State v. Downing

456 P.3d 535

STATE of Kansas, Appellee,

v.Charity DOWNING, Appellant.

No. 116,629

Supreme Court of Kansas.

Opinion filed January 24, 2020.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Andrew R. Davidson, senior assistant district attorney, argued the cause, and Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Biles, J.:

The State of Kansas seeks review after a Court of Appeals panel reversed a conviction of burglary of a dwelling based on the building owner's testimony that no one lived there when the crime occurred and that he had had no plans to live there or rent it out. State v. Downing , No. 116,629, 2017 WL 6397016 (Kan. App. 2017) (unpublished opinion). We agree with the panel. The statutory definition of "dwelling" requires proof the burgled place was used as a human habitation, home, or residence when the crime occurred, or proof that someone had a present, subjective intent at the time of the crime to use the burgled place for such a purpose. See K.S.A. 2018 Supp. 21-5111(k) (defining "dwelling" as "a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence " [Emphasis added.] ). And since the State's case lacked that proof, the panel correctly reversed the conviction and vacated the defendant's sentence.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Charity Downing of burglary of a dwelling and attempted theft under $1,000. The State alleged Downing was responsible for items missing from a rural farmhouse. In his testimony, Jeff Keesling, the property owner, described it as a 100-year-old farmstead with a house, barns, and sheds. The prosecutor asked:

"Q. Okay. Meaning is the house itself a residence, meaning people lived there?

"A. Yes. It has been up until just a few, a couple years ago, three years ago and then they moved out and it's sitting there empty but it's still, we keep stuff in there and it's a huge house." (Emphasis added.)

When asked who lived at "this residence" before he owned it, Keesling said his grandparents, his father, his sister, her family, and himself had all lived in the house at various times. On cross-examination, Keesling agreed no one had lived at the farm for about two years, including at the time of the crime.

On redirect, the prosecutor had the following exchange with Keesling:

"Q. Mr. Keesling, the residence there, was that, the house is basically intended for use as a residence even though it wasn't being lived in at the time?

"A. Yes. I would like somebody to live there but I can't. It's too dangerous to rent it to somebody with all my stuff out there ." (Emphasis added.)

In submitting the case to the jury, the district court instructed on the burglary charge:

"Instruction No. 6: In Count One Charity Downing is charged with the offense of burglary. The Defendant pleads not guilty. To establish this charge each of the following claims must be proved:

1. The defendant knowingly entered or remained within a building which is a dwelling, 35709 West Clark Road, Sylvia, Kansas.

2. That the defendant did so without authority; and

3. That the defendant did so with the intent to commit a theft therein; and

4. That this act occurred on or about the 30th day of November, 2014 in Reno County, Kansas."

The term "dwelling" was not defined in the court's instructions. But during closing arguments, the State told the jury the farmhouse "was a house. That people lived in the house meaning it was a dwelling and that the people may not have lived there at the time but that property was intended as a dwelling and that's, they had property inside." Defense counsel countered,

"I submit we don't know for sure that [the building] is a dwelling. You heard people had previously lived there but it had been empty for a long time. It was used for storage. Storage upstairs, a few items downstairs. No one had lived there or used it as a dwelling for quite some time."

The State replied,

"[W]e know ... that Mr. Keesling owned this house, that he had property in it and it was a dwelling. It was not a barn or a shed or an office. It was where people lived, a dwelling. Even though the law doesn't require that I prove that somebody lived there at the time it was intended as a dwelling. It was a dwelling and he had this house, he had stuff inside and he took pretty reasonable precautions to make sure nobody went in his house."

After the jury convicted Downing, she moved for judgment of acquittal, arguing the State failed to prove several elements of the charged offenses, including that the structure in question "was not being used as a dwelling, but was being used as storage." She simultaneously moved for a new trial asserting more generically that "[t]he evidence in the light most favorable to the State does not support the finding beyond a reasonable doubt that Ms. Downing committed either of the crimes stated above." The district court denied these motions without elaboration.

Downing timely appealed, and a Court of Appeals panel agreed with her that the State failed to prove beyond a reasonable doubt that the structure " ‘is used or [is] intended for use’ as a place for human habitation." Downing , 2017 WL 6397016, at *2. It reversed the burglary conviction and vacated her sentence.

The State timely petitioned for this court's review, arguing the panel erred in two respects: (1) concluding the evidence could not support the burglary conviction, and (2) reversing the conviction, rather than remanding for resentencing on a lesser included charge. We granted review.

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

THE STATE FAILED TO PROVE THE FARMHOUSE WAS A DWELLING

Whether sufficient evidence supports Downing's burglary conviction turns on whether the statutory definition of "dwelling" requires proof that someone had a present, subjective intention to use the burgled building as a human habitation, home, or residence because there was no evidence it was actually being used for any of those purposes when the crime occurred. The State argues this intent can be inferred simply from the building's character. We disagree.

Standard of review

When a defendant challenges the evidence's sufficiency to support a conviction, an appellate court reviews "all the evidence in the light most favorable to the State" to determine whether "a rational fact-finder could have found the defendant guilty beyond a reasonable doubt." State v. Howling , 310 Kan. 633, 642, 448 P.3d 409 (2019). In doing so, the court does "not reweigh evidence, resolve evidentiary conflicts, or determine witness credibility ...." 310 Kan. at 642, 448 P.3d 409.

Resolving the sufficiency question in Downing's case requires interpretation of the burglary statute. See State v. LeClair , 295 Kan. 909, 911, 287 P.3d 875 (2012) (interpreting statute to resolve defendant's argument that "conviction lack[ed] sufficient evidence as a matter of law" based on defendant's own interpretation of statute). Statutory interpretation is a question of law over which an appellate court exercises unlimited review. State v. Chavez , 310 Kan. 421, 425, 447 P.3d 364 (2019).

Discussion

Under the Kansas criminal code,

"(a) Burglary is, without authority, entering into or remaining within any:

(1) Dwelling, with intent to commit a felony, theft or sexually motivated crime therein;

(2) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexually motivated crime therein; or

(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexually motivated crime therein." K.S.A. 2018 Supp. 21-5807.

" ‘Dwelling’ means a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence ." (Emphasis added.) K.S.A. 2018 Supp. 21-5111(k). The question in Downing's case is whether Keesling's farmhouse qualified as a dwelling under the statute when the facts indicate it was not being used for such purposes when the crime occurred and Keesling had no current plans to use it or rent it out even if he preferred to do so.

This court has not previously considered Downing's issue. But the Court of Appeals has identified circumstances to distinguish when a house or mobile home can be a dwelling when no one lives there. See, e.g., State v. Alvis , 30 Kan. App. 2d 889, 892, 53 P.3d 1232 (2002) ; Herrick v. State , 25 Kan. App. 2d 472, 478-79, 965 P.2d 844 (1998) ; State v. Campbell , No. 112,159, 2015 WL 5458574, at *4 (Kan. App. 2015) (unpublished opinion). These cases generally examined three factors—the owner's intended use for the property, the property's character, and the property's conditions—with inconsistent results.

In Alvis , which involved two houses, the panel held one was a dwelling within the statutory meaning because the owner intended to move into it five days after an attempted burglary, even though it was still under construction when the crime occurred. But the panel also held another home under construction was not a dwelling because there was no similar evidence showing occupancy was imminent and there was no evidence of its conditions to indicate whether it was even capable of habitation. Alvis , 30 Kan. App. 2d at 891-92, 53 P.3d 1232. In Campbell , a mobile home being restored after a fire was considered a dwelling because the owner intended to use it as a residence for his children, and not for anything else, such as a storage unit. The owner's intent to use the then-vacant, damaged...