Opinion
No. 112414.
04-10-2015
In the Matter of D.J.
Edward L. Bigus, of Olathe, for appellant. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Edward L. Bigus, of Olathe, for appellant.
Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
D.J. appeals his juvenile adjudication for the theft of a cell phone. D.J. contends the evidence was insufficient to support the adjudication. We affirm.
Factual and Procedural Background
On December 2, 2013, D.J. was late for a third-hour physical education class at a middle school in Lenexa. The boy's locker room was adjacent to the gymnasium, and K.S., a student already in the gymnasium, saw D.J. enter the locker room. K.S. saw no other students arrive late that day, and the students were not allowed to reenter the locker room during class.
K.S. had left his street clothing, books, and Samsung cell phone in a backpack which was piled along with other backpacks on a bench in the locker room. After the physical education class, K.S. discovered his backpack was on the floor with its contents strewn about. K.S. noted that his cell phone was missing, and he told Cory Stratham, an administrator at the school, that D.J. might have it.
Stratham called D.J. to the office during the fourth hour period. A video introduced at trial showed that D.J. walked down a hall in the opposite direction from Stratham's office, entered a restroom for 24 seconds, and then walked back down the same hall to the office. Upon questioning by Stratham, D.J. said he did not have the cell phone, but when Stratham asked him to empty his pockets, D.J. removed a Samsung battery from his front pants pockets. D.J. claimed he found the battery on the hallway floor on his way to the office and that he had intended to turn it in. But the video does not show D.J. bending over to retrieve anything from the floor. Of note, D.J. did not empty his back pants pockets, and Stratham did not pat him down or specifically inquire about any contents in his back pockets.
After D.J. left Stratham's office, he went to a second restroom at the other end of the school, far off his route back to the fourth-hour class. D.J. had to pass the restroom mentioned previously to reach this second restroom. D.J. testified on direct examination that in the second restroom he used “the urinal, the stall. It was-I don't know.” A video introduced at trial shows D.J. was in the second restroom for only 37 seconds, and he then returned to class.
During the sixth hour period, a student found K.S.'s cell phone in a stall in the second restroom and gave it to the principal. The cell phone was missing its case and battery. The case was never found, but when Stratham inserted the battery that was in D.J.'s possession earlier, it fit and energized the phone.
After considering the evidence, the district judge found “with that many confluences of the events surrounding [D.J.], it's just too much for me to ignore the fact that a pattern that I believe has met the State's burden of proof beyond a reasonable doubt emerges.” The judge ordered D.J. to serve 6 months' probation. D.J. appeals.
Discussion
On appeal, D.J. contends the evidence was insufficient to show he was “the person who exerted unauthorized control over the cell phone in the first instance,” or that he “intended to permanently deprive [K.S.] of the permanent use, possession, or ownership of the cell phone.”
The State of Kansas had to prove “beyond a reasonable doubt that the juvenile committed the act or acts charged in the complaint.” K.S.A.2014 Supp. 38–2355. The complaint charged that:
“On or about the 2nd day of December, 2013, said juvenile did at and within the County of Johnson, State of Kansas, unlawfully and willfully obtain or exert unauthorized control over property or services, to-wit: a cell phone, with the intention to permanently deprive the owner, to-wit: [K.S.], of the possession, use or benefit of the owner's property or services of a value less than $1,000.00, a class A non person misdemeanor, in violation of K.S.A. 21–5801(a)(1) and (b)(4).”
Our well known “standard of review on appeal 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 respondent guilty beyond a reasonable doubt.” In re B.M.B., 264 Kan. 417, Syl. ¶ 4, 955 P.2d 1302 (1998).
Viewed in the light most favorable to the prosecution, a rational factfinder could find beyond a reasonable doubt that D.J. took K.S.'s cell phone. The evidence was largely circumstantial, but “circumstantial evidence and the logical inferences therefrom can be sufficient to support a conviction of even the most serious crime .” State v. Herron, 286 Kan. 959, 967, 189 P.3d 1173 (2008). D .J. had an opportunity to steal the phone in the first instance, and he was found with a battery of the sort used in K.S.'s cell phone shortly thereafter. When the cell phone was later recovered, it was missing its battery. The battery found on D.J. energized the cell phone. Moreover, D.J.'s exculpatory account of finding the battery was discredited by the hallway video. D.J. also had briefly gone into the second restroom a short time before the cell phone was found, and he had traveled there unnecessarily, passing another restroom on the way. When combined with his brief visits to restrooms both before and after reporting to the office, D.J.'s behavior appeared furtive and indicated a consciousness of guilt. See State v. Phillips, 295 Kan. 929, 948, 287 P.3d 245 (2012).
D.J. counters that he provided Stratham with an account explaining his possession of the battery, citing in support State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974). The State correctly responds, however, that an appellate court does not reweigh evidence or pass on witness credibility. See State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). The district court discounted D.J.'s account based in part on the video evidence. The present case is therefore analogous to Wilkins, where a defendant said he found stolen property near a building, but “[i]t had recently rained and the area near the building was muddy,” and “[a] search of that area disclosed no human tracks to support the defendant's story.” 215 Kan. at 147. Neither in Wilkins nor in the present case was the finder of fact obliged to accept an exculpatory account explaining possession of stolen property. See State v. Renfro, 40 Kan.App.2d 447, 457, 193 P.3d 483 (2008), rev. denied 288 Kan. 835 (2009).
Finally, theft is a specific intent crime, State v. Edwards, 299 Kan. 1008, 1014, 327 P.3d 469 (2014), and as charged here the State had to prove D.J. took K.S.'s cell phone “with intent to permanently deprive the owner of the possession, use or benefit” of it, i.e., “without an intent to restore the same.” K.S.A.2014 Supp. 21–5111(f)(1) ; K.S.A.2014 Supp. 21–5801(a). Viewed in the light most favorable to the prosecution, we are persuaded that a rational factfinder could find beyond a reasonable doubt that D.J. acted with this intent.
There was evidence that D.J. took the cell phone from K.S.'s backpack when K.S. and the other students were unable to return to the locker room. The removal of the battery prevented operation of the cell phone at school and made identification of it by K.S. and others difficult. The removal of the case also suggests the thief intended to make the phone his own by removing an important identifier. D.J. told Stratham he had intended to turn in the battery, but D.J. did not come to the office with the battery in hand, and he stated this intent only after the battery was discovered in his pocket by Stratham. This conduct, coupled with the furtive behavior described earlier, shows that D.J.'s intent—at the time the cell phone was taken—was to permanently deprive K.S. of the cell phone when he removed it from K.S.'s backpack.
After review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found D.J. committed theft beyond a reasonable doubt. See In re B.M.B., 264 Kan. 417, Syl. ¶ 4.
Affirmed.