State v. Elkins

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NOT DESIGNATED FOR PUBLICATION

No. 115,774

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GERALD D. ELKINS, JR.,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed June 23,
2017. Affirmed.

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 MCANANY, P.J., GREEN and BUSER, JJ.

Per Curiam: Bluegrass music legend Bill Monroe remembered lost love when he
sang, "I traced her little footprints in the snow." In a less romantic setting, the police
employed this same tactic in solving the crimes at issue in this case.

Around 6:30 a.m. on a snowy winter morning, Officers Jared Thomas and Josh
Gilmer were dispatched to Calvary Towers in Wichita in response to a report of a
suspicious character carrying a large television toward Calvary Towers. When the
officers arrived, the caller, Rance Kindred, told them that the suspicious character, a
black male with blue jeans and a tan jacket, had entered Calvary Towers. Officer Thomas
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saw a single set of footprints in the freshly fallen snow leading to the door of Calvary
Towers and wet marks from the snow on the floor inside.

Meanwhile, Officer Gilmer retraced the path of these footprints in the snow back
from Calvary Towers. He noted that the tracks in the snow did not have a distinctive
tread pattern, but the track from one foot "had a drag pattern to it." The footprints led him
back to the home of Edna Brown. Brown's front door was open, and she was asleep when
the police arrived. She awoke and discovered that her back door had been damaged and
her television was missing. After investigating Brown's home, the officers continued to
follow the footprints, which led to two vacant houses that had been forced open and to
the house of Todd Dalton. Dalton reported that around 5:30 that morning a black man
with a short afro and wearing a light, white-colored jacket and blue jeans had asked him
if there was anything he needed hauled away. Dalton said he did not.

Later that day, Officer Chad Burnett went to Calvary Towers to interview Robert
Daquino, the property manager. Daquino provided a surveillance video that showed
Elkins carrying a television into the building at 6:23 a.m. that morning. Another man
joined Elkins in the lobby, and Elkins gave him the television. The men took the
television to apartment 209. When they left about 10 minutes later, they no longer had the
television. The video also showed that Elkins had brought three other televisions to
apartment 209 since 1:30 a.m. that morning.

Upon seeing Elkins in the video, Daquino told the officers that he had ejected
Elkins from the building just several minutes earlier. Officer Burnett contacted dispatch
with a description of Elkins: a black male with a small afro and large eyes wearing a
white or off-white coat, blue jeans, a white t-shirt with blood on it, and sagging pants that
revealed tan boxers. Officer Burnett also reported that Elkins had a distinctive walk,
where "his left leg kind of swooped out to the side." The police found Elkins, who
matched the description, walking down a nearby street and took him into custody.
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Yiekia Edmond in apartment 209 told the officers that Elkins had offered to sell
her some televisions. She bought four televisions from Elkins for the purpose of reselling
them; the first one around 2 a.m. and the last one around 7 a.m. that morning. Another
man helped Elkins deliver them to her. Edmond described Elkins as having large eyes
and a small afro and said that he was wearing a t-shirt with blood on it.

One of the televisions from Edmond's apartment had been stolen from Brown that
morning. Another belonged to Diana Alexander. Alexander had called the police early
that morning, and the police arrived at her home at 4:52 a.m. She told them that she woke
up to find a man in her house. She struggled with the man but then let him leave when he
told her he had "come in the house as a joke." She initially told the police that nothing
was missing from her house, but about 30 minutes later she called the police again to
report that her television was missing. Although it had recently snowed, the responding
officer did not notice any footprints outside the house. Alexander later testified that while
her television was found in Edmond's apartment, Elkins was not the man who had taken
it from her home.

While in custody, Elkins told the police that he had "helped a lady in Room 209
carry two televisions from her car . . . up to 209." When the police told him that the
woman in 209 had said that she bought the televisions from Elkins, he changed his story
and said that his friend J-Mac had asked him for help carrying the televisions. Elkins said
he knew the televisions were stolen but denied stealing them or selling them. The police
noted that the soles of Elkins' shoes were worn, which would explain why the footprints
in the snow did not have any distinctive tread markings.

Elkins was arrested and charged with aggravated burglary, criminal damage to
property, and theft for breaking into Brown's home and taking her television. The State
also charged Elkins with the theft of Alexander's television under an aiding and abetting
theory. The jury convicted him on all charges, and he was sentenced to a controlling term
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of 120 months in prison on the aggravated burglary conviction and concurrent 6-month
sentences for the other three crimes.

Elkins' appeal brings the matter to us. He raises four claims of error on appeal: (1)
the insufficiency of the evidence to support these convictions; (2) the violation of his
constitutional right to confront Rance Kindred, whose hearsay statements were admitted
at trial; (3) the prosecutor's improper argument in closing; and (4) cumulative errors.

Sufficiency of the Evidence

Elkins claims he could not be convicted based on "speculative circumstantial
evidence" without any physical evidence, DNA evidence, fingerprints, or footprint
analysis. In considering this claim, we review the evidence in the light favoring the State
to determine whether we are convinced that a rational factfinder could have found Elkins
guilty beyond a reasonable doubt based on the evidence introduced at trial. See State v.
Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015).

To support an aggravated burglary conviction, the State needed to show that
Elkins knowingly entered a home where a human being—Edna Brown—was present
without authority and with the intent to commit a theft therein. See K.S.A. 2016 Supp.
21-5807.

To support a criminal damage to property conviction, the State needed to show
that Elkins knowingly damaged Brown's door without her consent. See K.S.A. 2016
Supp. 21-5813.

To support a conviction for the theft of Brown's television, the State needed to
show that Elkins exerted unauthorized control over the television with the intent to
permanently deprive Brown of it. See K.S.A. 2106 Supp. 21-5801.
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To support a conviction for the theft of Alexander's television on an aiding and
abetting theory, the State needed to show that Elkins gained control over the property,
knowing that it had been stolen by another, with the intent to permanently deprive
Alexander of the property. See K.S.A. 2016 Supp. 21-5801. "Possession by an accused of
recently stolen property is sufficient to sustain convictions for burglary and theft where a
satisfactory explanation is not given." State v. McFall, 219 Kan. 798, 799, 549 P.2d 559
(1976).

Elkins does not dispute that he had possession of the televisions merely hours after
they had been stolen. He admitted that he knew they were stolen. His explanation for
possessing them clearly was not satisfactory to the jury. Without recounting all the other
facts recited above, including the video and footprint evidence, it is clear that there is
ample circumstantial evidence to establish the elements of these crimes, including the
State's aiding and abetting theory of guilt. A conviction of even the gravest offense can
be based entirely on circumstantial evidence. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d
836 (2016). Viewing the evidence in the light favoring the State, there was sufficient
evidence to support Elkins' convictions.

Right of Confrontation

Rance Kindred, the man who made the 911 call, was unavailable to testify at trial.
Over Elkins' objection, Officer Gilmore testified that he went to Calvary Tower because
he was dispatched there in response to Kindred's 911 call about a suspicious character
carrying a television down 25th Street. Officer Gilmore continued:

"As I pulled into the parking lot at the Calvary Towers, our calling party, Rance Kindred,
made contact with me and he told me there was a man . . . looked about five ten, 160
pounds . . . a black male . . . wearing a tan jacket with a hood and blue jeans walking
down the street with a TV in his hands and he walked into the Calvary Towers."
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Elkins' objection was that the testimony was hearsay. He did not object at trial
based upon the testimony violating his rights under the Confrontation Clause. Now, on
appeal, Elkins raises this constitutional issue for the first time. Generally, a party cannot
assert a new legal theory for the first time on appeal. A party wishing to raise a new issue
on appeal must explain "why the issue is properly before the court." Supreme Court Rule
6.02(a)(5) (2017 Kan. S. Ct. R. 34). In State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d
1068 (2015), our Supreme Court held that Rule 6.02(a)(5) will be strictly enforced. Here,
Elkins does not explain why he is raising the Confrontation Clause issue for the first time
on appeal.

But even if we were to consider this contention, in our de novo review of this issue
we would determine that Elkins' argument is not persuasive. The Confrontation Clause
contained in the Sixth Amendment to the United States Constitution provides that in all
criminal prosecutions, the accused shall have the right to confront the witnesses against
him or her. The Confrontation Clause prohibits the admission of testimonial statements of
a witness who did not appear at trial unless the witness was unavailable and the defendant
had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S.
36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The difference between a
testimonial and a nontestimonial statement was explained in Davis v. Washington, 547
U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006):

"Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution."

Applying this test to our present facts, it is clear that Kindred's call to the police
was not testimonial. Kindred's primary purpose in calling the police was to report an
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ongoing emergency, a suspected theif apparently carrying away a television. Kindred's
description of the man, which he provided to the officers that arrived at Calvary Towers
following his call, was intended to help the police meet the ongoing emergency by giving
identifying characteristics of the man he had seen with the television.

Besides, the protection of the Confrontation Clause applies to attempts to admit
hearsay evidence. See State v. Araujo, 285 Kan. 214, 218, 169 P.3d 1123 (2007). Hearsay
is "[e]vidence of a statement which is made other than by a witness while testifying at [a]
hearing, offered to prove the truth of the matter stated . . . ." K.S.A. 2016 Supp. 60-460.
Here, the court allowed Officer Gilmore to testify about Kindred's statements not to
prove the truth of the matter asserted, i.e., that a man with a certain description was
carrying a television, but to explain the actions of the officers after receiving the report.
Thus, the Confrontation Clause does not apply.

But even if Kindred's statements were testimonial hearsay, a Confrontation Clause
violation may be found to be harmless. State v. Bennington, 293 Kan. 503, 524, 264 P.3d
440 (2011). Here, given the overwhelming evidence from the video recordings, the
footprint evidence, and the testimony of the other witnesses, including Elkins' own
admissions, we are satisfied beyond a reasonable doubt that admission of Kindred's
statements did not affect the outcome of the trial. See State v. Ward, 292 Kan. 541, 568-
69, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). Even if properly preserved,
Elkins' constitutional argument based on the Confrontation Clause would not prevail.

Closing Argument

Elkins argues that the prosecutor misstated the facts and evidence during her
closing argument, thereby denying Elkins his right to a fair trial. We evaluate this claim
using the two-part test set forth in State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060
(2016). First, we determine whether the prosecutor's comments were outside the wide
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latitude allowed in discussing the evidence. Then, if the prosecutor's remarks exceeded
those bounds, we apply the constitutional harmless error test to determine whether the
error prejudiced the defendant's right to a fair trial. 305 Kan. at 109.

During closing argument, the prosecutor said:

"The defendant's story is that he helped a lady carry these . . . TVs in from her gray car.
That's all four TVs at one time at 6:30 in the morning. But you don't see that on video, do
you? The cops don't say that that's what happened at all. Initially that would at least
explain why his fingerprints are on all four of the TVs. But then when the cop confronts
him and says, oh, yeah, well, that lady says she bought all four of those TVs from you,
then he says, oh, well, in this case I was just helping a guy carry all four TVs in from the
parking lot from a red Jeep." (Emphasis added.)

The State did not present evidence at trial that Elkins' fingerprints were on the
televisions. But this is entirely immaterial. There was never any question that Elkins
handled the televisions. Elkins did not deny it. The surveillance video and witness
testimony established that Elkins had possession of the televisions. Elkins' defense theory
was that he was helping someone move the televisions into Calvary Towers. The
prosecutor's remark in closing did not deprive Elkins of a fair trial.

Cumulative Evidence

Finally, Elkins argues that cumulative errors denied him a fair trial. But here, there
were not multiple trial errors to accumulate. See State v. Hilt, 299 Kan. 176, 200, 322
P.3d 367 (2014). Thus, the cumulative error doctrine does not apply.

Affirmed.