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State v. Acevedo

Court of Appeals of Kansas

November 22, 2013

STATE of Kansas, Appellee,
v.
Tomas ACEVEDO, Appellant.

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Syllabus by the Court

It is unnecessary to specifically modify the phrase " without authority" in PIK Crim.3d 59.18 with the word " knowingly." The PIK instruction is legally sound as written.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Brian R. Sherwood, assistant county attorney, Susan Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., ARNOLD-BURGER, J., and BUKATY, S.J.

ARNOLD-BURGER, J.

Tomas Acevedo was advised by a manager and assistant manager at the Wal-Mart store in Garden City that he was not authorized to return to any Wal-Mart store. Two years later he returned to the same Wal-Mart store and committed a theft. He was convicted of aggravated burglary and theft. He raises several issues on appeal. First, he claims that the evidence presented at trial was insufficient to establish that he entered Wal-Mart without authorization. Because we find that the evidence was sufficient, this claim of error fails.

Next, Acevedo also raises three instructional errors and contends that the cumulative effect of these errors deprived him of a fair trial. First, he claims that court erred in failing to instruct the jury that aggravated burglary requires the State to prove that Acevedo knew he was unauthorized to enter Wal-Mart. We find that even if the requested instruction was both legally and factually sound, in light of the facts and the instruction that was given, the failure to give the requested instruction was harmless. Next, Acevedo claims the district court erred in failing to provide a limiting instruction regarding the jury's use of evidence that he had committed crimes or had been involved in alleged criminal conduct in the past. Acevedo's counsel not only failed to request such an instruction, but when asked by the trial judge counsel denied that one was needed. So that claim also fails. Third, Acevedo urges this court to find that the use of the word " any" in the last sentence of the burden of proof instruction given by the trial court permitted the jury to convict him of the charged crimes without finding that the State proved each of the required elements beyond a reasonable doubt. But in State v. Herbel, 296 Kan. 1101, 1123-24, 299 P.3d 292 (2013), our Supreme Court rejected an identical argument, and we are duty bound to follow the Supreme Court.

Finally, we find that where there was no error there can be no cumulative error. Affirmed.

FACTUAL AND PROCEDURAL HISTORY

In April 2009, Daniel Fetty, a co-manager/shift manager of the Garden City Wal-Mart, and Aaron Kentner, an assistant manager at the same store, approached Acevedo in the store and read him a " Notification of Restriction from Property" form provided by Wal-Mart, which Fetty and Kentner referred

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to as a trespass form. Fetty read the form to Acevedo as Kentner explained it to him. The form, which was admitted into evidence, read:

" Pursuant to law, Wal-Mart Stores, Inc. chooses to exercise its right to restrict entrance to individuals who have conducted themselves in a manner which is not acceptable to the community, including, but not limited to, shoplifting or destruction of property. It is deemed that the undersigned apprehended subject poses a threat to the future security of Wal-Mart facilities and properties, and therefore, is no longer welcome on Wal-Mart property, within its stores, or on any property under its immediate control. The undersigned apprehended subject is now on notice that should he/she choose to ignore this revocation of invitation and enter onto any Wal-Mart property, he/she places himself/herself in the position to be charged with Criminal Trespass pursuant to § 21-3721 of the Kansas Statutes Annotated. It is not necessary that the undersigned apprehended subject be caught in an illegal act, including, but not limited to, shoplifting or destroying property; the mere presence of such individual on the property is sufficient.
Acknowledgement
" I, [ Thomas Acevedo ] understand that as of the [ 18 ] day of ---- [ April ] , [ 2009 ] , I have been banned from all Wal-Mart property, and that to enter onto any such property places me at risk for arrest and prosecution for Criminal Trespass pursuant to § 21-3721 of the Kansas Statutes Annotated . " (Bracketed portions were handwritten by Fetty.)

Kentner then summarized the content of the form by telling Acevedo that he was no longer allowed on any Wal-Mart property. Fetty asked Acevedo to sign the form but did not offer Acevedo a copy of the form. Fetty testified that he would have made Acevedo a copy if Acevedo had requested one. Acevedo became angry, refused to sign the form, shouted some vulgar comments, and immediately left the store. The record does not disclose the reason Wal-Mart revoked Acevedo's general permission to enter the store.

Nearly 2 years later, in February 2011, Kentner saw Acevedo in the same Garden City Wal-Mart and called the police to have Acevedo arrested for criminal trespass. Acevedo noticed Kentner and left the store before the police arrived.

On March 26, 2011, Acevedo again entered the Garden City Wal-Mart with two companions, while the store was open for business. They visited the sporting goods department before moving to the tool aisle. Acevedo pulled a grinder wheel— valued at $2.88— from the shelf, removed a box cutter from his pocket, and cut the package to remove the wheel. He pocketed the wheel, moved two aisles into the paint section, and discarded the wheel packaging. Acevedo then walked to the front of the store, passing the registers without stopping to pay for the wheel, and exited the store. Britt Fairbank and Jimmie Garcia, Wal-Mart security officers, confronted Acevedo just outside the store. Fairbank told Acevedo, " ‘ Tomas, I need you to stop.’ " Acevedo replied, " ‘ I got nothing, man,’ " and continued to walk away. Acevedo entered a car located in front of the store, and he left the parking lot in the car. Garcia called the police.

After Acevedo was arrested the next day, he admitted that he had taken the wheel from its package but claimed that he had deposited the wheel in the pharmacy department before leaving the store. When asked about the trespass warning, Acevedo said he knew nothing about it.

The State charged Acevedo with aggravated burglary and misdemeanor theft. Following a short trial on September 21, 2011, the jury convicted Acevedo of both counts. Acevedo filed a motion for new trial, alleging error in Jury Instruction No. 3. He also filed a motion for a downward dispositional and durational departure sentence. At sentencing, the court denied both motions and sentenced Acevedo to serve a controlling term of 114 months in prison.

Acevedo filed a timely notice of appeal.

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SUFFICIENCY OF THE EVIDENCE

Acevedo first challenges the evidence supporting his conviction for aggravated burglary. As defined by K.S.A. 21-3716, aggravated burglary is " knowingly and without authority entering into or remaining within any building ... in which there is a human being, with intent to commit a felony, theft or sexual battery therein."

When a criminal defendant challenges the sufficiency of the evidence supporting a conviction, an appellate court examines the evidence and adopts reasonable inferences drawn from the evidence in a light most favorable to the State to determine whether a reasonable juror could conclude beyond a reasonable doubt that the defendant committed the offense in question. See State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012).

Focusing on the " without authority" element of the statute, Acevedo raises two arguments in support of his position that the aggravated burglary conviction cannot stand on the evidence presented at trial. First, he claims that Wal-Mart's notification form was ineffective to revoke his implied authorization, as a member of the general public, to enter the store during normal business hours. Second, Acevedo contends that, even if the notification was sufficient, the State failed to present sufficient evidence that Acevedo was aware that his authority to enter Wal-Mart had been revoked.

The notification was legally adequate.

Initially noting that a store generally extends an implied authorization to members of the public to enter its building to shop, Acevedo cites statutes from many other jurisdictions that exclude buildings open to the public at the time of entry from the statutory definition of burglary or provide specific direction regarding the revocation of the implied authority. These foreign statutes are of limited value since they contain different language than the Kansas aggravated burglary statute. See State v. Hall, 270 Kan. 194, 202, 14 P.3d 404 (2000) (" We note the cases cited from those jurisdictions provide little support for the State's position because their burglary statutes are significantly different from the Kansas burglary statute." ). The Kansas aggravated burglary statute contains no language that excludes from its purview a building generally open to the public, if entry into that building is unauthorized. See State v. Vinyard, 32 Kan.App.2d 39, 41-42, 78 P.3d 1196 (2003) (without directly addressing the authority issue, court affirmed conviction for aggravated burglary when the defendant reentered a Dillard's store after being instructed not to return on prior occasions), rev. denied 277 Kan. 927 (2004); State v. Fondren, 11 Kan.App.2d 309, 316, 721 P.2d 284 (affirming conviction for aggravated burglary premised upon entry into a school building during school hours with the intent to steal because the defendant was not a member of the class of persons authorized to enter the school), rev. denied 240 Kan. 805 (1986); State v. Adams, No. 106,935, 2013 WL 4046396, at *5 (Kan.App.2013) (unpublished opinion) (affirming evidence supporting aggravated burglary conviction where the defendant was previously told not to return to any Dillon's store), petition for rev. filed September 9, 2013; State v. Moler, No. 98,221, 2008 WL 4416035, at *2-3 (Kan.App.2008) (finding sufficient evidence to support conviction for aggravated burglary when the defendant entered a Wal-Mart store with the intent to steal after previously being informed that he was not allowed to enter any Wal-Mart store), rev. denied 288 Kan. 835 (2009).

Acevedo then contends that, if Kansas law permits revocation of implied authorization to enter a public building, Wal-Mart's revocation of Acevedo's implied authorization in this case was ineffective because the revocation notice provided was legally deficient in three respects: (1) the notification was ambiguous because it did not designate a length of time that Acevedo would be prohibited from entering the store; (2) the State presented no evidence of Fetty's and Kentner's authority to ban Acevedo from Wal-Mart; and (3) the notification applied only to " the undersigned" and Acevedo never signed the form. These arguments all fail.

First, the notification was not ambiguous because it failed to specify a length of

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time for which Acevedo would remain excluded from Wal-Mart properties. The implied authority to enter a store's premises is a species of license the owner of the property— in this case, Wal-Mart Stores, Inc.— extends to members of the public in order to transact business. See Dulchevsky v. Solomon, 136 Wash. 645, 650, 241 P. 19 (1925) (" There could be no question that Joseph Solomon, having charge of the store in which the tort was committed, had the right to withdraw the invitation held out to the public generally to enter the store, and revoke that license at any time as to any individual, and eject such individual, if he refused to leave when requested...." ). The notification clearly imposed an indefinite revocation of Wal-Mart's implied invitation to Acevedo to enter its stores, the implication being that Acevedo could never enter a Wal-Mart store until he was given express authority to do so. There is nothing ambiguous about an absolute revocation of a license to enter upon property. See Gilman v. Blocks, 44 Kan.App.2d 163, 171, 235 P.3d 503 (2010) (" A license may be created by parol and is generally revocable at the will of the owner of the land in which it is to be enjoyed, by the death of the licensor, by conveyance of the lands to another, or by whatever would deprive the licensee of doing the acts in question or giving permission to others to do them." ); 25 Am.Jur.2d, Easements and Licenses § 117, pp. 611-12 (" A license in real property is the permission or authority to engage in a particular act or series of acts upon the land of another without possessing an interest therein. It is a personal, revocable, and unassignable privilege, conferred either by writing or parol." ).

Second, while Acevedo contends that the State failed to establish that Fetty and Kentner had the authority to ban Acevedo from entering all Wal-Mart properties, we find that the record does not support Acevedo's position. Fetty testified he was co-manager of the Wal-Mart store in Garden City when he banned Acevedo from returning and Kentner was his assistant manager. Kentner testified that his responsibility included " security issues" among other things. At no time during the trial, closing arguments, or posttrial motions did Acevedo challenge the authority of Fetty or Kentner to ban him from Wal-Mart properties. And the reason is clear. Fetty and Kentner, acting as agents of the corporation, could clearly revoke Acevedo's license to enter the Garden City store they managed. See Lewis v. Montgomery Ward & Co., 144 Kan. 656, 660, 62 P.2d 875 (1936) (" [A] store owned by a corporation must be conducted through its agents, that such agents must not only be responsible for seeing that the merchandise to be sold is offered for that purpose and when sold the consideration received, but for seeing that the merchandise is not rendered unsalable by the acts of the customers, and that it is ...


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