State v. Gunther

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NOT DESIGNATED FOR PUBLICATION

No. 113,880

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CRAIG W. GUNTHER,
Appellant.


MEMORANDUM OPINION

Appeal from Jefferson District Court; GARY L. NAFZIGER, judge. Opinion filed June 17, 2016.
Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-At-Law, of Lawrence, for appellant.

Jason Belveal, county attorney, Alexandria Morrissey, deputy county attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., SCHROEDER, J., and JEFFERY E. GOERING, District Judge,
assigned.

Per Curiam: Craig W. Gunther appeals his jury trial conviction for criminal
damage to property, raising only one issue—the sufficiency of the evidence to convict
him. We find the evidence was more than sufficient to support the jury's verdict, and we
affirm Gunther's conviction.



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FACTS

Gunther was charged with one count of burglary of an automobile, in violation of
K.S.A. 2012 Supp. 21-5807(a)(3), and one count of criminal damage to property (the
vehicle) over $1,000 but less than $25,000 in violation of K.S.A. 2012 Supp. 21-
5813(a)(1) and (b)(2).

Kena Fleming and Gunther had a sporadic relationship for several years. On July
6, 2013, Fleming and Gunther traveled to Perry Lake in Fleming's white Saturn Vue to
meet with Fleming's friends and watch the fireworks show later that evening. Fleming,
Gunther, and Fleming's friends were all drinking alcohol at the lake. Fleming and
Gunther got into an argument. Fleming stated Gunther became upset and started calling
Fleming and her mother names. At one point, Gunther entered Fleming's vehicle and
began throwing out "handfuls" of items, including her son's car seat.

Fleming decided to ride home with her friends around 10 p.m., because she was
afraid of Gunther's behavior. At the time she left, her vehicle was locked and not
damaged.

Around 10 a.m. on July 7, 2013, Kyle Ruona, an officer with the Corps of
Engineers at Perry Lake, was patrolling the beach area at Perry Lake. He observed a
white Saturn SUV with a window broken and the side mirrors torn from the vehicle.
Ruona further noted items from the vehicle thrown near the shoreline, Natural Light beer
bottles scattered around the vehicle, a rear wiper blade had been torn off the vehicle, and
the flap to the gas cap had been removed. Ruona observed blood on the vehicle in the
area near the gas cap. Ruona contacted the Jefferson County Sheriff's Office to report the
damaged vehicle.

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Deputy David Schmitt of the Jefferson County Sheriff's Office responded to
Ruona's call. Schmitt noticed the same damage to the vehicle as Ruona. Schmitt ran the
license plate and identified the owner of the vehicle as Kena Fleming. Fleming arrived at
the scene, spoke with Schmitt, gave a written statement, and then drove her vehicle home.

Schmitt later spoke with Fleming at her residence. Gunther arrived at Fleming's
residence while Schmitt was there. Fleming testified that Gunther waved, smirked, and
flipped her off when he arrived. Gunther left with Schmitt and two Shawnee County
sheriff's deputies to be interviewed. Gunther told Schmitt he and Fleming had previously
dated for a year, broken up, and had recently begun talking again. Gunther told Schmitt
he and Fleming had spent the previous evening watching the Fourth of July show, he had
been drinking, and they had argued. Gunther told Schmitt he had called his mother to
come get him. Gunther indicated to Schmitt he was upset because of the argument and
began punching chunks of concrete because he was mad that Fleming left him at the lake.
Gunther told Schmitt he did not think he had punched Fleming's vehicle but indicated he
was pretty drunk. Specifically, Gunther stated, "I don't know how drunk I was, unless I
did it and I don't remember." Gunther then said, "I was pretty drunk."

Schmitt noted Gunther's right hand was swollen and had cuts and abrasions along
his knuckles and fingers. Gunther told Schmitt he was right-handed. Schmitt testified he
had previously investigated numerous crime scenes in cases involving property damage
and physical altercations and believed Gunther's injuries were consistent with the damage
to the vehicle.

Gunther's mother, Tamah Boyce, testified Gunther called her around 11 p.m. on
July 6, 2013, indicating Fleming had left him at the lake and he needed a ride. Boyce
reached Gunther sometime after 12 a.m. on July 7, 2013. Boyce observed Fleming's
vehicle when she arrived and noticed it had a broken window. Gunther told Boyce he
broke the window on Fleming's vehicle in order to get his cell phone. Boyce denied
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noticing any additional damage to the vehicle; however, Boyce indicated that when she
arrived, it was too dark for her to even notice the injuries to Gunther's hand.

Gunther testified he did not have a key to Fleming's vehicle. When they got to the
lake, Gunther, Fleming, and Fleming's friends were sitting around Fleming's vehicle
drinking. Gunther said he was too intoxicated to drive a vehicle but stated he was
functional and his memory was not inhibited. Gunther indicated there were not any parts
of the day or evening he did not remember.

Gunther stated he got into an argument with Fleming. He admitted he raised his
voice but denied yelling. Gunther indicated the reason for the argument was he felt
unappreciated and was upset at the way Fleming's mother had treated him and his mother
at a party the night before. Gunther denied using profanity or calling Fleming or her son
names but admitted to throwing her son's car seat out of her vehicle. Gunther indicated he
and Fleming also had another argument earlier in the day on July 6, 2013, over a picture
he wanted to post to Facebook.

Gunther testified he had been using his cell phone throughout the day and his
battery charge was under 20 percent, so he plugged his phone into a car charger inside
Fleming's vehicle. Gunther indicated he did so around 9:30 p.m. Some time thereafter,
Gunther and Fleming began arguing and she decided to leave with her friends. Gunther
stated Fleming locked her vehicle prior to leaving. Gunther testified he did not have his
cell phone when Fleming left because it was still in her vehicle. However, Fleming
testified she saw Gunther with his cell phone after locking her car prior to leaving the
lake.

Gunther testified that after Fleming left, he looked around the parking lot area for
anyone nearby but could not find anyone. Gunther stated he then decided to break the
window on Fleming's vehicle so he could call for a ride by picking up a rock and holding
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it in his hand to hit and break the window. He indicated his hand went through the
window with the rock, cutting his hand. Gunther denied throwing the rock through the
window. He stated he removed his cell phone from the charger and attempted to call
Fleming's friends. Gunther tried calling them nine times, but they would not come and
get him. Gunther testified he called his mother, Boyce, at 11 p.m. He said he had poor
reception and his calls to Boyce kept dropping, so Gunther made several calls to Boyce
between 11 p.m. and 12:12 a.m. Gunther indicated Boyce arrived sometime between
12:30 a.m. and 1 a.m. on July 7, 2013.

Gunther paced around in the parking lot area while waiting for his mother to
arrive. He testified that during that time he was angry and anxious, he experienced a
panic attack, and he punched the asphalt in the parking lot. He admitted to breaking the
window of Fleming's vehicle but denied doing any other damage to the vehicle. Gunther
testified he had been drinking Natural Light beer and that some of the bottles found
around Fleming's vehicle were probably his.

Gunther said his mother gave him a ride back to Fleming's house in Topeka where
he stayed the night. No one was home when Gunther arrived so he used the key Fleming
had given him to enter the house. After he woke up, Gunther attempted to contact
Fleming by telephone but could not reach her. Gunther stated he wanted to let Fleming
know what happened and to offer to replace her vehicle's window. Gunther testified he
felt he needed to break the window to retrieve his cell phone but intended to pay for it
afterwards. He denied stealing, intending to steal, or taking anything from Fleming's
vehicle that was not his.

The jury found Gunther guilty of criminal damage to property but acquitted him of
burglary of an automobile. Gunther was given an underlying sentence of 6 months'
imprisonment, suspended to 12 months' unsupervised probation, and was ordered to pay
restitution of $500.
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Gunther timely appeals challenging only the sufficiency of the evidence to convict
him of criminal damage to property.

ANALYSIS

Was the Evidence Sufficient?

When the sufficiency of evidence is challenged in a criminal case, the
appellate court reviews all evidence in the light most favorable to the prosecution.
The conviction will be upheld if the court is convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt based on that
evidence. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).

In determining whether there is sufficient evidence to support a conviction,
the appellate court generally will not reweigh the evidence or credibility of
witnesses. Williams, 299 Kan. at 525. It is only in rare cases where the testimony
is so incredible that no reasonable factfinder could find guilt beyond a reasonable
doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5-6, 660
P.2d 945 (1983).

Gunther argues there was insufficient evidence to convict him of criminal
damage to property. He contends the jury should not have convicted him because
the only reason he broke Fleming's window was to retrieve his cell phone. Gunther
further asserts the State's failure to call Fleming's friends as witnesses brings the
jury's verdict into question. Additionally, Gunther contends the jury's decision to
acquit him of burglary of an automobile is inconsistent with the jury finding him
guilty of criminal damage to property.

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Gunther's arguments are misplaced. Fleming was the owner of the vehicle.
Gunther admits he intentionally broke Fleming's window. It is clear the vehicle
was damaged. There was damage in the form of a broken antenna, broken
windshield wipers, a broken gas cap door, side mirrors broken off, and the
passenger window that had been broken with a rock. Gunther admitted to breaking
the window with a rock, and Schmitt testified the damage to portions of the
exterior of the vehicle was consistent with someone hitting the vehicle.

Moreover, even if the jury concluded Gunther broke Fleming's window to
retrieve his cell phone, it does not preclude the jury from finding he did additional
damage to her vehicle. Gunther adamantly denied doing any other damage to
Fleming's vehicle and argues there was no direct evidence to the contrary.
However, there is no requirement for the State to present direct evidence. A
verdict may be supported by circumstantial evidence, if such evidence provides a
basis from which the factfinder may reasonably infer the existence of the fact in
issue. However, the evidence need not exclude every other reasonable conclusion
or inference. A conviction of even the gravest offense can be based entirely on
circumstantial evidence. State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014).
Circumstantial evidence does not have to exclude every other reasonable
conclusion or inference; it simply must provide a basis from which the factfinder
may reasonably infer the existence of the fact in issue. Brooks, 298 Kan. at 689.
This court has previously held a conviction for criminal damage to property may
be based entirely on circumstantial evidence. State v. Rhoads, 20 Kan. App. 2d
790, 795-96, 892 P.2d 918 (1995).

Here, there was sufficient circumstantial evidence from which a rational
factfinder could infer Gunther did additional damage to Fleming's vehicle beyond
his admission to breaking the window. Gunther was in the area near Fleming's
vehicle after she left. Fleming testified her vehicle was not damaged when she left,
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and Gunther does not dispute this fact. Fleming testified that Gunther did not have
her permission to use or access her vehicle, and he did not have a key to her
vehicle. He admitted to having multiple arguments with Fleming earlier in the day
and even admitted to throwing her son's car seat out of her vehicle during one of
those arguments. Gunther testified he was angry and anxious while waiting for
Boyce to pick him up. Additionally, Gunther testified he had been drinking
Natural Light beer that day and that some of the bottles found in and around
Fleming's vehicle were probably his. Schmitt noticed Natural Light beer bottles in
and around Fleming's vehicle and noted one of the bottles had been shoved into
the area where the driver-side mirror had been broken off.

Schmitt also noted blood on the rock inside Fleming's vehicle as well as
blood on areas of the exterior of the vehicle that had been damaged. Gunther told
Schmitt he did not think he had punched Fleming's vehicle but indicated he was
pretty drunk. Schmitt observed Gunther's right hand was swollen and had cuts and
abrasions along his knuckles and fingers on his right hand. Gunther told Schmitt
he was right-handed. Schmitt testified he had previously investigated numerous
crime scenes in cases involving property damage and physical altercations and
believed Gunther's injuries were consistent with the damage to the vehicle.

The evidence reflects the damage to Fleming's vehicle was more than
$1,000. Fleming testified the cost to repair her vehicle was $1,924.18. The State
introduced an invoice for the repairs to Fleming's vehicle which was admitted
without objection by Gunther.

A rational factfinder could conclude Gunther damaged Fleming's vehicle
beyond just breaking her window. Based on the facts, the jury could infer Gunther
had the motive, opportunity, and intent to damage Fleming's vehicle. There was
also considerable physical evidence found in and around Fleming's vehicle from
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which a rational jury could conclude Gunther damaged her vehicle. The jury was
free to make its own determinations as to the weight and credibility of Gunther's
and Schmitt's testimony. It is not for this court to determine the same. Williams,
299 Kan. at 525. Here, the jury could reasonably infer Gunther did additional
damage to Fleming's vehicle. Gunther's argument there was insufficient evidence
to support the verdict fails.

Gunther's Additional Complaints

Gunther contends the State's decision not to call Fleming's friends as
witnesses brings the jury's verdict into question, and the jury's decision to acquit
him of burglary of an automobile is inconsistent with its verdict of finding him
guilty of criminal damage to property. While these might be interesting points,
they are not relevant to the sole issue on appeal—sufficiency of the evidence. We
deem it unnecessary to address the complaints and decline to do so.

Affirmed.