Opinion
No. 106,868.
2013-05-17
STATE of Kansas, Appellee, v. Gregory P. SPAW, Appellant.
Appeal from Reno District Court; Trish Rose, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Gregory P. Spaw appeals his convictions and sentences for four counts of felony theft, one count of misdemeanor theft, and one count of attempted felony theft. He argues that there was insufficient evidence to sustain his convictions. He also argues, for the first time on appeal, that the misdemeanor theft offense should have been charged and sentenced as a felony. We find that the trial evidence was sufficient to sustain Spaw's convictions. The general rule is that issues not raised before the district court cannot be raised on appeal. Since Spaw does not show us that any exception to the general rule applies here, we decline jurisdiction on Spaw's misdemeanor arguments.
Factual And Procedural Background
In January 2010, a series of thefts occurred at K–Mart, Target, and Wal–Mart stores in Hutchison. Spaw was charged in Counts I through IV with four counts of felony theft, even though the value of the property taken under each count was less than $1,000. Because Spaw had two or more prior theft convictions the severity level of each of these four offenses was enhanced to a severity level 9 nonperson felony pursuant to K.S.A. 21–3701(b)(6). Spaw was also charged with one count of misdemeanor theft in Count V for taking a deli salad worth less than $1,000. Finally, Spaw was charged with one count of attempted felony theft in Count VI for the attempted theft of a computer and home theater system.
Before trial, Spaw filed a motion in limine asking the district court to exclude all evidence of his prior convictions and any evidence of investigation or police contact regarding similar crimes. With respect to prior convictions, Spaw stated that he would stipulate to having two or more prior convictions for theft. He contended that enhancement of the theft offenses to felonies under K .S.A. 21–3701(b)(6) based on his prior convictions was a matter for the court, not the jury. The State agreed that Spaw's prior convictions were not a matter for the jury and agreed to refrain from presenting evidence of his prior convictions.
With respect to evidence of investigation or police contact regarding similar crimes, Spaw explained that several retailer witnesses had learned Spaw's identity when collaborating with other retailers in the area who had experienced similar crimes. Spaw suggested that this uncharged conduct should be excluded. The State agreed to abide by Spaw's request so long as Spaw did not violate his own motion in limine by asking the witnesses how, specifically, they had identified him as the perpetrator.
At trial, Tim Ferran, a loss prevention officer for K–Mart, testified as to two thefts that occurred on January 4, 2010 (Count I), and January 9, 2010 (Count II). Ferran testified that while performing an audit of the store's electronics inventory, he discovered that several televisions were missing. Ferran reviewed surveillance video and discovered that on January 4, a man entered the stockroom at the back of the store and placed two televisions in a shopping cart. The man exited through a side entrance without paying for the televisions. On January 9, a man entered the stockroom and placed two televisions in a shopping cart. The man went through the lawn and garden section of the store, which was closed, and then exited using an emergency exit. He did not pay for the televisions. The surveillance videos from January 4, 2010, and January 9, 2010, were admitted into evidence. Ferran testified that he was “100 percent sure” that Spaw was the man in the surveillance video.
Darin Burgess, a loss prevention officer for Target, testified that he was advised on January 15, 2010 (Count III), that merchandise was missing from the store. He reviewed the store's surveillance video from January 13, 2010. That surveillance video showed that a man and woman entered the electronics area of the store and placed a television in a shopping cart. The man and woman were confronted by a store employee, so they left the television. Later, the man entered a stockroom at the back of the store and dragged two 42–inch televisions to an emergency exit. He exited through the emergency exit with the televisions without paying for them. The surveillance video from January 13, 2010, was admitted into evidence. Burgess identified Spaw as the man in the surveillance video.
Thomas Burkhardt, a loss prevention officer for Wal–Mart, testified concerning two thefts and an attempted theft that occurred on January 19, 2010 (Count IV), and January 20, 2010 (Count V). On January 19, a store manager informed Burkhardt that an alarm had been set off at an emergency exit located in the lawn and garden section of the store. Burkhardt reviewed surveillance video and determined that a man had pushed a shopping cart with a television in it to the emergency exit, removed the television from the cart, and placed it next to the emergency exit. The man walked back through the store and exited through a side door. He then moved a vehicle, identified as a Dodge Charger, near the emergency exit. Finally, the man reentered the store, carried the television through the emergency exit, loaded it into the vehicle, and drove away.
Burkardt also viewed surveillance video taken January 20, 2010. That video showed that on January 20 (Count VI) a man entered the store, loaded a computer and home theater system into a shopping cart, and left the cart by an emergency exit in the deli section of the store. The man walked through the deli, picked up a salad, and placed the salad inside his coat. He walked out of the front exit of the store without paying for the salad, got into a small pickup truck, and moved the truck near the emergency exit. At some point, two store employees saw the cart parked suspiciously near the emergency exit and began to investigate. The man reentered the store, apparently saw the employees near the cart, and exited the store without attempting to take the computer and home theater system. The surveillance videos from January 19 and 20 were both admitted into evidence. Burkhardt identified Spaw as the man in both surveillance videos.
Finally, Cory Ogburn, a detective with the Hutchinson Police Department, testified that he investigated the January 2010 thefts from K–Mart, Target, and Wal–Mart. Based on his investigation he was able to positively identify Spaw as the man in all the surveillance videos admitted into evidence.
Spaw did not present any evidence at trial. In his closing argument, Spaw pointed out that the State had not produced any eyewitnesses who had seen the suspect commit the thefts and attempted theft, nor was the suspect apprehended at the time of the incidents. He argued that the State had produced no evidence linking Spaw to the stolen merchandise or to the vehicles allegedly involved in the crimes. He argued that the only evidence of the crimes was the surveillance videos, which he claimed were poor in quality and did not clearly show the suspect's face. He contended to the jurors that the video evidence was insufficient for them to agree beyond a reasonable doubt that he was the man shown in the videos committing the crimes. The State argued that Spaw was easily recognizable in the videos and that the jurors could see for themselves that Spaw was the man shown in the videos. The State also emphasized that the police detective learned through independent investigation that Spaw was the man shown in the videos. The jury found Spaw guilty on all counts.
At sentencing, the State asked the district court to impose the maximum sentence on each count and order that the sentences be imposed consecutively. Based on Spaw's criminal history score of B, the district court imposed the standard sentence of 14 months in prison for Count I (felony theft). It then imposed the standard sentence of 6 months in prison each for Counts II, III, and IV (all felony thefts) and Count VI (attempted felony theft). Finally, the district court imposed the maximum sentence of 12 months in county jail for Count V (misdemeanor theft). It ordered all sentences to be served consecutive to one another. Due to the operation of the double rule under K.S.A. 21–4720(b)(4), Spaw received a controlling sentence of 28 months' imprisonment for all the felonies consecutive to 12 months in county jail for the misdemeanor. Spaw appeals.
Analysis
On appeal, Spaw first argues that there was insufficient evidence to support his convictions. He contends that the testimony of the three loss prevention officers identifying him as the man in the surveillance videos was inadequate to prove his identity because those identifications were mere opinions based on poor-quality video. He emphasizes that the State failed to produce any eyewitness testimony that Spaw was at the stores on the days in question and there was no independent evidence linking him to the stolen merchandise or the vehicles allegedly used in the crimes. The State argues that the video evidence was of sufficient quality to allow the jurors to compare Spaw and the man in the surveillance videos for themselves.
When the sufficiency of evidence is challenged in a criminal case, an appellate court reviews all the evidence in the light most favorable to the prosecution. The test is whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court does not reweigh evidence or the credibility of witnesses. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012).
Spaw is correct in his listing above of evidence the State was unable to produce. However, here the jurors were able to view for themselves the surveillance videos of the thefts and attempted theft and determine if, beyond a reasonable doubt, Spaw was the man in the videos committing the crimes. The videos that were produced at trial are part of the record on appeal. We note that Spaw has not appealed from the trial court's decision to admit those videos into evidence. We conclude that, in the light most favorable to the prosecution, a rational factfinder could have found Spaw guilty beyond a reasonable doubt. Spaw's claim of error fails.
Spaw next argues that, as a matter of law, he could not be charged or convicted of a misdemeanor theft under Count V (theft of the salad) because he had stipulated to having two or more prior theft convictions, thus elevating the theft to a felony under K.S.A. 21–3701(b)(6). He is aggrieved because if he had been charged with and sentenced for a felony rather than a misdemeanor under Count V, his sentence for that conviction would have been subject to the double rule under K.S.A. 21–4720(b)(4) and therefore his total term of incarceration would actually be shorter than the sentences imposed. The State argues that it properly exercised its prosecutorial discretion in charging the Count V theft of a salad as a misdemeanor rather than a felony and, thus, Spaw was properly sentenced for a misdemeanor.
As a threshold matter we must note that Spaw failed to raise this argument before the district court. Spaw failed to object prior to or at trial to the charging of the offense as a misdemeanor or at sentencing when the district court sentenced on Count V as a misdemeanor. Generally, issues not raised before the district court cannot be raised on appeal. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). Although this general rule is subject to several exceptions, Spaw makes no attempt to argue that any of the exceptions are applicable here. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010) (listing exceptions to general rule that a new legal theory may not be asserted for the first time on appeal). We decline to review a claim of error in the district court that was neither preserved by a proper objection nor is shown to be within an exception to the general rule. See State v. Trujillo, 296 Kan. 625, 634–35, 294 P.3d 281 (2013).
Affirmed.