Opinion
No. 107,371.
2013-12-27
STATE of Kansas, Appellee, v. Jacob P. DAVIS, Appellant.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge. Kristen B. Patty, of Wichita, for appellant. Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge.
Kristen B. Patty, of Wichita, for appellant. Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Jacob P. Davis of three counts of aggravated robbery and one count each of conspiracy to commit aggravated robbery, aggravated burglary, and aggravated assault with a deadly weapon. Davis was acquitted of two counts of criminal damage to property. On appeal, Davis claims (1) two of his aggravated robbery convictions are multiplicitous, (2) his conviction of aggravated burglary was unsupported by the evidence, and (3) his conviction of aggravated assault was unsupported by the evidence.
Because we find that Davis' aggravated robbery convictions were not multiplicitous and find Davis' other allegations of error to be without merit, we affirm Davis' convictions.
Facts
The evening of July 8, 2010, friends Davis, Terrell Todd, Wyatt Huber, and Stephanie Rumold began a night of drinking and smoking marijuana in Huber and Rumold's apartment. Davis suggested they rob some houses, specifically a house in Emporia because Davis wanted to see his half-brother, Tyler Luthi, who lived at the house, and possibly to get back at Tyler's father. The men armed themselves with a knife, a golf club, and a baseball bat. Rumold drove them in her silver-colored Dodge Stratus while Davis gave her directions. Rumold remained in the car during the home invasion.
Five-year-old Tyler lived with his father, Terry Luthi, Luthi's common-law wife, Christine Newman, and the couple's 13–year–old twin boys, Alex and Allen Luthi. Sometime around midnight, Alex and Allen, who shared a bedroom, were awakened by pounding on the front door. Alex got up to investigate and was standing in the living room when he saw three men enter the house through an unlocked back door. The men were described as a skinny white male dressed in a light gray hooded jacket and dark pants, a heavy-set white male wearing a black Pittsburgh Steelers jersey and blue jeans, and a black male dressed in black clothing. All three of the intruders wore gloves and bandanas over their faces.
The skinny white male, later identified as Davis, asked if Terry Luthi lived there and where was Tyler Ray Smith. (Michelle Smith is Tyler's biological mother.) Alex told the intruders that his dad was at Wal–Mart and probably took Tyler. When asked if anyone else was in the house, Alex said his brother was in their bedroom. All three intruders followed Alex into his bedroom. Davis then demanded money from Allen. Allen retrieved money from a drawer and handed over $10 to the heavy-set male, later identified as Huber. The black male was later identified as Todd. At some point, Alex also gave the men what money he had. The men started looking around the bedroom, presumably for something of value, when Davis began eyeing Alex's basketball shoes. Alex asked if he could keep them because he had a basketball tournament the next day. Davis knelt down and shook Alex's hand saying he would be nice and leave the shoes because they were family. When asked again whether there was anyone else in the house, Alex told them his mother was downstairs.
Davis went downstairs armed with the baseball bat. Newman was asleep in a basement bedroom when Davis woke her, told her to get up, and said he was a Crypt from Kansas City. Newman, still groggy with sleep, told him to get out. In a meaner voice and smacking the baseball bat in his hand, Davis told her to get up and go upstairs to the boys' room. Newman did as she was told. Back in the boys' bedroom, Huber whipped out his knife at Newman and said he needed more money and that he was a Crypt from Kansas City. Newman told Huber she had money downstairs in her purse. Huber followed Newman back to her bedroom while holding a knife to her back. Newman retrieved money from her purse, which amounted to $21. Huber said he needed more money, coins, or jewelry. When Newman said she did not have anything, he became angry and stabbed a hole in the ceiling.
When Newman and Huber returned to the boys' bedroom, Huber asked Newman if there was anyone else in the house. Newman responded that she believed Tyler was still asleep in his bedroom. Davis spoke up and said, “I want to see him.” Newman led Davis and Huber to Tyler's bedroom. Davis entered Tyler's room, knelt down, and appeared to acknowledge it was Tyler by nodding his head up and down. About that time, Huber thought he heard Luthi pulling up in the driveway. Huber looked out the kitchen window, but he could not see anything so he went out the back door to look around the patio. He let the back door slam shut several times before concluding Luthi was not there.
The men started removing property from the house—a large-screen television, DVD players, and a computer monitor. From the boys' room, the men removed a PlayStation 2, CDs, and video games including a John Madden 2009 football game. When no one could come up with more money, Davis broke the glass on an entertainment center in the boys' room. On his way out, Davis broke the front door glass. After the men left, Alex called the police.
All this time, Luthi was in a detached garage watching television. Luthi was alerted to something going on in the house when he heard the back door slamming. He went to investigate. Believing something was wrong, Luthi slipped behind a bush until he saw the intruders leave. Luthi described the get-away car to police as a Dodge Stratus, maybe silver, gray, or tan. A neighbor across the street also reported to police that he saw a gray car leaving the scene.
Police officer Davis Holmes was dispatched to the Luthi home in the early morning hours of July 9, 2010. Alex told Officer Holmes that one of the men was Ronald Smith. Luthi corrected Alex, saying Ronald's last name was Davis. Newman testified at trial that because one of the intruders knew Tyler, she suspected he was either Ronald or Jacob Davis. Allen testified that he believed the skinny white male was Ronald Davis because he would call his half-brother Tyler Ray Smith. According to Allen, Ronald and Jacob Davis look and sound alike.
Sergeant Carlton Heller started patrolling the area looking for the suspect vehicle. He came across a silver Dodge Stratus and watched as it turned into the parking lot of an apartment building and parked. Based on the fact that a female was driving the car and he did not recognize the white male passenger, Sergeant Heller drove around the block to confirm the car remained parked but then resumed patrolling the area. A little later, Sergeant Heller received a call to another robbery. Before Sergeant Heller responded to that call, an officer reported that a victim from the second robbery recognized one of the suspects as Rumold. Sergeant Heller recalled when he ran the tags on the silver Dodge Stratus, Rumold's name came up as the registered owner. He returned to the apartment building to see if the car was still there. It was, so Sergeant Heller and other officers secured the area and kept the apartment and car under surveillance.
Eventually Davis came out of apartment 15 and knocked on the door of the apartment 16 across the hall. Sergeant Heller observed Rumold come out of that apartment. Officers approached Davis after he walked down to the ground floor. Davis told the officers he was just leaving for work. Officers asked Davis where his brother Ronald was. Davis told them he assumed Ronald was at his home on East Street. Davis was allowed to leave. When Rumold came out of her apartment and asked why her car was being towed, she was taken into custody. Sergeant Heller saw someone peering out the window of apartment 16 wearing a Pittsburg Steelers jersey. Huber was called out of the apartment and taken into custody.
Detective Dennis Delmott searched dumpsters in the alley behind the apartment building and came across a large-screen television in the dumpster of a business located directly behind the apartment. The serial number of the television matched the number of the television taken during the Luthi home invasion. Detective Delmott searched Rumold's car after it was secured at the police garage. He found broken golf clubs, bandanas, gloves, a PlayStation game controller, a John Madden 2009 football videogame, and other items related to the second robbery. After search warrants were secured, both apartments 15 and 16 were searched. Items taken in the robbery were found in apartment 16, but no stolen items were recovered from apartment 15.
Police officer Catherine Ohlemeier interviewed Rumold at the Emporia police station. Rumold admitted her involvement in the Luthi home invasion, as well as that of Davis, Huber, and Todd. According to Rumold, after leaving the Luthi home, she returned Davis to his apartment. Davis did not accompany Rumold, Huber, and Todd on the second robbery.
At trial, Davis testified on his own behalf. He denied going with Huber, Todd, and Rumold to the Luthi home on the evening in question. According to Davis, when he got off work that day, he spent the evening watching movies with two girlfriends. When they left his apartment, around 11 or 11:30 p.m., he went to bed because he had to work the next day.
The jury apparently did not believe Davis because he was convicted on all but the two charges of criminal damage to property. The district court sentenced Davis to the standard prison term of 233 months for the primary offense of aggravated robbery of Newman in Count 2 and ran all other sentences concurrently.
Davis timely appeals.
Was Davis' Conviction of Aggravated Robbery in Count 3 Multiplicitous with his Conviction of Aggravated Robbery in Count 4?
Davis first claims his conviction for aggravated robbery of money from Allen is multiplicitous with his conviction of aggravated robbery of property from both Allen and Alex. The State contends the legislature intended that more than one conviction could result from multiple takings or removal of property by armed intruders.
Davis does not acknowledge that he failed to raise this issue before the trial court. Regardless, the appellate courts generally address multiplicity arguments for the first time on appeal to serve the ends of justice and prevent the denial of fundamental rights. See, e.g., State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234 (2010). A multiplicity issue presents a question of law; thus, the panel's review is unlimited. 290 Kan. at 971.
“Multiplicity is the charging of a single offense in several counts of a complaint or information.” State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006). The primary danger of multiplicity is the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2009); State v. Pham, 281 Kan. 1227, 1246, 136 P.3d 919 (2006).
Our Supreme Court, in Schoonover, explained that there are two components to the question of whether multiple convictions are for the same offense: “(1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?” 281 Kan. at 496. Several factors should be taken into consideration when analyzing the first component: (1) whether the acts occurred at or near the same time; (2) whether the acts occurred at the same location; (3) whether there was a causal relationship between the acts and, in particular, whether there was an intervening event; and (4) whether there was a fresh impulse motivating some of the conduct 281 Kan. at 497.
Specifically, with regard to an intervening event or a fresh impulse, the Supreme Court stated: “ ‘ “Incidents are factually separate when independent criminal acts have occurred at different times or when a late[r] criminal act is motivated by a “fresh impulse.” ‘ “ 281 Kan. at 497 (quoting State v. Kesselring, 279 Kan. 671, 683, 112 P.3d 175 [2005] ).
Count 3 charged Davis with aggravated robbery—taking money from the person or presence of Allen—while Count 4 charged him with aggravated robbery—taking various items of personal property from the persons or presence of Alex and Allen. The jury was instructed accordingly.
Davis maintains that his act of taking money from Allen and the taking the various items of property from both Alex and Allen arose from the same conduct. The takings occurred within a short period of time, at the same location, and there was a causal relationship between the acts. The State argues, however, that because the takings occurred at different points in the home invasion—the money early on and the items jointly owned by the boys shortly before Davis left the home—the takings or acts were the result of fresh impulses. We agree with the State.
Our court, in State v. Gomez, 36 Kan.App.2d 664, 674, 143 P .3d 92 (2006), held that a defendant's criminal conduct was separated by a fresh impulse when the defendant first pointed his gun at the victim, the victim ran to his vehicle in fear, and then shortly thereafter the defendant fired upon the victim and another person in the fleeing car. See also State v. Fillman, 43 Kan.App.2d 244, 253–55, 223 P.3d 827 (2010) (fresh impulse motivated defendant's second shot into wall where 10–minute period passed between victim's attempts to reach for pistol), rev. denied 291 Kan. 914 (2011); State v. Hawkins, 40 Kan.App.2d 10, 18, 188 P .3d 965 (2008) (defendant's later decision to turn around while running and motion as though he was going to shoot victim was fresh impulse from earlier event of frightening victim by shooting toward him as he stood in front of restaurant), rev. denied 287 Kan. 767 (2009). But see State v. Douglas, No. 102,676, 2011 WL 5027085, at *20 (Kan.App.2011) (unpublished opinion) (taking of victim's weapon and attempt at taking money from vault unitary act because occurred at same time), rev. denied 294 Kan. –––– (May 4, 2012).
When considering the issue of multiplicity in the context of a sexual assault, our Supreme Court, in State v. Sellers, 292 Kan. 346, 358–59, 253 P.3d 20 (2011), held the conduct was not unitary where the defendant first laid down with the victim and touched her, got up and left the room for 30 to 90 seconds to check on a barking dog, then returned to the room and touched the victim a second time. See also State v. Richmond, 250 Kan. 375, 378–79, 827 P.2d 743 (1992) (holding two counts of rape not multiplicitous); State v. Zamora, 247 Kan. 684, 693–94, 697–98, 803 P.2d 568 (1990) (two rape charges not multiplicitous when digital penetration preceded intercourse); State v. Howard, 243 Kan. 699, 702–03, 763 P.2d 607 (1988) (multiple counts of rape, sodomy not multiplicitous when occurring over span of 90 minutes to 3 hours; when separate, distinct; when occurring in different locations in house; when separated from each other by other sex acts); State v. Wood, 235 Kan. 915, 920, 686 P.2d 128 (1984) (incidents of sexual intercourse separate, distinct when separated by 2 to 3 hours). But see State v. Sprung, 294 Kan. 300, 307, 277 P.3d 1100 (2012) (defendant's acts of penetrating victim and then having victim place her hand on defendant's genitalia unitary conduct); State v. Potts, 281 Kan. 863, 872, 135 P.3d 1054 (2006) (short break between events did not demonstrate the existence of a fresh impulse).
The sequence of events as they involved Davis, Allen, and Alex are as follows:
1) Davis first takes money from Allen. He declines to take Alex's shoes after Alex protests;
2) Davis goes downstairs, wakes up Newman, and brings her upstairs to the boys' bedroom;
3) Newman is confronted by Davis and Huber;
4) Huber takes Newman back downstairs then brings her upstairs a second time;
5) Newman leads Davis and Huber to Tyler's bedroom; and,
6) Davis and the others start removing personal property from Allen and Alex's room.
A review of the sequence of events clearly shows that after Davis first took the money from Allen, he then engaged in several discrete acts which were significantly separate as to constitute fresh criminal impulses. Of particular importance is the fact that Davis left the boys' room twice and confronted another individual before he and the others began taking the property out of Allen and Alex's room. The fact that the actions would have taken only a few minutes or seconds does not change the analysis. See Sellers, 292 Kan. at 359. Accordingly, there is no multiplicity problem and no Double Jeopardy Clause violation.
Was There Sufficient Competent Evidence to Support Davis' Conviction of Aggravated Burglary?
For his second claim, Davis argues his conviction of aggravated burglary was unsupported because there was insufficient evidence that he entered the Luthi home without authority. The State maintains the circumstantial evidence provided more than ample evidence for the jury to conclude beyond a reasonable doubt that Davis' entry was unauthorized.
Davis contends the standard of review on this issue is one of law because it calls for interpretation of the elements of aggravated burglary as defined in K.S.A. 21–3716. But there is no dispute that an unauthorized entry is an element of aggravated burglary. The State correctly proposes the following well-known standard of review for issues raising sufficiency of the evidence.
“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review 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 defendant guilty beyond a reasonable doubt.” ‘ “ State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011) (quoting State v. Drayton, 285 Kan. 689, 710, 175 P.3d 861 [2008] ).
In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). “[A] conviction of even the gravest offense “ ‘can be based entirely on circumstantial evidence and the inferences fairly deductible therefrom.” ‘ “ McCaslin, 291 Kan. at 710.
To find Davis guilty of aggravated burglary, the jury was instructed that the following elements must be proven: (1) that Davis knowingly entered and remained in the Luthi house; (2) that Davis did so without authority; (3) that Davis did so with the intent to commit aggravated robbery a felony therein; (4) that at the time there was a human being in the house; and (5) that this act occurred on or about July 9, 2010, in Lyon County, Kansas.
Citing State v. Harper, 246 Kan. 14, Syl. ¶¶ 2–3, 785 P.2d 1341 (1990), Davis contends his intent to commit a robbery upon entry is separate and distinct from the question of whether he had the authority to enter the house and, accordingly, any evidence of that nature is irrelevant. Davis asserts because the back door was unlocked and he was never told to leave the premises, there was no evidence or fair inference that he and his accomplices were not wanted in the house or entered without authority.
The question of whether the element of “without authority” is met in a burglary case generally arises if the defendant enters a building open to the public, if the defendant has some legal right to be in a residence, or if the defendant initially enters the residence with permission but that permission is later terminated. See State v. Vasquez, 287 Kan. 40, 59–60, 194 P.3d 563 (2008) (insufficient proof of an unauthorized entry because the victim and defendant were still married, and the State presented no evidence he was legally unauthorized to enter); State v. Hall, 270 Kan. 194, 195–98, 202, 14 P.3d 404 (2000) (elements of burglary were not established because defendant's entries into the building were authorized by K–Mart); State v. Fondren, 11 Kan.App.2d 309, 316, 721 P.2d 284 (evidence established the element of an entry without authority because defendant, a nonstudent, entered the school annex without express or implied authority with the intent to commit a theft), rev. denied 240 Kan. 805 (1986); State v. Mogenson, 10 Kan.App.2d 470, 473, 701 P.2d 1339 (the initial entry may have been authorized because the victim's son unlocked the door for the defendant, but the victim demanded defendant leave, thus terminating any alleged authority to enter), rev. denied 238 Kan. 878 (1985).
In this case there was more than sufficient evidence to support the element of an entry without authority. Davis fails to recognize the significance of the fact he entered a private residence and not a building open to the public. An unlocked door is not an open invitation for any nonresident to enter. Alex did not testify he opened the door or in any way gave permission for the intruders to enter the house. Three masked men carrying weapons opened the rear door of the Luthi house, entered without authority, and proceeded to rob the residence. When viewing this evidence in a light most favorable to the prosecution, there is little doubt the panel can conclude a rational factfinder would have found Davis guilty beyond a reasonable doubt of all the elements of burglary.
Was There Sufficient Competent Evidence to Support Davis' Conviction of Aggravated Assault with a Deadly Weapon?
For his third claim, Davis argues Newman never testified anyone made a “verbal threat” to do her harm and, accordingly, there was insufficient evidence to support his conviction of aggravated assault with a deadly weapon. The State maintains that Davis' words combined with his actions, as well as those of his accomplices, was sufficient evidence of aggravated assault.
Davis again incorrectly asserts the issue here involves interpretation of the aggravated assault statute. The standard of review is whether, after viewing all the evidence in a light most favorable to the prosecution, the panel is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt, McCaslin, 291 Kan. at 710.
To find Davis guilty of aggravated assault with a deadly weapon, the jury was instructed that the following elements must be proven: (1) that Davis intentionally placed Newman in reasonable apprehension of immediate bodily harm; (2) that Davis used a deadly weapon; and (3) that the act occurred on July 9, 2010, in Lyon County, Kansas.
When viewed in a light most favorable to the prosecution, the panel can conclude that a rational factfinder could have found Davis guilty beyond a reasonable doubt of aggravated assault. The actions of Davis and his accomplices were threatening-Davis was smacking a baseball bat in his hand; Huber kept whipping out his knife at Newman; and Huber followed Newman with the knife to the basement bedroom where he became angry and poked a hole in the ceiling with the knife. Furthermore, Newman testified these actions made her “very, very frightened.” Newman's testimony supports a finding that she indeed felt threatened by Davis' and his accomplices' conduct.
Davis suggests it was presumably frightening for Newman to have someone demanding money from her while she was aware of the baseball bat and knife but that conduct constituted aggravated robbery; there was no additional act to sustain his conviction for aggravated assault. To the extent Davis is raising a multiplicity argument—his conduct cannot support both offenses—he is wrong. Although his convictions for both offenses arose from the same conduct, the two crimes required proof of an element not necessary to prove the other. See Schoonover, 281 Kan. at 498. Employing the same-elements test, Davis' convictions are not multiplicitous. Aggravated robbery requires proof that the defendant took property from the person or presence of another by force or by threat of bodily harm. See K.S.A. 21–3426; K.S.A. 21–3427. The crime of aggravated assault does not contain this element. Aggravated assault requires proof that the victim was placed in immediate apprehension of bodily harm. See K.S.A. 21–3408; K.S.A. 21–3410. Davis' conviction of aggravated assault was not multiplicitous with his conviction of aggravated robbery.
Affirmed.