Opinion
No. 108,293.
2013-08-2
STATE of Kansas, Appellee, v. Damon M. DICKS, Appellant.
Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed August 2, 2013. Affirmed. Heather Cessna, of Kansas Appellate Defender Office, 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. Opinion filed August 2, 2013. Affirmed.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Damon Dicks challenges his jury conviction for burglary, theft, and other charges, raising three arguments. First, he argues that;he district court committed reversible error because it gave a jury instruction for theft that was broader than the complaint. Second, he argues that the State committed prosecutorial misconduct by improperly shifting the burden of proof during its closing argument. Third, he argues that his prior convictions should have been proven to a jury.
But there was no error in the jury instruction because it defined theft using the language of the statute and didn't include alternate methods of committing theft that hadn't been charged in the complaint. There was no prosecutorial misconduct because it is permissible for a prosecutor to comment about the lack of evidence to support a defense theory as long as the jury is properly instructed on the State's burden of proof. And the Kansas Supreme Court has held that prior convictions aren't required to be proven to a jury. We therefore affirm the district court's judgment.
Factual and Procedural Background
Because Dicks has challenged the form of the jury instruction for theft, we must first review the facts of the case so as to put the theft charge in context. On December 26, 2011, two employees of the Burlington Northern Santa Fe Railroad saw a man place something on the railroad tracks near an Emporia station, enter the depot building, and leave a few minutes later. One of the employees saw the man carrying a briefcase. The employees found a railroad torpedo explosive—a device used to signal trains to stop—on the track and called police. The police investigation also revealed that a depot office had been broken into and damaged. A handwritten note on a whiteboard said: “Damon Dicks owns 50 percent of BNSF. Al Gore owns the other 50 percent, so let's be nice to each other.”
The same night, police located Dicks at his apartment, where they found a dismantled end-of-train device and other railroad items. Dicks was charged with burglary, theft, criminal damage to property, trespass, and criminal use of explosives. The complaint charged Dicks with theft of a black leather briefcase, an end-of-train device, and torpedo explosives. The complaint alleged that the property was worth at least $1,000 but less than $25,000.
At trial, testimony showed that neither a briefcase nor any torpedo explosives were recovered from Dicks' apartment. The end-of-train device was valued at $2,384.
Dicks testified that he found the device and other rail road items in the trash behind his apartment. Dicks also testified that he believed he was framed, and defense counsel repeated these claims during closing argument. In the State's rebuttal, the prosecutor stated that the defense theory was “not supported by any evidence.”
The jury was instructed that the State had the burden to prove the defendant guilty and that he wasn't required to prove he wasn't guilty. The jury instruction for theft required the jury to find that Dicks obtained unauthorized control of property owned by BNSF, but the instruction didn't specify the items allegedly stolen.
In April 2012, the jury found Dicks guilty of all five charges. The district court sentenced Dicks to 24 months of probation, with an underlying prison sentence of 40 months to be served if Dicks did not successfully complete his probation. Dicks appeals.
Analysis
I. There Was No Error in the Jury Instruction for Theft.
Dicks argues that the district court erred because the jury instruction for theft was broader than the elements listed in the complaint. Specifically, Dicks argues that the jury instruction required that the jury find that Dicks stole “the property,” but the complaint specified that Dicks was charged with stealing three specific items. The State contends that Kansas law doesn't require that items of property must be specified in a jury instruction.
If there is no objection to a jury instruction at trial, an appellate court will not overturn a conviction unless the jury instruction was clearly erroneous. See K.S.A.2012 Supp. 22–3414(3); State v. Hart, 297 Kan. ––––, 301 P.3d 1279, 1289 (2013). To determine whether an instruction was clearly erroneous, we must first determine whether there was any error at all. To make that determination, we must consider whether the instruction was legally and factually appropriate, using an unlimited review of the entire record. State v. Mireles, 297 Kan. ––––, Syl. ¶ 6, 301 P.3d 677 (2013). If there was error, then we must determine whether we are firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. Hart, 301 P.3d at 1289. The party claiming a clearly erroneous instruction has the burden to establish the degree of prejudice necessary for reversal. Mireles, 297 Kan. ––––, Syl. ¶ 7.
The district court has the duty to define the offense charged in the jury instructions, either in the language of the statute or in accurate language of the court. State v. Richardson, 290 Kan. 176, 181, 224 P.3d 553 (2010). Jury instructions shouldn't be broader than the charging document. State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009). The charging document must set out the specific offense alleged against the defendant to inform the defendant of the nature of the accusation against him and to protect him from being convicted on the basis of facts that weren't contemplated in the initial charges. Hart, 301 P.3d at 1289. The State is bound by the wording of its charging document, and the prosecution and district court must use caution in conforming the jury instructions to the charges. State v. Haberlein, 296 Kan. 195, 210–11, 290 P.3d 640 (2012). A jury instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous, and that error is only excusable if the substantial rights of defendant aren't prejudiced. State v. Jones, 290 Kan. 373, 383–84, 228 P.3d 394 (2010).
There appear to be no Kansas cases that address whether the specific items of property listed in the complaint should be listed in the jury instructions for theft. Cases that address overbroad jury instructions generally deal with instructions that add alternate elements of a crime from the statutory language that weren't included in the complaint. See, e.g., Hart, 301 P.3d at 1289–90 (finding overbroad jury instruction that required that indecent liberties were committed with intent to arouse the sexual desires of the victim or defendant or both, but complaint only alleged intent to satisfy the sexual desires of the defendant); Jones, 290 Kan. at 383–84 (finding overbroad jury instruction for aggravated kidnapping that included additional statutory elements beyond what was charged); Trautloff, 289 Kan. at 802–03 (finding overbroad jury instruction that allowed conviction for sexual exploitation of a child for displaying, procuring, or producing a photo or video when complaint charged defendant only with “displaying” a photo or video); State v. Wade, 284 Kan. 527, 537, 161 P.3d 704 (2007) (finding overbroad jury instruction for aggravated burglary predicated on underlying felony of either first-degree murder or aggravated assault when defendant wasn't on notice that aggravated assault could be underlying felony); State v. Hemby, 264 Kan. 542, 547–50, 957 P.2d 428 (1998) (finding overbroad jury instruction for sodomy that allowed conviction for oral or anal copulation when complaint only charged oral copulation); State v. Turbeville, 235 Kan. 993, 997–98, 686 P.2d 138 (1984) (finding overbroad jury instructions for kidnapping that included statutory alternate intents “to terrorize another” and “to facilitate flight” that weren't included in complaint). The common theme in these cases is the inclusion of statutory language in the jury instruction that wasn't included in the complaint.
Here, the elements required by the jury instruction accurately match the statutory language for theft. The instruction at issue stated:
“The defendant is charged with the crime of Theft of Property; Value $1,000 to $25,000. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proven:
“1. That the Burlington Northern Santa Fe Railroad was the owner of the property;
“2. That the defendant obtained or exerted unauthorized control over the property;
“3. That the defendant intended to deprive Burlington Northern Santa Fe Railroad permanently of the use or benefit of the property;
“4. That the value of the property was at least $1,000 but less than $25,000; and
“5. That this act occurred on or about the 26th day of December, 2011, in Lyon County, Kansas.”
Similarly, theft is defined, in relevant part, as “any of the following acts done with intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services: ... (1) Obtaining or exerting unauthorized control over property or services.” K.S.A.2012 Supp. 21–5801(a)(1). Theft of property of at least $1,000 but less than $25,000 is a severity level 9, nonperson felony. K.S.A.2012 Supp. 21–5801(b)(3). The pattern instructions for theft recommend instructing jurors that they must find that the defendant intended to permanently deprive the owner of the use of “the property,” and nothing in the notes and comments suggest specifying the items of property in the jury instructions. PIK Crim. 4th 58.010. The complaint charged Dicks with obtaining or exerting unauthorized control over property or services worth at least $1,000 but less than $25,000 with the intent to permanently deprive the owner use or benefit of such property or services. The complaint specified that the property was “to-wit: black leather briefcase; end of train device; torpedo explosives” and identified the owner as Burlington Northern Santa Fe Railroad.
Unlike the cases cited previously, the jury instruction here didn't include alternate methods of committing theft that weren't charged in the complaint. For example, theft also may be committed by deception, threat, receiving property known to be stolen, or a gas-station driveoff. K.S.A.2012 Supp. 21–5801(a)(2)–(5). Thus, the jury instruction on the elements of the crime wasn't broader than the complaint because both alleged theft exclusively under the statutory elements required by K.S.A.2012 Supp. 21–5801(a)(1). See Jones, 290 Kan. at 383–84. We find no error here.
Even if there had been an error in failing to identify the property alleged to have been stolen in the instruction, the instruction wouldn't be clearly erroneous because it can't be said that this court would be firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. See Hart, 301 P.3d at 1289. If the jury instruction had required the jury to find that Dicks obtained unauthorized control over a black leather briefcase, an end-of-train device, or torpedo explosives worth at least $1,000 but less than $25,000, then it is likely that the jury would have reached the same verdict because there was evidence that an end-of-train device valued at $2,384 was found in Dicks' apartment. The lack of evidence to show that Dicks stole a briefcase or torpedo explosives wouldn't have absolved him of guilt for theft of the end-of-train device. The jury obviously accepted the State's evidence that Dicks had stolen that device, and that amounts to theft as defined in the jury instruction as given—and under the statute.
Dicks also suggests that perhaps the jury convicted him for taking some of the miscellaneous railroad property found in his apartment, which included some train keys, posters, and signs. But no evidence suggested any of these items had substantial value—and certainly not a value, even taken together, of at least $1,300. The jury could have convicted Dicks of theft only if it found that he had stolen the end-of-train device found in his apartment, and Dicks clearly was charged with theft of that item. We therefore find no error in the jury instruction for theft.
II. There Was No Prosecutorial Misconduct.
Dicks next alleges prosecutorial misconduct by improperly shifting the burden of proof during closing argument. Specifically, Dicks argues that the prosecutor suggested that the burden was on Dicks to prove his innocence when he stated that Dicks' explanation was “not supported by any evidence.” The State contends that the prosecutor's statement was a permissible comment on the evidence and didn't shift the burden of proof.
We review an allegation of prosecutorial misconduct involving improper comments to the jury under a two-step analysis. Hart, 301 P.3d at 1288. We first determine whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Then, if misconduct is found, we must determine whether the improper comments prejudiced the jury against the defendant and denied him a fair trial. Hart, 301 P.3d at 1288.
Generally, prosecutors have wide latitude to argue reasonable inferences that may be drawn from the evidence. State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009). But an attempt to shift the burden of proof to the defendant is improper. State v. Wilson, 295 Kan. 605, 624, 289 P.3d 1082 (2012). A prosecutor's comments about the weakness of the defense are within the wide latitude allowed in discussing the evidence. 295 Kan. at 624–25. This includes comments about the lack of evidence as long as the jury is properly instructed on the prosecution's burden of proof. State v. Cosby, 293 Kan. 121, 136, 262 P.3d 285 (2011). Our court has held that asking the jury to make inferences about the lack of evidence is a permissible tactic and not an attempt to shift the burden to the defendant. State v. Bedell, 36 Kan.App.2d 870, 875–76, 146 P.3d 1096 (2006) (finding permissible prosecutor's argument that there was no evidence to support defense that cocaine was for personal use), rev. denied 283 Kan. 932 (2007).
Here, Dicks testified that he found the stolen property behind his apartment Christmas morning and that he believed he was framed for the crime. Dicks' closing argument repeated the claim that Dicks found railroad property and that someone he didn't know could have framed him by writing his name on the board at the railroad station. In the State's rebuttal closing argument, the prosecutor said: “Another problem with the defense's theory, besides the fact that it's not suppo ted by any evidence that there was anyone trying to frame the defendant or get him on the hook for something he didn't do, is the fact the times don't work out.”
The jury was instructed that the State had the burden to prove the defendant guilty and that the defendant wasn't required to prove he wasn't guilty. In the State's closing argument, the prosecutor repeated that the burden of proof was on the State to prove guilt. Thus, the prosecutor's comment about the lack of evidence to support Dicks' defense theory was permissible. See Cosby, 293 Kan. at 136. Pointing out the weakness of a defense argument, as was done here by stating that there was no evidence of anyone with a motive to frame Dicks, is within the wide latitude allowed in discussing the evidence. See Wilson, 295 Kan. at 624. Because there was no misconduct, it isn't necessary to analyze whether the comment prejudiced the jury against Dicks.
III. The District Court Didn't Err in Sentencing Because Prior Convictions Aren't Required to be Proven to a Jury.
Finally, Dicks preserves for federal review the argument that his prior convictions used to increase his sentence weren't submitted to a jury or proven beyond a reasonable doubt in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that any fact that increases the penalty for a crime beyond the statutory maximum, other than the fact of a prior conviction must be submitted to jury and proven beyond a reasonable doubt). The Kansas Supreme Court has rejected this argument. State v. Ivory, 273 Kan. 44, Syl., 41 P.3d 781 (2002). And the Kansas Supreme Court hasn't indicated a change on this issue. State v. Hughes, 290 Kan. 159, 173, 224 P.3d 1149 (2010). As a result, this court is bound by precedent. See State v. Reese, 42 Kan.App.2d 388, 391, 212 P.3d 260 (2009).
The district court's judgment is affirmed.