Opinion
109,965.
01-09-2015
STATE of Kansas, Appellee, v. Steven W. PONDS, Appellant.
Heather Cessna and Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant, and Steven W. Ponds, appellant pro se. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna and Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant, and Steven W. Ponds, appellant pro se.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Steven W. Ponds appeals his bench trial conviction for 14 felonies involving multiple burglaries and theft. We find no error and affirm the district court.
Facts
In the summer of 2009, a series of burglaries took place in rural Sedgwick County. All the burglaries had a similar modus operandi including:
• They took place at secluded homes in rural parts of the county between the hours of 9 a.m. and 3 p.m.;
• The front door or another door on the house was kicked in;
• The master bedroom was targeted, using pillowcases from the bed to remove the items;
• Jewelry, electronics, and other easily-movable items were taken;
• A waffle-style shoeprint was observed on many of the doors where entry was attempted or obtained to the houses;
• Some of the stolen property was recovered from local pawn shops; and
• Pawn shop receipts reflected either Steven Ponds or Gus Hankins pawned the stolen property either the day of the burglary or the next day.
Search warrants to place GPS tracking devices on Ponds' two vehicles, a GMC Envoy and a Pontiac, were obtained. The search warrants were ordered August 28, 2009, and were valid for 30 days.
On September 16, 2009, Ponds and Hankins knocked on the front door of H.V.'s house; however, when H.V. did not answer, the men kicked down the side door. H.V. locked herself in her bedroom and called 911. Once inside the house, one of the men kicked open her bedroom door. H.V. informed them she was on the phone with 911 and the men left. H.V. described the men as two black males driving a white vehicle, possibly a Grand Prix or Grand Am.
When Lieutenant Brad Hoch of the Sedgwick County Sheriff's Department heard the dispatch call of an aggravated burglary in progress, he began driving west on 21st Street towards the scene of the burglary. Over the radio, the suspects were described as dark-complexioned, possibly Hispanic, approximately 40 years old, and driving a small white vehicle, possibly a Chevy or a Pontiac. One of the suspects was described as wearing a plaid shirt, jeans, and a bandana around his head.
As Hoch approached Tyler Road on 21st Street, he saw a vehicle matching the description going the opposite direction. The vehicle's windows were down and Hoch could tell the driver and the passenger were dark-complexioned and the passenger had on some kind of bandana. Hoch made a U-turn and began following the vehicle from a distance. As Hoch attempted to catch up to the vehicle, the vehicle repeatedly switched lanes and eventually pulled off into a shopping center parking lot. Hoch went past the shopping center, made a U-turn, and pulled into the lot. Hoch parked at an angle behind Ponds' vehicle.
Before Hoch could exit his vehicle, Ponds exited his vehicle and approached Hoch asking what was going on. Hoch had not activated his lights or siren. Hoch informed Ponds that his vehicle matched the description from a burglary and asked him to provide identification. Hoch recognized Ponds' name as a suspect in the recent string of burglaries and asked Ponds to please return to his vehicle. Hoch waited for backup, and when backup arrived, the officers took Ponds and Hankins into custody.
H.V. was brought to the scene and asked to identify Ponds and Hankins. H.V. said she was 60% sure that Hankins was the man who kicked in the bedroom door. She could not identify Ponds. H.V. was also asked to identify the vehicle Ponds was driving. She identified the vehicle based off a black pin stripe running along the side of the vehicle.
Ponds and Hankins were transported to the Sheriff's Department for questioning where Deputy Alan Bennett collected Ponds' shoes as evidence. Ponds was charged with one count of aggravated burglary, six counts of burglary, one count of attempted burglary, and six counts of theft.
Given the similarity of each house trespass, we set out each of Ponds' burglary-related charges in chronological order:
1. On July 20, 2009, the back door to J. W.'s house was broken out.
a. Waffle-patterned shoe prints were on the front door of the house.
b. The back door glass was broken by a concrete yard ornament.
c. The master bedroom had been ransacked.
d. Pillowcases from the bed were missing.
e. A computer, digital camera, and a jewelry box were missing, with an estimated value of $12,000.
f. The house was located in rural Sedgwick County.
2. On July 24, 2009, P.D.'s house was entered through the garage door.
a. Jewelry, old coins, and other items with an estimated value of $10,000 were taken.
b. Steven Ponds and Gus Hankins were identified as selling some of P.D.'s jewelry at a local pawn shop the next day.
c. The house was located in rural Sedgwick County.
3. On July 31, 2009, D.E.'s house was entered.
a. Pillowcases were missing.
b. Several watches and jewelry pieces were taken, including her jewelry box with an estimated value of $4,000.
c. Ponds was identified selling several of D.E.'s items that day at a local pawn shop.
d. The house was located in rural Sedgwick County.
4. On August 10, 2009, an attempt was made to break into A.W.'s house.
a. A shoe print with a waffle pattern was observed on the ground near a window and door.
b. The French doors, garage door, and other items were damaged with an estimated repair cost of $8,000.
c. The house was located in rural Sedgwick County.
5. On August 17, 2009, the front door to T.V.'s house was kicked in.
a. A shoe print with a waffle pattern was observed on the tile floor just inside the door.
b. Pillowcases from the master bedroom were missing.
c. The bedroom was ransacked and all of T.V.'s guns were missing, along with a laptop, jewelry, and two or three hunting knives with an estimated value of $3,600.
d. Later that same day, Hankins was identified pawning some of T .V.'s jewelry at a local pawn shop.
e. The house was located in rural Sedgwick County.
6. On August 17, 2009, J.K.'s house was broken into.
a. A shoe print with a waffle-pattern was observed on the concrete to the house, the garage door, in her kitchen, and on her stairway.
b. The master bedroom was ransacked and the televisions in the house were damaged when an attempt was made to remove them from the wall.
c. The house was located in rural Sedgwick County.
7. On the same day as T.V. and J.K.'s home invasions, two African–American men appeared at J.L.'s house asking for directions. J.L.'s house was in the same rural neighborhood as T.V. and J.K.'s houses. When shown a photo lineup, J.L. identified Hankins as the man who came to her house and spoke with her while the second man remained in the vehicle.
8. On August 24, 2009, the back door to D.C.'s house was kicked in.
a. A shoe print with a waffle-pattern was observed on the back door.
b. The master bedroom was ransacked with pillowcases missing.
c. Jewelry, a flat-screen TV, DVD player, and other items were taken with an estimated value of $4,000.
d. Ponds was identified pawning several of the jewelry items that day.
e. The house was located in rural Sedgwick County.
9. On September 16, 2009, H.V. was home. The house was entered by kicking in the side door.
a. When the two men saw H.V., they left the house.
b. H.V. reported one of the men had on a plaid shirt, bandana, and jeans.
c. H.V. identified the two men as Hispanic or African–American.
d. H.V. said the two men left in a white vehicle with black trim and later identified Ponds' vehicle.
e. H.V. identified Hankins as the man who kicked in her bedroom door.
f. The house was located in rural Sedgwick County.
Ponds filed a motion to suppress the evidence obtained at the time of his arrest. The district court found Ponds' claims consisted of whether there was reasonable suspicion to support the car stop; the search of the defendant's vehicle was supported by consent and/or the officers had reasonable suspicion to investigate defendant; there was probable cause to support the search warrant to attach a GPS device to defendant's vehicle; and the scope of the GPS warrant was supported by probable cause.
The district court found that Ponds was arrested based on a probable cause determination and that the officers were within their rights to conduct a search incident to arrest. The district court denied Ponds' motion to suppress his footwear on the basis that personal effects may be seized when he was arrested and searched without a warrant. The district court also found the vehicle stop was either voluntary or there was reasonable suspicion to pursue the vehicle. Finally, the district court found that issuing a GPS search warrant was supported by probable cause.
Ponds waived his right to a jury trial and proceeded to a bench trial where he was found guilty by the district court on all 14 counts. He was sentenced with a criminal history score of A to 244 months' imprisonment with 24 months' postrelease supervision. On January 14, 2013, the district court ordered restitution in the amount of $22,841.26. During the bench trial, Ponds preserved the right to appeal the denial of his motion to suppress through timely evidentiary objections.
Analysis
Ponds appeals his conviction and sentence, arguing:
• His footwear should be suppressed because the officers lacked probable cause to support his arrest;
• There is insufficient evidence to support a guilty verdict on the burglary, theft, and attempted burglary counts;
• The search warrant application did not provide a substantial basis for the issuing magistrate to conclude there was a fair probability contraband or evidence would be found as a result of the GPS tracking devices attached to his vehicles; and
• His Sixth and Fourteenth Amendment rights under the United States Constitution were violated when the district court used his prior criminal history to increase his sentence.
Probable Cause to Arrest
A law enforcement officer may arrest a person without a warrant if the officer has probable cause to believe the person is committing or has committed a felony. K.S.A. 22–2401(c)(1).
“ ‘Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. Probable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.
“ ‘When determining whether probable cause exists, an appellate court considers the totality of the circumstances, including all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt.’ “ State v. Ramirez, 278 Kan. 402, 406, 100 P.3d 94 (2004) (quoting State v. Abbott, 277 Kan. 161, Syl. ¶¶ 2–3, 83 P.3d 794 [2004] ).
Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt of guilt. Abbott, 277 Kan. at 164.
In the hearing on Ponds' motion to suppress, the district court found there was probable cause to support Ponds' arrest. The district court found that Hoch had more than reasonable suspicion to encounter the occupants based on his observation of the described vehicle coming from the direction of the reported aggravated burglary with two individuals matching the suspects' descriptions. Ponds argues that while Hoch might have had reasonable suspicion to stop Ponds and Hankins, the information falls short of probable cause to believe Ponds himself actually committed a crime. Ponds also argues that the fact he was a suspect in a string of burglaries because he sold items at a pawn shop does not necessarily indicate that he even knew the items he was selling were stolen, let alone that he stole the items.
Hoch's belief that Ponds had committed aggravated burglary was reasonable when the totality of the circumstances is considered. As previously stated, Hoch observed a vehicle with occupants meeting the description and pulled in behind Ponds' vehicle in a parking lot. When Ponds exited his vehicle and made contact with Hoch, the encounter was consensual. When Hoch asked Ponds to provide identification, it did not transform the consensual encounter into a seizure simply because Ponds was requested to provide identification. See State v. Williams, 297 Kan. 370, 376, 300 P.3d 1072 (2013). However, when Hoch recognized Ponds' name as a suspect in the recent string of burglaries and asked Ponds to return to his vehicle, the consensual encounter transformed into a seizure requiring probable cause.
One does not look at isolated factors to determine probable cause. Thus, based on the totality of the circumstances previously discussed, Hoch had probable cause to arrest Ponds and it was reasonable to have Ponds return to his vehicle until backup arrived to arrest him.
Seizure of Footwear
In reviewing a district court's denial of a defendant's motion to suppress, appellate courts review the underlying factual findings using a substantial competent evidence standard, but the ultimate legal conclusion drawn from those findings under a de novo standard. The appellate courts do not reweigh the evidence or reassess the credibility of the witnesses. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). Substantial competent evidence refers to legal and relevant evidence a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. State v. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011). “ ‘[A] defendant cannot object to the seizure of evidence without proper standing to challenge the validity of the search. On the issue of standing, the burden is on the defendant to show an expectation of privacy in the property searched. [Citation omitted.]’ “ State v. Ralston, 45 Kan.App.2d 1024, 1027, 257 P.3d 814 (2011), rev. denied 293 Kan. 1112 (2012). Here, Ponds has standing as he is the individual being arrested. Additionally, Ponds preserved his right to appeal by lodging an objection to the admission of the evidence during the bench trial.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights assure each person's right to be secure in his or her person and property against unreasonable searches and seizures. “The question of whether there is a seizure arises in the context of one of four types of encounters with law enforcement officers: consensual encounters, which are not considered seizures; investigatory detentions pursuant to Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and K.S.A. 22–2402 ; public safety stops; and arrests.” State v. Thompson, 284 Kan. 763, Syl. ¶ 4, 166 P.3d 1015 (2007), as modified October 17, 2007. Any warrantless search is per se unreasonable unless it falls within one of the recognized exceptions to the search warrant requirement in Kansas. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S.Ct. 2114 (2011). The State has the burden of proving a search and seizure was lawful. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
“Kansas has previously recognized several exceptions to the Fourth Amendment search warrant requirement: consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; the emergency doctrine; inventory searches; plain view; and administrative searches of closely regulated businesses.” State v. Ramirez, 278 Kan. at 405,
The United States Supreme Court has held that the taking of property that is evidence of a crime from a defendant's possession is a normal incident of a custodial arrest. United States v. Edwards, 415 U.S. 800, 805, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), overruled on other grounds by United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Here, the shoes were seized as part of Ponds' arrest and the Kansas Supreme Court has stated:
“[T]he test is simply whether the items were lawfully seized in the first instance. Once they are lawfully seized and retained for safekeeping, the accused has no expectation of privacy and the officers may thereafter, in our opinion, take a ‘second look’ at the inventoried personal effects without a search warrant and remove any evidence from the place of safekeeping.” State v. William, 248 Kan. 389, 426, 807 P.2d 1292 (1991)
Contrary to Ponds' contention, once arrested, it was reasonable for the police to seize his footwear as evidence without a warrant and the district court did not err in denying his motion to suppress.
Sufficiency of Evidence
When the sufficiency of 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. Schumacher, 298 Kan. 1059, 1066, 322 P.3d 1016 (2014). “In evaluating the sufficiency of the evidence, we do not reweigh evidence, resolve conflicts between evidence, or make credibility determinations.” Schumacher, 298 Kan. at 1066. It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983). See State v. Naramore, 25 Kan.App.2d 302, 322, 965 P.2d 211, rev. denied 266 Kan. 1114 (1998).
A verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). A conviction of even the gravest offense can be based entirely on circumstantial evidence. State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). See also State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009) (circumstances utilized to infer guilt must be proved and cannot be inferred or presumed from other circumstances.).
When the evidence is looked at in the light most favorable to the prosecution, a rational factfinder could have found Ponds guilty beyond a reasonable doubt for each count of aggravated burglary, burglary, attempted burglary, and theft. The string of burglaries shared a similar modus operandi as the facts reflect. When each crime is evaluated individually, there is sufficient substantial competent direct and/or circumstantial evidence considered in the light most favorable to the prosecution to support Ponds' conviction on each count beyond a reasonable doubt. A similar shoe print was found at most of the home invasion sites. Ponds was personally identified on more than one occasion as being in the company of Hankins and was identified by the pawn shop owners as selling some of the stolen items. During the trial, both the State and Ponds talked about the modus operandi of the home invasions. There was no objection lodged before for the district court to consider during the multiple-burglary and theft trial about how the evidence of each crime was being offered and admitted. Issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014).
Here, we have both direct and circumstantial evidence to support Ponds' multiple convictions beyond a reasonable doubt for one count of aggravated burglary, six counts of burglary, one count of attempted burglary, and six counts of theft. We pause to note that the record reflects Ponds did not appeal the sufficiency of the evidence to support his conviction for aggravated burglary. Additionally, if he intended to include the conviction for aggravated burglary, he failed to brief the issue. A point raised incidentally in a brief and not argued therein is also deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). Even if he intended to appeal and did not, the evidence with the testimony of H.V. is more than sufficient when viewed in the light most favorable to the prosecution to support his conviction for aggravated burglary.
Probable Cause for GPS Search Warrant
Standard of Review
“In reviewing whether an affidavit [in support of a search warrant] supplies probable cause, a judge considers the totality of the circumstances presented and makes a practical, common-sense decision whether a crime has been committed or is being committed and whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Hensley, 298 Kan. 422, 427–28, 313 P.3d 814 (2013).
When probable cause for a search warrant is challenged, the reviewing court applies a deferential standard and is applied to determine whether
“ ‘the affidavit provided a substantial basis for the determination that there is a fair probability that evidence will be found in the place to be searched. Because the reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavit's sufficiency under this deferential standard.’ [Citation omitted.]” State v. Hensley, 298 Kan. at 427–28.
“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' “ State v. Fisher, 283 Kan. 272, 300, 154 P.3d 455 (2007) (quoting Illinois v. Gates, 462 U.S. 213, 238–39, 103 S.Ct. 2317, 76 L.Ed.2d 527 [1983] ).
The exclusionary rule is a judicially-created remedy which exists to prevent the use of unconstitutionally obtained evidence in a criminal proceeding against the subject of the illegal search. The rule applies when it would act as a deterrent. State v. Karson, 297 Kan. 634, 639–40, 304 P.3d 317 (2013) ; State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186(2010), cert. denied 131 S.Ct. 2114 (2011).
The Fourth Amendment's exclusionary rule should not be applied to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid except where: (1) the magistrate was deliberately misled by false information when issuing the warrant; (2) the magistrate wholly abandoned the detached and neutral role required; (3) there was so little indicia of probable cause in the affidavit that it would be entirely unreasonable for an officer to believe the warrant was valid; or (4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized. State v. Daniel, 291 Kan. at 497 (citing United States v. Leon, 468 U.S. 897, 918, 104 S. Ct 3405, 82 L.Ed.2d 677, reh. denied 468 U.S. 1250 [1984] ).
Ponds argues in his supplemental brief that there was insufficient probable cause to issue the GPS tracking device search warrants on both of his vehicles.
“The officer who sought the warrant for the GPS unit based his theory on the ‘mere suspicion’ that since Ponds was known to the police as a burglar, and that several shoe prints were discovered; which, at that time, it had not been established who made the shoe prints; and that Ponds had pawned several of the stolen items, then he [was] justified in seeking the warrant with no solid proof that Mr. Ponds had committed the burglaries. In fact, at the time the warrant was sought, there was no positive link between Ponds and burglaries other than Mr. Ponds pawning of several of the stolen items.”
However, the job of the issuing magistrate is not to determine there was absolute proof Ponds was the burglar. The issuing magistrate's task is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Fisher, 283 Kan. at 300. Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt of guilt. Abbott, 277 Kan. at 164.
The application for this search warrant listed multiple facts establishing probable cause for the warrant. The factors included:
• The similar modus operandi of the burglaries;
• The common shoe print at each crime scene;
• Ponds and Hankins were known associates seen together in Ponds' vehicle in a random traffic stop several weeks before the attempted burglary of H.V.'s house;
• Hankins was identified by a neighbor near two of the houses burglarized as having been in the area the day of the burglary; and
• Positive identification by local pawn shops of both Ponds and Hankins selling stolen jewelry and property within hours of the burglaries or on the next day.
When the totality of the circumstances are examined, the affidavit provided the issuing magistrate a fair probability evidence of a crime would be found by the attachment of the GPS tracking devices to Ponds' two vehicles.
Apprendi Violation
Ponds argues the district court erred when it increased his sentence based on his prior criminal history in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Ponds recognizes the Kansas Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002), but includes the issue to preserve it for federal review. Because there is no indication the Kansas Supreme Court is departing from this position, this court is duty bound to follow established precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The district court properly used Ponds' criminal history to establish his sentence.
Conclusion
Once Ponds made contact with Hoch in the parking lot, the totality of the circumstances available to Hoch provided probable cause to arrest Ponds. With Ponds' arrest, it was reasonable for his shoes to be seized as evidence. The direct and circumstantial evidence from each of the crime scenes, when considered in the light most favorable to the State, supports Ponds' convictions for aggravated burglary, burglary, attempted burglary, and theft. The GPS search warrants were issued by a detached magistrate judge based on probable cause. Finally, the law governing the use of Ponds' prior criminal history to determine his sentence is well settled in Kansas.
Affirmed.
ATCHESON, J., concurring in part and dissenting in part.
I join in much of the majority opinion. But I disagree that sufficient evidence supports the convictions of Defendant Steven W. Ponds for burglarizing and stealing from the home of J.W. and for attempting to burglarize the home of A.W. Correctly considered, the evidence on those charges is legally insufficient for a reasonable factfinder to conclude Ponds' guilt has been proved beyond a reasonable doubt. I would, therefore, reverse those three convictions, enter judgments of acquittal on them, and remand to the Sedgwick County District Court for further proceedings.
In reviewing the sufficiency of the evidence to convict, an appellate court must look at the record in a light favoring the State as the prevailing party. The reviewing court does not reweigh evidence or make credibility determinations. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014) ; State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). Ponds did not testify, so his credibility was not at issue. And his silence could not be used to infer guilt. See Carter v. Kentucky, 450 U.S. 288, 301, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981) ; K.S.A. 60–439 (trier of fact may not draw adverse inference from party's exercise of privilege not to testify). Those standards govern whether the case has been tried to a jury or, as here, to the district court.
In reviewing the district court's conclusions, we ask whether the evidence pertaining to a specific count would be enough that a reasonable factfinder could have assessed guilt beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). When a defendant faces multiple counts in a single prosecution, the factfinder must decide guilt based on the evidence relevant to a given count without regard to the evidence relevant only to the other counts. See State v. Kelly, 262 Kan. 755, 763–64, 942 P.2d 579 (1997) (jury should be instructed to base verdict on evidence related to particular count in prosecution for multiple counts or charges); State v. Macomber, 244 Kan. 396, 405–07, 769 P.2d 621, cert. denied 493 U.S. 842 (1989) ; PIK Crim. 4th 68.060.
As Ponds has framed his sufficiency argument, he presumes the district court could have considered evidence of his identity as a participant in each of the break-ins as supporting his identity as a participant in the others. In other words, the circumstantial evidence of identity on one count could be used to bolster or reinforce the evidence of identity on each other count. On its face, K.S.A. 60–455 permits the State to offer evidence that a defendant committed a crime on one occasion to prove identity, plan, or modus operandi with respect to another crime. Likewise, the statutory language seems to allow other crimes evidence even if defendants contend they didn't commit those offenses or if they hadn't been convicted of them. But the State did not attempt to offer evidence against Ponds through K.S.A. 60–455. Nor did Ponds object at trial to any of the evidence because it was inadmissible under K.S.A. 60–455. The parties do not address the application of K.S.A. 60–455 on appeal. So I delve into the statute's ramifications no further and look at the sufficiency issue as the parties have presented it.[l]
[1] The State has to make some threshold showing to the district court that a defendant did, in fact, commit the other crimes it seeks to admit under K.S.A. 60–455. See State v. Wilson, 295 Kan. 605, 619–20, 289 P.3d 1082 (2012) (without formally considering issue, court finds no error in admitting evidence of uncharged crimes under 60–455 because “reasonable inference” may be drawn that defendant committed both those offenses and the charged offense). Courts in other jurisdictions impose varying standards to admit other crimes evidence through statutes or rules similar to K.S .A. 60–455. See Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (Other crimes evidence may admitted under Fed.R.Evid. 404 “if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.”); State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194 (1997) (In criminal cases, the State must proffer “clear and convincing evidence that the prior bad acts were committed and that the defendant committed the acts.”); Rugemer v. Rhea, 153 Or.App. 400, 410, 957 P.2d 184 (1998) (A proponent of other bad acts evidence must show by a preponderance of evidence that the act happened and the party against whom the evidence is offered committed the act.).
When only weak evidence suggests the defendant committed several other crimes the State offers to support its theory that the defendant committed the charged crime, an observer doesn't have to look too far into the horizon to see a circular argument. Despite the weakness of the identity evidence, each offense is supported by the remaining offenses. Having been so supported, that offense then provides support for the others. So this reciprocal support somehow transforms questionable evidence the defendant committed any of the wrongful acts into substantial evidence of guilt on the charged offense. That sounds a lot like the legal equivalent of an alchemist's formula. The circumstances underscore the need for a measured threshold of admissibility for other crimes evidence bearing on identity and for vigilance in excluding that kind of evidence when undue prejudice outstrips probative value. See State v. McCune, 299 Kan. 1216, 1227, 330 P.3d 1107 (2014) (before admitting evidence under K.S.A. 60–455, district court must determine if probative value outweighs potential undue prejudice).
In this case, the district court did not provide a detailed analysis of its thinking or the particular evidence supporting guilt as to each of the charges against Ponds. It essentially issued the equivalent of a general verdict of guilty on each of the 14 counts. A district court has no obligation to do any more than that in a bench-tried, criminal case. State v. Kendall, 300 Kan., 331 P.3d 763, 773 (2014). The district court may well have seen something in the evidence I am missing, but I have no way of knowing what that might be.
The majority opinion summarizes the evidence implicating Ponds in the burglary and theft of J.W.'s home. The principal evidence consists of the shoeprint found at the scene and the burglars' use of pillowcases from the home to carry off some of the stolen property. The other characteristics of the crime are unremarkably generic—the backdoor was broken in; valuable items such as jewelry and electronics were taken; and the house was in rural Sedgwick County. None of the stolen property was ever linked to Ponds or Gus Hankins, his partner in crime.
At trial, the shoeprint was described as a “waffle” tread or design used on a common brand of athletic footwear. When he was arrested, Ponds was wearing athletic shoes with that waffle design. The State's evidence showed simply that on gross visual inspection the tread of the shoeprint at the crime scene had the same design as Ponds' shoes. Nobody testified that the shoeprint and Ponds' pair of shoes shared common wear patterns or other distinctive characteristics that would set them apart from any other shoes of that brand and style. The shoeprint was about the same size as Ponds' shoes. Although similar shoeprints were found at several other burglaries where additional evidence tied Ponds to those crimes, that doesn't super charge the evidence as to the identity of the burglar at J.W.'s home. The evidence was sufficient to prove Ponds a burglar but not that burglar.
The question really boils down to whether it's possible that someone else in Sedgwick County—with a population of about half a million people—or the surrounding area was committing residential burglaries while wearing the same kind of athletic shoe Ponds favored. There is no plain legal rule that provides an answer. Is it likely? I think not. Is it possible in the sense that it realistically could happen in contrast to a metaphysical “anything is possible” or the quite improbable l–in–4,000 chance of being dealt four of a kind at a poker table? I think so. And that is a reasonable doubt or a doubt for which there is a reason. See PIK Crim. 4th 51.140 (PIK committee recommends against defining “reasonable doubt” for jurors, since the term is to be applied in its common meaning and carries no special or unusual legal import); State v. Wilson, 281 Kan. 277, Syl. ¶ 4, 130 P.3d 48 (2006) (no definition could make clearer the meaning of “reasonable doubt” than what those words themselves convey). Reasonable doubt neither requires nor abides formulas based on percentages or odds. Jurors or judges must arrive at the resoluteness necessary to pronounce the guilt of a defendant some other way. The evidence must be sufficient to extinguish any reasoned belief the defendant may not have done what the State contends. On the record evidence here, similar shoes alone are insufficient.
The burglar or burglars at J.W.'s house also commandeered pillowcases to carry off some of the property. But that doesn't make Ponds' involvement any more probable. The use of pillowcases was not common to all of the break-ins the State charged, so it couldn't have been a signature of the crimes or the criminals. Moreover, pillowcases as tote bags for stolen property is more like block lettering than a crafted signature. Lots of burglars work that way in Kansas and elsewhere. See State v. McBroom, 299 Kan. 731, 733, 325 P.3d 1174 (2014) ; State v. May, 39 Kan.App.2d 990, 991–92, 186 P.3d 847, rev. denied 287 Kan. 768 (2008); State v.. Reed, 8 Kan.App.2d 615, 663 P.2d 680 (1983) ; State v. Goolsby, No. 2–CA–CR 2013–0375, 2014 WL 2504508, at *1 (Ariz.App.2014) (unpublished opinion); In re Michael B., No. H040055, 2014 WL 6838328, at *1 (Cal.App.2014) (unpublished opinion); People v.. Sutherland, No. 314247, 2014 WL 2753706, at *1 (Mich.App.2014) (unpublished opinion); Simmons v. State, No. 01–13–00930–CR, 2014 WL 5500483, at *1 (Tex.App.2014) (unpublished opinion).[2]
[2]Those cases, of course, reflect about the skinniest slice of burglaries. They are ones in which someone has been apprehended, charged, and convicted and then appeals, only to have the appellate court make note of pillowcases as a device for absconding with stolen property. Even so, the cases illustrate the practice to be ordinary and, thus, unlike a strikingly distinct characteristic that would mark a particular criminal act as that of a particular criminal. See State v. Prine, 297 Kan. 460, 480, 303 P.3d 662 (2013).
Giving the State's evidence the best look possible, the abstract reasonable factfinder could not pronounce Ponds guilty of the break-in and theft because the perpetrator wore the same kind of athletic shoes he did. That's not good enough to establish guilt beyond a reasonable doubt; or looked at the other way, that leaves open a reasonable doubt. I would, therefore, find insufficient evidence to uphold the convictions of Ponds for the burglary and theft of J.W.'s home. An appellate court should reverse a conviction insufficiently supported in the evidence and enter a judgment of acquittal. State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007). I would do so in this case and remand to the district court for further proceedings as might be necessary on related issues, such as restitution.
These same considerations also require a reversal of Ponds' conviction for the attempted burglary of A.W.'s house. In that case, the would-be burglar or burglars never got inside. A fair amount of damage was done to the garage door and a door at the rear of the house, but no property was taken. Law enforcement officers found a waffle-tread shoeprint just outside the house. No other evidence established Ponds as a participant in that crime. I would, therefore, reverse that conviction for insufficient evidence.