State v. Reed

663 P.2d 680, 8 Kan. App. 2d 615, 1983 Kan. App. LEXIS 162

• Court: Court of Appeals of Kansas
• Decided: June 2, 1983
• Docket: 54,326, 54,469
• Status: Published

Opinions

Parks, J.:

Defendants Rayford Reed and Willie Floyd were convicted in separate trials of aiding and abetting aggravated burglary and attempted theft. Their cases have been consolidated on appeal.

On September 15, 1982, Rolland Gallagher returned to his residence for lunch. He found a camera case lying on the floor and the cabinet doors open. He then heard a noise coming from the family room and upon investigating, came face-to-face with a man later identified by Mr. Gallagher as Tommy Bouser. Bouser ran into a back bedroom and locked the door from the inside. Gallagher heard the men escaping through a sliding door in the bedroom, ran outside and saw Bouser and Rayford Reed running from the house. Gallagher returned to the house and found a pillow case in the bedroom containing cameras, jewelry, money and a few other items which he estimated to be valued at between twelve to fifteen hundred dollars.

Trooper Theis of the Kansas Highway Patrol was in the vicinity of the Gallagher residence at the time the burglary was reported and he observed two men sitting in a station wagon parked in a driveway near the Gallagher residence. One of the men, recognized by Theis as Reed, was breathing heavily. Both men were detained and when Gallagher arrived at Theis’ location, he identified Reed as one of the men he had seen in his house but stated that he had not seen the other man, Floyd. All three men, Reed, Floyd and Bouser (who was apprehended by other officers) were arrested and transported to the jail in Paola.

After plea bargaining, Bouser pled guilty to the charge of attempted felony theft, while the aggravated burglary charge was dismissed by the State in exchange for Bouser’s testimony against the other two defendants. Because Reed and Floyd were tried separately, many of the questions on appeal concern only one or the other defendant while others are common to both. Therefore, the discussion of the multiple issues raised shall be subdivided for ease of exposition.

I. Common Issues

The informations charging Reed and Floyd with aiding and abetting aggravated burglary stated that they did “aid and abet entering into a building, to-wit: residence of Rolland Gallagher, Route 5, Paola, Kansas, occupied during the time of said entrance.” The State concedes that no one was in the Gallagher house when Bouser and Reed first entered. Therefore, defendants contend that the house was not occupied at the time it was entered and that the crime described by the information was not shown.

Defendants’ argument raises two related questions: first, does the crime of aggravated burglary require proof that the victim was present in the structure at the time it was entered and second, was the charge in this case sufficient?

The statutes defining burglary and aggravated burglary (K.S.A. 21-3715 and 21-3716) differ only in that proof of the latter offense requires that the place of the burglary be one “in which there is some human being.” The purpose behind the aggravated burglary statute is to describe a more serious offense than simple burglary when there is the possibility of contact between the victim and the burglar and the accompanying potential for a crime against the person to occur. This danger is just as great regardless of when during the burglary the victim comes to be in the building. Moreover, it has been held that the burglar need not know that someone else is present in the structure entered nor must he intend to enter an occupied structure to be guilty of aggravated burglary. State v. Price, 215 Kan. 718, 721, 529 P.2d 85 (1974). Thus, neither the knowledge nor the conduct of the burglar elevates his offense to aggravated burglary; rather, the severity of the crime depends upon the mere presence or absence of any human being in the same structure.

A number of other states’ statutes define a degree of aggravated burglary as a burglary of an inhabited or occupied dwelling. In cases arising under these statutes, issues have often arisen concerning the necessity of proving the occupancy of the dwelling at the time of the unlawful entry. Annot., 20 A.L.R. 4th 349. Some states hold that a person need not be present in the dwelling for the crime of aggravated burglary of an occupied dwelling to occur while others require physical presence in addition to customary habitation. Compare People v. Traylor, 100 Mich. App. 248, 298 N.W.2d 719 (1980) with Reeves v. State, 245 Ala. 237, 16 So. 2d 699 (1944). By contrast, our statute makes no distinction based on the character of the premises and establishes no temporal requirements concerning the presence of the victim. Thus, the decisions of other states are of no precedential assistance.

The Judicial Council notes following PIK Crim. 2d 59.18 state, without citing any authority, that “[w]hen a person enters the premises after the burglary has commenced but before the defendant has left the premises, the offense constitutes aggravated burglary.”

In addition, in State v. Lora, 213 Kan. 184, 187, 515 P.2d 1086 (1973), our Supreme Court announced the following dicta:

“Burglary is defined in K.S.A. 1972 Supp. 21-3715 and 21-3716. The latter statute relates to aggravated burglary which differs only in the added requirement that the place of the burglary be occupied by a human being during the course of the burglary.” [Emphasis added.]

Subsequently, in the Lora opinion the Court specifically rejected defendant’s argument that he could not be convicted of aggravated burglary because his victims were not present in their homes when he entered. The Court stated as follows:

“Defendant also contends it was error to convict him of aggravated burglary under Counts 1 (Young) and 6 (Abderholden) because there were no persons present in the house when he entered. The contention is without merit because he remained in wait until his victims returned and entered their homes. K.S.A. 1972 Supp. 21-3716 reads:

“ ‘Aggravated burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is some human being, with intent to commit a felony or theft therein.’ (Emphasis added.)

“Defendant overlooks the provision in this statute which in the alternative proscribes knowingly and without authority ‘remaining within any building ... in which there is some human being, with intent to commit a felony . . . .’ ” Lora, 213 Kan. at 195.

Thus, the Court appeared to rely upon the statutory phrase “remaining within” to conclude that aggravated burglary includes all burglaries during which a victim is in the burglarized structure, regardless of the timing of the victim’s arrival. In this case, unlike Lora, the charging documents did not include the “remaining within” language and thus, defendants argue that Lora is not authority for validating the informations.

Despite Lora’s apparent reliance on the “remaining within” clause, it is our conclusion that the rationale of the opinion need not confine its holding. Moreover, the “entering into” or “remaining within” language found in both the burglary and aggravated burglary statutes has been held to describe different factual situations concerning the conduct of the burglar. In State v. Brown, 6 Kan. App. 2d 556, Syl. ¶ 4, 630 P.2d 731 (1981), this Court stated:

“As used in K.S.A. 21-3716, the phrases ‘entering into’ and ‘remaining within’ refer to distinct factual situations. ‘Entering into’ refers to the situation where a defendant enters without authorization. The specific intent to commit a felony or theft must exist at the time of the unauthorized entry. ‘Remaining within’ refers to the situation where defendant’s initial entry is authorized, but at some later time that person’s presence becomes unauthorized.”

Thus, Brown construes the troublesome language of the statute as relating to the timing of the burglar’s formation of intent rather than that of the victim’s presence. Since the burglars’ entrance here was just as unauthorized as their act of remaining within the house, the timing of their evil intent was not at issue. Therefore, the absence of any reference to remaining within the residence was not only immaterial to a charge of aggravated burglary, it would have been inappropriate under the facts of this case.

In summary, we conclude that the crime of aggravated burglary occurs whenever a human being is present in the building during the course of the burglary. Therefore, we hold that an information charging that offense need not specify the point in time at which a victim was present so long as it is alleged that a human being was present sometime during the course of the burglary. The language in the informations which attempts to tie the presence of the victim with the illegal entry is therefore not material to the definition of a violation of K.S.A. 21-3716 and its inclusion should not have misled defendants’ preparation. State v. Brooks, 217 Kan. 485, 488, 536 P.2d 1365 (1975). Defendants’ claim that there was a variance between the evidence and the information is without merit.

Defendants also contend that the information failed to sufficiently charge the crime of aiding and abetting attempted theft because it did not specify the victim or particulars of the alleged theft attempt. The elements of an attempt were set out in the information and the theft defined by reference to the statute. In addition, the bill of particulars and the other counts of the information served to inform the defendants of the charge.

Defendants’ final complaint is that the trial court erred in not giving a complete instruction on the lesser included offense of burglary. In particular, they argue that the instructions failed to advise the jury in either trial that “[w]hen there is a reasonable doubt as to which of two or more degrees of an offense he is guilty, he may be convicted of the lowest degree only.” K.S.A. 21-3109. However, no request was made for such an instruction at the trial of these cases. Since the instructions given were not clearly erroneous, defendants cannot predicate reversible error on a question which was not presented to the trial court. State v. Trujillo, 225 Kan. 320, 324, 590 P.2d 1027 (1979).

II. Issues Raised by Reed

Defendant Reed contends that it was clearly erroneous for the court to have failed to give an instruction advising the jury to receive the testimony of an accomplice with caution. Such an instruction was not requested at trial.

In State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 (1981), our Supreme Court found that when a cautionary instruction is refused, the extent of corroboration for the accomplice testimony determines the extent of the prejudice, but it did not find that to fail to give such an instruction sua sponte would be reversible error. Even if Reed had requested the instructions, Bouser’s testimony concerning Reed’s involvement was substantially corroborated. Gallagher testified that he saw Reed in the house and running from the scene. Reed was found by the police in the immediate vicinity just after the burglary breathing heavily as if he had just exercised strenuously. In sum, the testimony of Bouser was sufficiently corroborated to render the failure to give a cautionary instruction harmless error.

Reed next raises the issue of ineffective assistance of counsel. This issue was not raised at any time during the trial nor on the defendant’s motion for a new trial. Since the point was not presented to or determined by the trial court, it is not properly before this court and will not be considered for the first time on appeal. State v. Porter, Green & Smith, 228 Kan. 345, 354, 615 P.2d 146 (1980).

III. Issues Raised by Floyd

Defendant Floyd maintains that because of the newspaper articles covering the case his right to a fair trial was prejudiced. Floyd’s motion for a change in venue, which was concurred in by the prosecution, was refused by the trial court.

A change of venue in a criminal case lies within the sound discretion of the trial court. The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. Media publicity alone has never established prejudice per se. Prejudice must be established not as a matter of speculation but as a demonstrable reality. State v. May, 227 Kan. 393, 394-95, 607 P.2d 72 (1980). There was no significant difficulty experienced in selecting a jury satisfactory to both parties and no other demonstration of prejudice was offered. We conclude that the trial court did not abuse its discretion in refusing a change in venue.

Following Floyd’s trial, it was learned that during deliberation the jury asked the bailiff a question concerning the trial. The precise substance of the question is not known but the bailiff testified to the court that she told them that “if they would read their instructions, that it might tell them in there, and try to remember what he said in closing argument; but if they wanted to write it down, I would take it and find out for them.” The bailiff did not inform the court during the jury deliberations that they had asked her a question. The trial judge in denying Floyd a new trial found that while the bailiff should have communicated to the court the question of the jury, the bailiff did not advise the jury of her beliefs or attempt to instruct them in the law.

The conduct of the bailiff clearly violated K.S.A. 22-3420 but not all improper communication with a jury necessitates a new trial. State v. Coburn, 220 Kan. 743, 746-747, 556 P.2d 376 (1976), cites the following rules:

“Not every jury is to be disqualified because of some improper communication or contact made to a juror prior to or during trial. The granting of a mistrial or new trial because of such conduct is generally regarded as resting in the sound discretion of the trial judge who is best able to assess the impact of any such approach upon the fairness of the trial .... To warrant reversal of a judgment because of improper contact or communication between a juror and an outsider, there must be some showing or indication of injury, actual or potential, to the complaining party, or the act or conduct complained of must be such as to afford reasonable grounds to question the fairness of the trial or the integrity of the verdict, or as would tend to destroy or impair public confidence in trial by jury.”

There is nothing to indicate the misconduct of the bailiff had any effect upon the verdict rendered in this case. Moreover, the effect of the trial judge’s ruling, who was close to the situation, is that he assessed the contact as harmless and we cannot declare an abuse of discretion in that ruling. State v. Coburn, 220 Kan. at 747.

We have considered the other points raised by the defendants on appeal and find them to be without merit.

Affirmed.