Opinion
No. 106,935.
2013-08-9
STATE of Kansas, Appellee, v. Lindasue ADAMS, Appellant.
Appeal from Reno District Court; Richard J. Rome, Judge. Jessica L. Dotter, legal intern, and Randall L. Hodgkinson, 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; Richard J. Rome, Judge.
Jessica L. Dotter, legal intern, and Randall L. Hodgkinson, 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 BUSER, P.J., ATCHESON, J., and BUKATY, SJ.
MEMORANDUM OPINION
PER CURIAM.
Lindasue Adams appeals her conviction for aggravated burglary in violation of K.S.A. 21–3716. Adams contends the trial evidence was insufficient to prove that she entered a Dillon's store without authority, the jury instruction setting forth the elements of aggravated burglar/ was clearly erroneous, and the trial court failed to give a limiting instruction regarding evidence that she had committed a prior crime of theft. Finding no error, we affirm the conviction.
Factual and Procedural Background
This appeal relates to an incident which occurred on June 19, 2009, at the Dillons store located at 735 East 4th Street in Hutchinson, Kansas (4th Street Dillons). During this incident, Adams was seen leaving the store with a shopping cart full of items without paying for them. As a result, Adams was charged with aggravated burglary.
About 5 months prior to the June 19, 2009, incident, Adams was apprehended at another Dillon's store located at 517 East 30th Street in Hutchinson, Kansas (30th Street Dillons), having left the store with a shopping cart full of items without paying for them. This incident occurred on January 23, 2009. Evidence by the State and Adams regarding these two incidents formed the factual basis that resulted in the conviction of Adams for aggravated burglary of the 4th Street Dillons on June 19, 2009. We will address the facts of the two incidents in chronological order.
January 23, 2009, Incident at the 30th Street Dillons
Adams was observed leaving the 30th Street Dillons with a shopping cart full of groceries without paying for them at the cash register. Adams' shopping cart contained, among other items, food, snacks, bags of dog food, two magazines, and a salad from the salad bar. As she left the store, an alarm sounded, which alerted assistant store manager, Theodore Johnson, to the theft. Johnson stopped Adams as she was standing by her vehicle in the store's parking lot. Adams told Johnson that she did not intend to steal anything and that she had never stolen anything before. However, Johnson could not provide a receipt showing that she had paid for the items in her cart. Johnson brought Adams back inside the store.
Officer Robert Rowe of the Hutchinson Police Department was dispatched to the 30th Street Dillons. He contacted Adams and the store manager in the manager's office. In the presence of Officer Rowe, Johnson informed Adams that “she would be barred from Dillons which means Dillons stores and the parking lot and Kwik Shops, and if she was found in one of the Dillons stores again that the police would be called and she would be trespassing.” At trial Johnson reiterated that he told Adams the ban applied to all the Dillons and Kwik Trip stores, not just the 30th Street Dillons store. Johnson also testified that it appeared to him that Adams understood the admonishment.
At trial, Officer Rowe confirmed that Johnson had orally advised Adams that “she's no longer welcome back in any Dillons, Krogers or Kwik Shop properties. If she returned, she would be prosecited for at least criminal trespass.” The officer also recalled that Adams “acknowledged the advisement.” Officer Rowe memorialized Johnson's advisement in his police report.
With regard to the facts of the incident, the officer testified Adams “initially stated that she was going to go to a check-out counter.... I asked if she could provide me with the description of the check-out clerk, and she said some lady with white hair. It was confirmed there was ... no female working with white hair.” Adams told Officer Rowe that she was confused and suffers from numerous medical conditions and had prescriptions waiting at the pharmacy. Johnson verified that Adams had two filled prescriptions at the 30th Street Dillons pharmacy, but he did not notice anything unusual about her behavior.
At trial, Adams testified about the January 23, 2009, incident. According to Adams:
“I was in the store and became somewhat disoriented, confused. Had proceeded to the check-out counter; remembered that I had prescriptions to pick up. Started to the prescription department and there was a back-up there and so I stopped at the salad bar knowing that I needed to get food in my stomach in order to take ... my afternoon meds ... and tried to go back and pick up my prescriptions. There was still a line. I continued to not feel well. And I just became focused on needing to get home.”
Upon being stopped by Johnson outside the store, Adams testified she did not realize that she had not checked out without paying for her groceries. According to her, “I was confused and I kept trying to explain to him that I had checked out.” While in the manager's office, Adams said, “I sat down there and continued to look for a receipt because in my mind I had checked out.” At trial, however, Adams conceded that she had not paid for the grocery items.
Adams testified that during this time period she had been prescribed about 13 different medications, including morphine. Because she had not taken any medications that day, however, she reported feeling “shaky[,] ... very confused, agitated, [and] very disoriented.”
Adams “[a]bsolutely” conceded that Dillons had a right to prohibit her from entering their stores. She recalled Johnson “telling me very adamantly he did not want me back in his store and we went through that several times.” But Adams denied that Johnson had prohibited her from entering other Dillons stores.
Adams was released after being given a citation for theft. After this incident, she testified that she did not enter the 30th Street Dillons store but did continue to use the pharmacy drive-up facility.
June 19, 2009, Incident at the 4th Street Dillons
About 5 months later, on June 19, 2009, Lana Enriquez, an employee of the 4th Street Dillons, saw Adams with a full shopping cart get something out of the milk cooler and walk to the floral department of the 4th Street Dillons. Enriquez notified Melissa Fernandez, another Dillons employee, and the two of them watched Adams walk out the front door with a cart full of groceries. Adams had not paid for any of the items, which had a total value of $142.80.
The two employees followed Adams outside of the store, where they stopped her and requested that she return inside. According to Fernandez, she asked Adams “if she had paid for the groceries. She said she did. I asked for a receipt and she couldn't provide a receipt.... [S]he had said that she had checked out.” Adams spent several minutes looking in her purse for the receipt which she claimed she had received for payment of the groceries. A surveillance camera recorded portions of this incident. Fernandez called the police.
Thompson asked Adams to walk up some stairs to her office and await the arrival of the police, but Adams refused. Thompson tried without success to prevent Adams from leaving; however, Adams left the store. Fernandez followed Adams out of the store and to Adams' car where she noted the license tag number. According to Fernandez, Adams “almost hit me” as she drove away. The vehicle registration information was provided to the police who determined that the vehicle was registered to Adams.
Sometime later, Detective Corey Ogburn spoke with Adams by telephone. During the conversation, Adams admitted to being at the 4th Street Dillons that day and that she had taken a shopping cart full of items out of the store. Adams told the detective
“she did it because she thought a Dillons employee outside the store was waving her out with a hand gesture, hand movement. I asked her to explain that to me and she really couldn't. I asked her why she didn't stay when the Dillons employees tried to get her to stay, and she just told me that she didn't have to stay so she left.”
At trial, Adams testified she was shopping in the store when she went to the floral department on her way to check out. She waited there but no employee assisted her. Suddenly, Adams looked outside and saw an unidentified “bag boy ... [a]nd it appeared that the driver of that vehicle was driving off with him actually hanging out of the back of the car and he was literally off his feet. And, the young lady who had been up at Customer Services desk [sic] had also gone out the door and was standing outside waving her hands, ... and at that point I had started to begin to leave the floral department and I was in forward motion.” Adams left the store pushing her cart. Adams said she yelled, “[D]o you need help? Is he okay? ... Is there something I can do?” Adams testified the unidentified boy “dusted himself off” and he advised her, “I'm all right.”
According to Adams, she then pushed her shopping cart to her car because she wanted to get another shopping bag in order to return to the store to continue shopping. At that time she was confronted by the Dillons employees. Adams claimed that she was asked to produce a “ticket” which she understood to mean a ticket involved in a giveaway promotion, like “an anniversary celebration.” As she was looking through her purse for a prize ticket, Adams testified, “When it became apparent to me that [Fernandez] was asking me for a receipt, I said to her I hadn't finished shopping. I don't have a receipt.” Adams recalled being “embarrassed, confused, upset; beginning to be agitated.”
According to Adams, the Dillons employees became aggressive towards her. She declined to go upstairs to the office because she could not walk up that number of stairs. A video recording from a security camera shows Adams pushing her way past a Dillons' employee as she left.
Adams left the store, entered her car, and left before the arrival of the police. Adams was emphatic that at the time she entered the 4th Street Dillons, “I thought I was only not allowed in the Thirtieth Street store.” Moreover, she testified that her only intent in taking the grocery cart full of groceries from the store and into the parking lot was “[s]imply to see if the two people in the parking lot needed some sort of help or assistance, if there was something I could do or someone I could get to help them.”
On August 19, 2009, Adams was charged with aggravated burglary and theft. Later, the theft charge was dismissed by the State prior to the submission of the case to the jury. Adams was found guilty of the aggravated burglary charge. The district court sentenced her to a presumptive 41–month prison sentence. The district court, however, sustained Adams' motion for a downward dispositional departure and granted her a 36–month probation.
Adams filed a timely appeal.
Sufficiency of the Evidence of Aggravated Burglary
For her first issue on appeal, Adams contends there was insufficient evidence at trial to prove one element of the crime of aggravated burglary—that she entered the 4th Street Dillons without authority.
When the sufficiency of the evidence is challenged in a criminal case, we review all the evidence in a light most favorable to the prosecution to determine 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 making this determination, we do not reweigh the evidence or pass on the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
In her briefing, Adams cites statutes from other jurisdictions, but they have “ ‘little value in our analysis' “ since “their burglary statutes are significantly different from the Kansas burglary statute.” State v. Hall, 270 Kan. 194, 202, 14 P.3d 404 (2000) (quoting State v. Moler, 269 Kan. 362, 368, 2 P.3d 773 [2000] ).
Aggravated burglary in Kansas is “knowingly and without authority entering into or remaining within any building ... in which there is a human being, with intent to commit a felony [or] theft ... therein.” (Emphasis added.) K.S.A. 21–3716. Since members of the public have implied authority to enter stores during business hours, the State was required to prove that Adams lacked such authority under these circumstances. See Hall, 270 Kan. at 202;State v. Harper, 246 Kan. 14, 26–27, 785 P.2d 1341 (1990); State v. Fondren, 11 Kan.App.2d 309, 315, 721 P.2d 284,rev. denied 240 Kan. 805 (1986).
To prove that Adams did not have authority to enter or remain in the 4th Street Dillons, the State presented the testimony of Thompson who established that he orally advised Adams about 5 months previously that she was not to enter, among other businesses, any Dillons stores. Thompson's oral admonition was corroborated by Officer Rowe's trial testimony and memorialized in his police report of the January 23, 2009, incident. Both Thompson and Officer Rowe also testified that, by all appearances, Adams indicated that she understood the prohibition. This oral admonition by a representative of Dillons was sufficient to counter the implied authority Adams otherwise had to shop at any Dillons store.
Of course, while Adams admitted that she understood she was prohibited from entering the 30th Street Dillons, she denied that the prohibition included other Dillons stores. By its verdict, however, the jury was obviously persuaded that the general admonition was given to Adams, and there is clearly sufficient evidence in the record to establish that Adams did enter the 4th Street Dillons “without authority” as required by statute. See K.S .A. 21–3716.
Adams notes that Thompson's advisement was not written or otherwise recorded, but she does not cite Kansas authority making this a requirement, and we know of no such prerequisite. Adams also suggests the advisement was inadequate because she was taking pain medications and “was confused about the situation.” The uncontroverted testimony from Adams at trial, however, established that she had not taken any medications that day. Moreover, Johnson and Officer Rowe testified that Adams appeared to understand the advisement. In our determination of whether there was sufficient evidence to support a conviction, we may not reweigh the evidence or the credibility of witnesses. Hall, 292 Kan. at 859.
Adams makes a related argument that Thompson's advisement was insufficient and inaccurate. We disagree. Considered in a light most favorable to the State, there was evidence from two witnesses that Adams was prohibited from entering all Dillons stores, and the charge in question related to her entry into a Dillons store. Since Adams made the unauthorized entry in the same city only about 5 months after the advisement, we do not need to consider the outer limits of such warnings. Viewed in the light most favorable to the State, we are convinced the evidence was sufficient for a rational factfinder to find Adams guilty beyond a reasonable doubt.
Aggravated Burglary Elements Instruction
For her second issue on appeal, Adams contends the aggravated burglary elements instruction provided to the jury was clearly erroneous. At the outset, Adams acknowledges that this instruction followed PIK Crim.3d 59.18, but she argues the trial court should have required an additional finding regarding her knowledge that she was entering the 4th Street Dillons store without authority. Adams did not raise this issue below, and “[a]n appellate court reviewing a district court's giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); see K.S.A. 22–3414(3).
Our standard of review is clear:
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” State v. Williams, 295 Kan. 506, Syl. ¶¶ 4–5, 286 P.3d 195 (2012).
The elements instruction provided to the jury stated:
“Lindasue Adams is charged with the crime of Aggravated Burglary. Lindasue Adams pleads not guilty.
“To establish this charge, each of the following claims must be proved:”
1. That Lindasue Adams knowingly entered or remained in a building, to wit: Dillons at 725 East Fourth;
“2. That Lindasue Adams did so without authority;
“3. That Lindasue Adams did so with the intent to commit a theft therein;
“4. That at the time there was a human being or beings in the Dillons at 725 East Fourth; and
“5. That this act occurred on or about the 19th day of June, 2009, in Reno County, Kansas.”
Adams does not specify the language she would have added to the elements instruction to make it proper. Without such proposed language, we are not inclined to speculate on Adams' complaint. Most importantly, Adams not only acknowledges that the elements instruction provided to the jury was a verbatim recitation of the aggravated burglary elements instruction found in PIK Crim.3d 59.18, she also does not dispute that PIK Crim.3d 59.18 is a mirror image of the Kansas aggravated burglary statute, K.S.A. 21–3716. Since “[i]n Kansas, all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute,” we fail to see how the district court erred in this regard. State v. Sanford, 250 Kan. 592, 601, 830 P.2d 14 (1992).
Adams attempts to establish error from Kansas cases dealing with a defendant's express or implied authority to enter a building. The published cases Adams cites, however, considered the sufficiency of the evidence on entering without authority, not the language of an elements instruction or the need for the jury to make additional findings regarding knowledge. See Harper, 246 Kan. at 17;Fondren, 11 Kan.App.2d at 314. Adams cites an unpublished Kansas case, but she fails to attach it as required by Supreme Court Rule 7.04(g)(2)(C) ( 2012 Kan. Ct. R. Annot. 58), and we will not consider it. In sum, we see no error in the instruction.
Having found no error, we are not required to proceed with a reversibility inquiry wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. Williams, 295 Kan. 506, Syl. ¶ 5. However, it is worth noting that, assuming there was error, Adams had the burden to establish the degree of prejudice necessary for reversal. 295 Kan. 506, Syl. ¶ 5.
Adams' prejudice analysis in her brief consists of two sentences:
“This error was prejudicial because Ms. Adams' primary defense was that she was unaware she did not have authority to enter the Fourth Street Dillons. She testified that she began shopping at the Fourth Street Dillons for groceries specifically because she was under the assumption that she was only banned from the Thirtieth Street Dillons.” (Emphasis added.)
Assuming the elements instruction was erroneous, Adams does not meet her burden to show that the jury would have reached a different verdict. Contrary to Adams' assertion, a fair reading of defense counsel's closing argument makes clear that her primary defense was that, at the time she entered the 4th Street Dillons, she did not have the specific intent to commit a theft. According to defense counsel, Adams merely went grocery shopping, and there was no evidence of her intending to commit a theft because she did not conceal any item on her person or in her purse or try to peel off theft detection devices. Moreover, defense counsel claimed that Adams was very confused and in ill health, not physically capable of stealing from Dillons.
As a secondary matter, defense counsel argued that Adams did not understand that she was banned from the 4th Street Dillons. In this regard, defense counsel claimed that Adams was voluntarily intoxicated during the January incident because of prescription drugs. Defense counsel argued that Johnson's admonition was vague and that Adams denied understanding it. As detailed earlier, however, Adams' exculpatory testimony (which taken at face value strained credulity) was effectively countered by the testimony of Thompson and Officer Rowe that Adams understood fully that she was prohibited from entering any Dillons stores. On this record, even assuming error, we are not convinced the jury would have reached a different verdict had a different elements instruction which emphasized the necessity of Adams' knowledge been provided to the jury.
K.S.A. 60–455 Limiting Instruction
For her final issue, Adams does not challenge the admission of evidence regarding the incident at the 30th Street Dillons, but she does contend that the trial court should have given a K.S.A. 60–455 limiting instruction. Without such an instruction, Adams contends that “a jury would very naturally have considered this as propensity evidence.” The State argues a limiting instruction was not needed under State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). Once again, because Adams did not request a limiting instruction below, we review for clear error. See K.S.A. 22–3414(3); State v. Gunby, 282 Kan. 39, 58–59, 144 P.3d 647 (2006).
Bly is not controlling after Gunby, where our Supreme Court said its earlier decision had continued the “anomaly” of admitting evidence of prior crimes or civil wrongs independently of K.S.A. 60–455. 282 Kan. at 54. Our Supreme Court decisively rejected that approach in Gunby, holding instead that “admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60–455.” 282 Kan. at 57. Our Supreme Court has recently reiterated this view. See State v. Everett, 269 Kan. 1039, 1045, 297 P.3d 292 (2013).
At the outset, there was no evidence that Adams was convicted of theft, or any other crime, as a result of the incident at the 30th Street Dillons. There was testimony that Adams received a municipal court summons for theft, but the disposition of that citation is unknown. Although the State presented the suspicious circumstances of the incident (from which a reasonable person could conclude that Adams was engaged in theft at the time she was stopped by Johnson), Adams strongly contested that she was engaged in any larceny on that prior occasion. In fact, Adams told Johnson that she did not intend to steal anything at the 30th Street Dillons and that she had never stolen anything before.
In context, then, we are not presented in this case with the more typical—and more damaging—situation involving K.S.A. 60–455 evidence where the jury is presented with a journal entry of conviction or testimony with regard to a court or jury's prior adjudication of a defendant's guilt. Here, both the crime alleged and the prior incident which resulted in Johnson's admonition were asserted by the defense to be purely innocent acts and not crimes.
Still, we are persuaded that error did occur because, although conceded by Adams that the evidence of the prior incident was essential to the proof of the “without authority” element of aggravated burglary, the incriminating circumstances surrounding the January 23, 2009, incident made it appropriate to give the jury a limiting instruction. See Gunby, 282 Kan. at 58.
Once again, Adams does not specify the language that should have been given in the limiting instruction. As a result, we are, once again, hindered in our analysis. Adams argues that the evidence from the 30th Street Dillons related to whether she “was authorized to be” at the 4th Street Dillons and, therefore, “the consideration of the evidence should have been limited to that purpose.”
We could agree in part, but we could also justify consideration of evidence from the 30th Street Dillons incident to show Adams' intent, knowledge, and absence of mistake or accident at the 4th Street Dillons. See K.S.A. 60–455. Adams does not brief these points, however, leaving us somewhat unsure of the prejudice analysis. It is difficult to conduct such an analysis without a clear understanding of the proposed instructional language and a defense of its terms. See State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011) (regarding points incidentally raised in appellate briefs).
We are persuaded, however, that a proper limiting instruction would have directed the jury to consider more than just whether Adams had authority to enter the 4th Street Dillons. Adams twice entered a Dillons store and left with a shopping cart full of groceries for which she had not paid. Her identity and actions were uncontroverted in both instances. The questions for trial, however, were whether Adams had authority to enter the 4th Street Dillons, her intent upon entering the store, her knowledge, and the absence of mistake or accident. The trial court should have given the limiting instruction including these grounds.
It remains unclear, however, how such an instruction would have changed the jury's deliberations and its guilty verdict. The very points in contention at trial were those factors which the K.S.A. 60–455 limiting instruction would have directed the jury to consider with regard to the January 23, 2009, incident. In this context, we are not firmly convinced the jury would have reached a different verdict if the instructional error had not occurred. See Williams, 295 Kan. 506, Syl. ¶ 5. Finally, we have reviewed the prosecutor's closing argument and we do not find any exhortation to the jury to convict Adams based upon her propensity to commit theft. This bolsters our confidence that Adams was not prejudiced.
Affirmed.
ATCHESON, J., dissenting.
The instruction outlining the elements of aggravated burglary did not require the jury to find Defendant Lindasue Adams knew she was without authority to enter the 4th Street Dillons store. The instruction, therefore, was clearly erroneous. Given the sharply conflicting evidence on the notice imparted to Adams and the governing standard of review, the flawed instruction rendered her trial in Reno County District Court fundamentally unfair. Accordingly, I would reverse Adams' conviction and remand for a new trial. On that basis, I respectfully dissent from the majority decision.[1]
[1] I agree with the majority that there was sufficient evidence to convict Adams, an issue judged by a standard different from the instructional error and more deferential to the State, as the prevailing party. Regarding the other crimes issue, I agree the circumstances on January 23, 2309, were relevant and admissible as bearing on the notice given Adams and, thus, on the element of lack of authority to enter the 4th Street Dillons store on June 19. The evidence bore on a “material fact”—notice—and, therefore, was not offered exclusively for the impermissible purpose of demonstrating Adams' criminal propensity. Adams would have been entitled to a limiting instruction, but defense counsel reasonably could have concluded an instruction would only have called attention to the evidence and the impermissible inference. Whether what happened on January 23 supports intent or lack of mistake or accident as opposed to propensity with respect to the June 19 incident presents more intricate considerations than the majority suggests. I haven't plumbed those intricacies, since they have no bearing on the outcome on appeal.
The majority opinion outlines the material part of the elements instruction. The problem lies in how the second element on lack of authority was presented to the jurors. The instruction does not require the jurors find that Adams knew she lacked authority to enter the 4th Street Dillons store on June 19. The defect is accentuated by the language in the first element requiring that the jurors do find that Adams “knowingly entered” the store. The juxtaposition of those elements effectively tells the jurors they may convict if Adams deliberately went into the store whether or not she understood she had been banned from the premises, so long as she actually had been so banned. The result allows a conviction for aggravated burglary if a person has been placed on a secret list of banished individuals maintained by the owners of a place open to the public, such as a store or restaurant. But that's not the law. Aggravated burglary requires the offender consciously realize he or she has no authority or right to enter or remain on the premises. See K.S.A. 21–3716; State v. Hall, 270 Kail. 194, 196, 14 P.3d 404 (2000) (entry to public building is impliedly authorized “to the extent it is consistent with the purpose of the business transacted” there). Given the disputed facts in this case, the second element should have informed the jurors that “Adams did so [entered or remained] knowing she was without authority” or words to that effect.
I recognize the instructional language the district court used tracks with PIK Crim.3d 59.18. But that doesn't necessarily make it a complete statement of the law. In the vast majority of cases, the omission of any reference to the defendant's knowledge of his or her lack of authority would be unremarkable and undoubtedly harmless. Seldom is lack of authority contested, and as with any element of a crime, it may be proven by circumstantial evidence. See State v.. Corbett, 281 Kan. 294, Syl. ¶ 6, 130 P.3d 1179 (2006) (even “gravest crime” may be proven by circumstantial evidence); State v. Hargrove, 48 Kan.App.2d 522, Syl. ¶ 1, 293 P.3d 787 (2013) (omission of element of offense from jury instruction may be harmless error if evidence proving that element is overwhelming and defendant does not contest the element). Thus, when an accused burglar breaks into a locked building, lack of authority readily may be inferred. So too, if the burglar enters a residence to which he or she has no previous connection, especially if the occupants testify to the lack of any personal relationship with the perpetrator.
But the same implications do not apply to a place generally open to the public, such as a store during business hours. Entry is not only allowed, it is encouraged.
Here, the evidence regarding lack of authority was contested. And while it may not have been the first point Adams' counsel made to the jurors in closing argument, it was a material part of the defense in the district court. The majority subtly favors rebalancing the test for reversible error because Adams' lack of authority wasn't the front line defense. But there is no sliding scale based on the prominence of a defense in closing argument when it has plainly been put in front of the jurors for consideration.
Turning to the facts, the notice given Adams on January 23 is critical to her purported lack of authority to he in the 4th Street Dillons store on June 19. And it is that lack of authority that elevates what would otherwise be a misdemeanor theft to aggravated burglary, a severity level 5 person felony. On January 23, Adams was stopped for shoplifting at a Dillons store on 30th Street. Theodore Johnson, the assistant manager of that store, testified he told Adams she was not to enter the premises, including the parking lot, of any Dillons or Kwik Shop store and that she would be prosecuted for trespass if she did. Johnson testified that the warning he gave Adams reflected what he tells shoplifters generally. He said the ban he imposed covers all Dillons and Kwik Shop stores anywhere in the country. The ban apparently has no time limitation and, thus, stands forever. Adams received nothing in writing from Johnson. The admonition was not recorded in any way.
Hutchinson Police Officer Robert Rowe was there when Johnson banned Adams. Rowe told the jurors he could not remember exactly what Johnson had said to Adams and did not make a detailed note of the admonition in his police report. Rowe recalled Johnson telling Adams she was “no longer welcome” at any Dillons, Kroger, or Kwik Shop stores and would be prosecuted for criminal trespass “if she returned.”
Adams testified in her own defense. Not to put too fine a point on it, Adams' explanations for leaving the Dillons stores with grocery carts full of items she hadn't paid for on both January 23 and June 19 seemed implausible. As to the warning or notice Johnson gave her on January 23, Adams testified he told her “very adamantly he did not want me back in his store” and “went through that several times.” Adams testified that she understood she was banned from entering the 30th Street Dillons and, therefore, started buying groceries at the 4th Street store.
At trial, Adams introduced pharmacy records showing that she continued to get prescriptions filled at Dillons throughout 2009. Adams testified that she got her medications using the drive-up window at the 30th Street Dillons store, since she understood she had been banned from going inside. The pharmacy records were obtained from the 4th Street Dillons store but state that they may include prescriptions filled at other Dillons pharmacies. The records do not indicate at which particular pharmacy the prescriptions were filled.
The evidence on the ban of Adams is open to all sorts of interpretations that lie within the province of the jurors as the finders of fact. To convict applying the elements instruction that was given, the jurors would have to conclude that Johnson did, in fact, inform Adams that she was banned from all Dillons stores (or at least those in Hutchinson or Reno County). That would establish lack of authority consistent with the jury instruction. But the jurors could have convicted even if they concluded Adams didn't understand the ban that way, since the instruction did not require that Adams know she was without authority to shop at the 4th Street Dillons store. The aggravated burglary statute, however, requires such knowledge on the defendant's part.
There is credible evidence supporting Adams' lack of knowledge that the ban covered more than entering the 30th Street store and, thus, pertained in any way to the 4th Street store. Neither Johnson nor Rowe could say exactly what Adams was told. But little, if anything, was done on January 23 to verify that Adams grasped the extent of the ban. Adams conceded she understood she was not to go into the 30th Street Dillons to shop after January 23. She appeared to conform her shopping to that understanding. Adams said she started going to the 4th Street store for groceries. The pharmacy records show that Adams filled prescriptions on 15 dates between January 23, when she was purportedly banned from all Dillons stores, and June 19, when she shoplifted the groceries at the 4th Street store. Those transactions, involving the purchase and pick-up of prescriptions in Adams' name, would have been inconsistent with the ban described by Johnson and should have triggered trespass charges against Adams. But they would have been consistent with the ban as Adams testified she understood it—she was not to physically enter the 30th Street store.[2]
[2]Although Adams' explanations for her shoplifting seem doubtful, the jurors would have been well within their prerogative as factfinders to conclude she, nonetheless, testified truthfully about her understanding of what Johnson told her on January 23. See Ater v. Culbertson, 190 Kan. 63, 73–74, 372 P.2d 580 (1962) (In assessing the credibility of a witness, jurors may accept part of his or her testimony and reject the balance “as they feel warranted in so doing.”); State v. Seward, 163 Kan. 136, 145, 181 P.2d 478 (1947) (A jury has the prerogative to believe in part and disbelieve in part a witness' testimony or confession.) aff'd on rehearing164 Kan. 608, 191 P.2d 743 (1948). The failure of Dillons personnel to bar Adams from filling her prescriptions after January 23 tends to support her testimony as to her belief about the extent of the ban.
In short, there was substantial evidence to support a not guilty verdict if the jurors had been correctly instructed that Adams had to know she was without authority to enter the 4th Street Dillons store. That, however, is not the issue before us because Adams neither requested an instruction to that effect nor objected to the district court's instruction on that basis. See K.S.A. 22–3414(3).
The question is whether the elements instruction was clearly erroneous. An appellate court must make a threshold determination that the instruction, in fact, created error—it was not “legally and factually appropriate” to the particular case. State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). Here, the aggravated burglary instruction misstated a material legal principle bearing on the elements of the offense in a way that favored the State. The inquiry, therefore, advances to the prejudice, if any, the error created.
In recent cases, the Kansas Supreme Court has recast the language for assessing whether a jury instruction to which no objection has been lodged is sufficiently prejudicial to require reversal of a conviction. In Williams, the court explained that the test had been stated as requiring the appellate court to “ ‘reach[ ] a firm conviction’ “ that had a proper instruction been given ‘ “there was a real possibility the jury would have returned a different verdict.’ “ 295 Kan. at 514 (quoting State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 [1977] ). The Williams court then rephrased the test as “whether [the appellate court] is firmly convinced that the jury would have reached a different verdict had the instructional error not occurred.” Williams, 295 Kan. 506, Syl. ¶ 5. The court submitted that the rephrased test did not substantively differ from what had been applied for more than 30 years following Stafford. See Williams, 295 Kan. at 516.
Earlier this year, in State v. Trujillo, 296 Kan. 625, 630, 294 P.3d 281 (2013), the court cited the Williams articulation of the standard for measuring prejudice requiring reversal. The court stated it failed to see “a practical difference” between the pre- Williams statement of the test and the Williams language, so the rephrasing simply crystallized the long-standing meaning. 296 Kan. at 631; see State v. Mireles, 297 Kan. 339, 301 P.3d 677, 694 (2013) (citing and applying Williams ); State v. Rochelle, 297 Kan. 32, 298 P.3d 293, 301 (2013) (citing and applying Trujillo ).
The change, however, actually seems to ratchet up the defendant's burden in showing a jury instruction to the clearly erroneous. Under the pre- Williams test, the appellate court's firm conviction must be that a jury reasonably could have reached a different verdict—something other than a finding of guilt on the particular charge. That is, the court should reverse if it concludes the evidence coupled with a proper instruction would have caused the jury to consider an acquittal or a conviction on a lesser offense as something more than a mere possibility, even though one of those verdicts would not necessarily have been the likely result. But under the reformulated language in Williams, the firm conviction must be that the jury necessarily would have brought back an acquittal or a conviction on a lesser offense absent the instructional error. The burden on the defendant looks to be more substantial.
Under the pre- Williams statement of the test, I would vote to reverse because a jury reasonably and readily coald have found Adams did not know or understand she had been banished from the 4th Street Dillons store in addition to the 30th Street store. That jury, properly instructed, should acquit if it were to make that factual finding. As I discuss momentarily, the issue really gets down to credibility determinations on which the jurors could go either way. And that makes the call on reversing a fairly easy one if the standard rests on reasonable possibilities; See State v. Harper, 246 Kan. 14, 26–27, 785 P.2d 1341 (1990) (court recognizes conflicting evidence on scope of authority of employee to be on premises created fact issue for jury; instructional error effectively negating consideration of scope of authority would require reversal of burglary conviction). But to be firmly convinced a jury would have acquitted Adams requires a markedly firmer belief about the particular outcome of the case rather than the reasonableness of one possible verdict among the available options. (In a case with multiple counts or lesser included offenses, the range of options would be considerably broader than here where the jury had to convict Adams of aggravated burglary or find her not guilty.)
Under Williams, this case seems to require an unusual assessment because of the narrowness of the controlling issue and the limited evidence bearing on it. The balance of the record really doesn't help any. The defect in the instruction goes to Adams' knowledge of the scope of the ban or, stated in the converse, the lack of authority to enter Dillons stores. There simply isn't much evidence on that point. Neither Johnson nor Rowe could recount a verbatim rendition of the ban to the jurors. And Adams testified she understood the ban differently than they did. Reconciling those conflicting accounts reflects precisely the sort of credibility determination and factfinding entrusted to juries and that the appellate courts must avoid because they haven't the tools to undertake the task. See State v. Bellinger, 47 Kan.App.2d 776, 787, 278 P.3d 975 (2012) (Atcheson, J., dissenting) (appellate judges do not see and hear witnesses as they testify, and reading transcripts of their testimony is no substitute for having observed them as they relate their stories in open court), petition for rev. filed July 23, 2012. We have no reason to assume the jurors actually made any such finding because the erroneous instruction did not require them to do so.
Nothing in the evidence firmly establishes that Johnson clearly told Adams she was banned from all Dillons stores. The ban was not put in writing and given to Adams. She was not required to sign an acknowledgement of the ban. Johnson's oral statement was not recorded or preserved in any way. Nor was Adams systematically questioned about her understanding of the ban in the presence of Rowe on January 23. For example, she was not specifically asked—and required to answer—whether she understood that the ban applied to all Dillons stores, that it covered all company property including parking lots, and that she faced criminal prosecution for any violation. Evidence of that type would have gone a long way toward establishing Adams could not have reasonably misunderstood what she had been told, assuming Johnson actually did attempt to impose a company-wide ban. Such evidence also would have given me pause and might well have kept me from being firmly convinced that properly instructed jurors would have acquitted Adams.
Absent strong evidence supporting the clear communication to Adams of a ban applicable to the 4th Street Dillons store, given her continuing ability to fill prescriptions at Dillons despite the ban, and the credibility assessments bound up in what she actually was told or how she reasonably understood it, I would find clear error in the elements instruction based on the standard outlined in Williams and Trijuillo. Accordingly, the conviction for aggravated burglary should be reversed and the case remanded for a new trial in which the jury would be properly instructed that the State had to prove Adams knew she was without authority to enter the 4th Street Dillons store on June 19.