368 P.3d 1074
Kan.2016Background
- On Nov. 20, 2011, homeowner Raul Flores Ramos returned to his house, found the front door kicked in, and discovered Michael C. Daws inside; Daws left when asked. Boxes had been disturbed and property missing; two grocery bags containing others’ property were present.
- Daws admitted being inside, testified he followed someone who kicked the door and stayed believing the house abandoned, and denied intent to steal.
- The State charged aggravated burglary under K.S.A. 2015 Supp. 21-5807(b), alleging Daws "enter[ed] into" a dwelling "in which there was a human being" (Ramos) with intent to commit theft; the jury was instructed only on the "entering into" theory.
- Jury convicted Daws of aggravated burglary; the Court of Appeals affirmed relying on Reed and its progeny (holding victim need only be present sometime during the burglary), and this court granted review.
- The Kansas Supreme Court majority reversed the aggravated burglary conviction, holding that when the State charges only the "entering into" means, the human-presence attendant circumstance must exist at the time of entry; where the victim arrived after entry, the proper charge was "remaining within."
- The court overruled Reed and related Court of Appeals decisions to the extent they allowed conviction under an "entering" theory when the victim was not present at the moment of entry. Justice Luckert (joined by two justices) dissented.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Daws) | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated burglary when victim arrived after entry | Aggravated burglary may be proved if a person is present at any time during the burglary; victim need not be present at moment of entry | Conviction under "entering into" requires human presence at time of entry; no such presence here, so insufficient evidence | Reversed: when charged only with "entering into," human presence must exist at time of entry; insufficient evidence here |
| Proper theory/alternative means (entering into vs. remaining within) | The distinction is immaterial; statute covers continuing unauthorized presence so presence anytime during offense suffices | "Entering into" and "remaining within" are distinct alternative means; attendant circumstances must concur with the charged means | Court treated the two as legally distinct means for purposes of proof and required concurrence for the charged means; overruled Reed line |
| Instruction on lesser included offense (simple burglary) | N/A (State opposed) | Requested a lesser included instruction because victim not present at entry | Majority: unnecessary to reach after reversal; dissent: failure harmless because presence undisputed and would not have affected verdict |
| Validity of "any/any" reasonable doubt instruction and use of criminal history to calculate sentence | N/A | Challenged both jury reasonable-doubt instruction and use of criminal history | Court: upheld prior holdings — "any/any" instruction and use of criminal history for sentencing affirmed (not disturbed here) |
Key Cases Cited
- State v. Lora, 213 Kan. 184 (Kan. 1973) (upheld aggravated burglary where evidence showed defendant remained inside until victims returned)
- State v. Reed, 8 Kan. App. 2d 615 (Kan. Ct. App. 1983) (held human presence during course of burglary sufficed even if not present at moment of entry)
- State v. Gutierrez, 285 Kan. 332 (Kan. 2007) (explains "entering into" and "remaining within" are legally distinct factual situations and concurrence of intent and entry is required)
- State v. Bowen, 262 Kan. 705 (Kan. 1997) (stated specific intent must exist at time of unauthorized entry when charging entering into)
- State v. Brown, 295 Kan. 181 (Kan. 2012) (clarified when statutory phrasing indicates alternative means versus options describing a material element)
- State v. Frierson, 298 Kan. 1005 (Kan. 2014) (applied prior holdings regarding aggravated burglary as alternative means crime)