Opinion
No. 107,468.
2013-05-31
STATE of Kansas, Appellee, v. Terrence Jerome VORRICE, Appellant.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
When the police used GPS to track a new Chevrolet Tahoe that was reported stolen from a Topeka dealership, they found Terrence Jerome Vorrice driving it. Further investigation revealed that Vorrice's driving privileges were suspended. He also had a key in his pocket that belonged to a new Camaro still on the dealership's showroom floor. As a result, a jury convicted Vorrice of three crimes: felony possession of stolen property (the Tahoe); driving with suspended driving privileges (DWS); and misdemeanor theft of property (the key). After reviewing the evidence in the light most favorable to the State, we find that there was insufficient evidence to convict Vorrice of felony possession of stolen property because there was no evidence, circumstantial or otherwise, that he knew the Tahoe had been stolen by another. In addition, because there was no evidence, circumstantial or otherwise, to establish that Vorrice knew his license was suspended, we also find there was insufficient evidence to support his conviction. In addition, we find that the court erred in not assuring the defendant's presence during discussion of jury questions and in failing to instruct or inform the jury that the charges of theft and possession of stolen property were mutually exclusive, but under the facts of this case both errors were harmless. Accordingly, the district court's decision is affirmed in part and reversed in part.
Factual and Procedural History
For the most part, the parties do not dispute the underlying facts presented at Vorrice's 2–day jury trial.
On the morning of December 19, 2009, employees at the Ed Bozarth Chevrolet dealership in Topeka reported to police that a brand new 2010 Chevrolet Tahoe valued at approximately $45,000 had been stolen from the lot. The dealership activated the Tahoe's OnStar service to help the police track its location.
OnStar tracked the Tahoe to an area near Topeka Police Officer Gregory Cochran's location. Cochran joined in the search and eventually came upon the Tahoe just as OnStar disabled its engine. The Tahoe had 70 miles on it, the window sticker was removed but still inside the vehicle, and it bore an expired license plate registered to a company with no known connection to Vorrice.
Cochran removed Vorrice, who was the Tahoe's sole occupant, and identified him through a Kansas identification (ID) card. Dispatch later notified Cochran that Vorrice's driving privileges were suspended.
Further police investigation revealed that Vorrice had been at the dealership with his mother 2 days earlier, attempting to buy a Tahoe or Suburban. The finance manager, Mike McConchie, specifically recalled Vorrice's visit because Vorrice became upset after learning his credit application, which had been denied, would not be returned to him. An angry Vorrice exclaimed, “What do you mean? I can just sign my name and take this car. This is my house. You don't know where you're at. You're in my house.” As Vorrice grew increasingly aggressive, the salesman gave him the application; so he left.
At the time, the dealership had a fairly lax record-keeping system to track its 300 vehicles. Dealership employees would leave keys in the unlocked vehicles during regular business hours to facilitate test drives. The key that was found in Vorrice's pocket while he was being processed following his arrest for theft of the Tahoe opened a Camaro on the showroom floor of the dealership. Although the Tahoe was stolen from the dealership lot, there was no evidence that Vorrice was ever seen looking at vehicles anywhere other than the showroom floor. In addition, the dealership employees could not determine exactly which day the Tahoe went missing from the lot, concluding only that it went missing sometime in the preceding 2 days. Finally, there was evidence that sometimes cars were loaned out overnight.
Based on these events, the State asked the jury to find Vorrice guilty of four counts. The first two counts alternatively charged felony theft by: obtaining or exerting unauthorized control over the Tahoe in violation of K.S.A. 21–3701(a)(l); or, obtaining control over the Tahoe knowing it to have been stolen by another in violation of K.S.A. 21–3701(a)(4). The trial court denied Vorrice's request to instruct on the alternative nature of these charges and instead instructed the jury that each crime charged was a separate and distinct offense. The remaining two counts charged were misdemeanor theft of the Camaro key; and DWS, in violation of K.S.A. 8–262(a)(1).
During deliberations, the jury sent several communications to the court about legal questions it had, evidence it wanted read back, and an impasse that it had reached on the charge of theft by obtaining or exerting unauthorized control over the Tahoe (Count 1). After conferring with counsel, the court provided written answers to three of those questions and also provided a readback of testimony the jury requested about the loan document. Those communications will be discussed in more detail below where necessary in analyzing Vorrice's third and fourth issues on appeal.
The jury ultimately found Vorrice guilty of felony possession of stolen property (the Tahoe), misdemeanor theft of the Camaro key, and DWS; it deadlocked on Count 1 (felony theft of the Tahoe) resulting in a mistrial on that charge. This timely appeal by Vorrice follows his sentencing to 24 months' probation with an underlying controlling prison sentence of 24 months. We note that on appeal Vorrice does not challenge his conviction for misdemeanor theft of the Camaro key, except to the extent the success of his constitutional arguments would impact all his convictions.
The Evidence Was Insufficient to Support Vorrice's Conviction of Possession of Stolen Property
In his first issue, Vorrice challenges the sufficiency of the evidence to support his felony conviction of possession of stolen property. The State responds that it presented sufficient circumstantial evidence from which the jury could reasonably infer the elements necessary to find Vorrice guilty of that charge. Before delving into the specifics of the parties' opposing positions, a discussion of this court's standard of review and the governing law is in order.
This court's review is limited.
This court must decide “whether, after review 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 [Vorrice] guilty beyond a reasonable doubt [of possession of stolen property].” See State v. Stafford, 296 Kan. 25, 53, 290 P.3d 562 (2012). In so deciding, this court will not reweigh evidence, resolve evidentiary conflicts, or determine witness credibility. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
The State presented no evidence from which jury could reasonably infer that Vorrice knew the Tahoe had been stolen by someone else.
The trial court gave the jury two instructions related to the sufficiency argument Vorrice raises here. The first was the elements instruction, which informed the jury it had to find:
“1. That Ed Bozarth Chevrolet was the owner of the property, to wit: Chevrolet Tahoe;
“2. That the defendant obtained control over property knowing the property to have been stolen by another,
“3. That the defendant intended to deprive Ed Bozarth Chevrolet permanently of the use or benefit of the property;
“4. That the value of the property was at least $25,000 but less than $100,000; and
“5. That this act occurred on or about the 19th day of December, 2009, in Shawnee County, Kansas.” (Emphasis added.)
The second instruction, given upon Vorrice's request, further defined the emphasized knowledge element, which is key here, as follows: “Knowledge that property has been stolen by another must exist at the time control first occurs and may be proven by a showing that the defendant either knew or had a reasonable suspicion from all the circumstances known to the defendant that the property was stolen.” See PIK Crim.3d 59.01; PIK Crim.3d 59.01A.
Vorrice insists his conviction of possession of stolen property cannot stand because the State produced no evidence from which the jury could reasonably find that Vorrice knew “another” or someone else had stolen the Tahoe. In support, Vorrice notes that the State did not focus on this charge in its closing argument and contends the State needed to, but did not charge this crime under a theory of aiding and abetting. Vorrice further points out evidence that was wholly lacking at his trial, such as: any witnesses to the Tahoe's actual theft from the dealership or to the presence or association of anyone other than Vorrice with the Tahoe after it left the dealership's lot; fingerprint or other circumstantial evidence of someone else's presence in the Tahoe; or any indication that his mother was involved in the theft of the Tahoe.
Vorrice contends these glaring evidentiary omissions are so “strikingly similar” to evidentiary holes that resulted in reversal of the defendant's conviction for possession of stolen property in State v. Haynes, No. 101, 394, (order filed October 22, 2009) that this case warrants the same result. A review of Haynes does reveal factual similarities. Witnesses in that case identified Haynes as the man who crashed a motorcycle into their fence in the middle of the night, asked them not to call the police, and indicated he would be back the next day to fix the fence. The witnesses did call the police, who arrived a short time later, just after Haynes and another man had unsuccessfully tried to load the wrecked motorcycle into a truck. The condition of the motorcycle caused police to suspect that it had been stolen, but they could not find a report of a missing or stolen motorcycle. That report came the next day, after the motorcycle's owner discovered it was missing from where he had parked it the previous week. As a result, the State charged, and a jury ultimately convicted Haynes of possession of stolen property in violation of K.S.A. 21–3701(a)(4).
In his direct appeal to this court, Haynes challenged the sufficiency of the evidence to prove his knowledge that the motorcycle was stolen by another. In support, Haynes argued the State presented no evidence that some person other than Haynes was involved in the alleged theft. The State moved this court for summary disposition of Haynes' appeal in lieu of briefing under Supreme Court Rule 7.041 (2012 Kan. Ct. R. Annot. 61), conceding that Haynes' conviction had to be reversed for insufficiency of the evidence because it presented no evidence regarding how Haynes came into possession of the motorcycle. This court granted the State's motion and summarily reversed Hayne's conviction.
But procedural differences preclude Haynes from having any real precedential value. Unlike in Haynes, the State does not concede here that the evidence was insufficient to support Vorrice's theft conviction. Rather, the State insists it presented sufficient circumstantial evidence from which the jury could reasonably infer that Vorrice knew the Tahoe had been stolen by another.
Indeed, a conviction of even the gravest offense can be based entirely on circumstantial evidence and inferences reasonably deducible from that evidence. McCaslin, 291 Kan. at 710. As long as the “inference is a reasonable one, the jury has the right to make the inference.” 291 Kan. at 710–11. This is so even if there might be other reasonable conclusions or inferences that could be envisioned, given the constraints of the standard of appellate review. See State v. Scaife, 286 Kan. 614, 618–19, 186 P.3d 755 (2008).
The problem here is that circumstances utilized to infer guilt must be proved and cannot be inferred or presumed from other circumstances. See State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009). In other words, “[p]resumptions and inferences may be drawn only from facts established, and presumption may not rest on presumption or inference on inference.” State v. Doyle, 201 Kan. 469, 488, 441 P.2d 846 (1968).
Our Supreme Court discussed this inference-stacking principle at length in State v. Rice, 261 Kan. 567, 586–88, 932 P.2d 981 (1997). Citing and quoting from its analysis of that principle in State v. Williams, 229 Kan. 646, 648–50, 630 P.2d 694 (1981), the Rice court explained:
“ Williams makes explicit that the concern of prohibiting one inference based upon another is that the final fact inferred might not be adequately supported by the evidence adduced:
‘Convictions based on circumstantial evidence, as in the instant case, can present a special challenge to the appellate court. Juries are permitted to draw justifiable inferences from proven circumstances and established facts; but the appellate court must determine whether findings based upon inferences are justifiable by applying additional rules of law.’ 229 Kan. at 648–49.
“ Williams restates the rule prohibiting the stacking of inferences ...:
“ ‘Another way, perhaps, of verbalizing the rule prohibiting an inference on an inference and a presumption on a presumption is the rule, as stated by some courts, that where reliance is placed upon circumstantial evidence, the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.’ “ 229 Kan. at 649 (quoting 1 Wharton's Criminal Evidence § 91, pp. 150–51 [13th ed.1972] ).” Rice, 261 Kan. at 587.
The brief argument advanced by the State in its brief will perhaps best demonstrate why Vorrice's sufficiency challenge has merit. It argues:
“The evidence presented showed that Vorrice and his mother were at Ed Bozarth Chevrolet on December 17, 2009. Either Vorrice or his mother could have stolen the key to the Tahoe during that visit. Additionally, the price sticker was still inside the Tahoe when Vorrice was driving it and the Tahoe did not have a 30 day tag like many new car purchases.... The tag was not registered to Vorrice, but to another business, Mobile 1 and was expired.... Thus, based on this evidence the jury could reasonably infer that even if Vorrice did not steal the car, he knew it had been stolen.”
Indeed, there was circumstantial evidence from which the jury could reasonably infer the Tahoe was stolen. There was not, however, sufficient evidence from which the jury could then justifiably infer that it had been stolen by another and that Vorrice knew that was the case.
The only other person the State now attempts to link to the Tahoe is Vorrice's mother. Even within the constraints of the standard of review, which is favorable to the State, it is quite a stretch to say that the jury could reasonably infer that Vorrice's mother stole the Tahoe (not just its key), and that Vorrice knew this from the mere fact of her presence at the dealership with him 2 days earlier.
Accordingly, because of the lack of any evidence from which a jury could reasonably infer that Vorrice possessed a car that was stolen by another, we reverse Vorrice's conviction of felony possession of stolen property.
The State Presented Insufficient Evidence to Support Vorrice's Conviction of DWS
In his second issue on appeal, Vorrice challenges the sufficiency of the evidence to support his DWS conviction. The State again argues the circumstantial evidence sufficiently supports the jury's guilty verdict. Applying the same standard of review as applied to Vorrice's first issue, we agree with Vorrice.
The State presented no evidence from which the jury could reasonably find Vorrice knew his driving privileges were suspended.
The jury instruction for the DWS charge provided the jury had to find:
“1. That the defendant drove a motor vehicle;
“2. That the defendant's driving privileges were suspended by the division of motor vehicles;
“3. That the defendant had knowledge that his driving privileges had been suspended by the division of motor vehicles; and
“4. That this act occurred on or about the 19th day of December, 2009, in Shawnee County, Kansas.
“As used in this instruction, proof of knowledge may be evidence of actual knowledge or by circumstantial evidence indicating a deliberate ignorance on the part of the defendant.
“Knowledge can be, but is not required to be, inferred from the fact that notification that defendant's driving privileges had been suspended was mailed to defendant at defendant's last known official address.” (Emphasis added.)
See PIK Crim.3d 70.10. Once again, the emphasized knowledge element is key to Vorrice's sufficiency argument.
The State can satisfy this element by proving the defendant has either actual or constructive knowledge that his or her driving privileges were suspended. See State v. Jones, 231 Kan. 366, 368, 644 P.2d 464 (1982); State v. Campbell, 24 Kan.App.2d 553, 555–57, 948 P.2d 684,rev. denied 263 Kan. 887 (1997). The State presented absolutely no evidence of constructive knowledge. See Jones, 231 Kan. at 368 (discussing evidence that can prove constructive knowledge). So this court is concerned only with the sufficiency of the evidence of Vorrice's actual knowledge of the status of his driving privileges.
The State's response to Vorrice's motion for judgment of acquittal on the DWS charge below lends some strength to Vorrice's position on appeal. Vorrice argued to the trial court that the State had not presented any evidence in support of the DWS charge. The State responded that “the only testimony that was elicited” on that charge was Cochran's testimony that dispatch notified him that Vorrice had a suspended license as part of the “wants and warrants” check. The trial court found that was enough to let the jury decide whether Vorrice was guilty of DWS.
On appeal, the State supplements its sufficiency argument, arguing for the first time that the jury could infer from Vorrice's possession of a Kansas ID card that he knew his driving privileges were suspended. In support, the State contends that “[a] Kansas ID card is not equal to a valid Kansas driver's license” and does not authorize a person to legally drive a vehicle in Kansas.
But the State does not cite to, and the jury was never instructed on the law governing the legal effect of carrying an ID card versus a driver's license. Granted, Kansas law does preclude a person with a current valid driver's license from applying for or obtaining a Kansas ID card. See K.S.A.2012 Supp. 8–1324(a), (d), and (e). The law further provides that a driver's license can be issued to a person who qualifies for driving privileges and takes the necessary application steps. K.S.A.2012 Supp. 8–243(a). Importantly, Vorrice was convicted of driving while his driving privileges were suspended, not driving without a driver's license in his possession. A person could arguably believe that his or her driving privileges were valid despite lacking an actual driver's license. Without any instructions on this area of the law, the jury could not justifiably infer from Vorrice's mere possession of an ID card that Vorrice had actual knowledge that his driving privileges were suspended.
The only other evidence that could arguably be considered on this sufficiency issue is mentioned by Vorrice, i.e., the jury heard evidence that the dealership would only allow a car to be test driven upon the production of a driver's license. But Vorrice correctly notes that this evidence was never tied in any way to Vorrice's visit to the dealership 2 days before he was found in possession of the Tahoe.
Thus, we must also reverse Vorrice's DWS conviction for lack of any supporting evidence.
The Trial Court's Written Responses to the Jury's Questions
In his third issue on appeal, Vorrice challenges the trial court's decision to respond to jury questions in writing rather than in open court in Vorrice's presence. The State responds that this was not error because the trial court's written responses to the jury's questions were not substantive; but even if it was error, it was harmless. We find the trial court erred in responding to the jury's questions in Vorrice's absence, but that the error was harmless.
Appellate review is unlimited.
A claim that a defendant was deprived of his or her statutory and constitutional right to be present during a portion of the trial raises legal questions that are subject to unlimited review on appeal. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010) (statutory interpretation); McComb v. State, 32 Kan.App.2d 1037, 1041, 94 P.3d 715,rev. denied 278 Kan. 846 (2004) (violation of constitutional rights). Before this court can conduct such review, however, some additional background is necessary.
The jury asked several questions during deliberations.
During deliberations, the jury forwarded several written questions to the court, which the trial court discussed with counsel before formulating written answers that were then returned to the jury by the bailiff. Those questions and answers were as follows:
• “Does theft mean the defendant has to be the one who drove the car off the lot? Clarify part three of page # 10[.]
....
“Response: I cannot further clarify Instruction # 10. Please review all of the Instructions.”
• “Are charges # 1 and # 2 mutual exclusive meaning if guilty of one then must be not guilty of the other[,] the key being that # 2 implies that the property was stolen by another.
....
“Response: Please refer to Instruction # 15.”
• “Please define ‘exerted unauthorized control’ this is unclear to us[.]
....
“Response: The phrase will not be further defined. Please refer to the Instructions.”
These are the jury communications at issue here. As to each, the record indicates that the questions were read in open court with counsel present. The jury was not called into the courtroom. There is no indication in the record that Vorrice was present during these discussions. The two other communications from the jury also bear brief mention here. In the first, the jury requested and then received a readback of testimony concerning the vehicle loan for which Vorrice had applied at the dealership. The other simply explained the reason for the jury's deadlock on the alternative felony theft charge. The record does reflect that Vorrice was present when the jury was brought in the courtroom for both of these questions.
This court can consider this issue for the first time on appeal.
Vorrice now argues for the first time on appeal that the trial court's written responses to the jury's questions violated several of his statutory and constitutional rights.
There is some authority to suggest that we cannot consider this issue for the first time on appeal. See State v. Groschang, 272 Kan. 652, 672–73, 36 P.3d 231 (2001) (applying general rule that issue not raised below cannot be raised for first time on appeal to alleged violation of K.S.A. 22–3420[3] ). There are exceptions to this general rule, but Vorrice does not argue that any of these exceptions apply. Indeed, even trial errors affecting constitutional rights may be waived in the absence of a proper objection. See State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009).
But most decisions that have recently considered this same or similar issue have declared it proper to address such arguments for the first time on appeal. See State v. Bell, 266 Kan. 896, 918–20, 975 P.2d 239,cert. denied528 U.S. 905 (1999); State v. Hogan, No. 106,220, 2012 WL 5364674, at *7–9 (Kan.App.2012) (unpublished opinion), petition for rev. filed November 21, 2012 (pending); State v. Womelsdorf, 47 Kan.App.2d 307, 320–21, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012 (pending). Accordingly, the merits of the issue are addressed here.
The court can respond to jury questions in writing without calling the jury into the courtroom.
K.S.A. 22–3420(3) governs communications with the jury during deliberations, directing as follows:
“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.”
The defendant claims that based on this statutory language, it was error for the trial court to answer the jury's questions using a written note rather than in open court. Our Supreme Court recently rejected this same argument in State v. Wells, 296 Kan. 65, 290 P.3d 590 (2012). There, the defendant argued that despite the presence and participation of all the parties in answering the jury's question, the court deprived her of her constitutional and statutory rights to be present at all critical stages of trial when it responded to the jury question via a written note. The defendant cited both the language of K.S.A. 22–3420(3) and the decision in State v. Coyote, 268 Kan. 726, 731, 1 P.3d 836 (2000), to support her claim. The Supreme Court found the plain language of K.S.A. 22–3420(3) did not support the defendant's argument because the statute requires the presence of the defendant only if the jury, after making a request, is taken into the courtroom so that it can hear information from the district court on a point of law. The Supreme Court noted its holding in Coyote was based on the fact that the defendant was not present during the court's discussion with the attorneys on how to respond in writing to the jury's question. Wells, 296 Kan. at 90–92.
Accordingly, we too find that K.S.A. 22–3420(3) neither requires that the jury be conducted back into the courtroom in order to ask the court a question, nor does it require that the judge only respond to the jury's questions in open court. The possible violation in this case is not whether the court should have answered the questions in the courtroom or in writing, but, rather, the possible violation concerns whether the defendant was present, or voluntarily absent, when the court's answers were discussed and written in chambers. See Coyote, 268 Kan. at 731–32;Bell, 266 Kan. at 919. So we next turn to that question.
Vorrice had a right to be present when the jury questions were discussed among the court and counsel and responses forwarded to the jury.
As previously stated, the record indicates that the three jury questions at issue were read in open court with counsel present. The jury was not called into the courtroom. There is no indication in the record that Vorrice was present during these discussions. Although Vorrice does not affirmatively deny he was present, if the record is silent regarding whether defendant was present or absent during the discussion between the judge and the attorneys, then the court will presume that the defendant is not present and that K.S.A. 22–3420(3) was not followed. See State v. Herbel, 296 Kan. 1101, 299 P.3d 292, (No. 103,558, filed April 5, 2013), slip op. at 8–12 (citing and quoting Bell in discussing defendant's statutory and constitutional rights to be present whenever trial court communicates with jury, including during readback or exhibition of evidence to jury); State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2001), overruled on other grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007). A defendant may voluntarily waive his or her right to be present, but if the record does not reflect that the defendant personally waived the right or his or her attorney waived it after consulting his client, then a waiver will not be presumed from a silent record. State v. Acree, 22 Kan.App.2d 350, 353, 916 P.2d 61,rev. denied 260 Kan. 995 (1996).
Accordingly, we must find the trial court's written responses to the jury's questions contravened Vorrice's right to be present for the trial court's communications with the jury.
This error by the trial court was harmless.
A violation of a defendant's statutory and constitutional rights to be present during all critical stages of a trial is subject to harmless error analysis. Herbel, 296 Kan. at ––––, slip op. at 11–12. Generally, analysis for harmless error varies depending on whether a statutory or constitutional right is at issue. See State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). Our Supreme Court quite recently noted that, while the tests are distinct, “meeting the higher constitutional harmless error standard necessarily means the lower nonconstitutional harmless error standard has been met” where “both the constitutional and nonconstitutional error clearly arise from the very same acts and omissions.” Herbel, 296 Kan. at, slip op. at 12–13. This means that if this court applies the constitutional harmless error analysis and finds beyond a reasonable doubt that the trial court's error in responding to the jury's questions had no impact on the trial's outcome— i.e., that there is no reasonable possibility that the error contributed to the verdict-then this court can declare this error harmless. See Ward, 292 Kan. at 568–69.
We have no pause in declaring the trial court's error to be harmless. Neither the court's response to the jury's questions nor the original jury instructions to which the court directed the jury in those responses misstated the law. There is no reasonable possibility that the court's failure to give the jury those same answers in Vorrice's presence contributed to Vorrice's convictions.
The court's written answers to the jury did not also violate Vorrice's right to an impartial judge or to a public trial.
We next consider Vorrice's additional contentions that the trial court's written answers to the jury violated his constitutional rights to a fair trial before an impartial judge and right to a public trial. More specifically, Vorrice contends the judge's communications with the jury were not complete until the jury received the written answers to its questions. And because the judge was not present when the jury actually received the written answers, Vorrice insists both his Fourteenth Amendment right to an impartial judge and his constitutional right to a public trial were violated. See Waller v. Georgia, 467 U.S. 39, 43–47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (discussing constitutional right to public trial); Ward v. Village of Monroeville, 409 U.S. 57, 59–60, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) (detailing constitutional right to impartial judge).
According to Vorrice, such constitutional violations are structural errors that mandate a new trial without any consideration of harmless error. See Arizona v, Fulminante, 499 U.S. 279, 308 & n. 8, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (recognizing lack of impartial judge as structural error not subject to harmless error rule); Waller, 467 U.S. at 49–50 (discussing requirement of new trial where right to public trial denied). Kansas courts have held, however, that the deprivation of the right to a public trial is not, per se, structural error. See State v. Reed, No. 106,807, 2013 WL 451900, at *14 (Kan.App.2013) (citing and discussing our Supreme Court's recognition in State v. Dixon, 279 Kan. 563, 599–600, 112 P.3d 883 [2005],disapproved on other grounds State v. Wright, 290 Kan. 194, 204–06, 224 P.3d 1159 [2010], that deprivation of right to public trial can be subject to harmless error analysis), petition for rev. filed March 1, 2013 [pending] ).
Even if such errors were deemed structural errors under Kansas law, other panels of this court have consistently found under similar circumstances that a defendant's fundamental rights to a fair trial and to an impartial judge are not violated by a court's written answers to a jury's questions. See Womelsdorf, 47 Kan.App.2d at 324–25;Bolze–Sann, 2012 WL 3135701, at *6–7 (adopting reasoning in Womelsdorf); Hogan, 2012 WL 5364674, at *8–9 (same). Highly summarized, those cases reasoned that when, as here, a district court delivers a short written answer to a jury's question that provides no additional information, there is no violation of the right to an impartial judge. Nor does a trial court's answer to a jury's questions in writing violate the right to a public trial when, as here, the defendant never specifically disputes his presence when the court and counsel discussed in open court how to respond to jury questions. And nothing about the court's response, which becomes a part of the record, is hidden from the public. See Womelsdorf, 47 Kan.App.2d at 324–25;Bolze–Sann, 2012 WL 3135701, at *6–7;Hogan, 2012 WL 5364674, at *8–9. We adopt this sound reasoning.
The only argument here that was not directly addressed in those cases is Vorrice's suggestion that he did not receive a public trial because the jury may have asked additional questions or otherwise made improper comments to the bailiff when he or she returned the trial court's answers. Not only is this contention purely speculative, but it wholly disregards the fact that a court bailiff must take an oath or affirmation that precludes any such communications with the jury. See Supreme Court Rule 171 (2012 Kan. Ct. R. Annot. 269).
Simply put, Vorrice has not presented this court with any valid bases for holding the trial court's error in responding to the jury's questions in writing was structural error.
There was no cumulative error here.
We also reject Vorrice's remaining suggestion that he is entitled to a new trial based on cumulative error. The cumulative error test asks “ ‘whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010). Vorrice argues that even if the trial court's violation of his statutory and constitutional rights discussed above do not, alone, warrant a new trial, the cumulative effect of those errors denied him a fair trial.
This argument lacks merit. Vorrice has, at best, established but a single error, which cannot constitute cumulative error. State v.. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010); accord Womelsdorf, 47 Kan.App.2d at 325–26 (finding no cumulative error under similar circumstances). Even if that single procedural error could somehow be counted as more than one error because it implicated both statutory and constitutional rights, which is highly questionable, the test for cumulative error is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. As already discussed above, there was no such deprivation here.
Instructing the Jury on Mutually Exclusive Charges
Vorrice's fourth and final issue on appeal ties back to the jury's question about the relationship between the two felony theft charges. Vorrice was charged separately with theft of the Chevy Tahoe (Count 1) and Possession of Stolen Property, the Chevy Tahoe (Count 2). The jury was instructed separately on each crime. Separate verdict forms were provided for each charge. The jury was further instructed that each charge was a separate and distinct offense and that the defendant must be convicted or acquitted of each. The jury was further instructed that its finding as to each charge must be stated on the verdict form. During the jury instruction conference, counsel for Vorrice argued that Count 1 and Count 2 should be given in the manner of a lesser included offense instruction, where the jury is advised that if the jury cannot agree that the defendant committed Count 1, then it should consider Count 2, but that the verdict must be unanimous as to one or the other. The court denied counsel's request, pointing out that the two were not lesser included crimes, and because there would be separate verdict forms, Vorrice's right to a unanimous verdict would be protected. The trial court also noted that if the defendant were to be convicted of both Count 1 and Count 2, the court would select the more serious charge under the doctrine of merger and the less serious charge would go away. Cf. PIK Crim.3d 68.09A (directing trial court to give multiple counts instruction at PIK Crim.3d 68.07 and not instruct jury of alternative nature of multiplicitous charges). But we note that in this case, both charges have equal severity, they are both level 7 nonperson felonies.
During deliberations the jury sent out the following question: “Are charges Number 1 and Number 2 mutual exclusive, meaning if guilty of one of then must be not guilty of the other. The key being that Number 2 implies that the property was stolen by another.” The court answered the question by referring the jury to Instruction 15, which instructed that each charge was a separate and distinct offense and that the defendant must be convicted or acquitted of each, by filling out the various verdict forms. The jury subsequently announced jurors were hopelessly deadlocked on Count 1. Accordingly, the court accepted the verdicts on all the other counts and declared a mistrial due to a deadlock on Count 1.
Vorrice contends that because Counts 1 and 2 (theft of the Tahoe and possession of stolen property to wit, the Tahoe) are mutually exclusive, the jury's “supposition ... in [its] question—that if it found Mr. Vorrice guilty of one form of theft it then had to find him not guilty of the other form of theft—was correct.” Thus, Vorrice insists the trial court's response, which merely referred the jury back to the instruction indicating that the charges were separate and distinct offenses (the multiple counts instruction), was legally erroneous. Vorrice further contends the jury's conviction on the charge of possession of stolen property “should automatically operate as an acquittal” on the alternative charge of theft by exerting control over the Tahoe. He does so in an attempt to avoid a retrial on that charge.
Appellate review is unlimited.
Vorrice summarizes this issue as “whether, as a matter of law, [he] should have been acquitted of theft as charged in Count 1.” To reiterate, appellate courts exercise unlimited review over questions of law. State v. Arculeo, 261 Kan. 286, 290, 933 P.2d 122(1997).
The court erred in its response to the jury regarding the mutual exclusivity of Count 1 (theft) and Count 2 (possession of stolen property), but given our ruling vacating the conviction for Count 2 for insufficient evidence, the error was harmless.
Vorrice cites State v. Martinez, 255 Kan. 464, 469, 874 P.2d 617 (1994), in support of his argument that these two forms of theft in violation of K.S.A. 21–3701 are mutually exclusive. See generally Annot., 29 A.L.R.5th 59 (discussing how different jurisdictions treat legal principle that participation in larceny or theft precludes conviction for receiving or concealing the stolen property). Accordingly, he argues that the jury should have been so instructed in response to its question regarding whether the two counts were “mutual exclusive.”
We agree that—like the facts in Martinez—the State's theory was that Vorrice either stole the Tahoe or the Tahoe was stolen by someone else and given to Vorrice. Accordingly, these are mutually exclusive offenses, because as a matter of law Vorrice could not be convicted of possessing stolen property that he stole himself. See also United States v. Gaddis, 424 U.S. 544, 547, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976); Milanovich v. United States, 365 U.S. 551, 558, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961) (“It is hornbook law that a thief cannot be charged with committing two offenses—that is, stealing and receiving goods he has stolen.”); State v. Henwood, 243 Kan. 326, 327, 756 P.2d 1087 (1988) (“Kansas law would prevent a conviction of a defendant for both theft and receiving stolen property.”); United States v. Brown, 996 F.2d 1049, 1053 (10th Cir.1993) (“It is well established that a defendant may not be convicted of both stealing and possessing the same property.”). Accordingly, it was error for the court not to so instruct the jury either initially or in response to its specific question. We next turn to the remedy.
Had the jury convicted Vorrice of both theft and possession of stolen property, the district court clearly would have been required to select only one and vacate the other. Such an action would have easily cured any instructional error. Although there are no Kansas state cases on point, cases from other jurisdictions would suggest that if Vorrice was convicted of both, and there was sufficient evidence to support the theft conviction, the district court would have been required to vacate the possession of stolen property conviction. See Gaddis, 424 U.S. at 550 (jury must be instructed that it cannot convict defendant of both theft and possession and it must consider the theft charge first); Brown, 996 F.2d at 1055 (proper remedy when jury is improperly instructed and convicts defendant of both theft and possession of stolen property is to vacate the conviction for possession). But, we are not required to choose between two convictions here, because we are only faced with one conviction and our reversal of that conviction for insufficient evidence ends the inquiry into any remedy for the error in this case.
Vorrice's argument regarding an “implied acquittal” for the theft charge has not been adequately briefed.
Because of the court's instructional error, the charges were not pled or instructed as mutually exclusive alternatives. Accordingly, Vorrice insists that if the jury found Vorrice guilty of possession of stolen property, we must find as a matter of law that he was not guilty of theft and bar his retrial by the State on that charge.
Here, we do not know if the jury would have convicted Vorrice of both charges, because the jury did not reach a verdict on the theft charge. Accordingly, the actual substance of Vorrice's argument is based on principles of double jeopardy. In other words, regardless of how the trial court may have instructed the jury, if these offenses are mutually exclusive, is the conviction of one necessarily the acquittal of the other so as to prevent retrial? There is some support for Vorrice's position regarding “implied acquittal” in the federal courts. See United States v. McLaurin, 57 F.3d 823 (9th Cir.1995) (defendant convicted of possession of stolen property, but mistrial on robbery charge due to hung jury, could not be retried because the doctrine of double jeopardy encompasses the doctrine of collateral estoppel). On the other hand, Kansas has long recognized the rule that jeopardy does not attach in a legal sense when a jury has been dismissed because of its failure to agree on the verdict, and as a result, the defendant may be retried a second time on the same charge. In re Shotwell & Grades, 4 Kan.App.2d 382, 384, 607 P.2d 83,rev. denied 227 Kan. 927 (1980); but see State v. Berberich, 248 Kan. 854, 859, 811 P.2d 1192 (1991) (discussing lesser included offense doctrine and holding that “ ‘[c]onviction of a lesser-included offense is an implied acquittal of the greater offense. If the defendant has the conviction vacated on appeal, he cannot thereafter be tried for the greater offense”); State v. Wesson, 247 Kan. 639, 648, 802 P.2d 574 (1990), cert. denied501 U.S. 1236 (1991) (suggesting that if charges are mutually exclusive, conviction of one may imply acquittal of the other).
Unfortunately, neither Vorrice nor the State adequately brief this issue. Neither party cites to any cases to support its respective argument. In fact, Vorrice does not even mention the term double jeopardy in his brief. The State mentions it, but provides no legal authority for its position that the law of double jeopardy does not prevent a retrial when the charges are mutually exclusive. Accordingly, we find that this issue has been waived or abandoned by virtue of inadequate briefing. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (deeming point raised incidentally in brief and not argued therein waived and abandoned.); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010) (holding failure to support argument with pertinent authority is akin to failing to brief issue). Vorrice is of course free to fully argue this point to the district court should the State elect to retry him on the felony theft charge.
In sum, we reverse Vorrice's convictions of felony possession of stolen property and DWS and affirm his conviction of misdemeanor theft.