BY THE COURT
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.
establish a clearly erroneous instruction error, the
defendant must firmly convince the court the jury would have
reached a different result without the error.
prosecution for burglary, the failure to instruct a jury on
the elements of the intended felony underlying burglary
omission of an instruction defining the intended felony
underlying a charge of burglary is subject to harmless error
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.
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.
of the judgment of the Court of Appeals in an unpublished
opinion filed February 26, 2016.
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.
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.
Jarmon appeals from his jury conviction for one count of
and Procedural Background
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
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
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.
inspected the back room and saw that the tubs and sinks and
barrel had been moved. A second hole was found above the