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STATE v. HARPER

January 19, 1990.

STATE OF KANSAS, Appellee,
v.
BOBBY G. HARPER, Appellant.



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

[246 Kan. 15]

      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 The Court of Appeals affirmed the district court in an unpublished opinion filed March 17, 1989.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 conviction.

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

[246 Kan. 16]

      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 concessions.

  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 records.

  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 granting

[246 Kan. 17]

      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 must determine

 
"`"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 [1978]).
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 ...


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