Opinion
111,387.
04-03-2015
STATE of Kansas, Appellee, v. Joseph Michael McDANIEL, Appellant.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Aaron Schuster, county attorney, and Derek Schmidt, attorney general, for appellee.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Aaron Schuster, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Joseph M. McDaniel appeals his convictions for burglary of a motor vehicle, theft, and conspiracy to commit theft, contending that the State charged him under the wrong provision of K.S.A.2012 Supp. 21–5801(a) because the vehicle's contents were already stolen by other individuals before he became involved. However, under the plain language of K.S.A.2012 Supp. 21–5801(a)(1), the State was not required to prove that McDaniel had obtained the stolen goods. Rather, the State was merely required to prove beyond a reasonable doubt that McDaniel had exerted unauthorized control over the stolen goods. Based on our review of the record, we find that the jury's verdict is support by both the law and the evidence.
Facts
Shortly after midnight on August 4, 2012, four individuals—Treyvan Watson, Billy Heckle, and two sisters, Robyn Booth and Jasmine Booth—were walking the streets of Liberal. As they passed a white Cadillac Deville, Watson noticed that the keys were still inside the car. He decided to take the car, so he got into the driver's seat and told the others to get in with him. After all four of them loaded into the car, they began to drive around town.
Eventually, one of the passengers called McDaniel and asked him to meet them behind a liquor store so they could change vehicles. When they arrived, McDaniel and Nick Martinez were waiting for them. McDaniel was driving a 1985 Ford pickup truck. After Watson opened the Cadillac's trunk, McDaniel noticed some speakers and told Watson that he could make some money by selling them. Watson also suggested that McDaniel could keep one of the speakers in exchange for gas money.
Watson and McDaniel also found some shoes, boxes, and clothing in the trunk of the Cadillac. After McDaniel agreed to have these items loaded into the truck he was driving, he helped Watson and Heckle remove the speakers from the Cadillac by severing one of the wires that attached it to the car. The speakers were also loaded into McDaniel's truck. Afterwards, all six of them got into the truck McDaniel was driving and rode around until the truck finally ran out of gas.
Around 3:30 a.m., Officer Franka Jiminez was on patrol when she saw McDaniel's truck pulled over to the side of the road. As she approached the truck, McDaniel ran from the scene. Martinez and Heckle remained standing outside the truck while Watson, Jasmine, and Robyn sat inside. Officer Jiminez noticed some of the stolen property in the truck and began to question them about where the items came from. She also inquired about who had been driving the truck.
Since she was going to have the vehicle towed, Officer Jiminez called Officer Stacy Johnson to inventory the vehicle. While Officer Johnson was taking inventory of the truck, she located a gray speaker box containing two speakers in the bed of the truck. She noted that the wires to the speakers were not attached and appeared to have been pulled out or cut. Officer Johnson also noticed a stereo and amplifier on the floorboard of the truck with detached wires, along with some Nike tennis shoes, a black Samsung cell phone, and a baggie of pills. Officer Johnson later testified that these items appeared suspicious because they were not covered in dust like several other items in the truck.
Around 4 a.m., Blake Ward, the owner of the Cadillac, became aware that his vehicle was missing. His mother's boyfriend told Ward that he had seen a car similar to his parked near Romo's Auto with the trunk open. Ward then walked to Romo's Auto and discovered that it was, in fact, his car. Further, he noticed that several items were missing from his car, including—among other items—his speakers, amplifier, shoes, vitamins, and a cell phone. Around that time, Officer Johnson received a call that a stolen car had been found near her location. She responded to the call, and when she arrived, she saw Ward standing next to the Cadillac.
Ward told Officer Johnson that the vehicle was his and described the missing items. Since Officer Johnson still had the items she recovered from McDaniel's truck in her patrol car, she showed them to Ward. Immediately, he was able to identify the items as belonging to him. Although Officer Johnson attempted to obtain fingerprints from the Cadillac, she was unable to do so.
Several months later, Officer Jiminez was on patrol and spotted McDaniel in a parking lot working on a truck. She recognized him as the person who fled from the pickup truck on August 4, 2012, so she stopped to talk with him. McDaniel proceeded to tell Officer Jiminez what occurred on the night the Cadillac was stolen. He claimed that one of the Booth sisters had told him that the vehicle belonged to her brother and that they were removing items from the vehicle to prevent them from being stolen. However, McDaniel later told a detective that he had “a little suspicion it wasn't legit.”
An arrest warrant for McDaniel was issued on November 19, 2012, and he was arrested two days later. The State charged McDaniel with one count each of burglary of a motor vehicle, theft of property worth more than $1,000 but less than $25,000, and conspiracy to commit theft. The district court held a jury trial on September 12, 2013. Several law enforcement officers testified on behalf of the State. Although Heckle and Watson testified that McDaniel did not take anything from the Cadillac, this testimony was later challenged by testimony from Detective Aaron Harvey—who had interviewed Watson, Heckle, and McDaniel—indicating that McDaniel had removed one of the wires from the speaker box. In addition, the State offered uncontroverted evidence that the value of the items stolen exceeded $1,000 but was less than $25,000. McDaniel did not call any witnesses.
The district court gave the jury 20 separate instructions. Jury Instruction number 12 provided that, in order to convict McDaniel of theft, the State had to prove that (1) Ward was the owner of the property; (2) McDaniel exerted unauthorized control over the property; (3) McDaniel intended to deprive Ward permanently of the use or benefit of the property; (4) the value of the property exceeded $1,000 but was less than $25,000; and (5) that the events occurred on August 4, 2012, in Seward County. When asked by the judge, McDaniel's counsel stated that he had no objection to the proposed instructions. Ultimately, the jury returned a guilty verdict on all three counts.
On October 23, 2013, the district court sentenced McDaniel to serve a total of 20 months in the custody of the Secretary of Corrections. The district court also ordered that McDaniel's conviction for conspiracy to commit theft run concurrent with the counts for theft and burglary of a motor vehicle. Thereafter, McDaniel timely filed this appeal.
Analysis
McDaniel contends that the State charged him with the wrong manner of theft under K.S.A.2012 Supp. 21–5801. In addition, his challenges to the convictions for burglary and conspiracy to commit theft are based entirely on his challenge to the theft conviction. To the extent that this court must interpret K.S.A.2012 Supp. 21–5801, our review is unlimited. See State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
K.S.A.2012 Supp. 21–5801 provides:
“(a) Theft is 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;
“(2) obtaining control over property or services, by deception;
“(3) obtaining control over property or services, by threat;
“(4) obtaining control over stolen property or services knowing the property or services to have been stolen by another; or
“(5) knowingly dispensing motor fuel into a storage container or the fuel tank of a motor vehicle at an establishment in which motor fuel is offered for retail sale and leaving the premises of the establishment without making payment for the motor fuel.” (Emphasis added.)
Here, McDaniel was charged with theft under subsection (a)(1), and the district court instructed the jury that the State was required to prove—among other things—that “[t]he defendant exerted unauthorized control over the property.” On appeal, McDaniel claims that he should have been charged under subsection (a)(4) rather than (a)(1) because he was not involved in the initial stealing of the Cadillac and only became involved after the vehicle and all of its contents were already stolen.
In State v. Watson, 39 Kan.App.2d 923, 186 P.3d 812 (2008), the police arrested Watson after he attempted to sell stolen equipment to a metal scrap yard. The State charged Watson with the same alternative of theft with which McDaniel was charged. Watson argued on appeal that in order for the jury to convict him, the State was required to show that he was the one who actually stole the goods. A panel of this court disagreed, however, finding that all that is required to uphold a conviction under subsection (a)(1) is the exertion of unauthorized control over property along with the intent to permanently deprive the owner of the use or benefit of the property. 39 Kan.App.2d at 931.
Indeed, the plain and unambiguous language of K.S.A.2012 Supp. 21–5801(a)(1) provides that defendants are guilty if they obtain or exert unauthorized control over the property. In the present case, the district court specifically instructed the jury that it must find that the defendant “exerted unauthorized control over the property.” CF. PIK Crim. 4th 58.010. Accordingly, unlike McDaniel's characterization of the issue, the jury did not need to find that he had obtained unauthorized control over the property but merely that he had exerted unauthorized control over the property with the intent to permanently deprive Ward of its use.
Furthermore, the State did not charge McDaniel with theft of the Cadillac. Rather, it charged him with theft of the items taken from the Cadillac after McDaniel had met Watson and the others behind the liquor store. As such, the appropriate question is whether there was sufficient evidence to convict McDaniel under 21–5801(a)(1) with regard to the items listed in the complaint. See State v. Dicks, No. 108,293, 2013 WL 3970188, at *4 (Kan.App.2013) (unpublished opinion) (“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.”), rev. denied 298 Kan. –––– (2014).
Turning to the issue of sufficiency of evidence, we are to review all the evidence in the light most favorable to the prosecution and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). In doing so, we do not reweigh the evidence, resolve evidentiary conflicts, or determine the credibility of witnesses. State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013). Only in rare cases when the testimony is so incredible that no reasonable fact finder could find guilt beyond a reasonable doubt will this court reverse a guilty verdict. See State v. Kettler, 299 Kan. 448, 470, 325 P.3d 1075 (2014).
Viewing the evidence in the light most favorable to the prosecution, we find that there is ample evidence to find that a rational factfinder could have found McDaniel guilty beyond a reasonable doubt of exerting unauthorized control over the property taken from inside the Cadillac. First, Ward—the true owner—testified that he did not give anyone permission to take the items from his vehicle. Second, McDaniel helped Watson and Heckle remove the speakers from the Cadillac—including severing a wire—and load them into the truck he was driving. Third, McDaniel also agreed to have the other items that were stolen from inside the Cadillac loaded into the truck he was driving. Lastly, there is evidence that McDaniel told Watson that he could sell the speakers for money and that Watson told McDaniel that he could keep a speaker as payment for gas—both of which indicate that McDaniel intended to permanently deprive Ward of the speakers.
Affirmed.