Review of the judgment of the Court of Appeals in an
unpublished opinion filed March 25, 2011.
Appeal from Reno District Court; TIMOTHY J. CHAMBERS,
Judgment of the Court of Appeals affirming in part and vacating in part the district court judgment is affirmed in part and vacated in part. Judgment of the district court is affirmed in part and vacated in part.
1. Aggravated burglary under K.S.A. 21-3716 does not restrict application of its " remaining within" language to instances when an initial entry is lawful. In this case, the State presented sufficient evidence that the defendant both entered into and remained within the victim's home.
2. Kansas law presumes that all personal property has some value. To prove misdemeanor theft, the State need not prove the value of stolen property was less than $1,000. In this case, despite the testimony of two burglary victims that their stolen property was worth more than $1,000, there was sufficient evidence of misdemeanor theft.
3. On the facts of this case, an additional restitution award set only by order following the defendant's sentencing hearing must be vacated because the judge was without subject matter jurisdiction to enter the order.
4. A sentencing judge's use of a defendant's criminal history to arrive at his or her sentence, despite no jury finding of that history beyond a reasonable doubt, does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Amanda G. Voth, assistant district attorney, Keith R. Schroeder, district attorney, and Steve Six, attorney general, were on the brief for appellee.
A jury convicted Calvin Charles on eight of nine counts of aggravated burglary and eight of nine counts of misdemeanor [298 Kan. 994] theft. At a sentencing hearing, the district court judge ordered Charles to pay restitution " as contained within the presentence report." The report indicated that restitution for one of the victims was " to be determined." A restitution order filed 3 weeks later set the amount for the victim at $1,192.69. The order also included restitution for the victim on the charges that led to acquittal.
On appeal to the Court of Appeals, among other challenges, Charles argued that the district judge lacked subject matter jurisdiction to impose restitution for these two victims and, in the alternative, that the judge abused his discretion by ordering restitution on charges that led to acquittals. The State conceded the restitution award tied to the acquittals must be vacated. We granted Charles' petition for review on the Court of Appeals' remaining rulings affirming Charles' convictions and sentence.
Factual and Procedural Background
During the summer of 2008, the Hutchinson Police Department received several reports by victims claiming that their purses, wallets, and other small items had been stolen from their homes at night while they were sleeping. Along with the reports, investigators had several photos, taken by ATM surveillance cameras, of a man attempting to withdraw money using the victims' bank and credit cards. Police began investigating Charles after an officer saw him riding a bicycle and thought Charles resembled the man in the surveillance photos. Personal property belonging to several of the victims was later discovered in a dumpster outside of Charles' residence and inside his apartment.
The State charged Charles with nine counts of aggravated burglary, severity level 5 person felonies, and nine counts of theft, class A nonperson misdemeanors. On each of the aggravated burglary charges, the complaint alleged that Charles " intentionally, and without authority enter[ed] into or remain[ed] within a residence." See K.S.A. 21-3716. The theft charges each alleged that Charles " unlawfully, and intentionally obtained[ed] or exert[ed] unauthorized control over property . . . with the intention to permanently deprive the owner . . . of the possession, use, or benefit of said [298 Kan. 995] property, of a value of less than one thousand dollars ($1,000.00)." See K.S.A. 21-3701(a)(1), (b).
The complaint identified the nine victims, each of whom testified at trial. The State charged Charles with one count of aggravated burglary and one count of misdemeanor theft for each.
Two of the victims testified that the value of their stolen items exceeded $1,000. One, the victim named in Counts I and X, testified that her stolen purse and its contents- which included $100 in cash, a billfold, cell phone, cell phone charger, prescription glasses, perfume, makeup, driver's license, keys, gift cards, Social Security and medical cards, and eight credit cards-had an approximate replacement value of $1,280. She testified that the actual value of the items may have been " a little less." The other victim, named in Counts IX and XVIII, testified that the approximate value of his wallet, his wife's purse, and the contents of each was approximately $1,482. He testified that the purse contained his wife's billfold, cell phone, coin purse, $250 to $300 in cash, $2 to $3 in coins, a $330 gift card to Dillons, another gift card with " about $36 left on it," credit cards, insurance cards, discount cards, coupons, keys, lipstick, and various other " things."
The district court judge instructed the jury that, in order to find Charles guilty on the aggravated burglary and theft charges, it had to find that he " knowingly entered or remained in" the residences without authority and " the value of the [stolen] property was less than $1000." The jury found Charles guilty on all counts, except for the aggravated burglary and ...