Opinion
110,184.
12-19-2014
STATE of Kansas, Appellee, v. Jeffrey HONDL, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Spencer J. Toubia, legal intern, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Matt J. Moloney, assistant district attorney, Spencer J. Toubia, legal intern, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., LEBEN, J., and HERBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jeffrey Hondl appeals from his conviction by a jury of one count of residential burglary. He first argues that the evidence was insufficient to prove beyond a reasonable doubt that he entered the home with the intent to commit a theft. He also contends that the trial court committed reversible error by failing to give a requested voluntary intoxication instruction.
We find that the evidence was sufficient for a rational factfinder to find Hondl guilty of residential burglary and that the trial court did not err in denying the requested voluntary intoxication instruction. The conviction is affirmed.
Factual and Procedural Background
At 3 a.m. on March 20, 2012, a neighbor called Wichita police, reporting that motion detectors located within a nearby vacant house had activated and that he saw movement inside the home. Police surrounded the house. After the owner and his son arrived and unlocked the front door, police found Hondl hiding in a small room off the kitchen. Hondl had a wound to his arm. Various items within the house had been disturbed, and jewelry had been collected and was in a satchel found in the kitchen. Police arrested Hondl, and EMS took him to the hospital for treatment of his injuries.
The next day, Hondl was charged in Sedgwick County District Court with one count of residential burglary, a severity level 7 person offense. Hondl waived his right to a preliminary hearing and was bound over for trial.
At trial, Larry Blakney testified he owned the vacant house in question. He moved out after his wife died several years before, although he left furniture and other personal property there. After Larry moved out, one of his sons, Tony Blakney, lived in the house for about a year. The Blakneys put a motion detector in the house after burglars invaded the vacant residence several times. They asked Don Ray, a neighbor and friend, to keep the motion detector alarm because he lived nearby.
Ray testified that on March 20, 2012, he was watching TV in his home when the alarm for the Blakney's motion detector went off at about 3 a.m. He called the police and looked over toward the Blakney house and could see movement inside the house.
Officers Redenbaugh and Froese were dispatched to the home based on a report of a possible burglary in progress. They responded without lights or sirens and parked half a block down from the house. As they approached, both officers heard what sounded like a chain-link fence rattling behind the house. The officers immediately ran to the backyard to investigate the sound, but they did not see anyone in the backyard or alley. They checked the windows and doors on the outside of the house. At this time, Redenbaugh noticed a second-story window broken out with the frame pushed away from the house. The window was over a breezeway connecting the garage to the house. The two officers set up to watch the perimeter of the house, and Redenbaugh called dispatch requesting additional back-up officers.
When additional officers arrived, Redenbaugh contacted Ray and was told the motion detectors were still sounding an alarm. Officers waited for one of the Blakneys to arrive with a key. The officers then unlocked the front door and entered the residence. While searching the first floor of the house, Redenbaugh found a man, later identified as Hondl, in a small room off the kitchen apparently trying to hide in the corner of the room behind the door. As Redenbaugh started to handcuff the man, he noticed the man's arm was bloody. Once handcuffed, Redenbaugh removed the man from the house, removed the man's jacket, and noticed a large laceration on his left forearm. Redenbaugh called for an ambulance, and Hondl was transported to the hospital for medical treatment; Redenbaugh accompanied Hondl to the hospital. Hondl did not appear sleepy, and Redenbaugh did not remember the smell of alcohol coming from him. Redenbaugh was not concerned that Hondl might be under the influence of alcohol or drugs at the time, although he acknowledged Hondl had bloodshot eyes.
Other officers remained at the house. Officer Froese checked the upstairs where he found a lot of broken glass inside the room where the broken window was located. Based upon the amount of glass found inside the room, Officer Froese opined that the window was broken in from the outside. He also checked the exterior of the back door, and noticed a number of pry marks by the knob and scuff marks on the door as if someone tried to kick in the door.
Neither Larry nor Tony Blakney had given Hondl or anyone else permission to be in the house on March 20, 2012. They testified that the front of the house faced west. The front door had a lock in the door handle and a deadbolt lock. A fence surrounded the south side of the house, but it did not have a gate. The only way to access the south side was to go through the house or climb the fence. Most of the fence was wooden except for the south side, which was an 8–foot high aluminum fence. Blakney kept the garage doors padlocked and the south door into the house secured by two-by-four boards that prevented it from opening. The only other door accessing the house was the front door. Prior to this invasion, the first-floor windows on the south side were boarded up.
Larry Blakney and the police inspected the house together, including the broken upstairs window at the back of the house that Officer Froese had discovered. Both the top panel and bottom panel of the double pane window were broken, and the frame was pried from the wall of the house. Glass had been scattered on the roof of the utility room, as well as inside the house. Blakney opined that the glass was on the outside because the window had been pried open from the outside. There were shovel marks around the window, and they found a shovel near the back door. The window was unbroken when Larry Blakney had been at the house a day or two before. Tony Blakney checked the house daily, and he testified that the window had not been broken the previous day.
When Larry Blakney walked through the house with the police that night, they found a black satchel in the kitchen that contained all of his late wife's jewelry. Last time he had seen the satchel it was located in an upstairs closet and was empty. He had kept the jewelry in various places in the house, including a closet upstairs and a closet in the downstairs bedroom. The jewelry had been removed from these places and put in the satchel. Larry Blakney noticed drawers had been pulled out of furniture and dumped on the floor, and papers had been scattered all over the room. These items had been in their proper places last time Larry Blakney had been in the house. Tony had been in the house 12 hours before the break-in and the mess was not present. Officers took photographs of various rooms and items throughout the cluttered house.
In examining the house the next day, Blakney found a shovel by the downstairs boarded-up windows and marks on the outside of the boarded-up window where someone had tried to force the window open. There was also damage to the boarded-up back door that had not been there before.
Hondl testified on his own behalf. He stated that on March 19, 2012, he spent the evening fishing at the Lincoln Bridge. Hondl testified that he was homeless at the time and slept where he could. Hondl testified that he was drinking beer and vodka while he was fishing. At some point that night, he met a couple of other men who he had seen around the area, one of whom he thought was named Bill.
When Hondl started packing up his belongings, the other men suggested that he hang out with them. They walked down the railroad tracks and a bike path and ended up at the Blakneys' house, which one of the men identified as a place where he stayed. Hondl testified that one of the other men opened the front door. Someone said, “ ‘Look out!’ “ and then he hit a piece of glass or wire with his arm, and it bled quite a bit. The men walked straight into the living room of the house. Hondl sat down to wait for one of the other men to use the bathroom. He testified that the next thing he remembered was a police officer shining lights in his eyes. Hondl said that he had consumed a great deal of alcohol and opined that he must have passed out. He also testified that he only entered the house to sleep and did not remember telling police officers that they had entered the house by an unlocked back door.
Hondl denied going to the second floor or taking anything out of any furniture or closets. He denied that he was hiding from the officers and stated that it was unlikely he was standing when the officers found him. He denied breaking any of the windows or seeing anyone break a window. He did not know what happened to Bill or the other man.
Officer Redenbaugh testified on rebuttal. Redenbaugh testified that after arresting Hondl, he read Hondl his Miranda rights. Hondl told him he had been walking in the area when he met two white men. Hondl did not know their names. They told him they had a place to sleep and get something to eat, so Hondl went with them to the home in question. As he was walking around the outside of the house, someone yelled, “ ‘Look out!’ “ and then a piece of glass or something fell of the roof and struck him in the arm. Hondl told the officer he entered the house through an unlocked back door and went to sleep in the living room. Redenbaugh testified that it appeared Hondl understood Redenbaugh's questions without a problem; the officer did not recall having to repeat any questions.
At the close of the evidence, counsel and the district court reviewed the jury instructions. The defense requested a voluntary intoxication instruction in light of Hondl's testimony that he was drunk and that he passed out in the home. Counsel asserted that it was Hondl's defense that he never had any intent to steal anything and that he just wanted a place to sleep. Counsel argued that the jury could potentially conclude that Hondl was so intoxicated he could not have even formed the intent to steal. The State argued there was no evidence that Hondl was drunk other than his own self-serving testimony, and the officers did not notice any intoxication. Because Redenbaugh had no problem questioning Hondl, and Hondl was able to recall how he arrived at and entered the house, the State argued Hondl failed to show his level of intoxication was sufficient to justify the instruction. The court declined to give the instruction based on essentially the same reasons outlined by the State.
During closing arguments, defense counsel focused on the elements instruction. She emphasized that while Hondl entered the house, he did so after he was invited in by others; he did not know at the time they did not have authority to enter. She also emphasized that the State was required to prove Hondl entered the house with the intent to commit a theft. Counsel argued there was no evidence of such intent. She argued that Hondl had none of Blakney's property on his person. She even argued that the puncture wound on Hondl's arm was not the type of laceration caused by broken glass.
Following deliberations, the jury returned a verdict finding Hondl guilty of burglary. The jury was polled, and all confirmed this was the jury's verdict. Hondl filed a combined motion for new trial and for judgment of acquittal. Although those motions were not timely filed, the trial court considered their merits and denied the motions.
On April 10, 2013, the district court conducted a sentencing hearing. The district court found Hondl's criminal history score was A. The district court denied Hondl's motion for a departure sentence and sentenced him to the standard presumptive sentence of 32 months' incarceration. The district court also ordered Hondl to pay restitution to Larry Blakney in an amount just under $600.
Hondl timely appealed from his sentence and all adverse rulings.
Evidence of Intent to Commit Theft
Hondl first contends that the State failed to present sufficient evidence to support a key element of the burglary charge—that he entered the residence with the intent to commit a theft.
Standard of Review
When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Phillips, 299 Kan. 479, 497, 325 P.3d 1095 (2014).
Analysis
To establish the crime of burglary, the State was required to prove beyond a reasonable doubt that Hondl entered or remained in the house without authority and with the intent to commit a theft therein. K.S.A.2013 Supp. 21–5807(a)(1).
Hondl testified that he only entered the house on the invitation of others and only with the intent to sleep. He points to evidence that someone may have fled the house over the backyard fence. He notes that no stolen items were found on his person and there was no evidence of his blood or fingerprints found on the satchel containing jewelry. Hondl basically relies on his own testimony that he was simply a homeless man seeking somewhere to sleep.
Hondl suggests that his position is supported by the holding in State v. Cruz, 15 Kan.App.2d 476, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). In Cruz, the court noted that while presumptions and inferences from the facts presented may establish guilt, guilt may not rest upon presumptions based on presumptions or inferences based on inferences. 15 Kan.App.2d at 490.
Hondl's reliance on Cruz is misplaced. In Cruz, police had discovered the defendant and his brother in a vacant home during investigation of a burglary in progress report. When the first officer arrived on the scene, the brother went briefly to the basement and returned. In checking the basement, officers found drug paraphernalia and, pursuant to a search warrant, located nearly 2 pounds of cocaine. The renter of the premises had employed the Cruz brothers to install curtains. A police officer testified to his opinion that the house was operated as a safe house for storing drugs. The Cruz brothers were convicted of possession of cocaine.
On appeal, the court found the evidence to be insufficient to convict the Cruz brothers of possession of cocaine. There was no evidence connecting either of the brothers with the contraband, no evidence that they had ever attempted to sell drugs, and the brother was in the basement too briefly to have hidden the drugs in question. 15 Kan.App.2d at 489–90.
Cruz is clearly factually distinguishable from the case presented against Hondl. Here, the owners testified that neither Hondl nor anyone else had authority to be in the house for any reason. There is no dispute that Hondl was found in the house in the middle of the night. Portions of the house had been ransacked, and jewelry had been removed from various original locations and placed in a satchel which was found 3 to 5 feet from where Hondl was found hiding. Hondl was in the house for at least 20 to 30 minutes while police were waiting for the owner to bring keys for entry. The only apparent point of entry was a broken window on the second floor; the doors and first floor windows were locked and/or barred and boarded up. Hondl had a cut on his arm which, even by his own testimony, could have been caused by the broken glass. Hondl was found awake and standing, hiding behind the door of a small room off the kitchen.
In State v. Wilson, 45 Kan.App.2d 282, 288, 246 P.3d 1008, rev. denied 292 Kan. 969 (2011), this court noted:
“Intent may be inferred from circumstantial evidence. [Citation omitted.] In fact, ‘[t]he intent with which an entry is made is rarely susceptible of direct proof; it is usually inferred from the surrounding facts and circumstances.’ State v. Harper, 235 Kan. 825, 828, 685 P.2d 850 (1984). Factors to consider in determining intent include the manner of entry, time of day, character and contents of the building, the intruder's actions after entry, the intruder's explanation, and the surrounding circumstances. [Citation omitted.]”
The jury was not obligated to believe Hondl's testimony. After reviewing all the evidence in a light most favorable to the prosecution, there was sufficient evidence to support the jury's finding that Hondl entered into or remained in Blakney's house with intent to commit a theft.
The Voluntary Intoxication Instruction
Hondl next contends that the trial court committed reversible error by refusing to give the jury an instruction regarding voluntary intoxication.
Standard of Review
The process governing our review is set forth in State v. Dominguez, 299 Kan. 567, 573–74, 328 P.3d 1094 (2014) :
“ ‘First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review.’ [Citation omitted.]....
“In determining if there was error in giving or failing to give a jury instruction, an appellate court must examine whether the instruction was legally and factually appropriate. The appellate court utilizes an unlimited standard of review to analyze the legal question of whether the instruction fairly and accurately states the applicable law. [Citations omitted.] Then, in considering whether the jury instruction was factually appropriate, an appellate court determines if there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, to support a factual basis for the instruction. [Citations omitted.] ‘Such an inquiry is closely akin to the sufficiency of the evidence review frequently performed by appellate courts in criminal cases.’ [Citation omitted.]”
Hondl preserved the issue for appeal by requesting a voluntary intoxication instruction during the instructions conference. The State concedes that a voluntary intoxication instruction would be legally appropriate because burglary is a specific intent crime. Our review, then, involves consideration of whether the requested instruction was factually appropriate based on the evidence presented at trial.
Analysis
The question which we must determine is whether the evidence, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant's theory of defense. State v. Sood, 47 Kan.App.2d 1098, 1104, 283 P.3d 224 (2012). Hondl presented two related, but somewhat inconsistent, theories of defense: first, that he entered the house only to sleep inside because he was homeless; and second, that he was too intoxicated at the time of the entry into the home to form the requisite intent to commit the offense charged. A defendant is not barred from presenting inconsistent theories of defense. State v. Simmons, 295 Kan 171, 176, 283 P.3d 212 (2012).
Our Supreme Court recently addressed the evidentiary prerequisites for a voluntary intoxication instruction in State v. Betancourt, 299 Kan 131, 141–42, 322 P.3d 353 (2014). It is not sufficient to simply show that the defendant had been consuming alcohol or even that the defendant was intoxicated; unless the defendant presents sufficient evidence showing intoxication to the extent of impairing the ability to form the requisite intent, a court is not required to instruct the jury on the defense of voluntary intoxication. The court may look to loss of memory or inability to remember events before or during the offense but also may consider whether the evidence could establish impairment to the extent that the defendant has lost the ability to reason, to plan, to recall, or to exercise motor skills. 299 Kan. at 141–42.
Here, the evidence, viewed in the light most favorable to the defendant, is insufficient to factually justify a voluntary intoxication instruction. While Hondl testified to consuming beer and vodka while fishing on the evening of March 19, 2012, there is no clear or specific reference to what quantities of alcohol he may have consumed. He specifically recalled the details of the events leading to the house: the meeting with two men, one named “Bill,” who he recognized from prior encounters; walking down railroad tracks and a bike trail; and arriving at the house in question. Although he testified that they entered through the front door, he recalled someone yelling, “ ‘Look out!’ “ and being cut from glass or debris falling off the roof. He recognized that he was injured, and specifically recalled making his way toward the bathroom. In his appellate brief he suggests that at this point a “mixture of alcohol and tiredness” caused him to pass out until police arrived. However, the motion detectors continued to sound, and Blakney's neighbor observed motion in the house.
When the police arrived, they found him awake and hiding. He was able to coherently speak to police and answer their questions about his presence in the house. The officers detected no odor of alcohol emanating from Hondl and detected no visible indicator of intoxication other than bloodshot eyes.
Even under the best of scenarios, the evidence is insufficient to support Hondl's contention that he was voluntarily intoxicated to the extent of impairing his ability to form the requisite intent to enter or remain in Blakney's house with the intent to commit theft. The requested instruction was factually inappropriate, and the trial court did not err in denying the request.
Affirmed.