Opinion
No. 108,509.
2013-09-27
STATE of Kansas, Appellee, v. Cornell DILWORTH, Jr., Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge. Anna M. Jumppowen, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Anna M. Jumppowen, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Cornell Dilworth Jr. was convicted of theft after he was caught attempting to leave a Dillon's grocery store with lots of items stashed in his coat. On appeal, Dilworth notes that the Kansas theft statute defines theft as “[o]btaining or exerting unauthorized control” over property with the intent to permanently deprive the owner of the property. He argues that the State may proceed under the statute either with a claim that he obtained unauthorized control or that he thereafter exerted continued control of the property. Dilworth notes that the jury instruction in this case specifically referenced only exerting control over the property, and he asks that we reverse his conviction on the ground that there wasn't sufficient evidence that he did so.
But the Kansas Legislature has specifically defined “obtaining” and “exerting” control to mean the same thing. See K.S.A.2012 Supp. 21–5111(r). Accordingly, our court has held in two recent cases that the theft statute does not create separate means—obtaining and exerting—that must each be proven at trial. See State v. Snover, 48 Kan.App.2d 298, Syl. ¶ 2, 287 P.3d 943 (2012), petition for rev. filed December 10, 2012; State v.. Polk, No. 105,011, 2012 WL 1237880, at *5–6 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. –––– (April 1, 2013). We agree with the analysis in those cases, and we therefore reject Dilworth's claim that the evidence was insufficient to convict him of theft.
Dilworth makes one other argument on appeal. He argues that the prosecutor committed misconduct in opening and closing arguments—first, by claiming that obtaining and exerting control were the same thing, and second, by urging the jury to hold the defendant “accountable.” We obviously find no error on the first point; the State's position was legally correct. We also find no error on the second point, as the accountability comments were not emphasized and could not reasonably be expected to have affected the jury's consideration of the case. We therefore affirm the district court's judgment.
Factual and Procedural Background
Dilworth was charged with and convicted of theft after he was caught shoplifting several items from a Dillon's grocery store on January 29, 2012. Dilworth was in the store that day, and Paul Lickteig, the assistant store manager, observed Dilworth acting suspiciously on the store's surveillance camera. Dilworth had a shopping basket containing two family packs of meat, a jar of mayonnaise, and toilet paper when he walked into an empty aisle and walked back and forth, as if making sure no one was coming. Lickteig saw Dilworth slip the jar of mayonnaise into his coat and sneak a small seasoning container in his front pocket. The camera showed Dilworth then shoving the meat packs into his coat. Dilworth also put the toilet paper into an empty Dillon's bag he pulled from his coat. Dilworth set down the emptied basket and headed toward the exit. At that point, Lickteig left his office and made his way to the entrance, where he contacted Dilworth. Lickteig asked Dilworth to come with him to the store's office. When Dilworth tried to push by Lickteig, some of the grocery items fell out of his coat.
Officer Stacie Mercer was already at the store on an earlier shoplifting incident. She joined Lickteig and took Dilworth into custody. Officer Mercer felt some weight in the back of Dilworth's coat and pulled out the jar of mayonnaise hidden between the coat and lining. She also recovered the seasoning container from the coat's front pocket. Dilworth had no receipt for the toilet paper in the Dillon's bag.
Dilworth was charged with unlawfully obtaining or exerting unauthorized control over property or services valued less than $1,000 from Dillon's—after having been previously convicted of theft two or more times. See K.S.A.2012 Supp. 21–5801(a)(1), (b)(6). But the jury instructions left out the language about “obtaining control” over property, including only the “exerting control” option. A jury convicted Dilworth, and the sentencing court imposed the presumptive sentence under Kansas sentencing guidelines: probation for 12 months, with an underlying 7–month prison sentence to be served if Dilworth doesn't successfully complete his probation. Dilworth has now appealed to this court.
Analysis
I. Obtaining and Exerting Control Do Not Constitute Alternative Means of Committing a Theft, So the State's Proof That Dilworth Took Control of the Items Was Sufficient to Prove He Committed the Offense.
Dilworth's first argument is that the evidence wasn't sufficient to convict him for theft. His claim is that theft is an alternative-means crime, meaning that the crime may have been committed in one of two ways. In such cases, if both means are submitted to the jury, the State must present sufficient evidence to convict under both means. See State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159 (2010). Here, though, the court's jury instruction included only one of the two means—telling the jury that it must find that Dilworth “exerted unauthorized control” over the property. Thus, Dilworth argues, the State had to specifically prove that he “exerted unauthorized control” over it, which he argues is something different than gaining control in the first place.
In Kansas, for something to be a crime, the legislature must say so. No common-law crimes are recognized. State v. Sexton, 232 Kan. 539, 542–43, 657 P.2d 43 (1983). So we look to the words chosen by the legislature to determine what constitutes a crime.
In K.S.A.2012 Supp. 21–5801(a)(l), the legislature defined one form of theft as “[o]btaining or exerting unauthorized control over property” when done with the intent to permanently deprive the owner of the use, possession, or benefit of that property. While the legislature used separate terms—obtaining or exerting—in the theft statute, it also provided a separate definitional section that has given those terms a single meaning:
“ ‘Obtains or exerts control’ over property includes, but is not limited to, the taking, carrying away, sale, conveyance, transfer of title to, interest in, or possession of property.” K.S .A.2012 Supp. 21–5111(r).
As our court has explained in Snover and Polk, there can be no difference between “obtaining” property or “exerting control” over property for the purpose of the theft statute because the legislature has defined these two terms to mean the same thing. See Snover, 48 Kan.App.2d at 305;Polk, 2012 WL 1237880, at *5; see also State v. Rollins, 46 Kan.App.2d 17, 22, 257 P.3d 839 (2011) (“There is no quantifiable difference between the actions that constitute obtaining or exerting; these words create a distinction without a difference.... Consequently, this is not an alternative means case.”), rev. denied 293 Kan. (February 17, 2012).
Dilworth suggests that language from our Supreme Court in State v. Kunellis, 276 Kan. 461, 78 P.3d 776 (2003), requires a different result. But the issue in Kunellis was a different one—whether theft was a continuing offense so that the felony-murder statute would apply to that defendant. It's true that there is some discussion in that context of how the terms obtaining control and exerting control are commonly used to express different concepts, but there is certainly no holding there that these terms constitute alternative means for committing a theft under the Kansas statute. See Polk, 2012 WL 1237880, at *5–6. And there was no discussion in Kunellis of the statutory definition for “obtains or exerts control.”
This is not an alternative-means case, and the State was not required to present separate evidence that Dilworth first “obtained control” of the property and later “exerted” continued control over it K.S.A.2012 Supp. 21–5111(r) defines exerting control to include taking it or carrying it away, and the evidence showed that Dilworth took the items and put them in his coat before attempting to leave the store with them. Accordingly, the State presented sufficient evidence to support Dilworth's theft conviction.
II. The Prosecutor Did Not Commit Misconduct.
For his second issue, Dilworth argues the prosecutor committed misconduct by misstating the law on theft and by making an emotional plea to the jury in both opening and closing arguments. The State counters that the prosecutor did not misstate the law on theft (as resolved in the first issue here) and the prosecutor's closing arguments were within the wide latitude allowed to prosecutors in discussing the evidence. We are able review Dilworth's allegations of prosecutorial misconduct on appeal despite his failure to object to the comments at trial. See State v. Phillips, 295 Kan. 929, 942–43, 287 P.3d 245 (2012).
In order to address this issue, we must first determine whether there was error, i.e., whether the comments were outside the wide latitude the prosecutor is allowed. Second, if we find misconduct, we must then determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
The consideration of plain error requires a three-step analysis: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” See State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012); see also State v. Inkelaar, 293 Kan. 414, 430–31, 264 P.3d 81 (2011) (“gross and flagrant” is conduct that is repeated or emphasized; “ill will” is shown by indifference to a court ruling; and evidence is “direct and overwhelming” if there is no reasonable possibility the misconduct affected the verdict).
Dilworth first contends the prosecutor committed misconduct by telling the jury to determine his guilt based on whether he “obtained” unauthorized control of the property, when the jury instruction asked the jury to determine whether he “exerted” unauthorized control—an alleged misstatement of the law. This was not misconduct because, as noted in the first issue, these terms are interchangeable.
Dilworth next contends the prosecutor committed misconduct by taking the focus away from the evidence throughout trial and improperly appealing to the passions and prejudices of the jury. The State began opening statements by stating, “Accountability. That's what this case is about, accountability. In order for our society to function properly, people must be held accountable for their actions, for all of their actions.” The State began its closing statements the same way:
“Accountability. I talked about it before. That's what this whole case is about, holding people accountable for their actions, regardless of their actions. It's an important part of our society to hold people accountable. In this case, to hold the defendant, Cornell Dilworth, accountable for his action, his committing a theft against Dillon's.”
Dilworth contends this improper theme was continued during the course of the trial. He suggests the prosecutor conducted an inappropriate line of questioning by highlighting a shoplifting event that occurred earlier the same day and when, on redirect examination, the prosecutor asked Lickteig, “[I]s shoplifting a serious problem in your store?” The trial court sustained the defense attorney's objection to this question.
In response, the State contends that the prosecutor was not making a general appeal to the jurors' sense of community values or safety—the type of appeal to the jury that appellate courts generally have found to be improper. The State maintains that the prosecutor's comments were simply asking the jury to convict Dilworth for his conduct.
Contrary to Dilworth's assertion, the prosecutor's comments were not similar to those made in Wilson v. Bruce, 820 F.Supp. 585, 587–8 (D.Kan.1993) (asking the jury to send a message to the defendant that “ ‘we're not gonna let him do this to the children in the community” ’ was reversible error in part because it appealed to the passions and prejudices of the jury and implied if the jurors found the defendant not guilty, they were endangering all the children of the community), and State v. Ruff, 252 Kan. 625, 636, 847 P.2d 1258 (1993) (reversible error occurred when prosecutor's last statement to jurors was that the jury had a duty to send a message to the community that certain conduct will not be tolerated). The prosecutor in Dilworth's case was not asking the jury to send a message to the community.
It appears prosecutors have frequently asked the jury to hold the defendant accountable in closing argument without triggering a prosecutorial-misconduct issue on appeal. See, e.g., State v. Harmon, No. 105,010, 2012 WL 1970056, at *6 (Kan.App.2012) (unpublished opinion) (accountability mentioned in closing but not emphasized by the defendant as part of the prosecutorial-misconduct argument), rev. denied 296 Kan. –––– (March 28, 2013); State v.. Mason, No. 100,240, 2009 WL 1393817, at *2 (Kan.App.2009) (unpublished opinion) (prosecutor twice asked the jury to hold the defendant accountable but the defendant did not rely on those comments in making the prosecutorial-misconduct argument), rev. denied 289 Kan. 1283 (2010). But see State v. Kincade, No. 94,657, 2006 WL 2265090, at *3 (Kan.App.2006) (unpublished opinion) (court concluded the prosecutor's statement that the jurors had a duty to hold the defendant accountable for his conduct “might arguably” have constituted an attempt to impermissibly invoke a community sense of duty but, regardless, the comments were not so prejudicial as to deprive the defendant of a fair trial), rev. denied 282 Kan. 794 (2006), overruled on other grounds by State v. Hendrix, 289 Kan. 859, 218 P.3d 40 (2009). On the other hand, a few states have cautioned prosecutors that overemphasizing accountability to the extent that it diverts the jurors' attention from their role of deciding whether the State has met its burden of proving defendant guilty beyond a reasonable doubt arguably crosses the line of propriety. See State v. Montjoy, 366 N.W.2d 103, 108–09 (Minn.1985) (stating that prosecutors may talk about accountability but should not emphasize it so much that the jury's attention is diverted); State v. Easter, No. 42099–2–1, 99 Wash.App. 1061, 2000 WL 292584, at *5 (Wash.App.2000) (unpublished opinion) (finding that the prosecutor's multiple references to holding the defendant accountable were not improper “in light of [the prosecutor's] continual references to the proper burden of proof”).
We find no reversible prosecutorial misconduct here. The accountability comments were not overemphasized. The comments were made as part of the prosecutor's introduction to his opening and closing statement, after which he discussed the evidence in reference to the elements of the offense. The prosecutor's questioning during trial regarding the prior shoplifting incident merely provided context for why Lickteig was in the office looking at the surveillance camera and why the officer was already in the store. The prosecutor's attempt to interject a store's shoplifting problem may have been improper, but this was a single question, and the trial court sustained Dilworth's objection. Even if the prosecutor's questioning and comments on accountability constituted misconduct, it would not constitute reversible error. The comments, though repeated during both opening and closing argument, were brief and, therefore, were not gross and flagrant. The comments did not show ill will. Finally, the evidence against Dilworth was direct and overwhelming—the jury reviewed video surveillance of the events, which confirmed Lickteig's testimony that Dilworth had tried to leave the store with several items concealed in his coat. There is no reasonable probability that the alleged misconduct affected the verdict.
The district court's judgment is affirmed.