Opinion
No. 110,170.
2014-09-26
STATE of Kansas, Appellee, v. Robert MOORE, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Robert Moore contends the State failed to prove he intended to burgle and damage a building occupied by William F. Hurst, Company, Inc. Without reweighing the evidence, and reviewing it in the light most favorable to the State, as we are required by law to do, we find no reason to overturn Moore's convictions. Because Moore's blood was found on the broken glass of the front door of the building and also on the floor of the foyer, the jury could infer from that, along with Moore's admission of being in the building in the early morning hours before employees discovered the break-in and that a computer was missing, that Moore intended to enter the building with the intent to commit a theft. These circumstances are sufficient to sustain Moore's burglary and criminal damage to property convictions. We affirm.
In early August 2010, a burglary occurred at the building occupied by William F. Hurst Company, Incorporated, an industrial supplier. Two sets of glass doors were broken, and blood was found at the scene. A computer was stolen, office equipment was moved around, and a desk was pulled away from the walls. The police investigation subsequently led to Robert Moore. Investigator Andrew Maul collected blood samples found at the scene and sent them to a laboratory for DNA testing. A detective was sent to make contact with Moore to secure a DNA sample. When Moore was informed that the detective needed a DNA sample regarding a recent burglary, Moore volunteered that he never committed a burglary. He stated he was “wasted” and punched the glass doors of a business and that if he had committed a burglary blood would have been found inside the building.
The State charged Moore with burglary, theft, and criminal damage to property. At trial, Moore testified that he had been involved in a brief scuffle with two unknown men as he was walking home after having many drinks at a bar. While he attempted to protect himself, he made contact with the outer set of glass doors at the William Hurst business, broke the glass, and cut his hand. He told the jury that he then ran down the sidewalk and hid in an alley behind a dumpster until the two unknown men were gone.
Evidently, the jury did not believe Moore's story and found him guilty of one count of burglary and one count of criminal damage to property. The jury found Moore not guilty of theft.
In this appeal, Moore contends the State failed to present sufficient evidence to support his convictions for burglary and criminal damage to property. Specifically, he argues that the State failed to present any evidence that he entered the building with an intent to commit a theft. Therefore, he must be acquitted of burglary. Further, he contends that the State failed to present any evidence concerning an intent to criminally damage the property. We will deal with those contentions in that order.
When the sufficiency of the evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in the light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support a conviction, an appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
A brief review of the record reveals the following: Moore testified he was extremely inebriated when he was walking home from the bar at about 1:30 a.m. Moore admitted to breaking the glass doors with his fist, falling through the doors, and standing up inside the building. He also testified that on his way home he walked in front of a truck and exchanged words with the two men in the vehicle. The two men in the truck turned around and confronted Moore in front of the Hurst building. Moore believed he was going to get beat up so he tried to hit one of the men; he missed and broke the glass door instead. Moore said he immediately ran away and hid behind a dumpster. Moore acknowledged that he never called the police to report the incident.
When Detective Michael Silva collected DNA from Moore, he informed Moore this was regarding a burglary. Moore immediately told Silva that he punched the glass at the Hurst building but he never committed a burglary. Detective Silva testified that Moore never mentioned two men were trying to accost him. The jury also heard testimony that both the exterior and interior doors were broken at the Hurst building. Moore's blood was found inside the foyer of the Hurst building among the broken glass. A computer was also missing from the building. William F. Hurst, III, testified the bill for the repaired doors was $426.28. There was equipment moved around, and a computer was bent and beat up. It appeared to Hurst that somebody tried to pull the computer away from the wall but the power cord prevented them from removing it entirely. Hurst testified he never gave anybody permission to be in his store after hours or to take any property from the store.
“Burglary is knowingly and without authority entering into or remaining within any: ... (b) building ... with intent to commit a felony, theft or sexual battery therein.” K.S.A. 21–3715. Our cases hold that intent may be proved by circumstantial evidence. In State v. Harper, 235 Kan. 825, 828–29, 685 P.2d 850 (1984), our Supreme Court stated:
“The manner of the entry, the time of day, the character and contents of the building, the person's actions after entry, the totality of the surrounding circumstances, and the intruder's explanation ... are all important in determining whether an inference arises that the intruder intended to commit a theft.” 235 Kan. at 828–29.
Moore argues that the State failed to contradict his story because it failed to present any eyewitnesses, video, or the recovered computer. Obviously, the jury did not believe Moore's story. Looking at the circumstances here, we are not convinced that the jury was unreasonable in finding Moore guilty of burglary. Intent can be inferred in this particular case because the computer was stolen.
We turn now to the criminal damage to property conviction. K.S.A. 21–3720(a)(1) states: “(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.”
Moore contends that the State failed to present any evidence to contradict his story that he accidentally broke the door in trying to defend himself from the two unknown assailants. He states: “The State merely confirmed Mr. Moore's story that he was the person who broke the glass door, but never proved that he did so intentionally.” Again, intent can be inferred from the circumstances. The jury, obviously, did not believe Moore's story. Our review of the record provides no help for Moore in this regard. The jury's finding of intent appears to be a reasonable inference based upon the facts and evidence presented by the State in this case. We see no reason for reversal.
Finally, Moore argues that the district court violated his Sixth and Fourteenth Amendment rights as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by determining his criminal history without submitting it to the jury. Moore concedes the Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), but includes this issue to preserve it for federal review. Ivory still controls.
Affirmed.