City of Wichita v. Henning

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NOT DESIGNATED FOR PUBLICATION

No. 115,551

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF WICHITA,
Appellee,

v.

DAVID J. HENNING,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge. Opinion filed
July 7, 2017. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Jan Jarman, assistant city attorney, of City of Wichita, for appellee.

Before MALONE, P.J., LEBEN and BRUNS, JJ.

Per Curiam: David J. Henning appeals his conviction for violating Wichita
Municipal Code, Ordinance 5.12.020 (2007)—taking a motor vehicle without permission.
Henning was initially convicted in municipal court. He subsequently appealed to the
district court, and a jury convicted him. On appeal, Henning contends that there was
insufficient evidence to support his conviction. Based on our review of the record,
however, we conclude that there was sufficient evidence presented at trial upon which a
reasonable jury could find Henning to be guilty of taking a vehicle without permission in
violation of the municipal ordinance. Thus, we affirm.

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FACTS

Henning and Cynthia McSwain were divorced in January 2011. Subsequently, the
district court entered an order in the divorce action clarifying that a 2004 Chevrolet
Cavalier—which evidently was used by the couple's minor children—was to be titled in
McSwain's name and that she would be financially responsible for the vehicle.
Thereafter, McSwain titled the 2004 Cavalier in her name, and she paid personal property
tax on the car.

In August 2014, McSwain went out of town and left the 2004 Cavalier in her
driveway while she was gone. In the early morning hours of August 8, 2014, McSwain
received a text message from Henning stating, "you've done GROSS NEGLIGENCE
again leaving the '04 Cav out while on vacation for storms to harm it. All your other
vehicles are in the garage." Evidently, McSwain did not respond to the text.

When McSwain got home from vacation, the 2004 Cavalier was in the driveway
of her home where she had left it when she went out of town. When she watched video
from her home security camera the following day, however, McSwain saw that at about 1
a.m. the previous morning, Henning had used a key to enter the Cavalier and drove it
away. He then returned the vehicle to the driveway around 8 a.m. After seeing the video,
McSwain called the police and told an officer that she wished to prosecute Henning.

The City of Wichita (City) subsequently charged Henning with one count of
taking a motor vehicle without permission in violation of Wichita City Ordinance
5.12.020. The municipal court complaint alleged that Henning took, operated, or removed
the 2004 Chevrolet Cavalier without first obtaining permission from the person in charge
of the vehicle. On February 13, 2015, the municipal court convicted Henning of violating
the ordinance. Thereafter, he appealed to the Sedgwick County District Court.
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The district court held a jury trial on October 5, 2015. At trial, McSwain testified
regarding her divorce from Henning. She stated that at the time of the divorce, the couple
owned six or seven vehicles that had to be divided in the property settlement. One of the
vehicles was the 2004 Chevrolet Cavalier. According to McSwain, the Cavalier was
originally titled in Henning's name. In April 2011, however, an order was entered in the
divorce action granting the Cavalier to McSwain. Subsequently, she titled the vehicle in
her name. In addition, McSwain paid the personal property taxes and insurance on the
vehicle.

McSwain testified at trial that almost any time there was the potential for rain,
Henning would text her to make sure she got the Cavalier under shelter. She also testified
that he would check the vehicle to see if there were any scratches or dents. According to
McSwain, "This vehicle was like his baby." Furthermore, she testified that Henning was
not supposed to have a key to the Cavalier nor did he have permission to use the vehicle.
She also testified that she told Henning on several occasions to stay off her property and
that she installed video cameras so she could monitor whether he came on her property.
However, Henning was allowed to come to her house to pick up the couple's son.

McSwain testified about learning that Henning had moved the vehicle while she
was out of town. In addition, the prosecutor played for the jury a video from her security
camera purporting to show Henning taking and returning the vehicle in the early morning
hours of August 10, 2014. According to McSwain, Henning was supposed to have
surrendered his keys to the Cavalier after the divorce court finalized the property
division, and she did not know that he still had a key. On cross-examination, McSwain
admitted that there was no court order stating that Henning must turn over the keys to the
Cavalier. However, she testified that she received a paper signed by Henning stating that
he had given her all of the keys.

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Next, an officer from the Wichita Police department testified about responding to
McSwain's call to the police on August 11, 2014. The officer testified that he viewed the
video from the security camera and that McSwain identified Henning as the person who
moved the Cavalier. In addition, the officer stated that McSwain had given him several
documents:

"She gave me a State Farm Insurance card for the 2004 Chevy Cavalier with
Charles and Cynthia McSwain as the insured persons. She gave me a Kansas Department
of Revenue 2014 registration for the 2014 Chevy Cavalier listing Cynthia McSwain as
the sole owner. She gave me a State of Kansas Vehicle Certificate of Title for the 2004
Chevy Cavalier listing Cynthia K. McSwain as the sole owner having no liens. She also
gave me a copy of the video she showed me."

A detective from the Wichita Police Department testified that he became involved
when McSwain called the auto theft department on August 29, 2014, to check on the
status of the case. After receiving the call, the detective served Henning with the
complaint and asked for his side of the story. The detective testified that Henning initially
told him he did not take the Cavalier but subsequently admitted that he had moved the
vehicle to protect it from being damaged in a storm. Afterwards, Henning sent the
detective several emails, including one admitting again that he had moved the Cavalier
and stating that McSwain had refused to safeguard the vehicle for several years.

After the City rested, the district court denied Henning's motion to dismiss the
charge. Henning then testified in his defense. He told the jury that when he was married
to McSwain, it was a common practice to move their cars to protect them from a storm.
Henning also testified that the Cavalier was primarily used by the couple's children. He
admitted to texting McSwain on August 8, 2014. Henning also admitted to moving the
vehicle on August 10, 2014, when he saw that another storm was coming through.
According to Henning, he moved the Cavalier to a Capitol Federal location near
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McSwain's house to protect it from being damaged since he knew the family was out of
town.

Henning further testified that he initially denied moving the Cavalier when he
spoke to the detective on August 29, 2014. He explained that he was confused about what
the detective was talking about but that once he figured out the timeframe, he admitted to
moving the car to protect it from a hailstorm. Henning also testified about his emails to
the detective in which he was attempting to explain that he just wanted his children to
have a decent car and pointed out that the Cavalier was a rare bi-fuel vehicle with low
mileage. In addition, Henning testified that he did not know he was breaking any law by
moving the car to protect it from damage.

After deliberation, the jury found Henning guilty of taking a motor vehicle without
permission in violation of the Wichita City Ordinance. The district court then sentenced
Henning to a 6-month jail sentence, which was suspended to 90 days of probation.
Moreover, the district court fined Henning $200 and ordered him to pay court costs.
Subsequently, Henning timely filed a notice of appeal.

ANALYSIS

On appeal, Henning contends that the City failed to present sufficient evidence at
trial to support his conviction. We are required to review the evidence in a light most
favorable to the prosecution to determine whether we are convinced that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. See State v.
Belt, 305 Kan. 381, 397, 381 P.3d 473 (2016); City of Wichita v. Bannon, 37 Kan. App.
2d 522, 530, 154 P.3d 1170 (2007). We are not to reweigh the evidence, resolve conflicts
in the evidence, or determine the credibility of witnesses. Belt, 305 Kan. at 397.

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To convict a defendant of a crime, the prosecution must prove each element of the
crime beyond a reasonable doubt. State v. Brown, 303 Kan. 995, 1001, 368 P.3d 1101
(2016). Here, Henning was convicted of violating Wichita Municipal Ordinance
5.12.020. The ordinance states:

"It is unlawful for any person to operate, take or remove any automobile or other motor
vehicle from the place where left by the owner or person in charge thereof without first
having obtained permission from the owner or person in charge thereof to operate, take or
remove such automobile or other motor vehicle."

Consistent with the language of the ordinance, the jury was instructed as follows:

"The defendant is charged with taking a motor vehicle without permission. The defendant
pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1.Cynthia McSwain was the person in charge of 2004 Chevrolet Cavalier.
2. The defendant (took) (operated) or (removed) the automobile without first having
obtained permission from person in charge of the property.
3. Vehicle was taken from place where left by person in charge.
4. This act occurred on or about the 10th day of August, 2014 in the city of Wichita,
Sedgwick County, Kansas."

Henning argues on appeal that the City failed to prove that he did not obtain
permission from the owner or the person in charge of the vehicle to remove the Cavalier
from McSwain's driveway. According to Henning, the City did not prove that McSwain
was either the owner or person in charge of the vehicle at the time of the alleged crime.
Based on our review of the record, however, we find that there was sufficient evidence
presented by the City upon which a jury could conclude beyond a reasonable doubt that
McSwain was the owner or person in charge of the Cavalier on August 10, 2014.
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The City presented evidence at trial to show that the Cavalier was titled in
McSwain's name. In addition, the City presented evidence that the vehicle was registered
in McSwain's name in 2014 and that she maintained insurance on the vehicle. Because
we cannot reweigh the evidence or resolve conflicts in the evidence, we conclude that the
City presented sufficient evidence that McSwain was the owner or person in charge of the
vehicle. See Belt, 305 Kan. at 397.

Next, Henning argues that the City failed to present sufficient evidence to prove
intent, knowledge, or recklessness. Intent and knowledge can be proved by circumstantial
evidence. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009). Here, there was
evidence presented at trial that Henning was aware of the order regarding the Cavalier
issued by the divorce court. Moreover, there is evidence that he was not supposed to have
a key to the vehicle. Although Henning texted McSwain a few days before this incident
that she should not leave the Cavalier in the driveway during a storm, he did not text her
to ask to move the car or even to tell her he was moving it on August 10, 2014.
Accordingly, we find that there is sufficient evidence in the record regarding intent.

Finally, Henning contends that the district court committed cumulative error.
Cumulative error can be a reason to reverse a conviction when no individual trial error is
sufficient to support reversal, but the cumulative effect of multiple errors is so great as to
require reversal. State v. Warren, 302 Kan. 601, 620, 356 P.3d 396 (2015). Because we
do not find that the district court committed error in this case, there cannot be cumulative
error. See State v. Roeder, 300 Kan. 901, 940, 336 P.3d 831 (2014).

Affirmed.