Opinion
111,565.
06-12-2015
STATE of Kansas, Appellee, v. Paul BOOTH, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Brett H. Rickman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Brett H. Rickman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
When a local code enforcement officer was alerted to a black Chevy pickup truck in an area consisting mostly of empty houses, she went to the location and confronted Paul Booth, who was carrying a pipe and chair out of one of the empty houses. He deflected her question about his activities, alerted his companion to her presence, and the two drove away at a high rate of speed in the truck. A chase ensued. The owner of the house later discovered that the doors had been kicked in and a number of items removed from inside. Booth and his companion were charged with and convicted of burglary of the house and theft of its contents. On appeal, Booth claims there was insufficient evidence for the jury to convict him of the charges. Because we find the evidence was sufficient for the jury to conclude that Booth intended to permanently deprive the owner of the possession, use, and benefit of his property and the evidence was sufficient for the jury to conclude that Booth exerted unauthorized control over the property of another, his claim of error fails. Booth also challenges his sentence on appeal, asserting that sentencing him based on his prior criminal history without submitting that history to a jury for proof beyond a reasonable doubt is unconstitutional. But our Supreme Court has repeatedly rejected such a claim and this court is obligated to follow our Supreme Court's precedent, so this claim of error also fails. Booth's convictions and sentences are affirmed.
Factual and Procedural History
The State charged Paul Booth and Charles Heriford with two counts of burglary and two counts of theft related to the removal of items from two unoccupied houses. The case proceeded to a jury trial in which Heriford and Booth were codefendants. A summary of the evidence at trial follows.
A building inspector, Joseph Monslow, was driving through a mostly uninhabited block of Hiawatha Avenue in Kansas City, Kansas, posting properties for delinquent rental licenses when he “noticed a black Chevy pickup truck circling around back into the alley.” The truck stood out to Monslow because with the exception of “one occupied house at the far end of the block,” no one lived in that area. Monslow noticed two men in the truck. They did not appear to notice him.
Later, when Monslow returned to the area, he saw the truck again, this time parked between two houses—one red, one blue—on Hiawatha. Both properties had been declared unfit and were clearly marked as such with large, bright “hot pink ... or red” stickers on them. He explained that unfit homes are those that people cannot live in for reasons such as a lack of utilities or serious structural issues. The front door to both the red and blue houses was closed. Monslow testified that he stopped outside the houses and immediately noticed a man he later identified as Heriford walking out of the blue house with a tan, metal box. The men were dressed simply in jackets and jeans, and they did not wear masks, gloves, or anything else that might have disguised their identities. Monslow called his supervisor to report the incident and continued on with his day. Later, he saw the truck again, this time driving quickly down a different road with a code enforcement officer in pursuit and items appeared to be falling from the back of the truck into the road.
On the day in question, April Alexander, a code enforcement specialist, received a call from her supervisor that relayed Monslow's report, and she headed to investigate. She was driving a marked Unified Government car and was wearing a uniform. When Alexander pulled up in front of the blue house—which she identified as 2521 Hiawatha—she noticed the front door was open. Almost immediately after she stopped, a man walked out carrying “a chair and a piece of piping.” Alexander testified that she rolled down her window to ask what he was doing, to which he replied he was “walking around.” As Alexander watched, the man—who she later identified as Booth—went around to the truck and put some items in the back, hitting the pipe on the truck. For the first time, Alexander noticed another person, as well. The other man, who she identified as Heriford, started the vehicle, and Booth climbed into the passenger side of the truck. Springing into action, Alexander moved her car in such a way as to block the truck from leaving the alley. The truck slid, backed up, and drove out the other direction.
Alexander contacted police dispatch before pursuing the truck, which left the scene at “a high rate of speed.” Alexander testified that she kept dispatch on the phone while she drove after the truck to keep dispatchers abreast of the chase. As they drove, Booth “lean[ed] out of the passenger side” and pushed one of the items in the back—a sink—out into the street. Luckily, Alexander avoided hitting it. The items in the back of the truck were not secured and other items were falling off the truck on their own. Alexander admitted that she did not know for certain whether the items in the truck came from the red and blue houses on Hiawatha. The chase continued until Alexander stopped for a red light that the truck ran. Alexander estimated at trial that she drove at about 70 miles per hour during the chase.
After ending the chase at the stop light, Alexander still attempted to track the truck. After alerting police in the area and discovering that the truck had also run a stop sign in front of several police officers, Alexander elected to leave the police to the pursuit and return to the homes on Hiawatha to meet other police officers there. As she drove away, however, she realized that Booth and Heriford would most likely scrap the items in the back of the truck at a nearby scrap metal recycling business. Alexander went to the business where she witnessed the same black truck turning out of the business and onto the main road. Upon recognizing Alexander's car, the truck immediately “took off at a high rate of speed.” Alexander lost track of the truck again, but later reported seeing it at a nearby gas station.
Alexander testified that the red and blue houses were declared unfit because they each had broken windows and needed new roofs. She explained that although a home becomes unfit for habitation if it is “open, abandoned and hazardous,” not all three conditions must be met at the same time, and if the owner can be found, he or she is provided an opportunity to fix any problems. She noted that she was working with the owners of the red and blue houses to help them repair the issues with the homes. Although some of the windows in the two houses had been broken, they were boarded over, and when she tagged the homes unfit, the doors were closed and locked. She drove by the area quite regularly since the notices had been posted a month earlier to monitor “what progress was being made” on the homes.
The same day, James Douglas, the owner of the blue house, received a call concerning a possible burglary at his property. When he arrived, he noticed that the front and back doors had both been forced open and the locks broken. He did not know if that happened that day or previously. As Douglas and an officer walked through the house, Douglas noticed several items missing from the home, including two hot water tanks, two window air conditioning units, copper tubing, electrical wiring, and a ceiling fan. Douglas testified that he drove by the house “every so often” to ensure it remained secure. He did take care of the lawn by cutting the grass and trimming trees. He also testified that, prior to the day in question, the doors and windows were all locked, although the broken windows had not yet been boarded up.
Douglas admitted that he had not lived in the home for 3 years prior to the incident and that the house had no utilities. Regarding household security, Douglas acknowledged that the back door had been kicked in previously and the front door unlocked. This had happened two to three times over the course of 6 years. He also admitted that because he did not reside at the house, he did not observe who took the items from inside the home. Moreover, Douglas testified that he never reported the other break-ins to the police but simply resecured the house each time. Douglas testified that he did not know Hertford or Booth and that he never gave them permission to enter the house or take his property.
Norma Jean Turner–Petty, the owner of the red house, testified that she and Douglas checked on one another's properties and that the neighbors in the area also kept track of her home. She was at her property two to three times per week and she would also check on Douglas' property and notify him if she saw anything out of the ordinary.
Blake Hill from Advantage Metals Recycling, the scrap metal business that Alexander mentioned in her testimony, confirmed that Hertford sold some items to him that day in what he termed a “fairly typical” transaction. The police never requested the materials Hertford sold be tested for fingerprints or otherwise preserved.
Heriford testified and referred to the day in question as “trash day” and explained that they spent the day “[p]icking up trash and metal, vacuums, chairs, anything” to trade in for money. He testified that he and Booth had taken a variety of routes collecting trash. They stopped at between 20 and 25 houses that day but only collected scrap from outside these homes. Concerned that some items might fall out of the truck, Heriford stopped on Hiawatha Avenue. According to his testimony, he and Booth “saw houses that had doors and windows open and no one lived there,” so they stopped to organize the load and search for rope. Heriford described these houses as “[d]estroyed, ugly” and said they stood open with broken doors at the time he and Booth arrived. He said he saw the unfit sticker on the front of the house but he did not know what it meant. However, he also admitted to entering the blue house without permission. Heriford testified that other than some wood that was outside by the door, they did not remove anything from the homes. After about 5 or 10 minutes, however, Booth approached Heriford, told him “[t]he city woman's here” and urged him to leave.
Heriford testified that although he and Alexander never engaged in any sort of altercation, she nearly hit his truck with her vehicle. Heriford admitted that, after leaving the houses on Hiawatha, he and Booth headed to the scrap yard while Alexander pursued him. He recognized that Alexander pursued him because he should not have been at the homes but stated that he “wasn't trying to get away” from her as much as he was avoiding her after she almost hit his truck with her car. He maintained that he did not speed away from the scene at 70 miles per hour. But he also indicated that he believed she was calling the police and getting his tag number as she pursued them. Heriford also testified that Booth never pushed anything out of the truck. When asked about the hot water heater he collected on trash day, Heriford testified that he and Booth found the hot water heater outside a home on a different intersection and that the owner allowed him to take it.
Finally, Booth testified and confirmed Heriford's story about acquiring the hot water tank. Booth also echoed Heriford's sequence of events, testifying that they stopped on Hiawatha to look for rope and better secure the load in the back of the truck. According to Booth, the homes were “[a]bandoned ... trashed and there was a lot of stuff inside that [he] could see from the outside.” Booth testified that he did not remove any of the missing items from the homes on Hiawatha and stated that the doors to the houses were “[d]amaged and not secure.” He acknowledged that he did not have permission to enter either house, but he specifically denied entering either house. Regarding his interaction with Alexander, Booth testified that he replied to her question by telling her he “was looking for wood and rope to tie down the metal stuff.” He heard Alexander threaten to call the police, but Booth testified that they did not run away from Alexander, that he never shoved anything out of the truck, and that Alexander nearly hit the truck with her car. In fact, Booth explained that he suffered cerebral palsy in his left arm. Booth clearly testified that he never intended to either break into or steal anything from the homes on Hiawatha.
Ultimately, the jury convicted both Booth and Heriford of burglary and theft of the blue house at 2521 Hiawatha Avenue but acquitted them of the charges associated with the red house. The district court sentenced Booth to 32 months' imprisonment. He appeals his conviction and sentence.
Sufficiency of the Evidence
Booth first asserts that the evidence presented at trial was insufficient to convict him of the charges beyond a reasonable doubt. When the sufficiency of the evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in the light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support the conviction, this court generally will not reweigh evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). Importantly, a verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008).
Booth was convicted of both burglary and theft. Among other things, Kansas statutes define burglary as “without authority, entering into or remaining within any ... building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a ... theft ... therein.” K.S.A.2012 Supp. 21–5807(a)(2). Theft, meanwhile, is defined as “[o]btaining or exerting unauthorized control over property or services” with the “intent to permanently deprive the owner of the possession, use or benefit” of that property or service. K.S.A.2012 Supp. 21–5801(a)(l).
Based on these elements, Booth alleges two separate evidentiary insufficiencies: (1) the State failed to prove that either he or Heriford intended to permanently deprive Douglas of his property, and (2) the State failed to prove that either he or Heriford exerted unauthorized control over Douglas' property. Each argument will be addressed separately.
There was sufficient evidence to find that Booth intended to permanently deprive Douglas of the possession, use, and benefit of his property.
First, Booth contends that the State failed to prove that he intended to permanently deprive Douglas or anyone else of the possession, use, or benefit of their property. Booth essentially argues that the state of the home and the circumstances surrounding his arrival at the Hiawatha property shows that the property in question was abandoned and therefore without an owner. He further argues that insufficient evidence supports the inference that he intended to commit a theft at the blue house.
Our Kansas statutes emphasize that in order to commit a theft, a defendant must intend to permanently deprive the owner of the possession, use, or benefit of his or her property. K.S.A.2012 Supp. 21–5801(a). In fact, “ ‘[d]eprive permanently’ “ is defined as taking “from the owner the possession, use or benefit of property, without an intent to restore the same.” (Emphasis added.) K.S.A.2012 Supp. 21–5111(f)(1). An owner, meanwhile, is “a person who has any interest in property.” K.S.A.2012 Supp. 21–5111(s). Under this scheme, then, a theft requires that someone has an interest in the property at issue.
Abandoned property, on the other hand, is property that an owner voluntarily relinquishes with the intent of ending his or her ownership, possession, and control. Davis v. Odell, 240 Kan. 261, 269, 729 P.2d 1117 (1986). When property is abandoned, the owner absolutely relinquishes his or her rights to that property “ ‘without reference to any particular person or for any particular purpose.’ “ 240 Kan. at 269. To show abandonment, there must be both actual relinquishment and the intent to relinquish, which is paramount to the inquiry and “ ‘is to be determined from all the surrounding facts and circumstances.’ “ 240 Kan. at 269. That said, however, “ ‘[m]ere nonuse of property, lapse of time without claiming or using property, or the temporary absence of the owner, unaccompanied by any other evidence showing intention, generally are not enough to constitute an abandonment.’ “ 240 Kan. at 269. Booth claims that the state of the blue house, including its broken doors and windows, demonstrates that Douglas abandoned it and its contents.
Booth never seriously argued at trial that Douglas wholly abandoned the house, and the facts directly contradict this position. Douglas testified that he owned the property and that, at the time of the incident, he still intended to fix the problems with the house. He testified that he occasionally drove by the house, that he kept the house secure, and that he repaired the doors after previous break-ins. The owner of the house next door, Turner–Petty, also testified that Douglas checked on both their properties. Nothing in this testimony even remotely suggests that Douglas abandoned the house. And, again, an owner's temporary absence from property is not a guarantee of abandonment without other evidence showing the owner's intent. See Davis, 240 Kan. at 269. As such, the evidence demonstrates that Douglas never abandoned the property and therefore remained its owner despite his absence.
Booth also argues that the circumstantial evidence presented at trial demonstrates his lack of intent to commit a theft. It is true, as Booth observes in his brief, that “[t]he intent with which an entry is made is ... usually inferred from the surrounding facts and circumstances.” State v. Wilkins, 269 Kan. 256, Syl. ¶ 4, 7 P.3d 252 (2000). Factors relevant to determining whether an intruder intended to commit a theft therefore include “[t]he manner of entry, the time of day, the character and contents of the building, the person's actions after entry, the totality of the surrounding circumstances, and the intruder's explanation, if he or she decides to give one.” 269 Kan. 256, Syl. ¶ 4.
Booth highlights a number of facts that he claims prove he and Heriford lacked any intent to commit a theft inside the blue house; after all, neither man attempted to mask his identity, they entered the home in broad daylight, and per Heriford's and Booth's accounts, they never fled from Alexander. But a number of other facts also support the inference that Booth and Heriford intended to commit a theft on Hiawatha Avenue. For example, both Heriford and Booth acknowledged they were not supposed to enter the houses. When Alexander asked Booth about his activities, he deflected and avoided answering. The two men drove away, refused to stop for Alexander, and immediately headed to a salvage yard; where they obtained money for the items taken, indicating the items had a value. When finished at the salvage yard, they sped away from Alexander a second time. Moreover, they chose to stop in an area where very few people lived. These facts clearly suggest the men intended to commit a theft.
Furthermore, Alexander testified that Booth and Hertford drove away at a high rate of speed, pushed a sink into the road, and ran a stop light and a stop sign in an attempt to escape. Both she and Monslow witnessed the men carrying items out of the blue house. Although their testimony conflicts in part with Booth and Hertford's accounts of that day, the verdict indicates that the jurors believed Alexander and Monslow. This court is not permitted to reconsider that credibility assessment on appeal. See Hall, 292 Kan. at 859.
In short, the surrounding circumstances demonstrate that Booth and Hertford intended to commit a theft when entering the blue house at 2521 Hiawatha Avenue. Moreover, the testimony at trial demonstrates that Douglas never abandoned the property. As such, when considered in the light most favorable to the prosecution, there was sufficient evidence to find beyond a reasonable doubt that Booth intended to permanently deprive Douglas of the possession, use, and benefit of his property.
There was sufficient evidence to find that Booth exerted unauthorized control over Douglas' property.
Booth also contends that the evidence at trial was insufficient to show that he and Hertford exerted unauthorized control over Douglas' property. Booth argues that no witness definitively placed Douglas' missing property in either his or Hertford's control. In fact, Booth emphasizes the fact that the water tank he and Hertford salvaged originated from an entirely different address, not 2521 Hiawatha Avenue.
However, and as previously mentioned, a verdict may be supported by circumstantial evidence as long as the factfinder can draw a reasonable inference from that evidence. Scaife, 286 Kan. at 618. Moreover, the evidence is not required to exclude every other reasonable inference. 286 Kan. at 618.
Here, circumstantial evidence easily leads to the inference that Booth, Heriford, or both exerted unauthorized control over Douglas' property. Douglas clearly testified that he never permitted either man—or, indeed, anyone else—to enter his property or remove the missing items. Monslow and Alexander each testified that they saw the men removing items from the blue house that Douglas owned; Monslow saw Heriford with a metal box, and Alexander saw Booth with a metal pipe and a chair. Even assuming for the sake of argument that Heriford and Booth acquired the water heater elsewhere, two witnesses saw them removing other items of Douglas' property from the house he owned.
Booth emphasizes that Douglas never mentioned either a chair or a metal pipe missing from his house. However, Douglas mentioned copper tubing and a variety of other missing property that likely included metal pipes as part of their composition.
To conclude, the evidence at trial demonstrates that Booth and Heriford removed at least a few items from Douglas' property without Douglas' permission. Even if they did not exert unauthorized control over all the items missing from Douglas' house on Hiawatha, the evidence at trial is sufficient to support the conclusion that they removed and exerted control over some of Douglas' property. As such, we affirm Booth's conviction.
Sentencing
Booth last argues that sentencing him based on his prior criminal history without submitting that history to a jury for proof beyond a reasonable doubt is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, he concedes that State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), controls on this issue.
Because this issue is a question of law, this court exercises unlimited review. Ivory, 273 Kan. at 46. In Ivory, our Supreme Court analyzed the interplay between Apprendi and the use of a defendant's prior criminal history both by considering cases decided before Apprendi and by researching decisions from other states and federal courts. 273 Kan. at 46–47. After considering these, the court decided that Apprendi's mandate that facts other than prior convictions be submitted to a jury and proved beyond a reasonable doubt does not apply to a defendant's criminal history score. 273 Kan. at 46. Additionally, the court declined to treat prior convictions as essential elements that require a jury's decision. 273 Kan. at 47.
This court is obligated to follow our Supreme Court's precedent unless it is departing from a prior position. Because Ivory is still good law it applies and the use of Booth's criminal history score in sentencing does not violate Apprendi. Booth's sentence is affirmed.
Affirmed.