The opinion of the court was delivered by
Bobby Harper appeals his conviction by a jury of one count of
burglary, K.S.A. 21-3715. The jury acquitted the
defendant of a charge of theft. The Court of Appeals affirmed the
district court in an unpublished opinion filed March 17, 1989. We
granted the defendant's petition for review and reverse the
Sonny Dukes owned and operated Dukes' Diamonds, a complex of
softball fields in Wichita. Dukes contracted with Bobby and Kenny
Harper, brothers, to pour cement and build a garage adjacent to
the softball field. In exchange, the brothers were allowed to
field a team for two seasons without paying entrance fees and
Dukes was to pay the them $700 for their work. Dukes paid
defendant $400 but refused to pay more until the job was
completed. The job was to be completed by June of 1986 but, by
the end of that ball season in October, only the cement slabs and
some of the framing on the garage had been completed. Dukes
agreed that defendant did most of the work. When defendant
inquired about who would get the free slot for a team in the
league during the 1987 season, Dukes informed him that no one
would get the slot until the work was completed and then Kenny
would be entitled to the slot because the contract was written
under the name of Kenny's business.
In addition to the contract discussed above, Dukes hired
defendant as the head groundskeeper for the 1986 season. Dukes
gave him keys to the entire building to enable him to do the work
required by the head groundskeeper. When Dukes realized in the
latter part of the season of 1986 that the work to be done by the
Harpers would not be completed, he asked for his keys back. When
defendant told Dukes that he needed the keys to get his tools,
Dukes did not demand that the keys be returned but, instead,
allowed him to retain them.
Dukes testified that he gave defendant permission to have
access to the whole building when he was running the grounds crew
in 1986. He also gave defendant permission to stay at the
building overnight to take care of business or if he was too
intoxicated to drive. Dukes did not tell defendant in 1987 that
he could not stay overnight. Dukes never fired defendant.
In addition to the construction contract and his employment as
head groundskeeper, defendant also worked for Dukes as an umpire.
In his position as an umpire, defendant kept track of his own
hours and was apparently paid on a per game basis. According
to defendant, Dukes did not pay him for all of the games that he
umpired, did not pay him a $50 bonus for watching the operations
while Dukes was on vacation, and did not give him his discount on
On April 29, 1987, Officer Donald Luther of the Wichita Police
Department was driving by Dukes' Diamonds at night when he saw an
individual in the clubhouse. After waiting for a back-up, he
entered the building but found no one inside. He did notice that
a metal filing cabinet looked as if it had been forced open.
Outside, the officer noticed someone lying face down near a fence
that surrounded the area. Using his flashlight, the officer
approached the individual, placed his foot on the individual's
back, and told the individual to take his hands out from
underneath him. When the individual finally complied, his hands
were handcuffed and he was lifted up and placed on his feet.
Although the individual's eyes were bloodshot, the officer did
not recall indications of intoxication such as the odor of
alcohol or unsteady walking. When the officer asked what he was
doing there, the person replied that he stayed there and that
keys to the place could be found in his pocket. This person was
defendant. The officer tried the keys, which opened the locks.
Laying on the ground near defendant were a hammer and a shirt.
Defendant testified at trial that the hammer belonged to him and
that he had no intention of taking the shirt. He told the jury
that he went into the office of Dukes' Diamonds to obtain records
to pursue a lawsuit against Dukes to get paid for his work.
Defendant believed that the filing cabinet contained the records,
which is why he forced it open. He left the building to go to his
van to get tools to unscrew the lock of the filing cabinet. He
used the shirt to wipe his fingerprints off the filing cabinet
and draped it over his shoulder with no intention of taking it.
He merely wanted the records to prove his case and was not
looking for money. Defendant testified that he had permission to
enter the office but admitted he had no permission to take the
The jury acquitted defendant of the charge of theft but
convicted him of burglary.
While the defendant raises several issues on appeal, the
dispositive issue is whether the district court erred in not
the defendant's motion for judgment of acquittal. Defendant
argues that his motion for judgment of acquittal should have been
granted because the evidence presented by the State did not
establish that defendant lacked authority to enter or remain in
the Dukes' Diamonds office, an essential element of burglary. In
ruling upon a motion for judgment of acquittal, a trial judge
"`"whether upon the evidence, giving full play to the
right of the jury to determine credibility, weigh the
evidence, and draw justifiable inferences of fact, a
reasonable mind might fairly conclude guilt beyond a
reasonable doubt. If he concludes guilt beyond a
reasonable doubt is a fairly possible result, he must
deny the motion and let the jury decide the matter.
If he concludes that upon the evidence there must be
such a doubt in a reasonable mind, he must grant the
motion."'" State v. Lawton, 241 Kan. 140, 143,
734 P.2d 1138 (1987) (quoting State v. Nemechek,
223 Kan. 766, 768, 576 P.2d 682 ).
For a question involving sufficiency of the evidence, the
standard of review on appeal is whether the evidence, when viewed
in the light most favorable to the prosecution, convinces the
appellate court that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt.
Dukes had given defendant a key and permission to enter the
building for a variety of reasons. Defendant needed full access
to the building while he was head groundskeeper in 1986. The
building is also where he stored the tools needed for the
construction work at the ball park. In addition to these
work-related uses of the building, Dukes had told defendant that
he was free to use the building and even to stay all night if he
needed to. Defendant testified that this time he entered the
building to find employment records to use in suing Dukes for
money he believed was owed to him. The jury apparently believed
defendant's explanation for his presence in the building and
acquitted him of theft of the shirt and hammer found near him
when he was arrested.
In concluding that the trial court did not err in refusing to
sustain the motion for acquittal, the Court of Appeals relied on
a decision by the Illinois appellate courts>. In People v. Hart,
132 Ill. App.2d 558, 561, 270 N.E.2d 102 (1971), the court ...