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State v. Gutierrez

December 7, 2007


Review of the judgment of the Court of Appeals in an unpublished opinion filed August 11, 2006. Appeal from Lyon district court; JOHN O. SANDERSON, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.


1. When the sufficiency of 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. Aggravated burglary is defined in K.S.A. 21-3716 as "knowingly and without authority entering into or remaining within any building . . . in which there is a human being, with intent to commit a felony . . . therein." As used in that statute, the phrases "entering into" and "remaining within" refer to legally distinct factual situations. The entering into element is satisfied when the evidence shows that a defendant crossed the plane of a building's exterior wall. Remaining within refers to a defendant's presence in the building's interior after any entering into, authorized or unauthorized, has been accomplished.

3. Both unauthorized entering into and unauthorized remaining within may be present in a single burglary or aggravated burglary case. Neither is necessarily instantaneous.

4. To commit an burglary or aggravated burglary, a defendant's formation of intent to commit a felony in a building must, at some point, coexist with an unauthorized entering into the building or an unauthorized remaining within it. It is not necessary, however, to prove remaining within burglary or aggravated burglary to show that the intent to commit a felony was precisely contemporaneous with any withdrawal of a defendant's authority to be inside the building.

5. On the record of this case, the evidence was sufficient to support defendant's conviction of aggravated burglary.

6. Attempted voluntary manslaughter is a legally viable crime in Kansas.

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

Defendant Mardoqueo Gutierrez challenges his criminal convictions arising out of a violent encounter with his estranged wife. We granted his petition for review on two issues: the sufficiency of the evidence against him on aggravated burglary and the legal viability of the crime of attempted voluntary manslaughter.

Factual and Procedural Background

Luz Gutierrez had obtained a protection from abuse order against defendant, her estranged husband, because of a May 23, 2004, incident in which he grabbed her by the neck and choked her until she nearly lost consciousness. Defendant also was arrested and charged with domestic battery in municipal court in Emporia.

On the afternoon of July 20, 2004, defendant appeared in the municipal court and entered into a diversion agreement in the domestic battery case. Although the agreement prohibited him from having contact with Luz, he left the municipal court and drove to her new apartment--the address of which he had obtained from a mutual friend. He parked his truck a block away so that Luz would not see him.

Luz had just arrived home from picking up her daughters when she heard a knock at her door. She was expecting a representative of a shelter to stop by, but when she answered the door, she saw defendant. He told Luz that they had to talk; the testimony is conflicting on whether he then pushed his way into the apartment or was permitted to enter when Luz stepped back from the door.

Luz told defendant she had nothing to say to him and asked him to leave. Defendant demanded that Luz drop all the charges against him. When she responded that she would not, the two argued; Luz called defendant names. In addition, defendant saw marks on Luz that he believed were evidence of her physical relationship with another person. Defendant eventually told Luz that, if she was not going to withdraw the domestic battery charge, he "might as well kill her."

Defendant grabbed Luz by the throat, threw her to the floor, and squeezed hard for 15 to 20 seconds. His testimony indicated he stopped choking Luz either because he saw her eyes flutter or because he looked up and saw their children watching. In any event, Luz lost consciousness. When she awoke, her children were crying and shaking her.

Defendant, who had fled on foot, flagged down a friend a few blocks away, and got into the friend's car. Defendant said he had killed Luz and asked the friend to call 911. The friend drove defendant back to Luz' house, where police and an ambulance had already arrived. Defendant turned himself in to police. Defendant denied any intent to kill Luz. He also eventually testified at trial that he had seen a knife sitting out on a counter in Luz' apartment, but there was no suggestion that Luz threatened him with it or otherwise made a move toward it. Luz ultimately testified that there was no knife and that she did not and could not defend herself. Police found no weapons at the scene other than a butter knife under a pile of dishes in a sink.

Defendant was charged with attempted first-degree murder; aggravated burglary based on the underlying felony of attempted first-degree murder; and violation of a restraining order. Near the close of the State's case at trial, the district judge permitted the State to amend its aggravated burglary charge to rely on an underlying intent to commit first-degree murder rather than attempted first-degree murder. Defense counsel objected but did not articulate any specific prejudice that would result from the amendment.

The defense moved for judgment of acquittal at the close of the State's case, arguing the evidence of premeditation and intent to kill was insufficient. The district judge denied this motion.

The jury was instructed on the elements of attempted first-degree premeditated murder and lesser included offenses, including Instruction No. 6 on attempted voluntary manslaughter in accord with PIK Crim. 3d 55.01 and PIK Crim. 3d 56.05. The ...

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