Opinion
110,230.
10-31-2014
STATE of Kansas, Appellee, v. Jared HARRIS, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is a companion appeal to State v. Harris (No. 110,229 this date decided). The facts of this case show a decided pattern to Harris' criminal conduct. Harris faced similar charges in each case. In his companion case, Harris was convicted of residential burglary and theft. Here, Harris was convicted only of theft. Harris claims there was insufficient evidence to support this conviction. In considering this claim, we examine the evidence produced at trial in the light favoring the State to determine whether, based upon those facts, a rational factfinder could have found Harris guilty beyond a reasonable doubt of theft. Having examined the evidence, we conclude it was sufficient to support Harris' conviction. We conclude further that the determination of Harris' sentence did not violate the requirements of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Thus, we affirm both Harris' conviction and his sentence.
Here are the rather familiar facts leading to Harris' theft conviction in this case.
Brenda Catt and other family members owned the vacant house that had previously been occupied by her parents. On November 9, 2012, Catt visited the house and noticed that doors to both the house and the shed had been kicked in and a lock on the shed had been cut. Locked interior doors in the house also were kicked in, and boxes from the rooms had been dumped in the hallway. Tools had been taken from the shed, along with a quantity of scrap metal. A number of household goods were missing from the house. Catt called the sheriff.
On October 31, 2012, prior to the Catt burglary, officers had placed a surveillance camera at the property owned by the Arnolds, the victims in State v. Harris, No. 110,229, in an effort to find the burglar in that case. As noted in our opinion in that case, the camera captured images of the truck owned by Harris' uncle at the Arnolds' house after that burglary. A search of Harris' residence pursuant to a search warrant, apparently the same warrant and search associated with the case involving the Arnolds, yielded a number of items taken from the Catts' residence. The officers also found bolt cutters in the truck located at Harris' residence, the same truck shown in the surveillance photos.
The officers also found in the truck a receipt from a Topeka recycling center. The recycling center had its own surveillance system which captured pictures of Harris' truck. Tadeo Franco, the manager of the recycling center, testified that Harris visited the recycling center several times between November 1, 2012, and November 20, 2012. Harris used his driver's license as proof of identification when he sold scrap metal later identified as having come from the Catts' residence.
The jury found Harris not guilty of residential burglary, nonresidential burglary, and criminal damage to property, but found him guilty of theft. After the district court denied Harris' posttrial motions and sentenced him to prison, Harris appealed.
Theft
Harris argues the evidence was insufficient to support his theft conviction. While he concedes the officers found items stolen from the Catts' home at his residence, he contends there was no evidence that he was the one who stole them from the home.
As we noted earlier, in considering a claim such as this we examine all of the evidence in the light favoring the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In doing so, we do not reweigh the evidence, resolve evidentiary conflicts, or determine the credibility of witnesses. State v. Charles, 298 Kan. 993, 997, 318 P.3d 997 (2014). 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 at issue, even when the evidence does not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). With regard to probative value, there is no distinction between direct and circumstantial evidence. State v. McBroom, 299 Kan. 731, Syl. ¶ 6, 325 P.3d 1174 (2014).
Theft requires a showing the defendant obtained or exerted unauthorized control over the property of another with the intent to permanently deprive the owner of the use or benefit of the property. K.S.A.2012 Supp. 21–5801(a)(l). Another section of the statute, K .S.A.2012 Supp. 21–5801(a)(4), involves obtaining control over stolen property, knowing the property was stolen by another, with the intent to deprive the owner of the property's possession, use, or benefit. Harris contends that convicting a defendant of theft under subsection (a)(1) of the statute by possessing property stolen by another renders subsection (a)(4) of the statute redundant, meaningless, and ambiguous. We disagree.
Harris was charged under subsection (a)(1) of the statute, not subsection (a)(4). The jury did not find him guilty of possessing property stolen by another but of having stolen the property himself. At the instruction conference, Harris did not object to the district court's instruction on the applicable elements of the crime of theft. He does not attempt to challenge the jury instruction on appeal. In our Court of Appeals opinion in State v. Keating, No. 66,280 (1992 Kan.App. LEXIS 63), unpublished opinion filed February 21, 1992, rev. denied 250 Kan. 807 (1992), the court considered the language of K.S.A. 21–3701(a) and (d) (the former theft statute) which related to (a) “unlawfully, knowingly, and willfully, obtain[ing] or exert[ing] unauthorized control over property” and (d) “obtain[ing] control over property knowing the property to have been stolen by another.” Slip op. at *2–3. The court observed:
“Subsection (a) is broad in its application, proscribing any exercise of unauthorized control over property. Subsection (d) actually requires the State to prove an additional fact, that [the defendant] knew the property was stolen when [the defendant] received or took control of it. In our view, if the State proves [the defendant] obtained control over stolen property knowing it was stolen, as required in subsection (d), the State has also proved a fortiori that [the defendant] obtained unauthorized control over the property (as required in subsection [a] ). [Citations omitted.]” Slip op. at *4.
See State v. Saylor, 228 Kan. 498, 503, 618 P.2d 1166 (1980). The fact that Harris' conduct subjected him to criminal liability under more than one subsection of the statute does not undermine the validity of his conviction.
Harris contends there was no evidence that he was the one who obtained unauthorized control over the Catts' property. He contends there was no evidence he entered the Catts' house, so only K.S.A.2012 Supp. 21–5801(a)(4) could possibly apply. But section (a)(4) of the statute was not the provision under which Harris was charged. Further, there was no evidence Harris knew the Carts' property found in his residence had been stolen by someone else.
Under the statutory provision the State pursued in this case, the State did not have to prove that Harris entered the Catts' house or shed in order to find him guilty of theft. “This court has consistently held that where a defendant is charged with two offenses which are independent, separate and distinct he may be convicted of one charge notwithstanding an acquittal as to the other .” State v. Blassingill, 216 Kan. 722, 723, 533 P.2d 1228 (1975) (citing State v. Ogden, 210 Kan. 510, 502 P.2d 654 [1972] ; State v. Finely, 208 Kan. 49, 490 P.2d 630 [1971] ); see State v. Pruitt, 216 Kan. 103, 107, 531 P.2d 860 (1975) (finding that one can commit theft or attempted theft without committing burglary; the offenses are separate and distinct). This is because “[t]he conduct of a jury is sometimes devoid of logic, and inconsistent verdicts may result. Even in cases where the two verdicts are irreconcilable, the convictions will not be reversed on grounds of inconsistency.” State v. Beach, 275 Kan. 603, Syl. ¶ 4, 67 P.3d 121 (2003). Upon review for sufficiency of the evidence, this court must decide whether the evidence produced at trial could supported a rational determination of guilt beyond a reasonable doubt independent of the jury's determination that the evidence on another count was insufficient. State v. Hargrove, 48 Kan.App.2d 522, 560, 293 P.3d 787 (2013).
Here, there was sufficient evidence to support each of the elements of the crime of theft with which Harris was charged. The Catts identified numerous items found in Harris' house as belonging to them. Further, Harris was documented selling scrap metal on multiple occasions between November 1st and November 20th, and the pieces he sold matched the types and quantities taken from the Catts' shed. Viewing the evidence in the light favoring the State, a rational factfinder could have found him guilty beyond a reasonable doubt of theft.
Apprendi v. New Jersey
Harris argues his Sixth and Fourteenth Amendment constitutional rights were violated because the State's charging document did not include his prior convictions and the State did not prove those convictions to a jury beyond a reasonable doubt in violation of Apprendi.
Our Supreme Court has resolved this issue contrary to Harris' position in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). Ivory controls. We are duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Because the Kansas Supreme Court has declined to reconsider this point of law in a long line of cases, there is no reason to believe it is departing from its holding in Ivory. See State v.. Brown, 299 Kan. ––––, 331 P.3d 797, 815 (2014). Accordingly, this issue fails.
Affirmed.