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State v. Storey

April 4, 2008

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



Review of the judgment of the Court of Appeals in 37 Kan. App. 2d 555, 154 P.3d 1148 (2007). 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 an appellate court exercises unlimited review.

3. Under the facts of this case, an unfinished medical center consisting of a roof, a concrete floor, installed electrical work, and four brick walls with openings for yet-to-be-installed windows and doors constituted a building under subsection (b) of the burglary statute, K.S.A. 21-3715, as a matter of law.

4. The use of prior convictions in a criminal history to enhance a defendant's sentence is not barred by Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), where not included in the complaint, presented to the jury, or proved beyond a reasonable doubt as in the instant case.

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

Judgment of the Court of Appeals affirming the district court on the limited issues subject to our review is affirmed. Judgment of the district court on those issues is affirmed.

Donald Storey was convicted at a bench trial of burglary and theft for entering an unfinished medical center and taking a band saw. On appeal, Storey primarily argued that taking property from a structure under construction did not constitute burglary under K.S.A. 21-3715(b). A majority of the Court of Appeals panel affirmed his convictions and sentences. State v. Storey, 37 Kan. App. 2d 555, 154 P.3d 1148 (2007). We granted Storey's petition for review; our jurisdiction is under K.S.A. 20-3018(b).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did Storey's entry into the unfinished medical center with intent to commit a theft constitute burglary as a matter of law? Yes.

2. Did the district court violate the Sixth and Fourteenth Amendments by imposing an enhanced sentence based upon prior convictions, without requiring that they be proven to a jury beyond a reasonable doubt? No.

Accordingly, we affirm the district court and the Court of Appeals.

FACTS

On the night of May 15, 2005, Storey entered the Wesley Medical Center construction site in Wichita. The structure under construction was approximately 70% complete. Specifically, it had a roof, a concrete floor, installed electrical work, and four brick walls with openings for yet-to-be-installed windows and doors. Storey entered the unfinished structure, cut the lock on a "job box" inside, and removed a band saw. The police stopped him after he put the saw in his car trunk. Storey was charged with burglary of a nondwelling in violation of K.S.A. 21-3715(b) and with misdemeanor theft in violation of K.S.A. 21-3701.

Storey agreed to a bench trial on stipulated facts. The issue at trial was whether an unfinished medical center was covered by the burglary statute, K.S.A. 21-3715. Storey argued that he could not be convicted of burglary because no barriers existed to prevent him from entering. The district court determined that was not a critical factor, noting the "four brick walls, and a roof, but no doors or windows." The court construed the statute as including unfinished medical centers, found Storey guilty, and entered convictions on both counts.

The presentence investigation indicated that Storey had a criminal history score of "F" based upon various prior convictions. These convictions were not included in the complaint, nor were they part of the stipulated facts at the bench trial. Given Storey's criminal history score, the district court sentenced him to probation with an underlying sentence of 17 months for the primary offense of burglary and a concurrent sentence of 6 months for the theft.

Before the Court of Appeals, Storey argued that his entry into an unfinished and unsecured building is not burglary as proscribed by K.S.A. 21-3715(b) and, therefore, insufficient evidence existed to support that conviction. The Court of Appeals concluded that based upon a plain reading of the statute, general legal authorities, and case law from other states, the medical center qualified as a building. Consequently, the court concluded that sufficient evidence supported Storey's conviction. Storey, 37 Kan. App. 2d 555.

Storey also argued that the use of his criminal history, without putting the prior convictions to a jury and proving them beyond a reasonable doubt, increased the maximum possible penalty for his conviction in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000). Citing State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), and its progeny, the ...


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