State v. Lozano

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NOT DESIGNATED FOR PUBLICATION

No. 115,802

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JESSE LOZANO JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed September 29,
2017. Reversed and remanded with directions.

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

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GARDNER, J, and STUTZMAN, S.J.

PER CURIAM: Jesse Lozano Jr., convicted of aggravated burglary and misdemeanor
theft, appeals his aggravated burglary conviction. He argues insufficiency of the evidence
and an erroneous jury instruction. For the reasons stated below, we reverse Lozano's
conviction for aggravated burglary and remand for resentencing on the lesser included
offense of burglary.



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Factual and procedural background

At trial, Salvador Palacios testified as to the following facts. On September 26,
2014, Palacios returned home from work at about 3 p.m., unlocked the front door, and
went inside. Passing through the living room, he noticed that the family's PlayStation 4
game console had been moved. He then noticed that his laptop computer was not in the
kitchen where he had left it. Palacios got his handgun from the bedroom and inspected
each room of the house, looking for an intruder.

When Palacios went to the basement, he found a man leaning against the water
heater. Palacios recognized the man as Jesse Lozano, the father of Palacios' girlfriend's
four children. Palacios' girlfriend and her children were living in the house at the time.

Palacios asked Lozano what he was doing there, and Lozano replied by telling him
to be quiet because the police were looking for him. The men argued and then began to
fight. They wrestled up the stairs, breaking the handrail off of the wall and damaging the
wall, before Palacios chased Lozano out of the house and across a road. Palacios then
called 911.

The responding officer, Trevor Johanson, inspected the outside of the house and
found an open window, a cut screen, and a green chair placed under the open window.
Palacios testified that the chair belonged on the deck. Palacios told the officer that his
laptop was missing, but it was later found near the furnace in the basement. Palacios did
not report anything else missing at the time. The officer found a bottle of tequila near the
water heater where Lozano was discovered, and one of Lozano's fingerprints was later
found on that bottle.

A few days later, Palacios told police he had discovered that several other items
were missing from his house: cash, cologne, a CD case, a hand-held video game player,
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and a sweater. The officer testified that it is not uncommon for a victim to notice items
missing a few days after a burglary. Palacios was not seen with the items, nor were they
recovered. Lozano was arrested and charged with misdemeanor theft and both means of
aggravated burglary—unlawfully entering into or remaining within Palacios' home.

At the jury instructions conference, the parties addressed the elements instruction's
requirement that at the time of entry, a human being was in the building. The State asked
to add the following language to the instruction on aggravated burglary: "[I]f you find
that a person enters the premises after the burglary has commenced, but before the
defendant has left the premises, you may consider that element satisfied." That language
was taken from the Notes on Use for PIK Crim. 4th 58.130 (2013 Supp.). Lozano's
counsel objected and a long discussion ensued. Ultimately, the trial court included the
following paragraph in the jury instructions instead of the language the State had
requested: "Kansas law states that a human being is considered to be in the building if
the human being enters the building at any point in time while the person committing the
crime of aggravated burglary is present in the building."

The jury convicted Lozano of misdemeanor theft and aggravated burglary. The
district court denied a downward departure and sentenced him to a prison term of 128
months for the aggravated burglary and a consecutive 12-month jail term for the theft.
Lozano timely appeals, claiming that the district court erred in the jury instructions and
that insufficient evidence supports his aggravated burglary conviction.

Did the district court err in adding a paragraph to the PIK instruction?

We first address Lozano's argument that the district court erred by adding
language to the standard PIK jury instruction on aggravated burglary.

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The Kansas Supreme Court has outlined the sequential steps to be taken in
assessing a claimed error in instructing jurors on the governing law. State v. Brown, 300
Kan. 542, 554-55, 331 P.3d 781 (2014); State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283
P.3d 202 (2012). The appellate court determines: (1) reviewability considering
preservation of the issue at trial and jurisdiction; (2) legal appropriateness of the
instruction; (3) factual support in the evidence for the instruction; and (4) harmlessness of
any actual error. 295 Kan. 156, Syl. ¶ 1. Here, the record reveals that Lozano's attorney
timely objected to the district court's giving of the challenged instruction. The State does
not argue that any actual error was harmless. Thus we focus on whether the aggravated
burglary instruction was legally and factually appropriate.

The challenged jury instruction stated:

"The defendant is charged with aggravated burglary. . . . To establish this charge, each of
the following claims must be proved:

"1. The defendant entered a building, to-wit: a residence.
"2. The defendant did so without authority.
"3. The defendant did so with the intent to commit a theft therein.
"4. At the time there was a human being in the building.
"5. This act occurred on or about the 26th day of September, 2014,
in Sedgwick County, Kansas.

"As it relates to claim no. 4 above, Kansas law states that a human being is considered to
be in the building if the human being enters the building at any point in time while the
person committing the crime of aggravated burglary is present in the building."
(Emphasis added.)

The language in the instruction was taken from PIK Crim. 4th 58.130, except for
the language added by the district court, which we have italicized above. The district
court stated that if this paragraph were not included, the jury would have to find Lozano
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not guilty because it was undisputed that no one was in the home when he entered it. The
district court also stated that if the added paragraph were not included, it would have to
instruct on the lesser included offense of burglary. The district court found the paragraph
"unequivocally supported by Kansas law," citing State v. May, 39 Kan. App. 2d 990, 186
P.3d 847 (2008).

But May was overruled in State v. Daws, 303 Kan. 785, 786, 368 P.3d 1074
(2016). Although Daws was decided after Lozano's conviction, we apply that decision
here in accordance with the general rule that an overruling decision will be applied to all
similar cases pending at the time the overruling decision is announced. State v. Collier,
306 Kan. 521, 525, 394 P.3d 1164 (2017). Lozano's case is pending because it is on direct
appeal. See Kirtdoll v. State, 306 Kan. 335, 340, 393 P.3d 1053 (2017) (A case is not
final until all direct appeals are exhausted and the time for rehearing or final review has
passed.).

Daws held that when a jury is instructed only on the "entering into" means of
aggravated burglary, the presence of a person inside the residence at the time of entry is
required for conviction. 303 Kan. at 794. There, no one was inside the house when Daws
entered it. He stayed in the house overnight and was found by the owner the next day.
The Daws jury was instructed as to the elements of aggravated burglary, but only as to
the "entering into" means of the crime, not the "remaining within" means. Daws held that
these are alternative means of committing the crime:

"'[T]he phrases "entering into" and "remaining within" refer to legally distinct
factual situations.' State v. Gutierrez, 285 Kan. 332, Syl. ¶ 2, 172 P.3d 18 (2007). Stated
another way, these phrases constitute alternative means of committing the crime. State v.
Frierson, 298 Kan. 1005, 1011, 319 P.3d 515 (2014). The entering into element is
satisfied when the evidence shows a defendant crossed the plane of a building's exterior
wall. In contrast, the remaining within element refers to a defendant's presence in the
building's interior after entry has occurred. Gutierrez, 285 Kan. at 337. Both situations
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may take longer than a mere moment, but 'remaining within connotes at least briefly
continuous behavior.' 285 Kan. at 337-38." Daws, 303 Kan. at 789.

The State attempts to distinguish Daws because Daws was charged only with the
"entering into" means. Here, the State charged Lozano with both the "entering into" and
"remaining within" means of aggravated burglary. But a panel of our court rejected this
distinction in State v. Montgomery, No. 108,164, 2016 WL 7428308 (Kan. App. 2016)
(unpublished opinion). In Montgomery, as here, the State charged both the "entering into"
and "remaining within" means of aggravated burglary. Nonetheless, we found that to be a
distinction without a difference given the way the State had argued its case:

"This difference in charging, however, is a distinction without a difference given that
during Montgomery's trial, as acknowledged by the State on appeal, 'the State elected to
proceed with the "entering into" language of the [aggravated burglary] statute.' As a
result, at the conclusion of the trial evidence, the State in the present case and in Daws
proceeded under the prosecution theory that each defendant committed aggravated
burglary based upon that defendant's entry into an unoccupied residence which was later
occupied by the resident who interrupted the burglar." Montgomery, 2016 WL 7428308,
at *2.

The State distinguishes Montgomery, showing that the only theory it advanced at
Lozano's trial and supported by the facts of record was that Lozano committed
aggravated burglary by remaining in the home after a person entered the home.

The State did not, however, expressly include the "remaining within" theory in its
requested jury instructions. Those instructions, as in Daws, stated only the "entering into"
means.

The State argues that the added paragraph constitutes an instruction on the
"remaining within" means. This argument was rejected in Daws, which held that use of a
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paragraph nearly identical to the one used here constitutes reversible error when the
defendant is charged with only the "entering into" means of aggravated burglary. 303
Kan. at 786. The instruction in Daws concluded with the text of one of the Notes on Use
for PIK Crim. 4th 58.130. "'When a person enters the premises after the burglary has
commenced but before the defendant has left the premises, the offense constitutes
aggravated burglary.'" Daws, 303 Kan. at 791, 794. Our Supreme Court concluded that
this was an accurate statement of the law but was "too broad if read to apply to both
means," and reversed the conviction. 303 Kan. at 791. Daws teaches that it is not
sufficient to instruct on one means, such as entering, then try to work the other means
into the elements via a statement of law, even if that statement of law is accurate.

This court applied Daws in Montgomery. There, we rejected an argument that
language similar to the language used in Lozano's case constituted an instruction on
"remaining within." At the request of the State and without objection by Montgomery,
language was added to the standard PIK instruction. That language stated that the
defendant entered a residence and "'[t]hat during the time of the unauthorized entry, there
was a human being in the residence.'" Montgomery, 2016 WL 7428308, at *3. We found
that language to be a hybrid approach which tried to integrate both Montgomery's entry
(when no one was present in the dwelling) and his remaining inside the dwelling (when a
person arrived and entered the residence). We found that hybrid approach "not consonant
with Daw's either/or bright-line approach." 2016 WL 7428308, at *3. We also found that
because the instruction still focused on Montgomery's entry and did not reference the
separate "remaining within" aspect of aggravated burglary, the modified language was
ambiguous.

The instruction here suffers from the same defects. Entering into and remaining
within are alternative means. Daws, 303 Kan. at 789. As such, they warrant separate
instructions or an instruction in the alternative. Neither was given here. The language
stating that "a human being is considered to be in the building if the human being enters
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the building at any point in time while the person committing the crime of aggravated
burglary is present in the building" is confusing when read together with the rest of the
instruction only on "entering."

Even though Daws was decided after Lozano's case was tried, the State was aware
of the distinction between the two means of committing aggravated burglary. At the time
Lozano was tried, the Notes on Use for PIK Crim. 4th 58.130 clearly distinguished
between "entering into" and "remaining within," stating: "The phrases 'entering into' and
'remaining within' refer to distinct factual situations. This instruction should employ only
the phrase which is descriptive of the factual situation where the evidence is clear."
(Emphasis added.) PIK Crim. 4th 58.130, Notes on Use. And the first of the five claims
or elements to be proved, as then stated by the PIK instruction, provided the State with
two alternative phrases, stating: "The defendant [(entered) (remained in)] a . . ." PIK
Crim. 4th 58.130. In light of the uncontroverted testimony that Lozano entered the home
before the homeowner returned, the "remaining within" means of committing aggravated
burglary was the appropriate charge. Nonetheless, the instruction employed only the
phrase "entered." This was error.

The State next invites us to find that the three-Justice dissent in Daws was correct
in finding that "entering into" and "remaining within" are not alternative means but are
merely different factual ways to meet one element. See Daws, 303 Kan. at 794-95
(Luckert, J., dissenting; joined by Rossen and Stegall, JJ.) But to do so, we would have to
find Daws' majority to be incorrect. This we cannot do, despite what may be the logical
appeal of that position, since we are bound by our Supreme Court's decision absent some
indication the court is departing from its previous position. State v. Singleton, 33 Kan.
App. 2d 478, 488, 104 P.3d 424 (2005). We find no such indication. Accordingly, we
find that Lozano's jury was improperly instructed.

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The State does not contend that this error was harmless, thus we must reverse
Lozano's conviction of aggravated burglary. The State does request, however, that if we
reverse the aggravated burglary conviction, we remand the case for resentencing on the
lesser included offense of burglary, as was done in Montgomery. We believe this
approach is appropriate where, as here, the facts warrant it. See State v. Wilt, 273 Kan.
273, 277-78, 44 P.3d 300 (2002) (reversing a conviction for aiding and abetting the sale
of marijuana within 1,000 feet of a school because the evidence was insufficient to
establish proximity, but remanding with directions to resentence Wilt for the lesser
included offense of sale of marijuana because the State had met its burden to prove the
elements of that crime); State v. Kingsley, 252 Kan. 761, 782, 851 P.2d 370 (1993)
(finding evidence insufficient to support aggravated arson because the structure was not
occupied by a living person so remanding with order to resentence defendant for simple
arson); State v. Moss, 221 Kan. 47, 50, 557 P.2d 1292 (1976) (finding evidence
insufficient to support attempted felony theft because the State did not prove value was at
least $50 so remanded with directions to resentence defendant for attempted
misdemeanor theft).

Sufficiency of the evidence to support the lesser included offense of burglary

Accordingly, we examine the sufficiency of the evidence to support a conviction
for the lesser included offense of burglary. Burglary has the same elements as aggravated
burglary except it does not require the presence of a person.

Burglary is a specific intent crime. Lozano argues that the evidence is insufficient
to prove that he had an intent to commit a theft at the time he entered the residence and
that he intentionally remained within the home after Palacios entered. Lozano has not
shown that "intentionally remaining" is, in fact, an element of the crime, and the jury was
not instructed that it was. Lozano fails to support this argument with any citation to legal
authority. Not citing any supporting authority is akin to failing to brief the issue.
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University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993,
1001, 348 P.3d 602 (2015). And issues not briefed are deemed waived or abandoned.
Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).

We thus consider only whether the State introduced sufficient evidence to
convince us that a rational jury could find that Lozano had an intent to commit theft when
he entered Palacios' home. Lozano argues that if he had any intent to commit theft, it
arose only later, in the aftermath of the struggle with Palacios.

The governing law

When the sufficiency of the evidence is challenged in a criminal case, we view the
evidence in the light most favorable to the prosecution and will affirm if we are
convinced that a rational factfinder could have found the defendant guilty beyond a
reasonable doubt. In making a sufficiency determination, we do not reweigh evidence,
resolve evidentiary conflicts, or make determinations regarding witness credibility. State
v. Stafford, 296 Kan. 25, 53, 290 P.3d 562 (2012).

Cases often lack direct evidence of a person's intent, so circumstantial evidence
may be used to convict a defendant. State v. Thach, 305 Kan. 72, 84, 378 P.3d 522 (2016)
(interpreting K.S.A. 2015 Supp. 21-5202[h], defining the culpable mental state of "with
intent" as consistent with common law that does not require intent to be proved by direct
evidence). "'Circumstantial evidence tends to prove a fact in issue by proving other
events or circumstances which afford a basis for reasonable inference by the jury of the
occurrence of the fact in issue.'" State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). "A
conviction of even the gravest offense can be based entirely on circumstantial evidence
and the inferences fairly deductible therefrom. If an inference is a reasonable one, the
jury has the right to make the inference." State v. Rosa, 304 Kan. 429, Syl. ¶ 2, 371 P.3d
915 (2016).
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Each case addressing a sufficiency argument must be decided on its unique facts,
but our Supreme Court has identified the following facts and circumstances as relevant to
support a reasonable inference of intent to commit a theft: (1) the manner of the entry;
(2) the time of day; (3) the character and contents of the building; (4) the person's actions
after entry; (5) the totality of the surrounding circumstances; and (6) the intruder's
explanation, if he or she decides to give one. State v. Harper, 235 Kan. 825, 828-29, 685
P.2d 850 (1984). We examine these factors below.

As to manner of entry, Palacios testified that a green lawn chair had been moved
under a window to one of the children's bedrooms and that the screen of that window had
been cut. The manner of entry was thus surreptitious. As to time, the entry did not occur
at night, but occurred about 3 p.m.—a time when Palacios was at work, where Lozano
may have expected him to be. As to the third factor, character of the building, it was a
residential home.

The fourth factor, the defendant's actions after entry, are undisputed. Palacios
testified that he found Lozano in the basement, sitting against the water heater with his
head down. A tequila bottle with Lozano's fingerprint was nearby, as well as Palacios'
laptop computer. The PlayStation 4 console had been moved but not taken. Palacios did
not testify that he saw Lozano with any of the items he reported missing. Lozano picked
up the laptop but instead of leaving the home with it, he retreated to the basement.

Lozano focuses on the fact that Palacios did not see him with any of the items
reported missing. But the jury convicted Lozano of theft, so it necessarily found that
Lozano took some items from Palacios' home. Lozano does not challenge the theft
conviction on appeal and cannot now attack the factual basis of that conviction. The
jury's verdict finding him guilty of theft supports an inference that Lozano entered the
home with intent to commit theft.

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The fifth factor is the intruder's explanation for his or her presence, "if he or she
decides to give one." Harper, 235 Kan. at 830. Lozano decided to give an explanation
here. Palacios testified that when he asked Lozano what he was doing there, Lozano told
him to be quiet because the police were looking for him. On appeal, Lozano offers two
different explanations for his presence: that he "entered the home to obtain information
from the home computer" and that it was a "drunken attempt to obtain some upper hand
in the custody dispute." But neither of those explanations was presented at trial, even in
his counsel's arguments. The sole explanation given to the jury was through Palacio's
testimony that he asked Lozano what he was doing there and Lozano replied that the
police were looking for him. That explanation does nothing to refute an inference that
Lozano was there to steal something. Instead, it evidenced a consciousness of guilt from
which the jury could infer a felonious purpose. See Harper, 235 Kan. at 831 (finding
appellants' statement to police that they "gave up" evidenced "'a consciousness of guilt
from which the jury could further infer a felonious purpose, the same as if the Appellants
had fled'").

Finally, we examine the totality of the evidence. The only other relevant fact is
Lozano's flight, which may evidence a consciousness of guilt. See Harper, 235 Kan. at
831. Evidence of a defendant's flight or attempted flight is relevant to show both the
commission of the acts charged and the intent and purpose for which those acts were
committed. State v. Phillips, 295 Kan. 929, 947-48, 287 P.3d 245 (2012).

We find the facts introduced at trial sufficient to prove Lozano had an intent to
commit a theft at the time he entered the residence. See Harper, 235 Kan. at 831 ("'In the
absence of evidence that this forced entry was made with some lawful intent, we think
that the intent to commit a felony may be reasonably inferred from the time, force, and
manner in which the entry here was made.'"); State v. Wilson, 45 Kan. App. 2d 282, 289,
246 P.3d 1008 (2011) (finding sufficient evidence of intent for the jury to convict him of
burglary even though he was not found guilty of theft).
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In conclusion, the only insufficiency in the evidence in this case related
specifically to the charge of aggravated burglary and the presence of another person at the
time of Lozano's unauthorized entry into the house. In all other respects, we are
convinced that based on the evidence a rational factfinder could have found the defendant
guilty beyond a reasonable doubt of the offense of burglary in violation of K.S.A. 2011
Supp. 21-5807(a)(1).

We thus reverse the conviction of aggravated burglary, vacate the sentence, and
remand the case with directions to resentence Lozano for the lesser included offense of
burglary.