Opinion
No. 106,281.
2012-05-25
STATE of Kansas, Appellee, v. John WHITE, Appellant.
Appeal from Clay District Court; Meryl D. Wilson, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Clay District Court; Meryl D. Wilson, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., HILL, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
John White appeals from his convictions for burglary, felony theft, and criminal damage to property. White raises two issues: (1) He challenges the court's procedure in responding to jury questions during deliberations, and (2) he contends there was insufficient evidence to support his conviction for felony theft. Finding no reversible error, we affirm.
Facts and Legal Proceedings
On January 9, 2010, Laura Squires, a pharmacist at Patterson's Health Mart in Clay Center, Kansas, reported to work at 9 a.m. and discovered the business had been burglarized. She determined that money had been stolen from their cash registers, 40 boxes of medication containing pseudoephedrine were gone, and several items were missing from Radio Shack. When Squires arrived, she found that there was no apparent forced entry of any of the exterior doors to the store, at least one of which had a deadbolt lock, and that the perimeter-only alarm had not been activated. No one had permission to enter the store and take anything after it closed the prior evening.
The only entry to Patterson's that was not connected to the perimeter alarm was an interior door that linked the store and a restaurant next door, Danny's Grill and Catering. This door had a standard key lock but it was an older lock that popped open on occasion.
The pharmacist contacted the police, and Officer Steve Squires responded. The officer also found no sign of forced entry of Patterson's perimeter doors. The officer saw the door between Patterson's and the restaurant, and the pharmacist advised that boxes usually stacked in front of the door had been moved. When the officer examined the door, he found a white substance in the striker area of the door jamb where the plunger would normally go into the jamb. The substance appeared to be a silicone-based product. No one had permission from Patterson's to damage the door between it and the restaurant.
The officer summoned Dan Dreher, owner of the restaurant, to the businesses. Dreher found no sign of forced entry of his restaurant. The only persons with keys to the restaurant were Dreher, Dreher's wife, restaurant employee, John White, and the morning cook, Janet McPhillips. The restaurant had a table and other items pushed against the door connecting to Patterson's to keep it from coming open. The officer also found a pair of cloth gloves in Danny's storage room that Dreher did not recognize. The officer also found a white shirt on the floor in Patterson's. Dreher identified it as a shirt that had been in the laundry at his restaurant.
Dreher reported to the officer that the day before the burglary, White asked Dreher for a loan; White acted nervous. That night and for a couple of weeks before, White had been driving Dreher's pickup truck that Dreher frequently loaned out to others. During the investigation, Dreher gave the police permission to recover the truck and search it. The officer found the truck several hours later at the house where White lived. When it was recovered, Dreher noted there was snow in the bed of the truck. When the officer searched the truck, he observed that the snow in the truck bed had impressions as if boxes had been set in the snow. The officer also found a tube of white compound smelling of silicone on the floorboard in the truck.
A local refuse worker, Mike Riley, testified that in the early morning hours of January 8, 2010, he was driving a garbage truck. While picking up trash in the alley behind Danny's restaurant at approximately 4 a.m., he noticed Dreher's truck behind the restaurant. The truck was not parked in its usual location and was parked in a manner that made it very difficult for Riley to maneuver the garbage truck through the alley. Riley recognized flattened cardboard boxes next to the driver's door of Dreher's truck. Riley did not see anyone around the truck.
Officer Squires questioned White about his whereabouts the night/morning of the burglary. White told the officer he had been at a bar that night until closing, then stopped at Danny's to make himself a sandwich. Thereafter, he went home. The bar identified by White closed at 2 a.m. The officer obtained a warrant to search White's residence about 8 hours after the reported burglary. When it was executed, none of the missing property was found.
Several days after the burglary, Dreher noticed the garage door to the business had been bent; if pushed, someone could have gained entry to the restaurant from this door. Dreher did not know whether the garage door had been damaged before or after the burglary of Patterson's. Officer Squires had inspected those doors on the date the burglary was reported and observed no damage.
On behalf of the store, the pharmacist later submitted a list of items stolen during the burglary to the store's insurer. This list was presented as an exhibit at trial. The total value of the items was identified at $2,837. The claim referenced Patterson Health Mart, Claim # 1010711. The list included various medications, “Radio Shack items” including a DVD player, a 22? ADC television, an HP printer, a Wii console and various other electronic items, and over $400 in cash.
White was charged several days later with burglary of Patterson's Pharmacy, felony theft from Patterson's Pharmacy, and misdemeanor criminal damage to property for damage to the door between Patterson's Pharmacy and Danny's Bar and Grill.
After the evidence above was presented at trial, the State rested its case. White made an oral motion for judgment of acquittal which was denied. He then rested his case without presenting any additional evidence.
During jury deliberations, a note listing three questions was received from the jury. The questions were: “What is the name of the witness who failed to show today?” “Who is the 4th key-holder, other than Danny, Rayleen, and John?” and “Is there a deadbolt lock on the back-door of Danny's?” With counsel and the defendant present, the judge said: “I'm going to—my proposed answer: ‘You must decide the case based upon the facts admitted and as you understand and remember.’ Any objection?” Mr. Kepfield (defendant's counsel): “No.”
White filed a timely motion for new trial arguing that the admission of evidence regarding the uses of pseudoephedrine was prejudicial error and a motion for judgment of acquittal was based upon insufficient evidence. At the hearing, White's counsel argued lack of identity of the perpetrator as the basis for his motion for judgment of acquittal.
On April 12, 2011, the court held a sentencing hearing. White's post-trial motions were denied. White was sentenced to 24 months' probation with community correction with an underlying prison sentence of 15 months.
White timely appealed. Analysis
White first argues on appeal that the district court's response and manner of responding to the jury's questions constitute reversible error. Specifically, White contends the court failed to give a meaningful response to the jury question: “Who is the 4th key-holder, other than Danny, Rayleen, and John?” White suggests the court should have (1) read back trial testimony to the jury; (2) the answer given was not correct; and (3) the judge, defendant, and counsel were required to be present when the questions were answered and it was error for the trial court not to follow the requirements of K.S.A. 22–3420(3) and return the jury to the courtroom to answer the jury's question.
Before we consider the merits of the issues raised by White, we must respond to the State's argument that by failing to object when the opportunity was presented, White waived his right to raise this issue on appeal.
The State relies on the clear holding of State v. Groschang, 272 Kan. 652, 672, 36 P.3d 231 (2001), where it was held that the time-honored rule that an issue not presented to the trial court may not be raised on appeal and this rule specifically applies to jury requests under K.S.A. 22–3420(3).
White admits on appeal that he was present and did not object to the contents of the court's response to the three questions, but argues that exceptional circumstances exist and issues raised for the first time on appeal should be considered if necessary to serve the ends of justice or prevent denial of fundamental rights, relying on State v. Knight, 42 Kan.App.2d 893, 218 P.3d 1177 (2010). It is further argued that this issue directly involves White's fundamental right to a fair trial.
We are obligated to follow Groschang and hold that White's failure to object at trial precludes our consideration of at least the first two contentions he makes. However, the record is silent as to whether White and his counsel were present when the answer to the questions were presented to the jury. And, we presume they were not, for the judge wrote his answer on the same paper the questions were written on which was likely delivered by the bailiff to the jury as the record does not show the answers being delivered in the courtroom. Therefore, out of an abundance of caution, we will consider all three contentions which White raises in his first issue on appeal.
In State v. Jones, 41 Kan.App.2d 714, 722, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099 (2011), where similar issues to the ones we face were before our court, a quote from State v. Boyd, 257 Kan. 82, Syl. ¶ 2, 891 P.2d 358 (1995), was set forth and our Jones opinion then stated:
“This passage from Boyd suggests a two-step approach when an appellate court reviews whether a trial court has violated K.S.A. 22–3420(3). First, we conduct a de novo review to determine if the statute has been breached because the trial court failed to respond to the jury's question or because the trial court failed to respond to the jury's question or because the trial court provided an erroneous response to the question. Second, if the trial court complies with these mandatory statutory requirements, our court will employ an abuse of discretion standard in evaluating the sufficiency or propriety of the response.” 41 Kan.App.2d at 722.
The correct procedure for a district court to follow when answering jury questions is set forth in K.S.A. 22–3420(3):
“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.”
Our Supreme Court has construed this provision to require the defendant's presence for any discussions about a jury's questions and “[w]here the record does not affirmatively reflect the presence of the defendant, this court will presume that the defendant's constitutional right to be present was violated and that K.S.A. 22–3420(3) was not followed.” State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2001). In addition, the invited error doctrine would not apply to an allegation that defendant's right to be present during jury question discussions was violated because this is a right personal to the defendant. However, the harmless error analysis does apply. 272 Kan. at 391–92. “[T]he error will be declared harmless if this court concludes that the error had little, if any, likelihood of having changed the result of the trial. 266 Kan. at 920.” 272 Kan. at 391–92.
White first complains that the judge should have read back the witnesses' testimony in order to answer the jury's questions. However, the jury did not request a readback of the testimony. It simply requested the court provide answers to three factual questions. The danger of providing responses to factual questions is reflected in Jones, 41 Kan.App.2d at 722, and State v. Stieben, 292 Kan. 533, 536, 256 P.3d 796 (2011), because of the risk of the court intruding on the province of the jury. The Supreme Court has cautioned that a judge who summarizes testimony rather than merely offer a readback, “plays with fire.” State v.. Adams, 292 Kan. 151, 164–65, 254 P.3d 515 (2011). Likewise, the court has discretion as to controlling any readback, if such is requested. State v. Myers, 255 Kan. 3, 8, 872 P.2d 236 (1994). A readback of testimony was not necessary. It was not error for the court not to volunteer a readback.
White next complains about the answer as it relates to the persons who had keys to Danny's restaurant. The jury apparently recalled Dreher's testimony that there were four persons with keys to the restaurant, but did not recall the identity of all four.
When the jury presents a factual question, the court can either direct the jury to rely on its collective memory, or it can read back the testimony to the jury. Stieben, 292 Kan. at 537. White has failed to explain how the court's failure to read back Dreher's and Squires' testimony harmed his case. It may just as well have been to White's benefit as it could have assisted his reasonable doubt defense. Finally, the answer given was not erroneous. This contention of White does not show error.
White asserts he was denied an impartial judge because the record does not show the judge was present when the response to the questions was given to the jury. In addition, White and his counsel were not present and the response was not given in open court as is required by K.S.A. 22–3420(3). We conclude that it was error for the specific directions of the statute not to be precisely followed.
However, we point out that the jury did not request the bailiff to conduct them to the courtroom although we hold that when questions arise having them answered in the courtroom in the presence of the defendant is what the statute requires. Having said this, we see no prejudice to the defendant in the manner in which the questions were answered. Nothing is presented that would in any way convince us that the manner in which the questions were answered would have had any effect on or changed the result in the trial. We find that the error was harmless and not reversible under a proper analysis.
White also argues there was insufficient evidence to support his conviction of felony theft because the State failed to prove that at least some of the property taken belonged to Patterson's Pharmacy as alleged in the complaint and instruction.
White argues that property listed as being from Radio Shack was not clearly connected in any way to “Patterson's Pharmacy.”
The standard of review when sufficiency of the evidence is challenged following conviction in a criminal case is “ ‘whether, after reviewing all the evidence, viewed in a light most favorable to the prosecution, we are convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. Barnes, 293 Kan. 240, 263, 262 P.3d 297 (2011). A conviction for even the gravest offense may be sustained by circumstantial evidence. Circumstantial evidence is evidence of events or circumstances from which a reasonable factfinder may infer the existence of a material fact in issue. State v. Lopez, 36 Kan.App.2d 723, 725, 143 P.3d 695 (2006).
Theft is defined as the obtaining or exerting unauthorized control over property done with the intent to permanently deprive the owner of the possession or benefit of the owner's property. K.S .A. 21–3701. An owner is defined as a person who has any interest in property. K.S.A.2009 Supp. 21–3110(14). “In a prosecution for theft it is sufficient to charge and prove that the stolen property was taken from a named person or entity having a possessory interest superior to that of the accused, regardless of who holds legal title to the property.” State v. Coburn, 220 Kan. 750, Syl. ¶ 4, 556 P.2d 382 (1976).
Here, the pharmacist testified that when she arrived at work at Patterson's Health Mart, she discovered medications and cash missing, as well as items missing from Radio Shack. She identified a list of property she submitted to the insurance company for the losses on behalf of Patterson's Health Mart which included a list of Radio Shack items. The list was admitted without objection, and the jury could certainly infer that this was all from a single business. She may not have specifically testified that what is called Radio Shack was a part of or owned by Patterson's, but there was sufficient evidence for this connection to be made by the jury. We reject White's claim of insufficient evidence.
The district court is affirmed.