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State v. Jarmon

Supreme Court of Kansas

June 15, 2018

State of Kansas, Appellee,
v.
Vincent R. Jarmon, Appellant.

         SYLLABUS BY THE COURT

         1.

         When an instructional error was not raised in the district court and is asserted for the first time on appeal, failing to give a legally and factually appropriate instruction will result in reversal only if the failure was clearly erroneous.

         2.

         To establish a clearly erroneous instruction error, the defendant must firmly convince the court the jury would have reached a different result without the error.

         3.

         In a prosecution for burglary, the failure to instruct a jury on the elements of the intended felony underlying burglary constitutes error.

         4.

         The omission of an instruction defining the intended felony underlying a charge of burglary is subject to harmless error analysis.

         5.

         An untimely motion for new trial that asserts ineffective assistance of counsel may be treated as a collateral attack on a judgment under K.S.A. 60-1507.

         6.

         An untimely motion for new trial that is deemed a collateral attack on a judgment does not confer on the movant greater procedural rights than those provided to a timely movant filing under K.S.A. 60-1507.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed February 26, 2016.

          Appeal from Sedgwick District Court; Bruce C. Brown, judge.

          Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

          ROSEN, J.

         Vincent Jarmon appeals from his jury conviction for one count of burglary.

         Facts and Procedural Background

         At the time of the events that led to the conviction, Tommy Luallen and his mother, Mathilda Luallen, owned a commercial building in Wichita. Tommy was in business with Larry Farmer. Tommy and Farmer bought storage units at auctions and resold the contents. They stored their inventory at the building in Wichita.

         On May 6, 2013, Tommy Luallen and Farmer went to the building and discovered a hole in the back wall of the building. They attempted to remedy the breach by placing a board in front of it and piling marble sinks, tubs, a stove, a barrel, and other items in front of the board. On the morning of May 7, 2013, Farmer went to the building and opened the front door. He heard a noise in the back and saw a light shining where he would not normally expect to see any light. He backed out of the building and quietly closed the door and then called the police.

         Officer Edward Johnson of the Wichita Police Department responded to report of a burglary in progress. He initially encountered Farmer, who told him someone was inside the building. Johnson and another officer entered through the front door, while a third officer went to the back of the building to seal it off. They announced their presence and made their way toward the back. There they encountered Jarmon and arrested him. Jarmon had chips on his clothing, similar in appearance to the wall insulation through which the holes in the back wall had been broken. He had a red bracelet belonging to Farmer on his left wrist. In Jarmon's pocket were found screws and washers that came from Farmer's business.

         Farmer inspected the back room and saw that the tubs and sinks and barrel had been moved. A second hole was found above the ...


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