Opinion
110,229.
10-31-2014
STATE of Kansas, Appellee, v. Jared HARRIS, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jared Harris appeals his convictions for residential burglary and theft. His convictions arise from an incident in October 2012. The Arnolds owned the vacant home in Holton, where Allen Arnold's mother lived before her death. Arnold discovered someone had tried to kick in the door, had broken a window, and had taken items from the house. The padlock on Arnold's storage van had been broken, and the van's door was open. Some items from the house had been piled up outside the house. Arnold called the sheriff.
The officers installed a surveillance camera in the hopes of catching the burglar returning to claim the items piled up outside the house. The camera captured images of a Chevy Z71 extended cab truck with a female in the passenger seat. The truck had several distinguishing features which caught the attention of one officer who remembered seeing the truck around town. The truck was owned by Harris' uncle and was found at Harris' house. The officers obtained and executed a search warrant for the truck and for Harris' home. They found bolt cutters in the truck. Inside the home they found a table that had been taken from Arnold's house. Harris was arrested and charged with residential burglary, nonresidential burglary of the storage van, criminal damage to property for the broken window, and theft.
While in jail, Harris called his uncle and admitted being at Arnold's house, backing up the truck to the house, getting out, and looking around. He said things didn't look right so he got into the truck and left. (Arnold had removed some of the items piled outside the house before Harris returned).
Harris moved in limine to exclude any reference at trial to “[a]ny and all evidence, inferences or testimony concerning Mr. Haris' [sic ] prior convictions or arrest or confrontations with the police.” The district court granted Harris' motion.
At Harris' jury trial, the State offered into evidence the audio recording of Harris' phone call from jail. Harris objected because the recording allegedly contained a statement by Harris that he was being held on “meth” charges. Harris moved for a mistrial; but the trial court denied the motion, opting instead to allow the State to recall the officer who introduced the recording to ameliorate the effect of any statement about drugs in the recording. The recording was then admitted into evidence.
The jury found Harris guilty of residential burglary and theft but not guilty of the burglary of the storage van and not guilty of criminal damage to Arnold's property. This appeal followed the denial of Harris' posttrial motions and the imposition of a prison sentence of 29 months with 12 months' postrelease supervision for the burglary, concurrent with a 12–month jail term for the theft.
Order in Limine
Harris argues that the district court abused its discretion in admitting evidence in violation of its order in limine when it admitted the telephone call recording that purportedly contained references to a methamphetamine charge. The problem is, we have been provided in the appellate record neither the recording nor a transcript of it. Ordinarily, that would end our discussion because Harris bore the burden of properly designating the record on appeal to affirmatively support his claim of prejudicial error. See State v. McMullen, 290 Kan. 1, 5, 221 P.3d 92 (2009). If the record is inadequate, we usually presume the district court's findings were properly supported and the claim of error must fail. 290 Kan. at 5. But here, the State does not deny that there was a reference to methamphetamine in the recording, so we will address the issue further.
Neither the prosecutor nor the trial judge heard that statement when the DVD was played in court because the audio was apparently difficult to hear. The prosecutor stated she did not note any drug reference on the recording though she had listened to it “twenty times.” The district court directed that any such reference be redacted from the recording before it was sent with the other exhibits to the jury room for deliberations, but the redacting attempt apparently was unsuccessful. The trial judge believed that any mistake by the prosecutor in not redacting the drug reference from the recording before trial was inadvertent, and the officer's subsequent testimony “put a band-aid on the problem.” Further, the judge concluded that any error was harmless in view of the overall evidence.
First, we note that the State claims any error regarding admission of the recording was invited. A party may not invite error and then complain of the error on appeal. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). But there is no invited error here. The State offered the recording into evidence, not Harris.
Further, we note that at trial Harris did not lodge any objection to the recording on the grounds of relevance. One cannot object on one basis at trial and then on appeal raise a different basis for excluding the evidence. Accordingly, we limit our review to considering whether the district court caused substantial prejudice to Harris by erroneously admitting this evidence in violation of the order in limine. We review the district court's ruling for any abuse of discretion. See State v. Breedlove, 295 Kan. 481, 494, 286 P.3d 1123 (2012).
It appears that all involved, including the trial judge, agreed that the claimed statement in the recording violated the order in limine. But the district court held that Harris failed to show prejudice. The drug reference was so faint and indistinct that neither the prosecutor nor the district judge heard it when played in open court. As noted earlier, the prosecutor said she did not hear it when she repeatedly played it in preparation for trial. The court ordered additional testimony to mitigate any adverse affect of the recording. Any drug reference was neither gross nor flagrant but entirely fleeting. There was significant evidence-the surveillance pictures, Arnold's table found in Harris' house, and the phone call from jail-pointing to Harris' guilt. There is no suggestion that the jury found Harris guilty because of a purported drug history. After all, he was acquitted of two of the four charges. Moreover, there is no indication of ill will on the part of the prosecutor. The trial court did not err in concluding that the admission of the recording did not cause substantial prejudice to Harris.
Sufficiency of the Evidence of Burglary and Theft
Harris argues that the evidence was insufficient to support his convictions for residential burglary and theft. In considering this claim, we examine the evidence in the light favoring the prosecution and to determine whether a rational factfinder could have found Harris guilty beyond a reasonable doubt. See State v. Charles, 298 Kan. 993, 997, 318 P.3d 997 (2014). In doing so, we do not reweigh the evidence, resolve evidentiary conflicts, or determine the credibility of witnesses. 298 Kan. at 997. 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. To support a verdict, the circumstantial evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). Finally, there is no distinction between direct and circumstantial evidence in terms of probative value. State v. McBroom, 299 Kan. 731, Syl. ¶ 6, 325 P.3d 1174 (2014).
Residential Burglary
The criminal damage to property charge related to the broken window through which the burglar apparently entered the house. Because Harris was acquitted of this charge, he contends that the jury could not have convicted him of burglary because entry into the dwelling is an essential element of the crime. He also argues that the officers were unable to find finger or shoe prints that linked him to the crime.
But there was substantial evidence from which the jury could conclude he entered the house. Items taken from the house were found stacked outside of the home as though someone intended to retrieve them later. The surveillance photos showed the truck Harris had in his possession backing up to the area where the property was stacked. Harris admitted in the phone call that he was at the house. The Arnolds' missing table was found in Harris' house. Though this does not rule out the possibility that someone else entered the house and took the property from it, the jury could reasonably infer from this evidence that it was Harris who entered the house.
The fact that the jury acquitted Harris of the criminal damage to property charge does not change this outcome. A guilty verdict on that charge was not legally necessary before there could be a guilty verdict on the residential burglary charge. See State v. Blassingill, 216 Kan. 722, 723, 533 P.2d 1228 (1975) (where defendant is charged with two offenses which are independent, separate, and distinct defendant may be convicted of one charge notwithstanding an acquittal as to the other). This is because “[t]he conduct of a jury is sometimes devoid of logic, and inconsistent verdicts may result. Even in cases where the two verdicts are irreconcilable, the convictions will not be reversed on grounds of inconsistency.” State v. Beach, 275 Kan. 603, Syl. ¶ 4, 67 P.3d 121 (2003) ; see State v. Hargrove, 48 Kan.App.2d 522, 527, 560, 293 P.3d 787 (2013). Viewing the evidence in a light favoring the prosecution, a rational factfinder could have found Harris guilty beyond a reasonable doubt of residential burglary.
Theft
Harris also contends the evidence was insufficient to support the conclusion that he, rather than someone else, obtained unauthorized control of the items taken from the Arnold's house. He points out that only some unidentified woman could be seen in the surveillance photos at the house.
The applicable jury instruction stated:
“The defendant is charged in Count 4 with the crime of theft. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Allen G. Arnold and Sharron Arnold were the owners of the property; “2. That the defendant obtained unauthorized control over the property; “3. That the defendant intended to deprive Allen G. Arnold or Sharron Arnold permanently of the use or benefit of the property;
“4. That the value of the property was less than $1,000.00, and; “5. That this act occurred on or about the 31st day of October, 2012, in Jackson County, Kansas.”
Harris was charged with obtaining unauthorized control over property. We have already discussed the evidence supporting him having entered the Arnolds' house. Harris directs us to K.S.A.2012 Supp. 21–5801(a)(4), a different section of the theft statute, which relates to “obtaining control over stolen property or services knowing the property or services to have been stolen by another.” But Harris was not charged under that provision of the statute. He was charged under K.S.A.2012 Supp. 21–5801(a)(l), which relates to obtaining or exerting unauthorized control over property—it does not relate to property stolen by another. The Arnolds' table was found in Harris' house. There was ample evidence that his control over the table was unauthorized and that he intended to permanently deprive the Arnolds of it. We find substantial evidence to support Harris' theft conviction.
Apprendi
Harris argues his constitutional rights were violated when the State's charging document did not include his prior convictions and the State did not prove those convictions to a jury beyond a reasonable doubt, all in violation of the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court resolved this issue contrary to Harris' position in State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002). We are duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Based on a long and recent line of cases, we have no reason to believe our Supreme Court is departing from its holding in Ivory. See State v. Brown, 299 Kan. ––––, 331 P.3d 797, 815 (2014). Accordingly, this claim fails.
Affirmed.