State v. Charles, 298 Kan. 993

Background

In 2008 Calvin Charles was charged with nine counts of aggravated burglary (severity level 5 person felonies) and nine counts of misdemeanor theft for stealing purses/wallets and items from sleeping victims; items and cards were later found near his residence and in his apartment.
Jury convicted Charles on 8 of 9 aggravated burglary counts and 8 of 9 misdemeanor theft counts; he was acquitted on the counts tied to one residence (Counts VII and XVI).
Two victims testified their losses exceeded $1,000; the jury was instructed that theft convictions required proof the value was less than $1,000.
At sentencing the judge ordered restitution “as contained within the presentence report”; the PSI listed a specific amount for one victim, left another as “to be determined,” and the judge later entered a written restitution order setting the missing amount ($1,192.69) and also included restitution tied to acquitted charges.
The Court of Appeals affirmed convictions, vacated restitution tied to acquitted charges, and upheld the post-sentencing restitution entry based on Cooper; the Kansas Supreme Court granted review of remaining issues.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Charles)	Held
Sufficiency of evidence on aggravated burglary (entering into vs. remaining within)	Evidence supported both alternative means (entering and remaining); jury may convict on either.	There was no evidence Charles "remained within" the homes; only entry proved.	Affirmed: under Gutierrez and related precedent there was sufficient evidence to support the “remaining within” theory when viewed in State's favor.
Sufficiency re: two misdemeanor theft convictions where victims valued losses > $1,000	Jury properly weighed credibility and value; circumstantial testimony permitted finding value < $1,000.	Evidence conclusively showed value exceeded $1,000 so convictions should be felony or reversed.	Affirmed: convictions stand because jurors could rationally find value < $1,000; appellate court must defer to jury credibility/weight.
Subject-matter jurisdiction to set additional restitution by written order after sentencing (amount left “to be determined” in PSI)	Court can set restitution after sentencing (Cooper) and did so here.	Court lacked jurisdiction to set a new restitution amount after sentencing because sentencing was final and judge neither continued sentencing nor held a further hearing with defendant present.	Vacated post-sentencing restitution ($1,192.69) for the victim whose PSI amount was “to be determined”; Hall and Frierson require an express continuance or a continued hearing (or valid waiver) to preserve jurisdiction.
Use of criminal history score at sentencing (Apprendi challenge)	Reliance on prior decisions (Ivory) allows use of criminal history in sentencing without jury proof beyond a reasonable doubt.	Use of criminal history increased maximum penalty improperly without jury finding (Apprendi).	Rejected: follows Ivory; issue preserved for federal review but held meritless under Kansas precedent.

Key Cases Cited

State v. Gutierrez, 285 Kan. 332 (distinguishes "entering into" and "remaining within" and allows both means)
State v. Cook, 286 Kan. 1098 (explains when a statute presents alternative means)
State v. Timley, 255 Kan. 286 (unanimity rules for alternative means offenses)
State v. Rojas-Marceleno, 295 Kan. 525 (jury unanimity and "super-sufficiency" requirement for alternative means)
State v. Newcomb, 296 Kan. 1012 (discusses requirements when statute sets alternative means)
State v. Cooper, 267 Kan. 15 (district court retained jurisdiction to set restitution after sentencing in prior practice)
State v. Hall, 298 Kan. 978 (clarifies procedure required to preserve court jurisdiction to set restitution after sentencing)
State v. Frierson, 298 Kan. 1005 (reaffirms Hall requirements and sentencing/restitution finality)
State v. Carpenter, 228 Kan. 115 (permitting conviction of lesser-included or lesser-classified offenses when evidence could support greater offense)
State v. Ivory, 273 Kan. 44 (upholds using criminal-history for sentencing against Apprendi-type challenge)
State v. Gomez, 234 Kan. 447 (judicial notice that personal property has some value)