State v. Kelley

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NOT DESIGNATED FOR PUBLICATION

No. 117,908

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTHONY EUGENE KELLEY,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed November 30,
2018. Affirmed.

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

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., BUSER and SCHROEDER, JJ.

PER CURIAM: Anthony E. Kelley appeals from his convictions for aggravated
burglary, aggravated robbery, and kidnapping. On appeal, Kelley contends that the
evidence presented at trial was insufficient to establish that he had the requisite criminal
intent to commit aggravated robbery. Additionally, Kelley contends that questions from
the jury regarding the safety of the jurors show that the jury was prejudiced against him
and that a mistrial should have been declared. Because we find none of Kelley's
contentions persuasive, we affirm his convictions.

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FACTS

Since 1989, Kelley has been in the custody of the Kansas Department of
Corrections serving consecutive sentences of life in prison for first-degree murder and
15-20 years in prison for aggravated burglary. See Kelley v. State, No. 93,525, 2005 WL
3098355 (Kan. App. 2005) (unpublished opinion). Although he was incarcerated at the El
Dorado Correctional Facility at the time the crime was committed, Kelley was convicted
of orchestrating a kidnapping, aggravated robbery, and aggravated burglary arising out of
a home invasion in Wichita that lasted approximately 20 hours in December 2015.

On December 2, 2015, an assistant manager at Hewitt Davis' place of employment
became concerned about his 65-year-old employee. The assistant manager was worried
because Davis—a long-time and punctual employee—failed to show up for work that
morning. After unsuccessfully attempting to reach Davis by telephone, the assistant
manager called the Wichita police around 8:30 a.m. to ask them to do a wellness check at
Davis' home. Officer Luis Franco responded to the call.

When Officer Franco arrived at Davis' residence, he noticed a green vehicle with
California license plates backed into the driveway behind another vehicle. Officer Franco
approached the house and a man who identified himself to be Jerome Mitchell-Bey came
to the door. Mitchell-Bey told Officer Franco that Davis was "in [his] custody." Mitchell-
Bey showed the officer paperwork that purportedly authorized Davis' arrest.

Upon entering Davis' house, Officer Franco noticed four or five men wearing flak
jackets and gun belts with empty holsters. The men told Officer Franco that they had no
guns on them but that they had confiscated Davis' firearms. Concerned for his own safety
as well as for the safety of Davis, Officer Franco called for backup. Officer Renay
Bryand was the first to answer Officer Franco's call for assistance at Davis' home.
Subsequently, other officers also arrived at the scene.
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In speaking to Davis—who was found in a back bedroom lying on a bed wearing
an oxygen mask—Officer Franco learned that the men had confronted Davis in his
driveway the previous afternoon, had placed him in handcuffs, and would not let him
leave his house. Davis told the police that he believed that Kelley—who is the son of
Davis' deceased wife—orchestrated the home invasion from prison. Davis indicated that
the men initially kept him handcuffed in a living room chair before moving him to his
bedroom.

Davis told the police that the men claimed his house was "Mufti Corp Moorish
Temple" property. He also stated that Mitchell-Bey had threatened him with a stun gun
during the ordeal and stated that "this was going to be his worst nightmare." According to
Davis, Mitchell-Bey seemed to be in charge and did most of the talking for the men who
seized him.

Mitchell-Bey provided Officer Franco with documents that indicated that Kelley
had appointed him to serve as an agent of the "Mufti Law Enforcement Agency" and had
authorized the "arrest" of Davis. The police also found several bags of personal property
in the house. In one of the bags, the officers found several guns that belonged to Davis.
According to Officer Bryand, Davis told him that in addition to taking his firearms, the
men had taken his wallet, house key, car keys, and other items of personal property.

During the investigation, the police learned that Davis and Ruth Greer were in a
relationship for 29 years prior to her death in 2012. Davis told investigators that he
considered Greer to be his common-law wife. According to Davis, he and Greer also had
visited Kelley at El Dorado Correctional Facility on Sundays and would often purchase
snacks or other items for him. In addition, Davis said that he continued to provide Kelley
$50 a month for a period time after Greer's death because she wanted him "to look after
her son."

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Investigators obtained a warranty deed for Davis' house dated October 28, 2003.
The warranty deed listed Greer and Davis "as joint tenants . . . [w]ith the rights of
survivorship and not as tenants in common." The warranty deed did not list Kelley or the
"Mufti Corp Moorish Science Temple" as having an ownership interest in the house.
Davis told the police that he believed that after Greer's death, he became the sole owner
of the property.

On December 3, 2015, Sergeant Lee Eisenbise of the Wichita Police Department
went with an FBI Agent to interview Kelley at the El Dorado Correctional Facility. After
he was given his Miranda rights, Kelley agreed to speak to the officers. During the
recorded interview, the officers learned that Kelley had contacted both Mitchell-Bey and
Samuel Gomez by phone while they were at Davis' house. Moreover, Kelley made
several incriminating comments regarding his involvement in the home invasion,
including the following:

 "I'm responsible because I am the one who sent those particular officers to
arrest [Davis], and I have also instructed them to go to the county
courthouse."
 "I employ these gentlemen."
 "I instructed them to hold [Davis] on the premises until we could sort
everything out."
 "I commissioned Mitchell-Bey."
 "This was an opportunity to check the legal religity of kingdom law."
 "Q: So this was a test to see if you have this legal authority . . . ? A:
Right."
 "Q: How did these guys get the things that they used? How did they get
these uniforms, how did they get these belts? Stun guns? A: I purchased
it—the gear. Q: You purchased it? A: Yeah. Q: How did you purchase
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that from in here? A: You would be surprised what you can purchase in
here."
 "At different times, I ordered stun guns, collapsible batons, duty belts,
uniforms, patches, and maybe a multiknife for something, gloves, berets,
helmets."
 "First thing they were supposed to do is gain entry into the house. After
that, they were to arrest Hewitt L. Davis."
 "My basic job, this right here, is to take the hit . . . . If we're wrong, I'm
responsible."
 "If they want the person that's responsible, it's me."

On December 7, 2015, the State filed a complaint against Kelley and the men
arrested at Davis' home. The complaint was subsequently amended. Ultimately, Kelley
was charged with committing the crimes of kidnapping, aggravated burglary, and
aggravated robbery. A preliminary hearing was held on May 11, 2016, at which Kelley
was bound over for trial. In December 2016, a jury trial was commenced in district court.
At trial, Kelley represented himself and Steven Wagle served as his standby counsel.

During the trial, the State presented the testimony of six witnesses in its case-in-
chief and one rebuttal witness. Specifically, the State called Henry Winsor, Officer Luis
Franco, Officer Renay Bryand, Hewitt L. Davis, Forensic Examiner Nancy Jamal Bara,
Sergeant Lee Eisenbise, and Lieutenant Todd Ojile as witnesses. In addition, the State
introduced 38 exhibits that were admitted into evidence and played the video recording of
Sergeant Eisenbise's interview of Kelley for the jury.

In his defense, Kelley presented the testimony of four witnesses. In addition to
testifying on his own behalf, Kelley called Inmate Mark Agnew, Wichita City Attorney
Sharon Dickgrafe, and Attorney John Peter Orsi as witnesses. Kelley also introduced 11
exhibits that were admitted into evidence.
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At trial, Davis testified about the events that began on December 1, 2015, in his
driveway. Among other things, Davis testified that he did not give any of the men
permission to enter or remain in his house. Davis also testified that the personal property
taken from his person was removed without his permission and that he was denied access
to it while the men were in his house. Likewise, Davis testified that he complied with the
demands made by the men because of the threats they made and because of the stun gun.
Finally, Davis testified that at no point during the ordeal did he feel free to leave his
house.

Kelley told the jury that he took "full responsibility for the actions" of the men
who were physically present during the home invasion because they acted under his
"command." Nevertheless, Kelley argued that the actions taken by the men were not
illegal. Through his testimony, Kelley attempted to establish that Davis' house actually
belonged to him and/or the "Mufti Corp Moorish Temple" that he headed. Kelley
described himself as the "King" of the organization and indicated that Davis' house is
listed as its headquarters on documents filed with governmental agencies.

Kelley admitted that he hired Mitchell-Bey and Gomez to undertake what he
called the "arrest" of Davis. He also admitted to ordering the uniforms, duty belts, and the
other paramilitary gear used during the incident. Kelley argued that anyone associated
with the "Mufti Corp Moorish Temple" should have the authority to "enter into the
building" and that he had given the men "permission" to do so. Kelley further admitted
that he talked to the men several times while they were in the house to provide
instruction. According to Kelley, any items collected at Davis' house were legally
"seized, tagged, and bagged."

Kelley testified that he did not "feel [he had] done anything illegal or wrong."
Nevertheless, on cross-examination, he agreed that he sent the men "to take control of
that house" and that he "sent [them] with handcuffs" so that they could "cuff and detain
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Hewitt Davis." He also agreed that he "wanted [Davis] to be held in that house for a
minimum of 72 hours."

During jury deliberations, the district court received two questions from the jury.
First, the jury asked: "How can the safety of the jury be guarded/protected as a result of
their work from the defendant and his witnesses and his organization?" Second, the jury
inquired: "Who are the individuals in the gallery during closing arguments, and are the
co-conspirators in jail? Some of the jurors are single and concerned about their personal
safety." After asking both the State and Kelley their opinions on how to respond to the
jury's questions, the district court decided to simply respond by writing: "[Y]our verdict
should be based only on the facts and evidence presented in open court. I will leave it at
that."

Subsequently, the jury found Kelley guilty of kidnapping, aggravated robbery, and
aggravated burglary. At sentencing, the district court denied Kelley's motion for acquittal
and motion for a new trial. The district court then sentenced him to 247 months for the
kidnapping conviction, 61 months for the aggravated robbery conviction, and 34 months
for the aggravated burglary conviction, totaling 342 months. These sentences were
imposed consecutive to one another and consecutive to "any and all [prior] convictions."
Thereafter, Kelley timely filed a notice of appeal.

ANALYSIS

Sufficiency of the Evidence

Kelly's first contention on appeal is that the jury lacked sufficient evidence for the
three guilty verdicts. In determining if there was sufficient evidence presented at trial, we
review "the evidence in a light most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt." State v.
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Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). In doing so, we must "not reweigh
evidence, resolve evidentiary conflicts, or make determinations regarding witness
credibility." State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016).

Kelley argues that there was insufficient evidence to convict him of aiding and
abetting the crimes of aggravated robbery, aggravated burglary, and kidnapping. Because
he was incarcerated at the time of the incident that led to the charges, Kelley recognizes
that "the State clearly charged [him] under an aiding and abetting theory." "[F]or a
defendant to be convicted of a specific-intent crime on an aiding and abetting theory, that
defendant must have the same specific intent to commit the crime as the principal." State
v. Overstreet, 288 Kan. 1, 13, 200 P.3d 427 (2009).

Kelley submits that "[t]he questions at issue are: whether Mr. Mitchell-Bey and
his companions intended to commit a robbery therein; and whether Mr. Kelley had the
same mens rea [criminal intent] as the actual perpetrators did at the time that they
actually entered the building." He also suggests that if there was no intent to commit
aggravated robbery, there can be no specific intent to commit aggravated burglary. In
turn, he makes a similar argument regarding the kidnapping charge. In particular, Kelley
argues that the kidnapping charge is based on an intent to commit aggravated burglary
that in turn "was predicated upon the crime of robbery which requires an intent to
permanently deprive Mr. Davis of his property."

"Robbery is knowingly taking property from the person or presence of another by
force or by threat of bodily harm to any person." K.S.A. 2017 Supp. 21-5420(a). A
robbery becomes aggravated robbery "when committed by a person who: (1) is armed
with a dangerous weapon; or (2) inflicts bodily harm upon any person in the course of
such robbery." K.S.A. 2017 Supp. 21-5420(b)(1) and (2). As the Kansas Supreme Court
has held, "robbery and aggravated robbery are general intent, not specific intent crimes.
In order to prove the elements of [these] crimes, the State need only prove that a
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defendant took property from the person or presence of another by force or by threat of
bodily harm to any person." State v. Edwards, 299 Kan. 1008, Syl. ¶ 2, 327 P.3d 469
(2014). In other words, a defendant has completed the crime of robbery or aggravated
robbery "when the individual takes possession of the property, because asportation [the
carrying away of someone else's property] is no longer required to complete the crime."
299 Kan. at 1015.

On the other hand, aggravated burglary is entering into or remaining in a dwelling
in which there is a human being—without authority—"with intent to commit a felony,
theft or sexually motivated crime therein." K.S.A. 2017 Supp. 21-5807(b)(1). Unlike
robbery and aggravated robbery, aggravated burglary is a specific intent crime. See State
v. Makthepharak, 276 Kan. 563, 572, 78 P.3d 412 (2003). Consequently, to constitute
aggravated burglary, the State must establish that a defendant had a specific intent to
enter a dwelling where there is a human being with the intent to commit a felony or theft.

Similarly, kidnapping is a specific intent crime. K.S.A. 2017 Supp. 21-5408(a)(2)
provides that kidnapping "is the taking or confining of any person, accomplished by
force, threat or deception, with the intent to hold such person . . . to facilitate . . . the
commission of any crime." In particular, kidnaping "requires the perpetrator to effect the
restraint or confinement by force, threat, or deception with the specific intent to
accomplish a particular illegal purpose." State v. Ramirez, 299 Kan. 224, 231, 328 P.3d
1075 (2014).

Here, a review of the record reflects evidence that Mitchell-Bey, Gomez, and the
others present in Davis' home took possession of various items of personal property
belonging to Davis without his permission. In addition to the personal property taken
from Davis, the men compelled him to sign a document purportedly signing his house
over to Kelley's organization. The record also reveals that the men threatened Davis with
a stun gun and made comments that he perceived to be threatening in nature. Specifically,
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Davis testified that Mitchell-Bey threatened him with a stun gun or taser and told him
that if he did not cooperate that this would be his "worst nightmare."

Regarding the property that the men took from his person, Davis testified as
follows:

"Q: When they took your property from you, that being your wallet, your rings, your
medication, your watch, did they actually take it from your presence?
"A: They had me empty out my pockets, yes.
"Q: So do you have access to it any longer?
"A: No.
"Q: Okay. Did you give them permission to take those items—but for the stun gun and
their statements to you?
"A: No."

As indicated above, removing the property from Davis' house is not required to
complete the crime of robbery or aggravated robbery. Hence, we find that the evidence
presented at trial regarding the men taking these items of personal property from Davis
without his permission—combined with the evidence of Davis being handcuffed,
threatened with a stun gun, and prevented access to the property—is sufficient to
establish that the aggravated robbery was completed. See Edwards, 299 Kan. at 1015. A
review of the record also reveals that Kelley admitted to instructing the men to "seize"
certain personal property at Davis' house. Based on this evidence, a reasonable fact-finder
could conclude that Kelley sent the men to Davis' house with the intent to take property
from Davis by force or by threat of bodily harm and the men carried out his orders.

Regarding the specific intent necessary to commit aggravated burglary, the record
reveals that Kelley sent the men to the house to seize Davis, to confine him for up to 72
hours, and to seize specific items of property. The evidence also shows that the men took
large duffel bags with them to the house in order to store the items they were going to
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seize. Based on this evidence, a reasonable fact-finder could conclude that Kelley sent the
men to Davis' house with the specific intent to seize Davis in order to commit a felony or
theft and that the men carried out his orders.

Finally, we find sufficient evidence in the record to support the requisite specific
intent to commit the crime of kidnapping. During Kelley's interview and trial testimony,
he made several statements indicating that he directed his men to seize and confine
Davis. See, e.g., ("I am the one who sent those particular officers to arrest"); ("I
instructed them to hold [Davis] for a minimum of 72 hours"); ("First thing they were
supposed to do is gain entry into the house. After that, they were to arrest Hewitt L.
Davis. After arrest, [they] were to hold him in the basement."). Likewise, Davis testified
that he was placed in handcuffs and later confined to his room while a guard stood at the
doorway. Based on this evidence, a reasonable fact-finder could conclude that Kelley sent
the men to Davis' house with the specific intent to seize and confine Davis against his
will in order to commit a crime and that the men carried out these orders.

We, therefore, conclude that there is sufficient evidence in the record upon which
a fact-finder could determine that Kelley was guilty beyond a reasonable doubt of aiding
and abetting in aggravated robbery, aggravated burglary, and kidnapping.

Questions from Jury

During deliberations, the district court received a note from the jury that asked:
"How can the safety of the jury be guarded/protected as a result of their work from the
defendant and his witnesses and his organization?" and "Who are the individuals in the
gallery during closing arguments, and are the co-conspirators in jail? Some of the jurors
are single and concerned about their personal safety." Kelley contends that "the court
ought to have either declared a mistrial or, in the alternative, instructed the jury that they
should consider the case without sympathy or prejudice to any party in accordance with
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P.I.K. 3d 51.07." According to Kelley, the jury's questions proved that "their
deliberations have been tainted by fear and prejudice" and showed "blatant prejudice by
the jury toward the defendant."

After the jury inquired as to how the individual jurors would remain safe, the
prosecutor stated that the questions should probably be answered

"something to the effect of the jury should not consider anything other than the evidence
that was presented in open court in arriving at their decision. Any questions that are not
related to the facts and evidence in the case should not be considered and can be I guess
addressed at the conclusion of their deliberations."

Kelley responded, "I would not know how to answer something like that. I'd have
to say just what [the prosecutor] said. I don't get it." The district court modified the
prosecutor's suggestion slightly and responded to the jury: "[Y]our verdict should be
based only on the facts and evidence presented in open court." The district court then
asked to confirm this instruction with Kelley by asking "Mr. Kelley, anything else, sir?"
Kelley responded by shaking his head and saying, "No, no, Your Honor."

The record reflects that the district court provided Kelley with the opportunity to
not only suggest a response to the jury's questions but also to edit and provide feedback
to its answer. Yet on appeal, Kelley now claims this instruction was error. Kelley agreed
to the court's verbiage for the jury question response. He did not object when the
questions arose and agreed with both the prosecutor's and the court's language.

Notwithstanding, Kelley argues on appeal that district court's failure to provide
additional guidance to the jury or to declare a mistrial was error. Even so, Kelley failed to
provide any authority to support this contention. Kelley simply suggests that "the court
ought to have either declared a mistrial or . . . instructed the jury that they should consider
the case without sympathy or prejudice to any party in accordance with P.I.K. 3d 51.07."
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However, as Kelley acknowledges, "the instruction which originally appeared at P.I.K.
3d 51.07 is longer recommended" as it "was disapproved for general use in State v.
Harmon, 254 Kan. 87, 865 P.2d 1011 (1993), and . . . State v. Maggard, 26 Kan. App. 2d
888, 995 P.2d 916 (2000)." Kelley suggests that the instruction is still permitted "in
certain factual circumstances in which the jury may be influenced by sympathy or
prejudice" but fails to elaborate on what those circumstances may be. Thus, we do not
find that the district court erred in how it responded to the jury's questions.

Moreover, even if we did find that the district court erred, the error would be
harmless under the circumstances presented. Error is harmless when the error "did not
affect a party's substantial rights, meaning it will not or did not affect the trial's outcome."
State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221
(2012). Here, the record is replete with statements by Kelley implicating himself in the
crimes. He proudly took responsibility for orchestrating the events that took place at
Davis' home on December 1 and 2, 2015. He simply argued that what occurred was not
illegal. Thus, it is unlikely that the district court's response to the questions from the jury
changed the outcome of the case.

Furthermore, we do not agree with Kelley's assertion that the jury questions
proved the jury was prejudiced against him. Kelley argues that the questions
"demonstrated [the jury's] prejudice against the defendant, not based upon the evidence
against him, but based upon fear of him." Kelley's argument is at best speculative.
Although some jurors may have raised safety concerns, there is no showing that these
concerns resulted in the jurors violating their oaths to decide the case based on the
evidence presented at trial.

Affirmed.