[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Review of the judgment of the Court of Appeals in an unpublished opinion filed October 7, 2011. Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
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. A multistep evidentiary standard of review applies to determine whether material or evidence in question on a motion in limine would be inadmissible at trial. A district judge's decision on whether a pretrial ruling on a motion in limine is justified as opposed to a ruling during trial is reviewed for abuse of discretion.
3. Generally any deficiency in chain of custody affects the weight of evidence, not its admissibility, and a district judge's determination of whether there is a reasonable certainty that a piece of evidence has not been materially altered is reviewed for abuse of discretion.
4. On the facts of this case, the district judge did not abuse his discretion in ruling that a baseball cap left at the scene of a crime by a perpetrator would be admissible in the trial of the defendant. The judge did not err in denying the defendant's motion in limine.
5. Battery under K.S.A. 21-3412(a)(1)--intentionally or recklessly causing bodily harm to another person--is not a lesser included offense of aggravated robbery under K.S.A. 21-3427. Thus an instruction on battery was not legally appropriate in this aggravated robbery case.
6. When a defendant has failed to establish that any trial error occurred, the cumulative error doctrine is inapplicable.
7. Because restitution constitutes a part of a criminal defendant's sentence, its amount can be set only by a district judge in open court with the defendant present. Until any applicable restitution amount is decided, a defendant's sentencing is not complete.
8. A sentencing hearing may be continued or bifurcated so that restitution is ordered at one setting and the amount decided at a later setting. In such instances, a district judge should specifically order the continuance or bifurcation.
9. A defendant may waive his or her right to be present in open court when a judge sets an additional amount of restitution as part of sentencing. On the facts of this case, which demonstrate that the defendant and his counsel agreed to entry of an order setting an additional restitution amount by the district judge without a continued or bifurcated sentencing hearing in open court with the defendant present, this court will not vacate the additional amount.
10. In this case, (1) an agreement, arrived at in open court in the defendant's presence, among the district judge and the parties to extend sentencing for 30 days to settle on an additional amount for restitution, and (2) defense counsel's later signature on the judge's order of additional restitution were sufficient to maintain subject matter jurisdiction over the sentencing and dispense with the requirement of a continued hearing in open court with the defendant present before entry of the judge's order.
11. 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).
Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.
[298 Kan. 1007] OPINION
This case arises from an attack on Otis Webb in April
2008. After answering his door, Webb was hit in the mouth and
knocked to the ground. While one attacker pinned Webb down, the other dug through Webb's pockets and stole $950. During the altercation, Webb knocked a cap off of the head of one of the intruders. DNA collected from the cap connected defendant Melvin Frierson to the attack.
At Frierson's trial on charges of aggravated robbery and aggravated burglary, Frierson objected to the admission of the cap, arguing that its chain of custody had been broken. The district court overruled the objection and admitted the cap. A jury found Frierson guilty on both counts. At sentencing, the district court judge ordered Frierson to pay $950 in restitution and held any further amount of restitution open for 30 days to determine Webb's dental expenses. A subsequent order, entered by the district judge without further hearing, increased Frierson's restitution amount to $1,262.
Frierson appealed, and the Court of Appeals affirmed in State v. Frierson, 260 P.3d 1249, 2011 WL 4716340 (Kan. App. 2011) (unpublished opinion). We granted Frierson's petition for review on the same six issues he raised before the Court of Appeals.
Factual and Procedural Background
On the night of the attack, Webb was at home when he heard a knock at his door. Webb answered the door and saw a man, later identified as Richard Davis, standing at his front door. Davis asked Webb if an " old white man" lived at the residence. Webb, an elderly black man, said no. Davis turned around and walked toward a car parked in front of Webb's residence. Webb shut and locked his door.
Moments later, Webb heard a second knock. Davis was again standing at the front door when Webb answered. This time, a second man, later identified as Frierson, rushed Webb and hit him in the mouth with something hard. Both men then tackled Webb. Frierson held Webb down while Davis rifled through Webb's pockets [298 Kan. 1008] and removed $950. Frierson and Davis then left the home, and law enforcement officers arrived shortly.
The blow to Webb's mouth dislodged at least one of his front teeth. Webb would eventually testify that he had four more teeth removed after the attack. He also would testify, however, that his dentist had told him his " gums were bad and all [his] teeth needed to come out."
The cap left by the intruders at Webb's home was collected by an investigating officer and placed in an evidence bag. The officer was not available to testify at Frierson's trial. Frierson's pretrial motion in limine to suppress evidence of the cap because of a break in its chain of custody was unsuccessful, as was his trial objection based on lack of foundation. Pretrial, the district judge explained that the chain of custody issue went to the weight of the cap evidence rather than its admissibility.
At the close of evidence at trial, Frierson requested a battery instruction as a lesser included offense on the aggravated robbery charge. The district judge rejected the request. On the aggravated burglary count, the judge instructed the jury that, in order to find Frierson guilty, it had to agree that Frierson " knowingly entered into or remained ...