State v. Frierson
298 Kan. 1005
| Kan. | 2014Background
- In April 2008 two men (Frierson and Davis) forced entry into Otis Webb’s home; Frierson struck and pinned Webb while Davis stole $950 from Webb’s pockets. Webb lost teeth and later had additional dental work.
- A baseball cap left at the scene was collected by police and later subjected to DNA testing linking Frierson to the cap; the officer who originally collected the cap was unavailable to testify at trial.
- Frierson was tried for aggravated robbery and aggravated burglary; the district court admitted the cap over a chain-of-custody objection, and the jury convicted on both counts.
- Frierson requested a battery instruction as a lesser included offense of aggravated robbery; the trial court denied the request.
- At sentencing the court ordered $950 restitution, held the restitution amount open for 30 days to resolve dental-bill attribution, then entered an amended restitution order raising total to $1,262 without a further hearing; defense counsel signed the later order. Frierson appealed, raising six issues; the Kansas Supreme Court granted review.
Issues
| Issue | Frierson's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for "remaining within" alternative of aggravated burglary | Gutierrez was wrongly decided; "remaining within" must require a prior lawful entry, and here no revocation of authority was shown | "Entering into" and "remaining within" are distinct but not mutually exclusive; evidence (assault inside house) supported "remaining within" | Affirmed: evidence sufficient to support "remaining within" theory under Gutierrez; conviction stands |
| Admissibility of cap (chain of custody) | Break in chain of custody (collecting officer absent) made cap inadmissible | Any chain defects go to weight, not admissibility; other witnesses tied the sealed bag from storage to lab | Affirmed: trial court did not abuse discretion — reasonable certainty cap was not materially altered |
| Lesser included offense instruction (battery for aggravated robbery) | Battery (bodily-harm theory) is a lesser included offense and should have been instructed | Battery’s elements (as defined) are not identical to a subset of aggravated robbery elements | Affirmed: battery is not a lesser included offense under the strict elements test; denial proper |
| District court jurisdiction to amend restitution after sentencing hearing | Increasing restitution 28 days after sentencing without defendant present exceeded court’s jurisdiction | Court retained jurisdiction; parties agreed to a 30-day extension and defense counsel signed the order | Affirmed: restitution increase upheld (procedure acceptable under prior practice; Hall announced stricter future requirements) |
Key Cases Cited
- State v. Gutierrez, 285 Kan. 332 (Kan. 2007) (distinguishes ‘‘entering into’’ and ‘‘remaining within’’ burglary theories and allows both to apply in a single case)
- State v. Horton, 283 Kan. 44 (Kan. 2007) (chain-of-custody test: admissible if reasonable certainty evidence was not materially altered)
- State v. Shadden, 290 Kan. 803 (Kan. 2010) (framework and standards for reviewing motions in limine and admissibility)
- State v. Alderete, 285 Kan. 359 (Kan. 2007) (strict elements test for lesser included offenses under K.S.A. 21-3107)
- State v. Hall, 298 Kan. 978 (Kan. 2014) (restitution must be set in open court or defendant may waive presence; courts should explicitly order continuance/bifurcation)
- State v. Ivory, 273 Kan. 44 (Kan. 2002) (use of criminal history in sentencing does not require jury finding beyond a reasonable doubt)