State v. Acevedo

315 P.3d 261, 49 Kan. App. 2d 655
CourtCourt of Appeals of Kansas
DecidedNovember 22, 2013
DocketNo. 107,631
StatusPublished
Cited by8 cases

This text of 315 P.3d 261 (State v. Acevedo) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Acevedo, 315 P.3d 261, 49 Kan. App. 2d 655 (kanctapp 2013).

Opinions

Arnold-Burger, J.:

Tomas Acevedo was advised by a manager and assistant manager at the Wal-Mart store in Garden City that he was not authorized to return to any Wal-Mart store. Two years later he returned to the same Wal-Mart store and committed a theft. He was convicted of aggravated burglary and theft. He raises several issues on appeal. First, he claims that the evidence presented at trial was insufficient to establish that he entered Wal-Mart without authorization. Because we find that the evidence was sufficient, this claim of error fails.

Next, Acevedo also raises three instructional errors and contends that the cumulative effect of these errors deprived him of a fair trial. First, he claims that court erred in failing to instruct the jury that aggravated burglary requires the State to prove that Acevedo knew he was unauthorized to enter Wal-Mart. We find that even if the requested instruction was both legally and factually sound, in light of the facts and the instruction that was given, the failure to give the requested instruction was harmless. Next, Acevedo claims the district court erred in failing to provide a limiting instruction regarding the jury’s use of evidence that he had committed crimes or had been involved in alleged criminal conduct in the past. Acevedo’s counsel not only failed to request such an instruc[656]*656tion, but when asked by the trial judge counsel denied that one was needed. So that claim also fails. Third, Acevedo urges this court to find that tire use of the word “any” in the last sentence of the burden of proof instruction given by the trial court permitted the jury to convict him of the charged crimes without finding that the State proved each of the required elements beyond a reasonable doubt. But in State v. Herbel, 296 Kan. 1101, 1123-24, 299 P.3d 292 (2013), our Supreme Court rejected an identical argument, and we are duty bound to follow the Supreme Court.

Finally, we find that where there was no error there can be no cumulative error. Affirmed.

Factual and Procedural History

In April 2009, Daniel Fetty, a co-manager/shift manager of the Garden City Wal-Mart, and Aaron Kentner, an assistant manager at the same store, approached Acevedo in the store and read him a “Notification of Restriction from Property” form provided by Wal-Mart, which Fetty and Kentner referred to as a trespass form. Fetty read tire form to Acevedo as Kentner explained it to him. The form, which was admitted into evidence, read:

“Pursuant to law, Wal-Mart Stores, Inc. chooses to exercise its right to restrict entrance to individuals who have conducted themselves in a manner which is not acceptable to the community, including, but not limited to, shoplifting or destruction of property. It is deemed that the undersigned apprehended subject poses a threat to the future security of Wal-Mart facilities and properties, and therefore, is no longer welcome on Wal-Mart property, within its stores, or on any property under its immediate control. The undersigned apprehended subject is now on notice that should he / she choose to ignore this revocation of invitation and enter onto any Wal-Mart property, he / she places himself / herself in the position to be charged with Criminal Trespass pursuant to § 21-3721 of the Kansas Statutes Annotated. It is not necessary that die undersigned apprehended subject be caught in an illegal act, including, but not limited to, shoplifting or destroying property; the mere presence of such individual on the property is sufficient.
Acknowledgement
“I, [Thomas Acevedo] understand that as of the [18] day of -[April] , [2009] , I have been banned from all Wal-Mart property, and that to enter onto any such property places me at risk for arrest and prosecution for Criminal Trespass pursuant to § 21-3721 of the Kansas Statutes Annotated.” (Bracketed portions were handwritten by Fetty.)

[657]*657Kentner tiren summarized the content of the form by telling Acevedo that he was no longer allowed on any Wal-Mart property. Fetty asked Acevedo to sign the form but did not offer Acevedo a copy of the form. Fetty testified that he would have made Acevedo a copy if Acevedo had requested one. Acevedo became angry, refused to sign the form, shouted some vulgar comments, and immediately left the store. The record does not disclose the reason Wal-Mart revoked Acevedo’s general permission to enter the store.

Nearly 2 years later, in February 2011, Kentner saw Acevedo in the same Garden City Wal-Mart and called the police to have Acevedo arrested for criminal trespass. Acevedo noticed Kentner and left foe store before the police arrived.

On March 26, 2011, Acevedo again entered foe Garden City Wal-Mart with two companions, while foe store was open for business. They visited foe sporting goods department before moving to foe tool aisle. Acevedo pulled a grinder wheel—valued at $2.88—from foe shelf, removed a box cutter from his pocket, and cut the package to remove foe wheel. He pocketed foe wheel, moved two aisles into the paint section, and discarded foe wheel packaging. Acevedo then walked to foe front of foe store, passing foe registers without stopping to pay for foe wheel, and exited foe store. Britt Fairbank and Jimmie Garcia, Wal-Mart security officers, confronted Acevedo just outside foe store. Fairbank told Acevedo, “ ‘Tomas, I need you to stop.’ ” Acevedo replied, “ ‘I got nothing, man,’ ” and continued to walk away. Acevedo entered a car located in front of the store, and he left foe parking lot in foe car. Garcia called foe police.

After Acevedo was arrested foe next day, he admitted that he had taken the wheel from its package but claimed that he had deposited foe wheel in the pharmacy department before leaving the store. When asked about the trespass warning, Acevedo said he knew nothing about it.

The State charged Acevedo with aggravated burglary and misdemeanor theft. Following a short trial on September 21, 2011, foe jury convicted Acevedo of both counts. Acevedo filed a motion for new trial, alleging error in Jury Instruction No. 3. He also filed a motion for a downward dispositional and durational departure [658]*658sentence. At sentencing, the court denied both motions and sentenced Acevedo to serve a controlling term of 114 months in prison.

Acevedo filed a timely notice of appeal.

Sufficiency of the Evidence

Acevedo first challenges the evidence supporting his conviction for aggravated burglaiy. As defined by K.S.A. 21-3716, aggravated burglary 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, theft or sexual battery therein.”

When a criminal defendant challenges the sufficiency of the evidence supporting a conviction, an appellate court examines the evidence and adopts reasonable inferences drawn from the evidence in a light most favorable to the State to determine whether a reasonable juror could conclude beyond a reasonable doubt that the defendant committed the offense in question. See State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012).

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Bluebook (online)
315 P.3d 261, 49 Kan. App. 2d 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-acevedo-kanctapp-2013.