Opinion
112,118.
06-26-2015
STATE of Kansas, Appellee, v. David SHINN, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Paul S. Gregory, county attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Paul S. Gregory, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
David Shinn appeals from his conviction by a jury of one count of burglary. He argues that the district court erred by failing to instruct the jury on the lesser offense of attempted burglary and that the district court violated his statutory and constitutional rights by allowing the jury to take photographic evidence into the jury room.
We find no error and affirm the conviction.
Factual and Procedural Background
On July 22, 2013, the State charged Shinn with one count of residential burglary, alleging that on or about July 2, 2013, Shinn had unlawfully, intentionally, feloniously, and without authority entered into or remained within the home of Shawn Schweitzer with the intent to commit a felony, theft, or sexually motivated crime therein. Shinn pled not guilty to the charge.
Schweitzer owned a house located at 808 College in Downs, Kansas. He moved out of the property in January 2009 but left some of his personal property in the home, which remained unoccupied thereafter. Schweitzer periodically checked on the house, and in early 2013, he became aware that someone had been entering the property. He notified law enforcement of the problem and gave them a key to the home so that they could help keep an eye on the property. Schweitzer had not given anyone permission to go into the house.
In February 2013, law enforcement placed an infrared trail camera inside of Schweitzer's home. The camera was set to record 30 seconds of video each time it was triggered by movement inside the home. Law enforcement checked the camera periodically to see if it had captured any videos. An officer went to the home to remove the trail camera on July 5, 2013, and he discovered that the trail camera had captured several minutes of video depicting three people inside of the home on various occasions.
Some of the videos depicted an officer coming to check on the camera from time to time. Others showed an individual identified as Tyler Horacek going through Schweitzer's living room while using his mobile phone as a flashlight. On July 2, 2013, at 11:55 p.m., a video showed Shinn in Schweitzer's living room. Just after midnight, a third, unidentified individual was captured on video as well. The videos were shown to the jury and admitted into evidence.
In the July 2nd video, Shinn is seen looking at a chair in the living room and saying, “I like this chair,” “I could use this chair,” and “Tyler, come here.” He then appears to notice the trail camera and moves quickly out of the room, looking back at the camera once more as he leaves. Deputy J.R. Sloggett interviewed Shinn about the incident. Shinn denied being in Schweitzer's house and declined to comment further after being shown the video. At trial, Shinn admitted that he denied being in the home but claimed he was not shown the video capture.
Schweitzer identified photographs of the exterior and interior of his home, and those images were published to the jury without objection. Interior images were used to show the layout and condition of the house and to point out where law enforcement installed the trail camera.
Shinn testified that on the night of July 2, 2013, he was drinking heavily with friends at his home because he had just lost a girlfriend and a job. Shinn's home is just a few houses away from the Schweitzer house. Shinn believed the Schweitzer home had been abandoned, and, due to stories about a woman having died there, Shinn wanted to go check out the house to see if it was haunted. Shinn testified that he, Horacek, and a man named David Reyes went to the house and entered through an unlocked back door. He claimed he did not expect to find anything valuable in the house. Shinn said that he stayed in the house for less than a minute because, once he entered the house and saw that there was still nice furniture inside, he felt that the home might not be abandoned after all.
Shinn testified that he does not remember seeing the chair and that the statements he made on the video about the chair were comments he made to himself as he was realizing that the furniture was nice and should not be in an abandoned house. He also testified that he did not intend to take anything from the home, did not take anything from the home, and did not notice the trail camera. On cross-examination, Shinn admitted that he did not have permission to go into the Schweitzer home. He also admitted that he looked up at the trail camera because he noticed something shiny on the wall but claimed he could not make out what it was.
Shinn did not object to the district court's jury instructions. The district court allowed the jury to take the photographs of the Schweitzer house with it into the jury room for deliberation. It also allowed the jury to return to the courtroom so that it could review the video footage of Shinn in the Schweitzer home. Shinn was present in the courtroom with his attorney when the review occurred.
The jury returned a guilty verdict on the charge of burglary. The district court sentenced Shinn to 13 months' imprisonment underlying with probation granted for 24 months.
Shinn timely appealed.
Failure to Give Instruction on “Attempted Burglary ”
Shinn argues that the district court erred by failing to instruct the jury on the lesser included offense of attempted burglary because the evidence showed that he entered the house but did not remain there once he understood he had no authority to be there. The State counters that the crime of burglary was complete once Shinn entered the home without authority with the intent to commit a theft therein. Because the facts showed completion of the crime, not a failed attempt to enter the home, it asserts an instruction on attempted burglary was not warranted here.
A party cannot claim error for the district court's giving or failing to give a jury instruction unless (1) the party objects before the jury retires, stating distinctly the matter to which the party objects and the grounds for the objection; or (2) the instruction or the failure to give the instruction is clearly erroneous. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Because Shinn did not request this instruction or object to the district court's failure to give this instruction sua sponte, this court should review this issue to see if the failure to give the instruction was clear error. To make this determination, this court must determine whether there was any error at all by first considering whether the instruction was legally and factually appropriate by employing an unlimited review of the entire record. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).
The district court must instruct the jury on a lesser included offense where some evidence would reasonably justify a conviction on the lesser offense, but this duty to instruct only arises where there is evidence supporting the lesser crime. State v. Johnson, 290 Kan. 1038, 1042–43, 236 P.3d 517 (2010). On review, this court must consider the instructions as given as a whole, rather than the desired instruction in isolation, and if those instructions fairly state the law as applied to the facts of the case and the jury could not reasonably be misled by them, then the instructions are not reversible error even if they contain some error. 290 Kan. at 1043.
Under K.S.A.2014 Supp. 21–5807(a), “[b]urglary is, without authority, entering into or remaining within any: (1) Dwelling, with intent to commit a felony, theft or sexually motivated crime therein .” Based on this statute, the jury was instructed that the State must prove that (1) Shinn entered a dwelling; (2) he did so without authority; (3) he did so with the intent to commit a theft therein; and (4) the act occurred on or about July 2, 2013, in Osborne County. K.S.A.2014 Supp. 21–5301(a) defines an attempt as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.”
Here, Shinn admitted that he entered the Schweitzer home, that he did so without authority, and that he did it on July 2, 2013, in Osborne County. Thus, he admitted that he had completed the act which statutorily constituted a burglary. Although the State also had to prove that Shinn did so with the intent to commit a theft therein, the question of Shinn's intent pertains to his mindset, not to an act. Shinn has not made any argument here pertaining to his intent but rather has argued that, because he claimed that he left the Schweitzer home once he determined that it was not abandoned, he only attempted to commit the act of burglary.
Even viewed in a light most favorable to Shinn, the evidence does not establish that he merely made an overt act toward committing a burglary but failed or was prevented or intercepted from doing so. Shinn did not have to successfully commit a theft; he only had to intend to do so. Therefore, the fact that he did not commit a theft before he left the Schweitzer home is irrelevant. Even if, as he claims, he determined that the home was not abandoned and decided to leave shortly after he entered, his determination came too late and cannot possibly be construed as failing to commit burglary, or being prevented or intercepted from doing so, where the actus reus of the crime had already been accomplished.
A jury instruction regarding attempted burglary was, thus, factually inappropriate under the evidence and was correctly omitted by the district court.
Photographic Exhibits in the Jury Room
Shinn argues that he was denied his constitutional and statutory rights to be present at all critical stages of the trial when the district court sent photographic evidence into the jury room with the jurors at the start of deliberation. He claims that this error affected the outcome of his trial because there is no record of how the evidence was exhibited to the jury, and improper exhibition can lead a jury to make inaccurate conclusions when deciding a case. Shinn also argues that this error was not harmless due to the importance of the constitutional protections that he asserts were violated here.
The State asserts that if there was error here, it was harmless because (1) its case against Shinn was strong; (2) Shinn did not object to the photographs being sent to the jury room; (3) the photographs were simply depicting the Schweitzer home, thus they were innocuous and insignificant by comparison to other evidence and testimony; and (4) Shinn did not make any posttrial motions to mitigate any error here. The State also points out that K.S.A. 22–3420(3) was amended on July 1, 2014, and the amendments retroactively grant the district court the authority to allow jurors to take admitted exhibits into the jury room. It notes that Shinn did not assert that the district court abused its discretion here.
At trial, the district court stated to the jury:
“You should take your note pads with you into the jury room so that you have your notes. We'll also give you the final jury instructions. We'll give you the evidence that's been admitted, so we have several pictures in a green binder here on the witness stand, those will go with you into the jury room.”
Shinn did not object to the jurors being allowed to take the photographs with them into deliberation.
The State's argument here requires this court to engage in statutory interpretation, which is a question of law over which this court has unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014), cert denied ––– U.S. ––––, 135 S.Ct. 91 (2014). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014).
At the time of Shinn's offense, K.S.A. 22–3420(3) stated:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
Following the July 1, 2014, amendment, K.S.A.2014 Supp. 22–3420(c) now states: “In the court's discretion, upon the jury's retiring for deliberation, the jury may take any admitted exhibits into the jury room, where they may review them without further permission from the court. If necessary, the court my provide equipment to facilitate review.” Additionally, K.S.A.2014 Supp. 22–3420(f) states: “The amendments to this section by this act establish a procedural rule, and as such shall be construed and applied retroactively.”
Generally, statutes operate only prospectively unless there is clear legislative language to the contrary. State v. Todd, 299 Kan. 263, 274, 323 P.3d 829, cert. denied ––– U.S. ––––, 135 S.Ct. 460 (2014). Here, the legislature plainly stated that this amendment applies retroactively. Thus, the district court had the discretion to allow the jurors to take the photographs, which had been admitted as evidence, to the jury room when they retired to deliberate.
The Kansas Supreme Court has said that a critical period of the trial includes all times when the jury is present in the courtroom and whenever the trial court communicates with the jury. State v. Herbel, 296 Kan. 1101, 1109, 299 P.3d 292 (2013). The photographs at issue here had been presented to the jury during the trial and were admitted into evidence without objection in the presence of Shinn and his counsel. They were sent to the jury room with the jurors when they retired for deliberation without further comment from the trial judge and without objection from Shinn. This is allowed by K.S.A.2014 Supp. 22–3420(c). The photos were of a peripheral nature and there is no suggestion as to how the jury's review would have been different simply by having occurred in the courtroom without judicial comment rather than occurring in the jury room. We discern no reasonable possibility that the jury verdict was affected by this procedure when viewed in light of the record as a whole. Our conclusion that Shinn's right to be present at all critical stages of the trial was not violated by this procedure is consistent with persuasive opinions recently rendered by other panels of this court. See State v. Crowley, No. 111,154, 2015 WL 1310749, at *3 (Kan.App.2015) (unpublished opinion), petition for rev. filed April 2, 2015; State v. Moore, No. 109,553, 2015 WL 1310046, at *8–9 (Kan.App.2015) (unpublished opinion), petition for rev. filed April 7, 2015.
Shinn also claims that the district court made a structural error requiring automatic reversal here because the trial judge was not present when the jury reviewed the photographic evidence that was sent back to the jury room. The cases he presents to support his arguments, however, are not on point, as each relates to instances where the trial judge was not present in the courtroom for portions of a criminal proceeding or where the jury reviewed evidence in the courtroom without a judge present. See The State v. Beuerman, 59 Kan. 586, 591–92, 53 Pac. 874 (1898) (error found when the judge left the courtroom for 10 minutes during the trial); United States v. Noushfar, 78 F.3d 1442, 1445 (9th Cir.1996) (structural error when tapes were sent to the jury room prior to being played in open court and without the trial judge presiding over their presentation); Riley v. Deeds, 56 F.3d 1117, 1119–22 (9th Cir.1995) (structural error when law clerk presided over read back of testimony to jurors while the judge was not in the courthouse). There is no evidence in the record here that would suggest that the trial judge in any way abandoned this case or somehow abdicated his duties. The judge was present at all critical stages—including a review of the video evidence by the jury in the courtroom—as were Shinn and his counsel. Shinn's constitutional rights were not violated.
Affirmed.