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State v. Storey

April 6, 2007

STATE OF KANSAS, APPELLEE,
v.
DONALD D. STOREY, APPELLANT.



Appeal from Sedgwick District Court; REBECCA L. PILSHAW, judge.

SYLLABUS BY THE COURT

1. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. Interpretation of a statute is a question of law over which we have unlimited review.

3. Canons of statutory interpretation are cited and applied.

4. A plain reading of the Kansas burglary statute, K.S.A. 21-3715, does not require that a building that is not a dwelling be completely enclosed or that it present a barrier to entry before it constitutes a building under the statute.

5. In determining whether an unfinished structure is a building under the burglary statute, whether it is completely enclosed or presents a barrier to entry is not a critical factor.

6. A structure that will become a hospital and which is 70% complete with four walls, a roof, and a concrete floor is a building under the Kansas burglary statute.

7. Before assessing Board of Indigents' Defense Services attorney fees, the trial court must inquire into a defendant's ability to pay and the burden such imposes and then state on the record how those factors are weighed.

8. In using a defendant's prior convictions to enhance a sentence under the Kansas Sentencing Guidelines Act, it is not required that those prior convictions be proven to jury beyond a reasonable doubt.

9. Constitutional grounds for reversal asserted for the first time on appeal are not properly before an appellate court for review.

The opinion of the court was delivered by: Bukaty, J.

Affirmed in part, reversed in part, and remanded with directions.

Before MCANANY, P.J., PIERRON, J., and BUKATY, S.J.

Donald D. Storey appeals his conviction and sentence for burglary. He raises three issues: The evidence was insufficient to support a burglary conviction; the district court erred in using his prior criminal record to increase his sentence; and the trial court erred in ordering him to reimburse the Board of Indigents' Defense Services (BIDS) without first considering on the record his ability to pay such fees.

The sufficiency of the evidence issue presents us with the question of whether the building Storey entered, which was under construction at the time, constituted a building under our burglary statute. Concluding that it does, we affirm the conviction. As to the sentence, we conclude the district court did not err in using Storey's prior criminal record to increase his sentence. However, we reverse the order to reimburse BIDS because of the ...


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