Opinion
No. 107,147.
2012-07-27
Appeal from Geary District Court; Maritza Segarra, Judge. Cole A. Hawver, assistant public defender, of Junction City, for appellant. Michelle Brown, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; Maritza Segarra, Judge.
Cole A. Hawver, assistant public defender, of Junction City, for appellant. Michelle Brown, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
BRUNS, J.
A Geary County jury acquitted Deron McGowan of domestic battery, aggravated intimidation of a witness or victim, and criminal threat. But the jury found McGowan guilty of one count of criminal damage to property in violation of K.S.A. 21–3720(a)(1). The district court sentenced McGowan to the time served. On appeal, McGowan contends that there was insufficient evidence presented at trial to support the jury's verdict on the charge of criminal damage to property. Based on our review of the evidence in the light most favorable to the State, we find that there was sufficient evidence in the record to support a conviction beyond a reasonable doubt on the criminal damage to property charge. Thus, we affirm.
Facts
Jackie Hush, McGowan's former girlfriend and the mother of his children, testified at trial about the events that occurred at her townhouse on the evening of June 1, 2011. According to Hush, McGowan came to her townhouse to visit their son. McGowan and Hush argued and he struck her on the shoulder with electric hair clippers. Hush retreated to her bedroom where she sat on the bed and cried. McGowan followed Hush into the bedroom and stood over her with his fists “balled up”—telling her to shut up before he gave her something to cry about.
During the argument, McGowan punched a hole in Hush's bedroom door with his fist. Hush was renting the townhouse from the Junction City Housing Authority (Housing Authority), which owned the property. Hush testified that she informed the Housing Authority about the damage and she was charged about $15 for the replacement of the door damaged by McGowan. Hush also testified that McGowan did not live at the townhouse at the time of the altercation.
McGowan also testified at trial. During his testimony, McGowan admitted that he had started an argument with Hush and that he had punched the bedroom door with his fist. He also admitted that the bedroom door was damaged as a result of his actions. McGowan did not claim an interest in the property nor did he claim to have been given permission to damage the door. Rather, McGowan admitted that punching the door was “wrong” and something he should not have done.
Issue Presented and Analysis
The only issue raised by McGowan on appeal is whether there was sufficient evidence presented to the jury to support its verdict finding him guilty of criminal damage to property. McGowan contends the State failed to prove every element of criminal damage to property because it did not prove that he acted without consent. Specifically, McGowan argues that because the State presented no evidence to prove that the Housing Authority had not given him consent to damage the door, his conviction must be overturned.
In response, the State recognizes in its brief that it probably “should have asked one simple question to establish ... lack of consent”: Did you have consent to punch a hole in Hush's door? Nevertheless, the State argues that “the failure to [ask this question] should not negate the jury's finding of guilt beyond a reasonable doubt based upon the evidence presented.” Based on our review of the record, we agree.
When the sufficiency of the evidence is challenged on appeal, we must review the evidence in the light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009). In other words, we must review the record to determine if there was sufficient evidence presented to the jury to support the finding that McGowan was guilty beyond a reasonable doubt of criminal damage to property. Criminal damage to property is the intentional “injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property in which another has an interest without the consent of such other person.” K.S.A. 21–3720(a)(1).
It is well-settled that a criminal conviction may be sustained upon circumstantial evidence. State v. Davis, 275 Kan. 107, 118, 61 P.3d 701 (2003). “ ‘Circumstantial evidence tends to prove a fact in issue by proving other events or circumstances which afford a basis for reasonable inference by the jury of the occurrence of the fact in issue.’ “ State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). Thus, we find that lack of consent to damage property may be proved by circumstantial evidence. State v. Swopes, No. 88,866, 2004 WL 324113, at *1–2 (Kan.App.2004) (unpublished opinion); see also State v. Baldwin, 2011 WL 4507605, at *3 (Ohio App.2011) (unpublished opinion) (“[L]ack of consent to damage [property] may be proved by circumstantial evidence.”).
After reviewing the record in a light most favorable to the State, we find that there was sufficient evidence presented at trial upon which the jury could have concluded beyond a reasonable doubt that McGowan was guilty of criminal damage of property. We find that it was reasonable for the jury to infer based on the evidence presented at trial that those who had an interest in the bedroom door—Hush and the Housing Authority—did not give McGowan consent to put a hole in it with his fist.
In State v. Swopes, this court found that failure of an owner to testify to establish his lack of consent to a defendant's damaging of property did not render the evidence insufficient to support a conviction for criminal damage to property where there is sufficient circumstantial evidence. 2004 WL 324113, at *2. Moreover, Kansas courts have long held that a jury has the right to use its common knowledge and experience when weighing evidence. See State v. Fulton, 292 Kan. 642, 647, 256 P.3d 838 (2011). As such, we conclude that a jury may reasonably infer lack of consent to damage property from viewing the evidence as a whole in light of common knowledge and experience. See State v. Pone, 78 Hawai‘i 262, 274, 892 P.2d 455 (1995) (“[T]he proposition that a ‘person whose property was allegedly damaged would not consent to the violent destruction of the property’ is a ‘permissible inference of fact,’ which the trier of fact is permitted, but not compelled to draw from common experience and the evidence as a whole, and which need not eliminate reasonable doubt of guilt.”); see also People v. Masini, 65 Ill.App.3d 1011, 1014, 22 Ill.Dec. 637, 383 N.E.2d 1 (1978) (“Until at least some evidence is introduced tending to show consent, the presumption that a person would not consent to the violent destruction of his [or her] property prevails....”).
Here, a review of the evidence shows that it was reasonable for the jury to infer that McGowan did not have permission from either the landlord or the tenant to punch a hole in the bedroom door. The record reflects that McGowan did not live at Hush's townhouse nor did he otherwise have any interest in the property at the time of the incident. After becoming angry with Hush, McGowan hit her on the shoulder with hair clippers and she ran to her bedroom. As Hush sat on the bed crying, McGowan came into the bedroom and stood over her with his fists balled up. He then punched a hole in the door with his fist. After Hush notified the Housing Authority about the damage to the bedroom door caused by McGowan, she was charged $15 to have the door replaced. Furthermore, McGowan admitted at trial that it was wrong for him to have punched a hole in the bedroom door.
Because the Housing Authority charged Hush for the damage to the door, the jury could reasonably infer that it did not consent to its damage. Likewise, considering the circumstances in the light of common human experience, the jury could reasonably infer that neither Hush nor the Housing Authority would have consented to McGowan punching a hole in the bedroom door. See Swopes, 2004 WL 324113, *2. Furthermore, based on McGowan's admission that it was “wrong” for him to punch a hole in the door, the jury could reasonably infer that he did not have consent to cause damage to the property.
We note that the dissent discusses two issues—the sufficiency of the complaint and the sufficiency of the jury instructions—that were not raised by McGowan in this appeal. It is well-settled that issues that are not raised or briefed by an appellant are deemed to be waived or abandoned. See State v. Martin, 285 Kan. 994, 998, 179 P.3d 457 (2008). Because the only issue presented by McGowan concerns the sufficiency of evidence presented at trial, we find that it is not appropriate for us to delve into other issues.
Accordingly, after viewing the evidence in the record in the light most favorable to the State, we conclude that there was sufficient circumstantial evidence presented at trial upon which a reasonable jury could infer that McGowan did not have the consent to damage Hush's bedroom door. We further conclude that the evidence presented at trial was sufficient for the jury to find McGowan guilty of criminal damage to property beyond a reasonable doubt.
Affirmed. HILL, J., dissenting:
I must respectfully dissent from this gift conviction my colleagues are making for the State in this appeal. The State certainly did not earn it. I have several serious questions about this prosecution.
I begin with the complaint itself. An examination of Count 5 of the Amended Complaint/Information, which contains the charges levied by the State against McGowan, reveals that the State simply alleged that McGowan did: “... damage, injure, mutilate, deface, destroy or substantially impair the use of property, to-wit: a door, in which The Junction City Housing Authority has an interest, said damage being less than $1,000.00 in violation of K.S.A. 21–3720(a)(1) ... a class B nonperson misdemeanor.” There is no mention of the element of the crime concerning the lack of consent of the owner or any person who has an interest in the damaged property.
The statute reads:
“21–3720 Criminal damage to property.
(a) Criminal damage to property is by means other than by fire or explosive:
(1) Intentionally injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property in which another has an interest without the consent of such other person, ...”
For some reason that is not clear from the record, no one—neither the prosecutor, defense counsel, nor the court—noticed this defect in the complaint.
Going further along this line of inquiry, we cannot tell whether the jury in this case was instructed by the court that the State was required to prove the statutory element of lack of consent of the owner to the damage because the jury instructions were not included in the record on appeal. Compounding this omission, the trial transcript does not contain a record of the oral presentation of the jury instructions because the court reporter did not bother to report what was told to the jury. Evidently, we are to believe that what was on the written instructions was what was said to the jury. Indeed, the jury may have never been told that the State was required by law to prove this element of the charge.
My colleagues take me to task for daring to consider issues not raised by the parties in the briefs. It is true that I have removed my blinders and examined the record on appeal, but it was in an effort to see if there was any way to affirm this conviction. My inquiries left me with no confidence in the prosecution of the case for the reasons set out above. It is clear to me that there is no evidence in the record dealing with lack of consent because the State failed to allege that element of the charge.
The State, throwing itself on the mercy of this court, pleads: “The State should have asked one simple question to establish the element of the crime of lack of consent. However, the failure to do so should not negate the jury's finding of guilt beyond a reasonable doubt based upon the evidence presented.” That is not how the system works. The State has the burden to prove all of the elements of a charge, not just some of them.
My colleagues, in searching for support for their position, cite opinions from foreign courts. I will remain steadfast with Kansas law. Our Supreme Court has said that guilt may never be based on inference alone; presumptions and inferences may be drawn from the facts established, but a presumption may not rest upon a presumption and an inference may not be based upon an inference. State v. Doyle, 201 Kan. 469, Syl. ¶ 8, 441 P.2d 846 (1968). Here, the State presented no evidence upon which the jury could infer a lack of consent to hit the door.
The one Kansas case the majority cites, State v. Swopes, No. 88,866, 2004 WL 324113 (Kan.App.2004) (unpublished opinion), an unpublished case, is scant help for the majority. In that case, the owner of the place that was burglarized was living in a nursing home at the time of the crimes but his ex-wife who was still living in the house testified that she had not given any sort of consent. 2004 WL 324113, at *2. Such testimony elucidates facts upon which a reasonable inference may be drawn. Here, there is no such testimony because the State never bothered to ask the question as it admits in its brief. Simply put, the record is silent.
In my view, just because McGowan said he was sorry and it was wrong of him to hit the door during the argument with the mother of his children, does not mean the State proved the lack of consent of the housing authority. Further, nothing in the transcript states that Hush was charged by anyone to pay for this damage as my colleagues assert; she simply testified that she paid $15 to repair it. While it is true that a conviction may be sustained upon circumstantial evidence, in this case there was no evidence upon which the jury could infer that McGowan lacked consent to hit the door.
Finally, I realize that a $15 door does not amount to much, and McGowan was sentenced to time served, but an important rule is at play here. It is for the State to prove each element of a charge, not the court. I would reverse this conviction.