Opinion
No. 106,711.
2013-02-8
STATE of Kansas, Appellee, v. Gary A. HOLT, Jr., Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, and Melissa Tucker Pope, legal intern, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, and Melissa Tucker Pope, legal intern, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gary Holt appeals his theft conviction for knowingly possessing stolen property. Holt claims the district court erred by admitting evidence of his prior convictions for impeachment and substantive purposes. He also claims the district court erred by instructing the jury that the crime could be proven by showing that Holt had a “reasonable suspicion from all the circumstances” that the property was stolen. Next, Holt claims the district court erred by instructing the jury that the State must prove he “exerted unauthorized control” rather than “obtained control” over the stolen property. Finally, Holt contends that cumulative error denied him a fair trial. We find that each of Holt's claims are without merit, and we affirm the judgment of the district court.
On February 9, 2011, Holt was arrested and charged with felony theft by knowing possession of stolen property in violation of K.S.A. 21–3701(a)(4). At trial, the State presented the testimony of Officer Robert Henning of the Wichita Police Department. Henning testified that in the early morning hours of February 8, 2011, he was dispatched to a suspicious character call at the intersection of 14th and Yale in Wichita. At the intersection, he located a vehicle with two occupants, a male in the driver seat identified as Holt and a female in the passenger seat. Henning called in the license plate number and dispatch indicated that the vehicle had been reported as stolen.
Henning spoke to the occupants of the vehicle until another police officer arrived, at which time the officers placed the occupants in custody and searched the vehicle. The condition of the vehicle led Henning to believe it was stolen: the key in the ignition was not the key to the vehicle, and its messy interior was consistent with someone living in a vehicle that had been passed around among many people. Henning then spoke to Holt about how he had come to be in possession of the vehicle. Holt told Henning that he had rented the vehicle from an individual named Joe Michaels and that Holt “had a feeling” the vehicle was stolen. Finally, the owners of the vehicle arrived and identified it as their vehicle that had been stolen.
Holt testified on his own behalf. On direct examination, Holt stated that he had verbally agreed to pay $50 to rent the vehicle for a few days from Michaels, whom he knew from the neighborhood. Holt acknowledged that the stereo was missing but denied that there was anything else about the condition of the vehicle that indicated that it had been stolen. Holt and his counsel then had the following exchange:
“Q. Now, you spoke to the officer about—about ... whether that you knew the car was stolen; is that right?
“A. Yes, ma‘am.
“Q. Okay. Can you tell me about that conversation.
“A. Well, the officer asked me, he said, well, so you—he asked me of the person that I rented the car from. I told him the name. Naturally. And he said, well, Mr. Holt, this car is stolen. Didn't you know this car was stolen. You can't tell me that you didn't know this car was stolen. I said, I didn't tell—what I said was anything is possible.
“Q. But you didn't say that you knew the car was stolen?
“A. No, ma‘am. I don't think— I wouldn't do nothing of that nature because why would I give my money for something that I know is stolen.” (Emphasis added.)
On cross-examination, the State questioned Holt about the existence of Michaels and their alleged verbal agreement for Holt to pay $50 to rent the vehicle for a few days. Holt stated: “[I]n the neighborhood, it's like underground things goes on. I mean, and it's—I'm just saying how it is. And you can get things for a little or nothing around the neighborhood.” But Holt denied telling Henning he “had a feeling” the car was stolen.
Before the completion of cross-examination, the State requested a bench conference. The State argued that Holt's statement that he “wouldn't do nothing of that nature” opened the door for the admission for impeachment purposes of Holt's two prior convictions of theft by knowing possession of stolen property, specifically motor vehicles. Holt argued that the prior convictions were not sufficiently factually similar to the present charges to be relevant. He also argued that his statement was not offered to bolster his credibility but merely to explain that he did not know the vehicle was stolen, and therefore that he had not opened the door for the admission of his prior convictions.
The district court reviewed the affidavit of probable cause for Holt's prior convictions. The affidavit indicated that Holt had been stopped in a vehicle that was reported stolen. When questioned, Holt stated that he had rented the vehicle for $50 from a man named Richard and that he did not know it was stolen. A few weeks later, Holt was stopped in a different vehicle that was reported stolen. Holt stated that he had rented it from a man named Slim and that, because Slim had the key to the vehicle, Holt did not think it was stolen. The district court ruled: “I'm going to find those are sufficiently similar under Gunby evidence of prior bad acts under [K.S.A.2011 Supp. 60–455]. Certainly they have relevance to motive, knowledge, intent, and plan, I'm going to allow them.” Holt made no further objection but asked that the facts surrounding the prior convictions be excluded. The district court ruled that facts related to the vehicles and Holt's claims that he had rented them without knowing they were stolen were admissible.
At the close of the evidence, the district court instructed the jury on felony theft by knowing possession of stolen property with an alternative instruction on misdemeanor theft of property worth less than $1000. The district court instructed the jury that the State must prove that Holt “ exerted unauthorized control over the property knowing the property to have been stolen by another.” (Emphasis added.) Neither party objected to the elements instructions. The district court also instructed the jury under PIK Crim.3d 59.01–A that “[k]nowledge that property has been stolen by another must exist at the time control first occurs and may be proven by a showing that the defendant either knew or had a reasonable suspicion from all the circumstances known to the defendant that the property was stolen.” (Emphasis added.) Holt did not object to the instruction. Finally, the district court provided a limiting instruction, to which neither party objected, that the evidence of Holt's prior convictions was admitted solely for the purpose of proving Holt's intent, knowledge, or plan.
The jury found Holt guilty of felony theft by knowing possession of stolen property. The district court sentenced Holt to a presumptive term of 16 months' imprisonment. Holt timely appealed his conviction.
Evidence of Prior Convictions
Holt argues that his statements on direct examination were not attempts to bolster his credibility and therefore he did not open the door to admission of his prior convictions for impeachment purposes under K.S.A. 60–421. He also argues that the district court erred by allowing the prior convictions to be used for substantive purposes where the evidence was introduced on cross examination and the State had not previously sought to admit the evidence. The State contends that Holt did not preserve for appeal his objection to the admission of his prior convictions for substantive purposes, but in any case the prior convictions were admissible for both impeachment and substantive purposes.
An appellate court applies a multistep analysis when reviewing a district court's decision on the admission of evidence. The first question is relevance. K.S.A. 60–401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard whereas materiality is judged under a de novo standard. The second step is to determine which rules of evidence or other legal principles apply. On appeal, this conclusion is reviewed de novo. Under the third step of the analysis, the district court applies the applicable rule or principle. An appellate court's standard of review of the third step depends upon the rule or principle applied: some rules grant the district court discretion whereas other rules raise matters of law. Finally, an analysis under K.S.A. 60–445 may be required. Under that statute, a district court may in its discretion exclude evidence when the probative value is substantially outweighed by the risk of unfair surprise to the opposing party. On appeal, the district court's determination is reviewed for abuse of discretion. State v. Shadden, 290 Kan. 803, 817–18, 235 P.3d 436 (2010).
Holt does not argue on appeal that evidence of his prior convictions for theft by knowing possession of stolen property (specifically motor vehicles) was irrelevant for either impeachment or substantive purposes, and thus this court need not address the first step of the multistep evidentiary analysis. Under the second step, the parties agree that K.S.A. 60–421 is the applicable statute governing the admissibility of prior convictions for impeachment purposes and that K.S.A.2011 Supp. 60–455 governs the admissibility of prior convictions for substantive purposes. Under the fourth step, Holt does not argue that the probative value of admitting his prior convictions for impeachment and substantive purposes was substantially outweighed by the risk of unfair surprise. Thus, the only step this court must address is the third step—whether the district court erred in applying the rules of evidence or legal principles involved. Impeachment purposes
K.S.A. 60–421 states:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility. If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.”
Under the plain language of the statute, evidence of a criminal defendant's prior convictions is admissible for impeachment purposes only if the defendant first introduces evidence solely for the purpose of supporting his or her credibility. A district court's decision to admit a criminal defendant's prior convictions under K.S .A. 60–421 on the basis that the defendant first placed his or her credibility in issue is reviewed for abuse of discretion. See State v. Caesar, No. 103,372, 2011 WL 427460, at *2–4 (Kan.App.) (unpublished opinion), rev. denied 292 Kan. 966 (2011) (citing State v. Bowers, 218 Kan. 736, 738–40, 545 P.2d 303 [1976] and State v. Smart, 26 Kan.App.2d 808, 811, 995 P.2d 407 [1999],rev. denied 269 Kan. 939 [2000] ). In this context, a judicial action constitutes an abuse of discretion if the action is arbitrary, fanciful, or unreasonable, meaning that no reasonable person would have taken the view adopted by the district court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594(2012).
Kansas caselaw provides some guidance for determining whether a defendant has placed his or her credibility and/or character in issue:
“In State v. Stokes, 215 Kan. 5, 523 P.2d 364, we noted that the policy underlying K.S.A. 60–447 (and K.S.A. 60–421 as well) is that a defendant should be permitted to testify in his own behalf without having his history of past misconduct paraded before the jury. We also pointed out that testimony concerning background information and biographical data such as place of birth, education, length of residence in the community, length of marriage, size of family, occupation, place of employment, service in armed forces and receipt of honorable discharge is not deemed to be evidence of good character. A guideline for the allowable scope of the accused's testimony was suggested: “ ‘[The accused] is entitled, like any other witness, to let the jury know who he is so that it may properly fit him into the pattern of events brought out at the trial .’ “ (p. 7.) We pointed out, however, that when the testimony offered by the defendant goes beyond these bounds and attempts to characterize the defendant's past life as blemish-free, or makes reference to specific prior incidents, he foregoes to that extent the protection of the statute. See, State v. Bright, 218 Kan. 476, 543 P.2d 928.” Bowers, 218 Kan. at 738.
Holt cites several cases in which a Kansas appellate court found that the district court abused its discretion in finding that a criminal defendant had placed his or her credibility and/or character in issue and thus admitting evidence of the defendant's prior convictions for impeachment purposes. See State v. Macomber, 241 Kan. 154, 156–57, 734 P.2d 1148 (1987) (defendant did not put credibility in issue by stating that he supervised small children at the YMCA, by admitting he had smoked marijuana, or by repeatedly asserting his innocence of the crimes charged); State v.. Quick, 229 Kan. 117, 119–22, 621 P.2d 997 (1981) (defendant did not put credibility or character in issue by making reference to his attendance at church in the context of attempting to prove his alibi); State v. Harris, 215 Kan. 961, 962–63, 529 P.2d 101 (1974) (defendant did not put credibility in issue by presenting evidence of alibi); State v. Lewis, 27 Kan.App.2d 380, 384, 5 P.3d 531 (2000), rev. dismissed January 26, 2001 (defendant did not put character in issue by stating that he did not look through another person's items because he “didn't have no business going through [that person's] property” and it “would have been disrespectful” to do so).
None of the cases cited by Holt are so factually similar to the present case as to compel the conclusion that Holt did not put his credibility in issue. Here, Holt was asked by his own counsel whether he knew the car was stolen, and Holt replied that he “wouldn't do nothing of that nature.” In fact, Holt had two prior convictions of theft of stolen vehicles. Holt's statement was more than a mere denial of guilt. The statement went beyond the bounds of mere background information or biographical data and plainly implied that Holt's past was blemish-free. In this context, a reasonable person could conclude that Holt offered his statement for the sole purpose of bolstering his credibility. Thus, the district court did not abuse its discretion by admitting evidence of Holt's prior convictions for impeachment purposes. Substantive purposes
As a preliminary matter, the State contends that Holt failed to preserve for appeal his objection to the admission of his prior convictions for substantive purposes because he did not object on that specific basis at the time the State introduced the evidence. See State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011) (party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground). The record reflects that Holt did not specifically state that he was objecting to the admission of his prior convictions for substantive purposes. But the record also reflects that the State never explicitly stated it was seeking to admit the evidence for substantive purposes. Furthermore, Holt did argue that his prior convictions were factually dissimilar and therefore irrelevant to the present case. This argument could reasonably be construed as challenging the admissibility of his prior convictions for impeachment purposes, substantive purposes, or both. In these circumstances, we find that Holt adequately preserved the issue for appeal.
Turning to the merits, K.S.A.2011 Supp. 60–455 states in relevant part:
“(a) Subject to K.S.A. 60–447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.
“(b) Subject to K.S.A. 60–445 and 60–448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
In State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), our Supreme Court discussed the admissibility of evidence under a prior version of K.S.A. 60–455. The court stated:
“Under the plain and unambiguous language of the statute, evidence of prior crimes or civil wrongs cannot be admitted to prove a criminal defendant's propensity to commit the charged crime, but it can be ‘admissible when relevant to prove some other material fact.’ K.S.A. 60–455.
“Current case law requires certain safeguards. Before K.S.A. 60–455 evidence can be admitted, the district judge must determine that it is relevant to prove one of the eight material facts listed in the statute, that the material fact is disputed, and that the probative value of the evidence outweighs its potential for producing undue prejudice. See, e.g., State v. Brennan, 278 Kan. 704, 716–18, 101 P.3d 1218 (2004). In addition, we have required trial judges to give a limiting instruction informing the jury of the specific purpose for admission whenever K.S.A. 60–455 evidence comes in. See, e.g., State v. Wilkerson, 278 Kan. 147, 153, 91 P.3d 1181 (2004). These safeguards are designed to eliminate the danger that evidence will be considered to prove the defendant's mere propensity to commit the charged crime.” Gunby, 282 Kan. at 48.
Holt does not argue here that the district court erred in finding that the evidence of his prior convictions for knowing possession of stolen property was relevant to establish his motive, knowledge, intent, and plan in this case, that the district court failed to properly weigh the probative value of the evidence against its prejudicial effect, or that the limiting instruction given to the jury was somehow deficient. Instead, Holt argues that the district court erred by admitting the evidence on cross-examination rather than during the State's case-in-chief or proper rebuttal.
In Harris, the defendant was on trial for robbery. He relied on an alibi defense and called two witnesses who testified that he was with them in one of their homes at the time the robbery was committed. The defendant took the stand and testified the same. On cross-examination, over objection by the defense, the State asked the defendant about a previous aggravated robbery conviction, to which the defendant admitted. 215 Kan. at 962. On appeal, the defendant argued that the evidence of his prior conviction was improper impeachment under K.S.A. 60–421 because he never placed his credibility in issue, whereas the State argued the evidence was properly admitted under K.S.A. 60–455. 215 Kan. at 962–63. Our Supreme Court agreed that the evidence was improper impeachment under K.S.A. 60–421. The court also found that K.S.A. 60–455 evidence should not be introduced on cross-examination of a criminal defendant. 215 Kan. at 963–64. In making this finding, the court relied on State v. Roth, 200 Kan. 677, 682, 438 P.2d 58 (1968), overruled on other grounds by Gunby, 282 Kan. at 58–59, which explains:
“The rule of evidence as to admissibility of other offenses in a criminal prosecution as set out in K.S.A. 60–455, which had its foundation in prior case law [citation omitted], served some purpose where the defendant did not take the witness stand but it had no effect where he did testify because of the broad scope of the [previously-applicable] credibility rule giving unlimited cross-examination. This was all materially changed when K.S.A. 60–421 became effective
....
“The statute, passed for the purpose of encouraging the accused to testify, put an end to promiscuous cross-examination as to previous convictions. The prosecution must observe the rules of cross-examination and if evidence of previous convictions is desired it must be by direct presentation, unless the accused makes reference to the matter in his direct testimony. Any other approach would destroy the intent and purpose of K.S.A. 60–421.”
The rationale behind the rule that K.S.A.2011 Supp. 60–455 evidence should not be introduced on cross-examination of a criminal defendant is that it would allow the State to make an end-run around the prohibition in K.S.A. 60–421 that a criminal defendant's prior convictions cannot be used for impeachment purposes unless the defendant first puts his or her credibility in issue. But as we have concluded, Holt's testimony on direct examination can reasonably be construed as putting his credibility in issue. Thus, the concerns expressed in Harris and Roth about admitting K.S.A. 60–455 evidence on cross-examination are not relevant in Holt's case.
Here, the facts underlying Holt's prior convictions of theft of stolen property were remarkably similar to the facts of the present case. The district court conducted a hearing outside the presence of the jury and found that the evidence of the prior convictions was admissible under K.S.A. 60–455 to prove Holt's intent, knowledge, or plan. The district court gave a limiting instruction to this effect. Although none of these steps were necessary because the evidence of the prior convictions was admissible under K.S.A. 60–421 for impeachment purposes, we conclude the district court did not err by also admitting the evidence for substantive purposes under K.S.A. 60–455.
Instruction Under PIK Crim. 3d 59.01–A
Holt argues that the district court removed the State's burden to prove every element of theft by knowing possession of stolen property when it instructed the jury, consistent with PIK Crim.3d 59.01–A, that knowledge that the property had been stolen could be proven by showing that Holt had a “reasonable suspicion from all the circumstances” known to him that the property was stolen. The State contends that the jury instruction did not constitute an improper presumption which removed its burden to prove that Holt knew the vehicle was stolen; rather, the instruction merely informed the jury that such knowledge could be proved by circumstantial evidence.
Where a party fails to object to the giving of a particular jury instruction, this court reviews the instruction for clear error. See K.S.A. 22–3414(3). To determine whether it was clearly erroneous to give an instruction, this court must first determine whether an error occurred, which presents a legal question subject to unlimited review. After determining that the district court erred in giving the instruction, this court conducts a reversibility inquiry. The test for clear error requiring reversal is whether this court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This assessment involves a review of the entire record and a de novo determination. The burden of showing clear error remains with the defendant. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012).
The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a criminal defendant from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the offense with which the defendant is charged. This principle prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of proof beyond a reasonable doubt of every essential element of a crime. Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).
The threshold inquiry is to determine whether the challenged jury instruction creates a mandatory presumption, which instructs the jury that it must infer the presumed fact if the State proves certain predicate facts, or merely a permissive inference, which suggests but does not require the jury to draw a possible conclusion if the State proves predicate facts. If the challenged instruction creates a mandatory presumption, it violates the Due Process Clause if it relieves the State of the burden of persuasion of an essential element of the offense. A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. 471 U.S. at 314–15. Even if the challenged instruction when considered in isolation could be understood as creating a presumption that relieves the State of its burden of persuasion, the court must look at the instructions as a whole and determine whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. 471 U.S. at 315;Estelle v. McGuire, 502 U.S. 62, 72–73, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
Theft is prohibited by K.S.A. 21–3701, which states in relevant part: “(a) Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property: ... (4) obtaining control over stolen property knowing the property to have been stolen by another.” One of the essential elements of the offense is that the defendant knows the property is stolen at the time the defendant obtains the property. See PIK Crim.3d 59.01. Holt claims that the State's burden of persuasion on this element was removed by the jury instruction, based on PIK Crim.3d 59.01–A, which stated that “[k]nowledge that property has been stolen ... may be proven by showing that the defendant either knew or had a reasonable suspicion from all the circumstances known to the defendant that the property was stolen.” (Emphasis added.) Holt contends that “reasonable suspicion” does not equate with “knowledge” and that the instruction created an impermissible mandatory presumption by instructing the jury that it must infer that Holt knew the vehicle was stolen based on proof of the predicate fact that he had reasonable suspicion it was stolen.
We find that the language at issue here creates neither a mandatory presumption nor a permissive inference, because it does not instruct the jury that it either must or may find that Holt knew the vehicle was stolen based on proof of the predicate fact that Holt had reasonable suspicion that it was stolen. “Reasonable suspicion” is not a predicate fact; rather, the language is better understood as instructing the jury that the element of knowledge may be proven either by direct or circumstantial evidence. In either case, the burden of persuasion clearly remains on the State.
Although K.S.A. 21–3701(a)(4) and its predecessor statutes do not contain any language indicating that knowledge may be proven by “reasonable suspicion from all the circumstances known to the defendant” or similar language, the Kansas Supreme Court has interpreted the statutes to that effect. See State v. Bandt, 219 Kan. 816, 819, 549 P.2d 936 (1976) (statute requires “proof by the state that the defendant ... had a belief or a reasonable suspicion from all the circumstances known to him that the property was stolen”); State v. Burgett, 174 Kan. 102, 106–07, 254 P.2d 254 (1953) (upholding jury instruction stating that the State could prove knowledge by showing that the defendant had a belief or a reasonable suspicion from all the circumstances known to him that the property was stolen); State v. Emory, 116 Kan. 381, 385, 226 P. 754 (1924) (same); State v. Minnick, 113 Kan. 385, 387, 214 P. 111 (1923) (sufficient evidence supported defendant's conviction for knowing possession of stolen property where the State proved that from the facts known to the defendant he must have understood that he was acquiring stolen property and acted upon that understanding); State v. Lewark, 106 Kan. 184, 187, 186 P. 1002 (1920) (same). See also Ward, 292 Kan. at 581 (a conviction of even the gravest offense can be based entirely on circumstantial evidence).
Holt argues that the above cases are no longer good law in light of State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003). In Brice, the Kansas Supreme Court found that the district court erred by instructing the jury in an aggravated battery prosecution that “the term Great Bodily Harm means, a ‘through and through bullet wound.’ “ The court reasoned that where the uncontroverted evidence showed that the defendant inflicted a through and through bullet wound on the victim, the challenged instruction had the effect of directing a verdict on an essential element of the offense by leaving no room for the jury to conclude that the defendant did not cause great bodily harm to the victim. 276 Kan. at 762–71. Holt contends that Brice stands for the proposition that “it is improper to instruct a jury that it can find an essential element based on some predicate fact,” which overrules prior caselaw upholding jury instructions stating that knowledge that property was stolen can be proved by showing the defendant had a “reasonable suspicion” based on all the circumstances known to the defendant that the property was stolen.
Brice is clearly distinguishable from Holt's case. Here, the instruction given by the district court under PIK Crim.3d 59.01–A is not tantamount to directing a verdict in favor of the State. Even assuming for the sake of argument that Brice stands for the proposition that Holt suggests, “reasonable suspicion” is not a predicate fact but a method by which the essential element of knowledge may be proven. There is nothing else in Brice which suggests that the Kansas Supreme Court is departing from its precedent indicating that the essential element of knowledge may be proven by circumstantial evidence and upholding jury instructions to that effect. This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Based on applicable precedent, we conclude the district court did not err by giving the approved instruction found at PIK Crim.3d 59.01–A.
Instruction that Holt “Exerted Unauthorized Control” over Stolen property
Next, Holt argues that the district court erred by instructing the jury that the State must prove that he committed theft by “exert[ing] unauthorized control” over stolen property, where the statute defining the offense prohibits “obtaining control” over stolen property. K.S.A. 21–3701(a)(4). Holt contends that “exerting unauthorized control” and “obtaining control” are not synonymous, that “exerting unauthorized control” is not an element of the offense with which he was charged, and that therefore the instruction deprived him of his rights under the Fifth and Sixth Amendments to the United States Constitution and § 5 of the Kansas Constitution Bill of Rights to have a jury convict only upon the State proving every element of the offense beyond a reasonable doubt. The State argues that “obtaining control” and “exerting unauthorized control” are synonymous and thus the instruction was not erroneous.
Holt did not object to the instruction at trial. Our standard of review where a party fails to object to the giving of a particular jury instruction was set forth in the last section of this opinion. See K.S.A. 22–3414(3); Williams, 295 Kan. at 515–16.
Holt relies on State v. Kunellis, 276 Kan. 461, 78 P.3d 776 (2003), for the proposition that “obtaining control” and “exerting unauthorized control” as used in the Kansas theft statute are not synonymous. In Kunellis, the defendant and several others stole motorcycles from a dealership, drove against traffic on a multi-lane highway when pursued by police, and killed two people in a collision. The defendant was convicted of felony murder, with the underlying felony of theft, on the theory that the language in the statute prohibiting “exerting unauthorized control” over stolen property made theft a continuing offense and thus the deaths occurred during the course of the theft. 276 Kan. at 463–65, 468. On appeal, the Kansas Supreme Court rejected this legal theory, finding that theft is not a continuing offense. The court explained that the use of the words “obtaining or exerting unauthorized control” was for the purpose of consolidating what were formerly the crimes of larceny and embezzlement into a single crime of theft. Thus, the court determined that “exerting unauthorized control” did not reflect legislative intent to make theft a continuing offense. 276 Kan. at 468–69.
In State v. Rollins, 46 Kan.App.2d 17, 19, 257 P.3d 839 (2011), rev. denied 293 Kan. –––– (2012), the defendant was charged and convicted of theft by “obtaining or exerting unauthorized control over property” under K.S.A. 21–3701(a)(1). On appeal, the defendant argued that “obtaining” and “exerting unauthorized control” are alternative means of accomplishing theft and that the defendant was deprived of his right to a unanimous jury verdict when the State failed to sufficiently prove both means. In support of his argument, the defendant relied on Kunellis, contending that the Kansas Supreme Court treated the terms “obtaining” and “exerting” differently. This court rejected the defendant's argument, reasoning that K.S.A.2010 Supp. 21–3110(13) (now codified at K.S.A.2011 Supp. 21–5111[r] ) treats “[o]btains or exerts control over property” as one singular term. This court concluded “[t]here is no quantifiable difference between the actions that constitute obtaining or exerting; these words create a distinction without difference.” Rollins, 46 Kan.App.2d at 22.
Based on the reasoning articulated in Rollins, we find that “obtaining control” and “exerting unauthorized control” over stolen property are essentially synonymous. The language found in Kunellis is inapplicable as the facts of that case are distinguishable. Thus, the district court did not err by instructing the jury that the State must prove that Holt had “exerted unauthorized control” over stolen property even though the statutory language of K.S.A. 21–3701(a)(4) prohibits “obtaining control” over stolen property.
Cumulative Error
Finally, Holt argues that even if the above errors are alone insufficient to require reversal of his conviction, their cumulative effect substantially prejudiced him and denied him the right to a fair trial. Cumulative trial errors, when considered collectively, may be so great as to require a defendant's convictions to be reversed. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. A single error does not constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010). Because we are finding no error committed by the district court, Holt's claim based on cumulative error fails.
Affirmed.