IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 86,829
STATE OF KANSAS,
Appellee,
v.
KENNETH A. KUNELLIS,
Appellant.
SYLLABUS BY THE COURT
1. In cases involving minors, a district court's waiver of juvenile court jurisdiction, without findings of fact by a jury, does not violate the principles enunciated in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
2. The standard for reviewing the decision to authorize prosecution of a juvenile as an adult is whether the decision is supported by substantial evidence. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can be reasonably resolved. It is not for an appellate court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses.
3. When an appellate court reviews challenges to jury instructions, it is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. As a general rule, juries are presumed to have followed instructions given by the trial court.
4. K.S.A. 21-3401(b) defines felony murder as the killing of a human being committed in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436.
5. Commission of the crime of theft is complete when the thief takes possession of the property. The element of asportation is not required to complete the crime. An instruction stating that theft is a continuing offense is erroneous as a matter of law.
6. Given a legally erroneous jury instruction, jurors are generally not considered to be equipped to determine whether a particular theory of conviction submitted to them is contrary to law. Therefore, there is no reason to think that their own intelligence and expertise will save them from that error. Reversal is required.
7. A two-step process is used to analyze allegations of prosecutorial misconduct. First, an appellate court must answer whether the comments were outside the wide latitude for language and manner that a prosecutor is allowed when discussing the evidence. The second step requires the appellate court to decide whether the prosecutor's remarks constitute plain error, i.e., whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial, requiring reversal.
8. The admission of evidence at trial lies within the sound discretion of the trial court. Judicial discretion is abused only when the court's action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
9. The trial court has broad discretion regarding the admission of demonstrative photographs. Even where the defendant concedes the cause of death, the prosecution has the burden to prove all the elements of the crime charged; photographs and videotape may be used to prove the elements of the crime, including the fact and manner of death.
10. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Appeal from Johnson district court; JOHN ANDERSON III, judge. Opinion filed October 31, 2003. Reversed and remanded with directions.
Paige A. Nichols, special appellate defender, of Topeka, argued the cause, and Randall L. Hodgkinson, deputy appellate defender, was with her on the briefs for appellant.
Richard G. Guinn, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
NUSS, J; In December 1999, the State charged 15-year-old Kenneth Kunellis with burglary, theft, and two counts of felony murder for his involvement in activities arising out of a break-in of an Olathe motorcycle dealership. At the same time, the district court granted the State permission to prosecute Kunellis as an adult. Following a 4-day trial, a jury convicted Kunellis of all charges. The court sentenced him to 2 terms of life in prison, along with 12 months for the burglary and 6 months for the theft, all terms concurrent with each other. This is his direct appeal seeking reversal of his felony-murder and theft convictions or, in the alternative, resentencing under the Juvenile Justice Code. See K.S.A. 38-1663. Our jurisdiction is under K.S.A. 22-3601(b)(1), a maximum sentence of life imprisonment imposed.
The issues on appeal, and this court's accompanying holdings, are as follows:
- Did the district court violate the principles of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), by approving the State's motion to try Kunellis as an adult? No.
- Was the district court's decision to try Kunellis as an adult supported by substantial evidence? Yes.
- Were the district court's jury instructions and the State's closing remarks accurate statements of the law regarding theft and the accompanying felony murders? No.
- Was the evidence sufficient to support convictions for theft and felony murder? Yes.
- Did prosecutorial misconduct and district court error violate Kunellis' right to due process and a fair trial? Yes.
- Did the district court abuse its discretion in admitting evidence that Kunellis was flippant and taunting one of the victims? No.
- Did the district court abuse its discretion in admitting certain photographic and audiovisual evidence? No.
- Did the district court err in failing to provide a jury instruction on "extraordinary intervening event"? No.
Accordingly, we reverse Kunellis' convictions for theft and felony murder and remand for a new trial.
FACTS
On the evening of December 11, 1999, Kenneth Kunellis, age 15, was with his brother Kris and their friends Ben and Aaron Rogers. After deciding to break into a Suzuki motorcycle dealership in Olathe, they got into Ben's passenger van and began searching for a vehicle suitable to carry stolen motorcycles. They quickly found a truck with a 14-foot enclosed cargo box at a used car dealership along I-435 at Front Street in Kansas City, Missouri. After Ben hot-wired the truck, Aaron drove Ben's van and led the group to the Olathe dealership.
When they arrived, Ben drove the stolen truck to the side of the dealership, parked, and began searching for the telephone lines that Aaron had told him would disable the business' alarm system when cut. While Ben cut the phone lines, the Kunellis brothers remained in the stolen truck, and Aaron served as a lookout in Ben's van.
After Ben completed his task at the rear of the building, he returned to the truck, pulled back onto the street and backed up through the parking lot to a display window. He then walked to the back of the truck and picked up the sledge hammer. When the Kunellis brothers lifted the truck's rear sliding door, Ben smashed the display window.
The plan was to load up as many motorcycles as possible in a certain period of time, but Ben's delay in locating and cutting the phone lines limited the time available. Additionally, they had unforeseen difficulties loading the heavy motorcycles. After loading only three, Ben told the others it was time to go. As Ben drove the truck, the Kunellis brothers remained in the cargo area managing the motorcycles and holding the sliding rear door closed.
Shortly before the group left, Reuben Feuerborn had driven into the parking lot and noticed a cargo truck backed up to a building. After the truck left, Feuerborn's wife noticed the front window of the dealership had been smashed, so Feuerborn called 911. Feuerborn informed the police of the truck's description, location, and direction of travel, and began to drive in the same direction of the departed truck.
Olathe police dispatch records indicate the Feuerborns first reported the crime at 10:58 p.m. Two minutes later, after the Feuerborns regained sight of the truck, they informed the police it was about to enter northbound I-35. At 11:04 p.m., Officer Allen called for assistance and reported he was following the truck northbound at 119th and I-35. Once Allen was joined by Lenexa Police Officer Trevino at 11:07 p.m., he activated his emergency lights and attempted to stop the truck.
Ben testified he was unaware of any pursuers until Officer Allen activated his lights at about 97th Street. Ben then exited northbound I-35 at 87th Street and entered southbound 69 Highway, traveling against traffic to discourage pursuers. The truck then collided with a Toyota Camry occupied by Rick Sloan and his fiancée Simone Sanders. Sanders was killed instantly, and Sloan received injuries which would prove fatal hours later.
ANALYSIS
Issue 1. Did the district court violate the principles of Apprendi v. New Jersey and State v. Gould by approving the State's motion to try Kunellis as an adult?
Kunellis argues that as a result of the district court's approval of the State's motion to waive juvenile court jurisdiction, the court subjected him to increased potential penalties without a jury's determination of necessary facts. This purported violation of the principles as enunciated in Apprendi v. New Jersey and State v. Gould raises constitutional issues, and our review is therefore unlimited. See Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 197, 62 P.3d 236 (2003). We observe, however, that Kunellis failed to raise this issue until now. While we might overlook this failure to preserve the issue in order to prevent a denial of his fundamental rights pursuant to State v. Coleman, 271 Kan. 733, 735, 26 P.3d 613 (2001), we observe that we resolved this identical Apprendi argument against another defendant in State v. Jones, 273 Kan. 756, Syl. ¶ 5, 47 P.3d 783, cert. denied 537 U.S. 980 (2002). Kunellis' argument therefore has no merit.
Issue 2. Was the district court's decision to try Kunellis as an adult supported by substantial evidence?
Kunellis next argues the district court erred in granting the State's motion to try him as an adult. Our standard of review of this issue is whether the decision is supported by substantial evidence. State v. Medrano, 271 Kan. 504, 506, 23 P.3d 836 (2001). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. 271 Kan. at 507. Under this standard, we do not reweigh the evidence, substitute our evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. 271 Kan. at 507.
K.S.A. 38-1636(e) requires the district court to consider eight different factors when determining whether prosecution of a juvenile as an adult should be authorized. Here, the court received testimony at the waiver hearings from Charlene Whitney, a court services officer with over 20 years' experience, who addressed all eight statutory factors based upon her investigation. She opined that while the planned crimes were theft and burglary, Kunellis risked the possibility of injuring or killing others when he committed these inherently dangerous felonies. Though he had no prior history of criminal adjudications, Kunellis had a history of fighting or disruptive behavior in school settings and at the juvenile detention facility, which indicated to her that he would be difficult to place and treat as a juvenile offender.
Whitney also testified Kunellis considered himself a leader, had experimented with marijuana, and had associated with others who were involved in criminal acts. Since he had received counseling, lived in a group home, and received other medical treatments, he had received the full range of services available in the past. Whitney also opined that the court would have decreased control over Kunellis if it allowed out-of-state placement. She believed the treatment facilities within the State were not adequate to complete his treatment within the maximum period permitted under the Juvenile Justice Code.
In addition to Whitney's testimony, the State presented related testimony from five police offices involved in the criminal investigation, as well as testimony from several other witnesses addressing the severity and nature of the crimes charged.
Given our deferential standard of review, and given that Kunellis had the burden under K.S.A. 38-1636(a)(2) of proving he was amenable to treatment under the Juvenile Justice Code, we hold the district court's decision to try him as an adult was adequately supported by the evidence.
Issue 3. Were the district court's jury instructions and the State's closing remarks accurate statements of the law regarding theft and the accompanying felony murders?
Kunellis next argues that the jury instructions, together with the prosecutor's closing arguments that interpreted those instructions, presented the jury with an inaccurate statement of the law of theft, the crime underlying his convictions for felony murder. Consequently, these errors resulted in his wrongful convictions of those two crimes. He objected to the instructions but not to the prosecutor's statements.
When we review challenges to jury instructions,
"[w]e are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]" State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).
When we review alleged prosecutorial error which had not been objected to at trial, we determine whether the error was harmless or rises to the level of violating a defendant's constitutional right to a fair trial and, thus, deny a defendant his or her Fourteenth Amendment right to due process. State v. Scott, 271 Kan. 103, 113, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001); see State v. Holmes, 272 Kan. 491, 498, 33 P.3d 856 (2001).
We begin our analysis by examining the statutory definitions of felony murder and theft. K.S.A. 21-3401(b) defines felony murder as: "the killing of a human being committed . . . in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436." In turn, K.S.A. 21-3436(a)(8) includes felony theft under subsection (a) or (c) of K.S.A. 21-3701 as an inherently dangerous felony. In 1995, the legislature renumbered 21-3701, without correspondingly modifying 21-3436, so that felony theft is now described as follows:
"(a) Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property:
(1) Obtaining or exerting unauthorized control over property;
. . . .
(3) obtaining by threat control over property."
While Kunellis admits that the crime of theft is an inherently dangerous felony, he argues the theft is complete when a person takes unauthorized possession of the property of another. As a result, a conviction for felony murder based upon a death occurring after the "commission" of the theft, without more, cannot stand. See K.S.A. 21-3401(b). According to Kunellis, conviction for a felony murder following that theft can only be based upon "flight from" that completed crime. K.S.A. 21-3401(b). The State, on the other hand, essentially argues that the crime of theft is a continuing offense, i.e., the theft continues until the perpetrator separates himself or herself from the stolen property. In support, it cites the following language in the theft statute: "obtaining or exerting unauthorized control over property." (Emphasis added.)
We agree with Kunellis. This court has previously rejected the State's interpretation in State v. Gainer, 227 Kan. 670, 672-74, 608 P.2d 968 (1980), where we examined when the crime of theft terminates:
"'Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property:
"'(a) Obtaining or exerting unauthorized control over property;'
"The State's position is that the statutory prohibition against '[o]btaining or exerting unauthorized control over property' includes within its proscription the continued unauthorized possession of the property after the initial theft. The State cites no authority to support this rather inventive theory.
"The State contends a legislative intent appears to make the exertion of unauthorized control over the property a continuing offense. It insists that the use of the words '[o]btaining or exerting unauthorized control' in the statute establishes that intent. . . .
"We do not agree that a continuing offense was intended by the legislature when it defined the crime of theft. The use of the words '[o]btains or exerts control' was for the purpose of consolidating what were formerly the crimes of larceny and embezzlement into a single crime of theft. See the Judicial Council note following K.S.A. 21-3701.
"That section of our criminal code was drafted after examining the Illinois Criminal Code, 16-1 and the Model Penal Code, 223.1 as indicated in the Judicial Council note following the statute. In People v. Steinmann, 57 Ill. App. 3d 887, 373 N.E.2d 757 (1978), the Illinois court held that its theft statute did not make 'exerting unauthorized control over the property' a continuing offense.
"After considering the above authorities we hold the crime of theft by obtaining or exerting unauthorized control over property with intent to deprive the owner permanently of the possession, use or benefit of his property as proscribed in K.S.A. 21-3701(a) is not a continuing offense." (Emphasis added.)
In Gainer, the court held that the theft had been completed when the property several handguns had been removed from the victim's attic. The State was therefore prohibited from prosecuting the theft more than 2 years later. 227 Kan. at 674-75. We restated this rule in State v. Palmer, 248 Kan. 681, 690, 810 P.2d 734 (1991), where we held:
"All criminal offenses, except those considered continuing offenses, are committed when every act which is an element of the offense has occurred. Continuing offenses are committed when the course of the prohibited conduct, or the accused's complicity in the crime, has terminated. To constitute a continuing offense, it must plainly appear in the statute defining such offense that there is clear legislative intent to make the prohibited conduct a continuing offense. The crime of theft as proscribed in K.S.A. 21-3701(a) is not a continuing offense. [Citation omitted.]"
Both decisions basically restated prior law. In State v. Knowles, 209 Kan. 676, 678, 498 P.2d 40 (1972), we had held that "'[t]heft' under the present statute, unlike 'larceny' under the old, requires no asportation to complete the crime. All that is required is the (here unauthorized) control, coupled with the intent to deprive the owner permanently of his possession, etc."
We strove to eliminate any confusion on the crime completion issue as recently as 5 years ago in State v. Bateson, 266 Kan. 238, 970 P.2d 1000 (1998), where we discussed the related crimes of robbery and theft. "'Commission of the crime of robbery is complete when the robber takes possession of the property, as the element of asportation is no longer required to complete the crimes of theft or robbery.'" (Emphasis added.) 266 Kan. at 243 (quoting State v. Long, 234 Kan. 580, 585, 675 P.2d 832 [1984]). In short, the "theft by exertion" option applies to crimes such as embezzlement, not the physical theft at issue here. See Wilson, Thou Shalt Not Steal: Ruminations On The New Kansas Theft Law, 20 Kan. L. Rev. 385, 406 (1972) ("Obtaining" unauthorized control is the touchstone for theft by a stranger, while "exertion" of unauthorized control is sufficient proof in the embezzlement situation where the actor already has control.).
While the theft of the motorcycles was completed well before the two tragic deaths in the case at hand, the jury instructions and verdict forms themselves unfortunately set the stage for the jury eventually finding that the crime of theft was an "ongoing offense." Jury instruction No. 16 began the problem when it allowed the jury the option of selecting "exerted unauthorized control over the property" as one of two bases for the theft. It stated:
"As to count 4, the defendant is charged with the crime of theft of property of value of at least $500 but less than $25,000. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved:
"1. That Olathe Suzuki was the owner of the property;
"2. That the defendant:
a. obtained unauthorized control over the property;
OR
b. exerted unauthorized control over the property." (Emphasis added.)
The jury verdict form for theft (count 4) repeated the problem begun in the theft instruction:
"We, the jury, find the defendant guilty of theft of property of a value of $500 but less than $25,000; the defendant having obtained unauthorized control over the property.
[or]
"We, the jury, find the defendant guilty of theft of property of a value of $500 but less than $25,000; the defendant having exerted unauthorized control over the property." (Emphasis added.)
The problem is repeated in the jury verdict forms for counts 1 and 2 (the felony murders of Sloane and Sanders, respectively), which contained similar language:
"We, the jury, find the defendant guilty of murder in the first degree, the killing having been done in the commission of or flight from theft of a value over $500, to wit: three suzuki motorcycles; the defendant having obtained unauthorized control over the property.
[or]
"We, the jury, find the defendant guilty of murder in the first degree, the killing having been done in the commission of or flight from theft of a value over $500, to wit: three suzuki motorcycles; the defendant having exerted unauthorized control over the property." (Emphasis added.)
These problems were exacerbated by the State's interpretation of the instructions in closing arguments. Without objection, the State essentially informed the jury that theft was a continuing offense, and Kunellis' unbroken "exertion of control" over the motorcycles from the time of theft until the time of the accident was a single continuing offense, not flight from an accomplished theft. The State explained the jurors' options for finding Kunellis guilty of felony murder in the following language:
"The fourth option is the killing occurs during the commission of a theft where there is exerting of unauthorized control over those motorcycles. Isn't the evidence pretty much the same as it relates to all of these? There's a very important distinction regarding the two options there concerning theft. The burglary, as we know, is when they enter into the business for the purpose of committing a theft therein. The theft, one of the two options of obtaining property, as well occurs there at the business where they obtained the motorcycles without permission or authority, and the value being in excess of $500. The third option is the exerting unauthorized control over those motorcycles. This exerting option is one that allows for you, as jurors, to conclude that they were exerting unauthorized control of those motorcycles from the very point in time that they are leaving that motorcycle dealership all the way through that neighborhood in Olathe where they got lost, all the way up Santa Fe streets where they drove that cargo van and all the way down Interstate 35, all the way down to where the police begin to turn sirens on and all the way through the rest of the pursuit and the driving of the cargo van against the flow of traffic on 69 Highway.
"The exerting is taking place that entire time frame. Why is that important? It's important because you, as the jury, are to conclude that a felony murder took place in both Counts 1 and 2, both Rick Sloan and Simone Sanders, if that felony of theft, that exerting unauthorized control exists, and we contend it does, and if the killing took place during the commission of or flight from that felony. That's exerting unauthorized control. You're given an instruction that relates to certain factors that you can look to in deciding whether or not that killing occurred during the commission of the underlying felony.
"The three factors you're going to look to are time, distance and causal connection. That's Instruction No. 14. Let's look at the time as the killing relates to this theft by unauthorized control. Let's look at the timing of that theft. At the very moment that that killing takes place, or that collision takes place, they, both Ben Rogers and Ken Kunellis, are exerting unauthorized control over those motorcycles simultaneous in terms of the timing of those two. It's occurring during the commission of that felony, the commission of that theft. Distance, what's the distance in terms of that fact or the distance? There is no distance. They are exerting unauthorized control over those motorcycles when that collision takes place. There is no distance there to consider in terms of from Olathe to Lenexa, because they're exercising unauthorized control over those motorcycles." (Emphasis added.)
On rebuttal, the State continued its refrain. It argued that by the jury selecting the "exerting" option it need not even consider flight from the felony as a basis for murder:
"There's no issues concerning flight. We again contend that the exerting option doesn't even require that you look at [flight]. The exerting option basically says that they're in the commission of that crime when the commission takes place, and we would contend that's the version that is the strongest evidence in support of guilt. The other two options are flight options." (Emphasis added.)
The jury found Kunellis guilty of theft by marking the verdict form's box for exerting unauthorized control over the property, i.e., which applies to embezzlement-type crimes, and not the box for obtaining unauthorized control, which applies to physical theft. Similarly, the jury found Kunellis guilty of felony murder for the deaths of both Sloane and Sanders by marking the verdict forms' boxes for theft by exerting unauthorized control and not the boxes for obtaining unauthorized control. While the jury verdict forms for both counts of felony murder did inform the jury of the requirement for the "killing having been done in the commission or flight from" either theft or burglary as the possible bases for conviction and arguably a jury could therefore have determined guilt by flight from a completed theft the jury's other completed verdict forms confirm its decisions were based upon the erroneous theft-based instructions. In particular, the jury found Kunellis guilty of burglary, also an inherently dangerous crime and therefore a basis for felony murder. See K.S.A. 21-3436(a)(9). Yet its completed verdict forms rejected the commission of burglary, and more importantly the flight from a burglary, as the basis for his conviction of felony murder.
We are compelled to conclude that in the jury's mind, the crime of burglary was complete well before the deaths and Kunellis was not in flight from it at the time of the deaths; hence, that crime provided no basis for felony murder. We must also conclude, however, that in the jury's mind the crime of theft (by exertion of unauthorized control) was ongoing. It was still being committed at the time of the deaths, hence providing the only basis for felony murder. As a matter of law, the theft like the burglary was also completed before the deaths. See Gainer, 227 Kan. 670. In short, the completed verdict forms reveal that the jury indeed relied on the improperly defined theft-by-exertion theory to convict Kunellis of both theft and felony murder.
Consequently, we hold that the jury instructions and verdict forms were erroneous and constitute reversible error. They did not properly and fairly state the law as applied to the facts of the case, and the jury was misled by them. See State v. Mitchell, 269 Kan. 349, 355, 361, 7 P.3d 1135 (2000). Moreover, under the circumstances of the case at hand, the jury's receipt of an alternative charge that was legally sufficient "theft by obtaining" cannot salvage the convictions for the State. As the United States Supreme Court has stated:
"Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law whether, for example the conviction in question . . . fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error." Griffin v. United States, 502 U.S. 46, 59, 116 L. Ed. 2d 371, 112 S.