Appeal from Shawnee District Court, JAN W. LEUENBERGER, judge.
1. When an appellate court considers a challenge to the district court's admission of evidence, it must first consider whether the evidence is relevant. After relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district court's discretion, depending on the contours of the rule in question. When the issue involves the adequacy of the legal basis on which the district court decided to admit or exclude evidence, the appellate court reviews the decision de novo.
2. Hearsay is evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter asserted. Testimony is not inadmissible as hearsay evidence when it is not offered to prove the truth of the matter asserted.
3. When an out-of-court statement is offered as evidence only to explain a law enforcement officer's actions in the investigation of a crime, the statement is not offered to prove the truth of the matter asserted and is not hearsay. However, there are limits to the admissibility of statements in this context. When such a statement tends to identify the accused and establishes his or her guilt of the crime, then the statement is offered to prove the truth of the matter asserted and constitutes hearsay evidence.
4. When an out-of-court statement is offered as evidence for the limited purpose of explaining a law enforcement officer's actions in the investigation of a crime, the district court should instruct the jury of the limited purpose for which the evidence is admitted.
5. An out-of-court statement that is not offered to prove the truth of the matter asserted is not hearsay and does not violate the defendant's constitutional confrontation rights as enunciated in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).
6. Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when it appears from the whole record that substantial justice has been done. Even an error of constitutional magnitude may be considered harmless if the appellate court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.
7. When the sufficiency of the evidence is reviewed in a criminal case, an appellate court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
8. A conviction for even the gravest offense may be sustained by circumstantial evidence. Circumstantial evidence is evidence of events or circumstances from which a reasonable factfinder may infer the existence of a material fact in issue.
9. The defendant's entry into a structure in order to establish the crime of burglary, like any element of a crime, may be proven by circumstantial evidence.
10. A sentencing court assessing attorney fees to reimburse the Board of Indigents' Defense Services under K.S.A. 22-4513 must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.
11. The fact that a defendant's sentence under the Kansas Sentencing Guidelines Act is based in part upon the defendant's criminal history score does not violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
12. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position.
The opinion of the court was delivered by: Malone, J.
Affirmed in part, reversed in part, and remanded ...