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State v. May

July 3, 2008

STATE OF KANSAS, APPELLEE,
v.
JAMES A. MAY, APPELLANT.



Appeal from Douglas District Court; JACK A. MURPHY, judge.

SYLLABUS BY THE COURT

1. The entry of a person into a building at any time during the course of a burglary constitutes presence and is sufficient to establish aggravated burglary. The distinction between simple burglary and aggravated burglary recognizes as more serious those burglaries which can result in a dangerous and unexpected confrontation between the burglar and an occupant. Such a confrontation may occur regardless of when during the burglary the person enters the building.

2. State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973), is discussed. Burglary, aggravated or otherwise, involves "knowingly and without authority entering into or remaining within" a building under K.S.A. 21-3715 or K.S.A. 21-3716. The "remaining in" provision in the statutes deals with circumstances quite different from those in the "entering into" scenario. One may be guilty of burglary by entering into the premises without authorization. Even if one enters the premises with authorization, one may still be guilty of burglary by remaining within the premises when authority has been withdrawn.

3. Under the facts presented, there is substantial evidence that the defendant had not abandoned the burglary before the person entered the dwelling so as to render the crime simple burglary rather than aggravated burglary.

4. A burglar's entry into a building with the intent to commit a theft therein can be inferred from the surrounding circumstances, including the time of day, the character of the building, the defendant's actions on entering the building, and the defendant's explanation when confronted.

5. The right to a jury instruction on a lesser-included offense arises only when the evidence, viewed in the light most favoring the defendant, would justify a jury verdict based upon the lesser-included offense and the evidence does not exclude guilt of the lesser offense.

6. By a guilty plea, a defendant admits all well-pled facts alleged in the charging document.

7. Unlike a criminal sentence which is controlled by the court's pronouncement from the bench at the sentencing hearing, an order for the payment of attorney fees is not part of a defendant's punishment for criminal conduct and, therefore, is not part of the sentence.

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

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

Before McANANY, P.J., GREEN and CAPLINGER, JJ.

James A. May appeals his conviction for aggravated burglary, claiming the district court made several sentencing errors and improperly instructed the jury. He also claims there was insufficient evidence to support his conviction. Since we examine the evidence in the light most favoring the State in considering May's complaint about the sufficiency of the evidence, we will recount the evidence in that light.

Greg and Becky Orth and their two children moved into their newly constructed home in Lawrence in about December 2004. The house itself was completed, but no landscaping had been installed and the swimming pool in the backyard had not yet been completed. On February 15, 2005, Becky Orth left her home at 8:30 a.m. to take her son to school and then to go to the gym. No one remained at home, and no workmen were scheduled for that day. The home has an attached garage. Orth left the overhead garage door open about 2 feet to permit the family dog to enter the garage while she was gone. The door from the garage to the house was unlocked.

When Orth returned home at 12:30 p.m., she saw an aqua colored pickup truck with purple and pink stripes parked in front of the garage doors. As she entered the garage, she confronted a man later identified as May standing in the house at the door to the garage. Orth asked him who he was and what he was doing there. May made some reference to the pool and the grass, uttered some profanities, and headed for the garage door. Orth looked into the kitchen, which is near the door to the garage, and saw a plastic tub filled with the family's electronics equipment. She also saw a big duffle bag and a pillow case. Both contained clothes and jewelry taken from ...


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