Opinion
No. 105,935.
2012-09-14
STATE of Kansas, Appellee, v. Larry M. REED, Appellant.
Appeal from Sedgwick District Court; Tony Powell, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Tony Powell, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
GREENE, C.J.
Larry M. Reed appeals his conviction of criminal possession of a firearm, arguing insufficiency of the evidence and error in admitting evidence he claims was recovered in an illegal search. We affirm his conviction.
Factual and Procedural Background
Reed was detained after he appeared intoxicated during a “knock and talk” encounter with police at his home. Maxine Walker was also present in the home at that time and told police that there was a shotgun in the back bedroom. After police retrieved the unloaded shotgun, Reed was charged with criminal possession of a firearm. The charge was based in part on Reed's 1977 conviction of aggravated assault where the journal entry stated that he had used a firearm in the commission of that crime.
Reed was convicted of the crime after a bench trial and was sentenced to 18 months of probation with an underlying 21–month prison sentence. He timely appeals.
Was the Evidence Sufficient to Support Reed's Conviction?
Reed argues on appeal that the evidence failed to support his prior conviction in three separate regards. When the sufficiency of the evidence is challenged in a criminal case, our standard of review is whether, after an examination of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Was the Evidence Sufficient to Support Reed's Prior Person Felony Conviction?
First Reed argues the evidence failed to establish he was convicted “of a person felony ... under the laws of Kansas.” He argues that person felonies did not exist in Kansas at the time of his 1977 conviction, so there was no evidence to support this element of the offense charged.
Reed was charged under K.S.A. 21–4204(a)(2), which provides:
“(a) Criminal possession of a firearm is:
....
“(2) possession of any firearm by a person who has been convicted of a person felony or a violation of any provision of the uniform controlled substances act under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony or violation, or was adjudicated a juvenile offender because of the commission of an act which if done by an adult would constitute the commission of a person felony or a violation of any provision of the uniform controlled substances act, and was found to have been in possession of a firearm at the time of the commission of the offense.”
At the time of his 1977 conviction, the operative statute defined aggravated assault as (a) unlawfully assaulting or striking at another with a deadly weapon, (b) committing assault by threatening or menacing another while disguised in any manner designed to conceal identity, or (c) willfully and intentionally assaulting another with intent to commit any felony. K.S.A. 21–3410 (Weeks 1974). As Reed observes, Kansas did not recognize person and non-person felonies until 1993. See Senate Bill 423 (1993) (establishing aggravated assault as a person felony).
To support his argument on appeal, Reed relies on a concurring opinion filed in State v. Roose, 41 Kan.App.2d 435, 442–43, 203 P.3d 18 (2009) (Greene, J., concurring) wherein the author essentially interpreted K.S.A. 21–4202(a)(2) as argued by Reed. The opinion states:
“I write separately only to opine that I would decide this case based on the fact that Roose's 1978 burglary conviction was not a ‘person’ felony; thus, his conviction of an aggravated weapons violation was improper. As recognized by my colleagues, Kansas law made no distinction between ‘person’ and ‘nonperson’ felonies in 1978, and we should not attempt to mold a prior conviction into something it was not.
“K.S.A. 21–4202(a)(2) clearly requires as an element of the crime that the defendant have been convicted ‘of a person felony pursuant to Kansas laws.’ Roose's 1978 burglary conviction was no such animal. Notwithstanding that we may examine the evidence underlying such a conviction and make such a determination for criminal history purposes, here the nature of the previous crime is an element of the crime charged, and the defendant is entitled to a favorable interpretation of the statute under the rule of lenity. [Citation omitted.]” (Emphasis added.) 41 Kan.App.2d at 442 (Greene, J., concurring).
Reed also argues that his view is bolstered by a recent opinion of our Supreme Court, where the court held that when determining whether a prior offense is a person or nonperson felony, the district court should look at the person/nonperson status of the prior offense at the time of the prior offense. State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010). We are not impressed with this authority, however, because Williams framed a criminal history question rather than a question of sufficiency of the evidence to support a statutory element of the offense charged. Our court has consistently treated the question of criminal history for sentencing in a manner inconsistent with Reed's argument.
For purposes of criminal history, we routinely classify pre–1993 offenses as either person or nonperson offenses. For example, in State v. Sigley, No. 105,687, 2012 WL 924813, at *1 (Kan.App.2012) (unpublished opinion), we stated:
“ ‘Kansas courts have routinely classified pre–1993 offenses as either person or nonperson for criminal history purposes by comparing the offenses to the classification now in effect. See, e.g., State v. Davis, 22 Kan.App.2d 776, 777, 922 P.2d 452,rev. denied 260 Kan. 997 (1996) (1996 conviction of furnishing liquor to a minor classified as class B person misdemeanor). Under Henderson's theory, any offense committed prior to July 1, 1993, must be classified as a nonperson offense for purposes of calculating criminal history scores. This would lead to an unreasonable result where violent crimes committed before the sentencing guidelines would always be treated as nonperson felonies for criminal history purposes. Such a result would be inconsistent with the general design of the guidelines. 22 Kan.App.2d at 777.’ 2009 WL 2948657, at *3.
“ See e.g., State v. Murdoch, No. 104,533, 2011 WL 4031550 (Kan.App.2011) (unpublished opinion) petition for rev. pending; State v. Mims, No. 103,044, 2011 WL 4563068 (Kan.App.2011) (unpublished opinion), petition for rev. pending (‘[b]ased on Henderson ..., we find the district court properly classified Minis' 1971 conviction for attempted aggravated battery and his 1976 convictions for aggravated battery and attempted aggravated robbery as person felonies'); State v. Boater, Nos. 101,009, 101,010, 2009 WL 3738490 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1096 (2010); Sanford v. State, No. 97,636, 2008 WL 307486 (Kan.App.) (unpublished opinion), rev. denied 286 Kan. 1179 (2008). We have no hesitation in adopting and applying the rule of these cases here.”
The difference here is that whether Reed committed a person felony was an element of the crime, not merely an element of his criminal history score. See State v. Atkinson, 215 Kan. 139, 142, 523 P.2d 737 (1974) (“With respect to the firearm charge[,] evidence of a prior conviction, of course, is not only a material fact but an element of the offense.”). Therefore, our caselaw addressing criminal history scoring is not directly applicable.
But before we apply the rule of lenity here as was suggested in Roose, we must determine whether any judicial interpretation of the statute in his favor would be reasonable and sensible to effect legislative design and intent. See State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010). That is, can we say that an aggravated assault conviction from 1977 cannot be considered a “person felony under Kansas laws”?
To do so would be a stretch because any assault under the 1977 statute necessarily involves “another” and would be a crime against a person. As the Supreme Court has noted, “[o]ne of the obvious purposes of prohibiting firearm possession by a person who has previously been convicted of a serious felony is to protect the public.” State v. LaGrange, 294 Kan. ––––, 279 P.3d 105, 109 (2012). Here, a distinction between aggravated assault after classification as a person felony and aggravated assault before it was expressly so classified would make no sense. Moreover, we note that the statute at issue merely says “person felony” rather than “expressly classified as a person felony under Kansas law.”
Additionally, in ascertaining legislative design and intent, we note that if one is convicted of an out-of-state crime that is substantially similar to a person felony, it is clear that pre–1993 convictions were to be counted. It would make little sense to count such out-of-state convictions but disregard those committed in Kansas. This is simply not a situation where the application of the rule of lenity is appropriate. See LaGrange, 279 P.3d at 109.
We distinguish the concurring opinion in Roose because a real question was posed in that case whether a burglary conviction could sensibly be considered a person felony before the classification in 1993. Given that question, the rule of lenity may have controlled because there was a judicial interpretation of the statute in the defendant's favor that would have been reasonable and sensible to effect legislative design and intent.
For these reasons, we reject Reed's first challenge to the sufficiency of the evidence.
Was the Evidence Sufficient to Find that Reed Possessed a Firearm in Committing the Aggravated Assault?
Reed next argues that even if the 1977 conviction was a person felony, it triggers the offense under K.S.A. 21–4204(a)(2) only if the defendant was found to have been in possession of a firearm at the time of the commission of the previous offense. Reed argues that the notation on the journal entry was no such “finding.”
This argument is based upon the final element of the offense under K.S.A. 21–4204(a)(2), that with respect to the prior conviction, the defendant “was found to have been in possession of a firearm at the time of the offense.” Here, as noted above, the journal entry of conviction expressly indicates that “DEFT USED A FIREARM IN THE COMMISSION OF THE CRIME.” The question, therefore, is whether the journal entry notation was sufficient to support this element of the crime.
We have no difficulty in concluding that the journal entry notation was sufficient. See State v. Lackey, 280 Kan. 190, 232–35, 120 P.3d 332 (2005), cert. denied547 U.S. 1056 (2006). We express no opinion, however, whether that finding would survive constitutional challenge under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We perceive no such challenge having been made here, so we decline to provide any such constitutional analysis.
Was the Evidence Sufficient to Find that Reed Possessed Rather than Used the Firearm?
Finally, as an aspect of his sufficiency arguments, Reed argues that “use does not prove possession.” This argument is premised upon a belief that “it is also possible that a person could use a weapon, without possession.” We disagree. We simply do not perceive that it is possible that a person could use a weapon without possessing the weapon. This seems nonsensical to the court and we reject this argument summarily. See State v. Beaver, 41 Kan.App.2d 124, 129, 200 P.3d 490 (2009) (possession is defined as having control over a thing with knowledge of and intent to have such control); State v. Adams, 223 Kan. 254, 256, 573 P.2d 604 (1977) (possession under K.S.A. 21–4204 is equivalent to PIK Crim.3d 53.00).
Did the District Court Err in Refusing to Suppress Evidence Recovered Pursuant to a Search of the Residence?
Finally, Reed argues that the shotgun was recovered as a result of an illegal search of Reed's residence and should have been suppressed by the district court. An appellate court reviews the district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). When the material facts to a trial court's decision on a motion to suppress evidence are not in dispute, however, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
We note at the outset that Reed failed to file a pretrial motion to suppress the evidence in question. K.S.A. 22–3216(3) states, “[t]he motion shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial.” (Emphasis added.) Here, it does not appear that Reed made any showing that the issue should be addressed for the first time at trial, but the court exercised its discretion and we decline to accept the State's invitation to find this an abuse of discretion. We also note that Reed essentially waived any suppression of the evidence when his trial counsel told the court moments before trial that he did not have any “legal arguments to dismiss this case or suppress it.” In any event, the failure to take up the issue before trial has hindered both the trial court's analysis as well as this court's analysis on appeal. Nevertheless, the trial court exercised its discretion to hear the objection at trial, and we will address the merits of the issue on appeal.
The court made two rulings on the question of search validity. When the initial objection was made, the court stated:
“PROSECUTOR: Well, Your Honor, that's why I'm asking him questions about consent. He received consent from Maxine Walker.
“THE COURT: I agree. Based on the evidence that's been presented by this officer, Maxine Walker gave consent for the officers to enter the premises and to look for this weapon. Apparently she was listed as the owner, so objection overruled.”
Then, in rendering its verdict, the court again referred to the challenge to search validity, and stated:
“The fact is also true that your either common-law wife or girlfriend, who is also an owner of this apartment, was also visited with by law enforcement and she gave permission for law enforcement to come into your apartment and she directed law enforcement as to where the gun was, so because of that there was nothing unlawful about that search. It was voluntarily made and allowed by an owner of—resident of the apartment and so there's nothing improper about that. On the basis of that they found a weapon that was yours and on that basis they arrested you. And so I don't see that there's anything improper with that and so I think any challenges or concerns that you have about that I don't think are well founded.”
These findings were supported by evidence in the record. The arresting officer testified that Maxine Reed lived in the apartment and sometimes went by the name Walker. He also confirmed that his belief of her residence was based on Walker's statement to him: “the female ... said she lived there with him.” Walker's authority to consent to the search was never explicitly challenged until this appeal. This testimony established an adequate basis for a valid consent to search by a third party who possessed common authority over the premises. See State v. Porting, 281 Kan. 320, 324–26, 130 P.3d 1173 (2006).
Finally, we note that the bulk of the argument at trial was not whether Walker resided at this location, but whether Reed did so. Reed's argument on appeal is entirely inconsistent with his trial strategy and any belated challenge to Walker's authority to consent to the search lacks articulation in the record and evidence in support. The State adequately met its burden here absent a more explicit challenge to Walker's status and authority to consent that could have been explored in more detail had Reed challenged the search in a pretrial motion to suppress.
Affirmed.