State v. Vanhoozier

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NOT DESIGNATED FOR PUBLICATION

No. 108,360

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KENNETH D. VANHOOZIER,
Appellant.

MEMORANDUM OPINION


Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed January 29, 2016.
Affirmed in part, reversed in part, vacated in part, and remanded with directions.

Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., PIERRON, J., and HEBERT, S.J.

PIERRON, J.: Kenneth D. Vanhoozier appeals his conviction for aggravated
burglary and misdemeanor theft. Vanhoozier challenges the sufficiency of the evidence
supporting his aggravated burglary conviction, alleges the trial court should have given a
compulsion jury instruction, and argues the cumulative effect of these errors requires a
new trial. He also challenges the use of a prior 1979 person felony conviction in his
criminal history. We reverse the conviction for aggravated burglary, vacate the sentence
imposed, and remand the case with directions to enter an order finding Vanhoozier guilty
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of the lesser included offense of burglary, and for resentencing on the conviction of
burglary.

Sofia Javier lived in a cottage on Southwest 37th Street in Topeka. Her boyfriend,
John Bui, lived in Wichita. On December 6, 2011, Javier and Bui were in Wichita when
Bui received a phone call that unauthorized purchases were being made on his credit
card. Bui thought he had left his credit card on the microwave at Javier's cottage. Javier
called her landlords, Larry and Rachel Hargreaves, who lived in the main house at 37th
Street and asked them to check the cottage. The Hargreaves noticed a cottage window
was open and realized the place had been burglarized. They called the police. In a phone
conversation with Bui, police officers determined that Bui's truck and firearms, among
other things, were missing and it was apparent the cottage had been ransacked. The police
secured the cottage and told Javier she could not make a report until she was present.

Javier and Bui arrived in Topeka around 6:30 p.m. It was already dark. Javier had
called the police when they were just outside of Topeka and asked to meet them at the
cottage. When they arrived home, the couple spoke briefly with Larry and Rachel and
Allen Hargreaves, who lived in Larry's basement. Javier opened the gate on the privacy
fence leading back to the cottage. She immediately saw someone inside the cottage. The
door was open and her TV was on the porch. She screamed and immediately dialed 911.

The person inside the cottage quickly shut the door. Bui ran to the back door of the
cottage to prevent the intruder from escaping. He shined his flashlight in the window,
banged on the back door, and yelled that he had a gun to keep the intruder inside. Larry,
Allen, and Rachel attempted to enter the cottage from the front door, but the intruder tried
to keep the door shut. Eventually, they pushed their way inside. Javier testified it sounded
like a struggle was going on in the cottage. The police arrived shortly thereafter. She told
them the intruder was inside the cottage and Larry possibly had him at gunpoint. She said
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the cottage was ransacked and it was not that way when she had left to visit Bui in
Wichita. At trial, Javier identified Vanhoozier as the intruder.

At trial, Larry testified Vanhoozier was never outside of the cottage but was
standing in the doorway. Vanhoozier attempted to shut the door, but Larry was able to
push the door open. Once inside, Larry put his gun in Vanhoozier face, told him to put his
hands in the air, and get on the floor. He was afraid Vanhoozier had a weapon. Larry and
Allen struggled with Vanhoozier and Larry hit him over the head with a wine bottle
several times.

Officer Scott McEntire of the Topeka Police Department responded to the
burglary-in-progress call at Javier's cottage. He heard a commotion coming from the
cottage and was informed that someone was armed. He heard Allen yell, "Shoot him."
When he entered the cottage, he saw three people—one was lying on the ground, another
was on top of him, and the third was holding a handgun, standing over both of them.
Larry dropped the gun, put his hands in the air, and shouted that he was the victim.
Officer McEntire handcuffed Vanhoozier, who was bleeding.

Vanhoozier took the stand in his own defense. He testified he had been down on
his luck—his truck would not start and he had been evicted from his apartment.
Vanhoozier met up with a recent acquaintance, Dustin Young, at a local convenience
store. Vanhoozier told Young about his truck problems. Young offered to help and also
give him $20 if he would help Young move his big screen television out of his
girlfriend's house. Vanhoozier agreed and they got into what Vanhoozier thought was
Young's truck.

Vanhoozier said everything seemed legitimate because Young used a key to enter
Javier's cottage. He said they moved the large television outside onto the porch and
Young went to get the truck. However, as he waited, he heard a woman scream and he
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assumed it was Young and his girlfriend arguing. A few minutes later, a large, bald man
ran up to the porch waiving a gun and yelling at him about where were the truck and guns
that he had taken from the house. Vanhoozier said the man pointed the gun in his face
and told him to get on the ground. He told the man he would sit on the porch step.
Vanhoozier testified the man then told him to get inside the house. After he refused, the
man and another man grabbed him and dragged him inside the cottage. Once inside the
house, the two men hit and beat him causing two large cuts on his head, broken teeth, a
split lip, a swollen eye, and a puncture wound in his knee. Vanhoozier testified it was not
his intent to go into the house and steal property. Officers later found Young in Bui's
truck. He had Bui's credit cards and the guns that were stolen from Javier's cottage.

Vanhoozier requested a compulsion instruction arguing that he had been forced
into the house by Larry. The trial court denied the instruction. A jury found Vanhoozier
guilty on both counts. Because of his criminal history, which included among other
crimes, a 1979 conviction for aggravated robbery, Vanhoozier's criminal history
classification was category C. The trial court sentenced Vanhoozier to a consecutive
prison sentence of 57 months for aggravated burglary and 12 months for theft.
Vanhoozier appeals.

Vanhoozier first argues the State produced insufficient evidence that he committed
an aggravated burglary. However, the State responds it presented sufficient evidence to
support the conviction. We find Vanhoozier was guilty of the lesser included offense of
burglary as stated in jury instruction 10, not aggravated burglary.

"When the sufficiency of the evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation
omitted.] An appellate court does not reweigh evidence, resolve conflicts in the evidence,
or pass on the credibility of witnesses. [Citation omitted.]" State v. McClelland, 301 Kan.
815, 820, 347 P.3d 211 (2015).
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In this case, aggravated burglary is "without authority, entering into or remaining
within any building . . . in which there is a human being with intent to commit a felony,
theft or sexually motivated crime therein." K.S.A. 2014 Supp. 21-5807(b). Here, the trial
court permitted two alternative jury instructions on aggravated burglary—the first was
that Vanhoozier "knowingly entered a building, to wit: a residence" without authority and
that at the time Larry Hargreaves was in the residence; and the second was that
Vanhoozier "knowingly remained in a building, to wit: a residence" without authority and
that at the time Larry Hargreaves was in the residence. The jury convicted Vanhoozier
under the first instruction, namely that he entered a building without authority when
Larry Hargreaves was in the residence.

The purpose of the distinction between simple burglary and aggravated burglary is
to recognize as a more serious crime those burglaries that can result in a dangerous and
unexpected confrontation between the burglar and an occupant. See State v. Fondren, 11
Kan. App. 2d 309, 310-12, 721 P.2d 284, rev. denied 240 Kan. 805 (1986). In State v.
Reed, 8 Kan. App. 2d 615, 616, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983), the
court observed:

"The purpose behind the aggravated burglary statute is to describe a more serious offense
than simple burglary when there is the possibility of contact between the victim and the
burglar and the accompanying potential for a crime against the person to occur. This
danger is just as great regardless of when during the burglary the victim comes to be in
the building. . . . [T]he severity of the crime depends upon the mere presence or absence
of any human being in the same structure."

Vanhoozier argues that his unauthorized presence in the cottage and the presence
of others did not, at any time, coexist. His defense was that he never intended to commit a
theft but he was merely in the wrong place at the wrong time because of his generosity in
trying to help a friend. He argues that even looking at the evidence in the light most
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favorable to the State, sufficient evidence existed only to support a burglary but the jury
did not make that finding.

Vanhoozier focuses our attention on State v. Gutierrez, 285 Kan. 332, 172 P.3d 18
(2007), to support his argument that he may have initially been unauthorized to enter into
the residence, but that he was given permission to remain in the building by the owner.
Gutierrez involved a domestic situation where a husband was subject to a restraining
order but nevertheless went to his estranged wife's house in violation of the order. He
arguably received permission from his wife to go into the house so they could talk.
Unfortunately, the conversation ended in Gutierrez choking his wife into
unconsciousness. Gutierrez insisted that any intent to commit the felony of attempted
voluntary manslaughter was not concurrent with either unauthorized entry into the
apartment or unauthorized refusal to leave it. Rather, the heat of passion or sudden
quarrel motivating his throttling of his wife arose later in time.

Gutierrez challenged the sufficiency of the evidence to establish his guilt for
aggravated burglary because he claimed the evidence did not show that his intent to
commit the underlying felony was concurrent with either an unauthorized entry into his
wife's apartment or a refusal to leave it. Our Supreme Court began its analysis by
explaining that while the "'entering into'" and "'remaining within'" elements of aggravated
burglary refer to "legally distinct factual situations," they are not "inevitably mutually
exclusive" or necessarily instantaneous. 285 Kan. at 337. For purposes of this case, the
Gutierrez court commented: "It also is conceivable that a defendant who is unauthorized
to enter into a building may be granted permission to remain within and then be subject to
later revocation of that permission." 285 Kan. at 337.

From the timing arguments in Gutierrez, Vanhoozier contends the elements of
unauthorized entry and the presence of other people did not coincide and therefore there
was insufficient evidence of aggravated burglary. However, aggravated burglary does not
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require proof that the defendant knew there was a person present in the building at the
time it was burgled. The mere presence of a person at any time during the crime is
sufficient. See State v. Watson, 256 Kan. 396, 400-01, 885 P.2d 1226 (1994); State v.
May, 39 Kan. App. 2d 990, Syl. ¶ 1, 186 P.3d 847, rev. denied 287 Kan. 768 (2008)
("entry of a person into a building at any time during the course of a burglary constitutes
presence and is sufficient to establish aggravated burglary"); Fondren, 11 Kan. App. 2d
at 311.

Several cases are instructional on the occupancy (another person's presence)
requirement of aggravated burglary. In May, the defendant was burglarizing a newly
constructed home when the owner returned. The defendant told the owner that he was
there to complete the pool and landscaping, but he then ran off when the owner saw a tub
full of the family's electronics in the kitchen. The May court held there was sufficient
evidence to convict May of aggravated burglary and that the trial court also did not err in
refusing to instruct the jury on simply burglary. 39 Kan. App. 2d at 992-94, 995-96.

In Reed, 8 Kan. App. 2d 615, the defendants had aided and abetted a man who
entered into an unoccupied residence. The owner returned home while the man was still
inside. The charging document, alleging defendants aided and abetted aggravated
burglary, omitted the "remaining within" language. On appeal, the defendants in Reed
challenged their conviction, arguing the crime, as stated in the charging document, could
not be proven because the house was unoccupied at the time of the unauthorized entry.
The Reed court examined the occupancy element of aggravated burglary and held the
crime occurs whenever a human being is present in the structure during the course of the
burglary. 8 Kan. App. 2d at 618. The charging document need not specify the point in
time at which a person was present; it merely must allege that a person was present
sometime during the course of the burglary. 8 Kan. App. 2d at 618-19.

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In Fondren, 11 Kan. App. 2d at 310, this court again held the crime of aggravated
burglary requires the place of the burglary to be occupied by a human being at some point
during the course of the burglary. In doing so, this court quoted the following note from
PIK Crim. 2d 59.18 (now 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." 11 Kan. App. 2d at 311. Fondren stole a purse
from a school closet during school hours and was confronted by a teacher before he ran
off with the purse. The Fondren court stated: "The unexpected confrontational situation
between the defendant and the teacher is precisely what the more serious offense of
aggravated burglary is designed to protect against." (Emphasis added.) 11 Kan. App. 2d
at 311-12.

However, we find the evidence, even viewing it in the light most favorable to the
State, does not support a conviction for aggravated burglary—simple burglary, as
provided in the lesser included instructions, but not aggravated burglary. We find the
aggravated burglary statute, K.S.A. 2014 Supp. 21-5807(b), was not intended to apply to
these types of facts. We acknowledge the above authority states that the mere presence of
a burglar and another noncriminal person at any time during the crime is sufficient. See
May, 39 Kan. App. 2d at 993. Vanhoozier was never authorized to be inside the cottage.
However, where another person is physically forcing a burglar to remain in the premises
or doing it at gun point, does not create an occupancy situation for aggravated burglary.
Rather, what occurred in this case was the discovery of a burglary in progress while no
one other that the burglar was present in the house and then the home owners taking it
upon themselves to essentially arrest him. The situation was a detention of a burglar until
the police arrived.

We conclude Vanhoozier was not guilty of aggravated burglary as contemplated in
K.S.A. 2014 Supp. 21-5807(b). However, removing the occupancy element, he is still
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guilty of burglary because of his unauthorized entry and presence and should be
resentenced accordingly.

Next, Vanhoozier argues the cumulative effect of the errors alleged on appeal
deprived him of a fair trial.

When considering the cumulative effect of errors, the reviewing court has
unlimited review. State v. Williams, 299 Kan. 1039, 1050, 329 P.3d 420 (2014). The
cumulative error analysis requires the reviewing court to aggregate all the errors,
including the ones deemed harmless, and determine whether collectively the errors were
harmful. State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011). Essentially, the question
is whether the defendant's right to a fair trial was violated by the cumulative effect of the
errors. 293 Kan. at 205. In determining whether the defendant's right to a fair trial was
violated, we apply the totality of the circumstances test. See State v. Dixon, 289 Kan. 46,
71, 209 P.3d 675 (2009).

While there was error in allowing the aggravated burglary charge to go to the jury
because of the force used by Larry and Allen to get Vanhoozier to remain in the
residence, as we indicated above there was sufficient evidence to support a conviction for
burglary. There was not sufficient evidence for aggravated burglary. Because the
conviction is being reduced to burglary, there is no cumulative error which needs to be
corrected.

Last, Vanhoozier argues the trial court erred in classifying his 1979 aggravated
burglary conviction as a person felony.

Vanhoozier's presentence investigation report cited, along with multiple recent
convictions, a 1979 conviction for aggravated robbery as a person felony and a 1976
conviction for forgery as a nonperson felony. The trial court determined Vanhoozier's
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criminal history score was category C. Vanhoozier did not challenge the
person/nonperson designation of his criminal history at sentencing, but an incorrect
criminal history score results in an illegal sentence. See State v. Neal, 292 Kan. 625, 630-
31, 258 P.3d 365 (2011). And an illegal sentence claim may be raised for the first time on
appeal. See K.S.A. 22-3504(1); State v. Kelly, 298 Kan. 965, 975-76, 318 P.3d 987
(2014). Because this question concerns the interpretation of a statute, we exercise
unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S. Ct. 91
(2014).

In State v. Murdock, 299 Kan. 312, Syl. ¶ 5, 323 P.3d 846 (2014), modified by
Supreme Court order September 19, 2014, over ruled by State v Keel, 302 Kan. 560, 357
P.3d 251 (2015), the Supreme Court held that for criminal history purposes, all out-of-
state crimes committed before the enactment of the Kansas Sentencing Guidelines Act in
1993 must be classified as nonperson felonies. The Court of Appeals then determined that
Murdock did not overrule its decisions regarding in-state pre-1993 crimes. See State v.
Waggoner, 51 Kan. App. 2d 144, 154, 343 P.3d 530, rev. denied 303 Kan. ___
(December 29, 2015). We determined whether a prior in-state crime should be classified
as a person or nonperson crime by focusing on the nature of the offense as established by
the elements of the crime in the statute in effect on the date the defendant committed that
prior crime. 51 Kan. App. 2d at 156-57.

In Keel, 302 Kan. at 589-90, the court overruled Murdock, holding: "[T]he
classification of a prior conviction or juvenile adjudication as a person or nonperson
offense for criminal history purposes under the KSGA is determined based on the
classification in effect for the comparable Kansas offense at the time the current crime of
conviction was committed."

The Keel court's rationale focused on the "fundamental rule of sentencing that the
penalty parameters for a crime are established at the time the crime was committed." 302
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Kan. 560, Syl. ¶ 9. Keel clarified that the classification of all in-state and out-of-state pre-
KSGA convictions is to be determined by looking to the statute criminalizing the prior
offense (if in state) or to the comparable offense statute (if out of state) in effect on the
date the defendant committed the current crime of conviction. See 302 Kan. 560, Syl. ¶¶
8-9.

"In this case, however, given the overall design and structure of the KSGA, we have
determined that the legislature's failure to include a specific provision describing how to score
prior pre-KSGA in-state convictions or juvenile adjudications is inconsequential. The provisions
of the KSGA itself as explained below instructed that prior convictions or adjudications be
classified at the time of the current crime of conviction." 302 Kan. at 573.

Vanhoozier challenges the use of his 1979 in-state conviction of aggravated
robbery. In accordance with the rule in Keel, we look to the aggravated robbery statute on
the date Vanhoozier committed his current crime of conviction—December 6, 2011. On
that date, aggravated robbery was classified as a person felony. See K.S.A. 2014 Supp.
21-5420(c)(2). Therefore, the trial court properly classified Vanhoozier's pre-1993
conviction of aggravated robbery as a person felony.

The conviction for aggravated burglary is reversed, the sentence imposed is
vacated, and the case remanded with directions to enter an order finding Vanhoozier
guilty of the lesser included offense of burglary, and for resentencing on the conviction of
burglary.

Affirmed in part, reversed in part, vacated in part, and remanded with directions.