Opinion
No. 106,409.
2012-10-5
STATE of Kansas, Appellee, v. Michael JORDAN, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nolo Tedesco Foulslon, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nolo Tedesco Foulslon, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael Jordan stole a car during a test drive. Over a week later, while driving the car, Jordan was stopped by police for several traffic offenses. He was charged with the traffic offenses in one case and with the theft offense in a separate case. After he was convicted of the traffic offenses, he moved to dismiss the theft case arguing that the compulsory joinder rule found under K.S.A. 21–3108(2)(a) precluded the State from prosecuting him for the theft charge. The district court disagreed, and he was subsequently convicted of felony theft by deception. Because the evidence of theft by deception presented at the trial of the traffic case was insufficient to support a conviction of theft by deception, we find the district court did not err when it determined that the compulsory joinder rule had no application. Accordingly, we affirm.
Factual and Procedural History
Josh Smith was attempting to sell his Mercedes Benz (license plate 954 CMT). Jordan contacted Smith on the phone and indicated an interest in purchasing the vehicle. Jordan met Smith in order to test drive the vehicle. Jordan never returned with the vehicle, and Smith informed the police that his vehicle had been stolen.
Approximately 1 week later, Dr. Akash Joshi reported to Wichita police that the license plate from his Mercedes Benz (WGU 858) had been stolen and replaced with another license plate (954 CMT).
Three days later, as he was stopped at a traffic light, Deputy Justin Maxfield observed a silver Mercedes Benz (WGU 858) drive through the intersection with what appeared to be excessive window tinting. Maxfield pulled the vehicle over, but the driver and passenger unsuccessfully attempted to flee the scene. Maxfield later discovered that the driver was Jordan and that the vehicle, as well as the license plate attached to the vehicle, had been reported as stolen. Subsequently, after viewing a photo lineup, Smith identified Jordan as the individual who stole his Mercedes Benz.
Two different cases were initiated against Jordan. The first was 10 TR 9908 (the Traffic case), which stemmed from Deputy Maxfield's traffic stop. Jordan was charged with displaying a license plate that did not belong to the vehicle, no proof of insurance, driving while a habitual violator, and excessive window tinting. He was convicted of all charges except no proof of insurance. At his bench trial, a summary of stipulated facts, Deputy Maxfield's police report, and Jordan's certified driving record were presented as evidence.
The second case, 10 CR 1413 (the Theft case), stemmed from the incident when Jordan took Smith's Mercedes Benz for a test drive and never returned. The State charged Jordan with one count of felony theft of a vehicle and one count of unlawfully and intentionally obtaining control over stolen property—a Kansas license plate (Dr. Joshi's license plate).
After his convictions in the Traffic case, but before his trial in the Theft case, Jordan filed a motion to dismiss the Theft case based on the State's failure to join the two cases. Jordan contended that the evidence presented in the Traffic case could have been used to convict him in the Theft case. The district court denied Jordan's motion to dismiss, ruling that the evidence presented in the Traffic case would not have been sufficient for the State to prove all of the elements required to convict Jordan of theft by deception in the Theft case.
Following a bench trial, Jordan was found guilty of felony theft of the Mercedes Benz, but not guilty of unlawfully obtaining control over the stolen license plate. The district court sentenced Jordan to a downward durational departure sentence of 10 months of imprisonment.
Jordan filed a timely notice of appeal.
Analysis
Jordan contends that the district court was required to dismiss the Theft case because the State failed to abide by the compulsory joinder rule found at K.S.A. 21–3108(2)(a). Jordan believes that the evidence used in the Traffic case would have been sufficient to support a conviction for the charges in his Theft case.
Our standard of review for a compulsory joinder claim is de novo. See State v. Schroeder, 279 Kan. 104, 108, 105 P.3d 1237 (2005).
Under the compulsory joinder rule, which is codified at K.S.A. 21–3108(2)(a),
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely.”
Kansas courts administer the following three-prong test when determining whether the compulsory joinder rule applies;
“ ‘(1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.’ [Citation omitted.]” State v. Wilkins, 269 Kan. 256, 260, 7 P.3d 252 (2000).
Both parties and the district court agree that the first and third prongs of the compulsory joinder rule have been met. There was a conviction in the Traffic case and the State could have charged all of the crimes from both the Traffic case and the Theft case in one charging document.
The crux of this case is whether there was sufficient evidence presented in the Traffic case to prove Jordan guilty of the crime charged in the Theft case.
“In order for K.S.A. 21–3108(2)(a) to apply, the evidence presented in an earlier trial needs to be sufficient to support a conviction sought in a later trial. There needs to be more than a mere scintilla of evidence. A slight or passing reference to evidence will not be enough to trigger the application of K.S.A. 21–3108(2)(a). [Citation omitted.]” Wilkins, 269 Kan. at 263.
Jordan asks us to reject Wilkins ' sufficient evidence standard because that is not language that appears in the statute. The statute requires only that “evidence has been admitted” in the former prosecution. He concedes, however, that this court is bound by to follow Kansas Supreme Court precedent, absent some indication 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). There is no indication that our Supreme Court is departing from Wilkins. Therefore, this court must continue to apply Wilkins without divergence.
In the Theft case, Jordan was charged with theft by deception under K.S.A. 21–3701(a)(2), (b)(3) which is defined by statute as obtaining control over property by deception with the intent to deprive the owner permanently of the possession, use, or benefit of the owner's property. In order to be classified as a severity level 9 nonperson felony, the value of the property must be at least $1,000 but less than $25,000. K.S.A. 21–3701(b)(3). Accordingly, in order for there to be sufficient evidence to support a conviction for theft by deception, the State would have to prove that Jordan had the intent to deprive Smith of the possession, use, or benefit of Smith's vehicle; Jordan used deception to take control of the vehicle; the vehicle was between $1,000 and $25,000 in value; the date upon which the theft occurred; and the location where the theft took place. We will examine the evidence presented at the bench trial of the Traffic case.
The only parts of the record that elaborate on the evidence presented at trial in the Traffic case are the transcript of the bench trial and a police report admitted at the bench trial. Although a written recitation of stipulated facts, described as Exhibit 1, was provided to the district court, it is not included in the record on appeal, and the stipulated facts were not stated on the record during the bench trial. The same can be said for Jordan's certified driving record. It was presented to the district court, but it was not included in the appellate record and the district court did not go into detail regarding the certified driving record. The burden is on the appellant to designate a record to support a claim of error at the trial court. Without such a record, the claim of alleged error fails. State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). However, we will attempt to examine Jordan's claims as best we can with the record before us.
We are able to piece together a summary of the stipulations through a review of the transcript of the district court's ruling on Jordan's motion to dismiss. The district court, which reviewed the stipulations in the Traffic case described as Exhibit 1, summarized them as they related to the Theft case, as follows:
“First being on April 28, 2010, the defendant, Mr. Jordan, was stopped by law enforcement within Sedgwick County. This occurred at a time that the defendant was driving a 2005 Mercedes Benz automobile. Second factual finding is that a second person occupied the vehicle with the defendant, who was the driver. Third, upon the stop by law enforcement, the Mercedes Benz that the defendant was driving was found to be stolen under a Wichita Police Department case number. Additionally, the license plate affixed to the Mercedes Benz was also found to be stolen under a separate and different Wichita Police Department case number. This information concerning the car and the license plate was information provided to the law enforcement officer executing the stop by the 911 dispatcher, the source of information, that is, being from the 911 dispatcher. At the time of the stop by law enforcement the defendant and the passenger attempted to flee on foot from law enforcement, and both the defendant and his passenger were apprehended immediately and taken into custody.”
Similarly, although the police report indicated that the vehicle was reported stolen, the only element for theft by deception that was met by the police report was that Smith owned the vehicle. There is nothing in the stipulations as summarized by the district court or in the police report that could be used to prove Jordan's intent, whether he took control of Smith's vehicle by deception, whether the vehicle was valued between $1,000 and $25,000, the date that the alleged theft occurred on, or the location of the theft.
Because there was insufficient evidence presented at the bench trial in the Traffic case to support a conviction of theft by deception in the Theft case, the district court did not err when it determined that the compulsory joinder rule had no application to Jordan's Theft case. Accordingly, Jordan's conviction for theft by deception is affirmed.
Affirmed.