “operating” and “attempting to operate” are different factual circumstances establishing the single element of “driving.” When considering Blades' argument, we choose to follow the Snover panel and find the better practice is to consider if “he committed the crime at all, albeit by participation.” Snover, 48 Kan.App.2d at 302. Sufficiency of the Evidence
Blades challenges the sufficiency of the circumstantial evidence to support his conviction for burglary of a nondwelling. When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Although Blades asserts there was “no evidence presented” proving he entered the building or he aided or abetted Keene, he really argues there was no direct evidence to support his conviction. However, “the law clearly allows a conviction of even the gravest offense to be based on circumstantial evidence.” Ward, 292 Kan. at 581.
The evidence established the following:
• Blades and Keene were on Defore's property after dark;
• Blades did not have permission to be there;
• Blades did not have permission to enter the building and remove property;
• A door to a storage building was open;
• A weatherproof box from the building was in the back of Blades' truck; and
• Blades and Keene hid in the bushes when the deputies called for them to “come out.”
In the light most favorable to the prosecution, we find circumstantial evidence supports each element of burglary of a nondwelling.
Blades argues there is insufficient evidence he aided and abetted Keene in committing any element of burglary, citing our Supreme Court for the proposition that “the mere presence of an accused at the time and place of the crime alleged is not sufficient to make the accused guilty of the crime.” State v. Wakefield, 267 Kan. 116, 121, 977 P.2d 941 (1999). Specifically, Blades argues “there was no evidence that [he] aided or abetted Keene in opening the door, entering the shed, or removing the gray box.” Under an aider and abettor theory of criminal liability, Blades can be convicted of the crime regardless of his involvement in any particular element.
However, Blades' own quotation of Wakefield concedes “the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that the person ... thereby aided and abetted the commission of the crime.” Wakefield, 267 Kan. at 121. Blades drove Keene to the place of the crime, was found with a penlight, had property from the building in the back of his truck, and hid in the bushes from sheriffs deputies. A rational factfinder could easily find beyond a reasonable doubt he was involved, even if he did not directly commit each element of the crime himself.
Did the Court Err in Giving the Aiding and Abetting Instruction over the Defendant's Objection?
Blades argues the district court erred in overruling his objection to the aiding and abetting instruction. He claimed there was insufficient evidence to support giving the aiding and abetting instruction. Blades complains the aiding and abetting instruction confused the jury.
Review of instructional issues requires a three-part inquiry. State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012). The first step is a reviewability threshold subject to unlimited review and predicated on the dissatisfied party objecting on clear grounds at trial. Williams, 295 Kan. at 510 (citing K.S.A. 22–3414(3) and explaining the inherent exception for clearly erroneous objections). Blades' trial counsel objected at trial, so this court has jurisdiction to proceed.
The second step is “considering the merits of the claim to determine whether error occurred below.” Williams, 295 Kan. at 510. Our Supreme Court has explained we must consider “whether the instructions as a whole properly and fairly stated the law as applied to the facts and whether they could have misled the jury.” State v. Breedlove, 295 Kan. 481, 496, 286 P.3d 1123 (2012). The jury in this case was instructed:
“[a] person who, either before or during its commission, intentionally aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
This is an almost verbatim restatement of K.S.A. 21–3205(a), properly omitting those parts of the statute not supported by the evidence at trial. It accurately reflects the criminal liability of an aider and abettor.
Did the District Court Properly Apply the Defendant's Criminal History?
Blades was assigned a criminal history score of B based on two prior person felony convictions. On appeal, Blades asserts his criminal history was not submitted to the jury and proved beyond a reasonable doubt. He claims using the information to enhance his presumptive sentence violated his Sixth and Fourteenth Amendment rights under the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Our Supreme Court has said Apprendi does not to apply to enhancements within the framework of the presumptive sentencing grid. State v. Fewell, 286 Kan. 370, 396, 184 P.3d 903 (2008) (reaffirming State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 [2002] ). This court is duty bound to follow our Supreme Court's interpretation, absent some indication the Kansas Supreme Court is departing from its previous position. See State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869 (2007), rev. denied 284 Kan. 949 (2007).
Blades' criminal history was properly scored, and his challenge to the use of his criminal history fails.
Conclusion
This court has carefully reviewed the jury instruction on aiding and abetting. It did not confuse the jury and did not create an alternative means issue. Blades is really arguing insufficiency of the evidence, but as we indicated, circumstantial evidence supported each element of Blades' conviction. There was no jury confusion as the jury convicted him of the principal crime of burglary of a nondwelling. We also find no merit in his argument against the use of his criminal history, and we affirm the district court on all issues raised.
Affirmed.