State v. Jones

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NOT DESIGNATED FOR PUBLICATION

No. 113,876

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOSEPH P. JONES, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed September 29, 2017.
Affirmed in part, vacated in part, and remanded with directions.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

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

BUSER, J.: A jury found Joseph P. Jones, Jr. guilty of 19 counts of nonresidential
burglary, one count of theft of a firearm, multiple counts of theft, and multiple counts of
criminal damage to property. On appeal, Jones asserts a number of trial errors. Based on
our review of the record, however, we find no reversible error. As the State concedes, the
sentencing journal entry contains an error relating to Jones' misdemeanor convictions for
criminal damage to property. As such we vacate that part of the journal entry and remand
this case to the district court to enter a journal entry nunc pro tunc to correct the error.
Thus, we affirm in part, vacate in part, and remand with directions.

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FACTS

On the night of May 13, 2014, and in the early morning hours of May 14, 2014,
Jones broke into numerous businesses in Hutchinson. Jones was subsequently arrested
and the State filed multiple felony and misdemeanor charges against him. Ultimately, he
was convicted on all of the charges. We will briefly summarize the facts here and discuss
additional facts as necessary in our analysis.

The Reported Crimes

Poorman's Auto Supply

At approximately 11:30 p.m. on May 13, 2014, Officer Todd Allen of the
Hutchinson Police Department was dispatched to Poorman's Auto Supply in response to a
burglary alarm at that location. Upon arriving at the scene, Officer Allen noticed that the
"front door casing had been pried back, so the outside door [c]ould be opened without
catching on the lock, and [he] could see inside there was a glass breakage on the interior
door." The police notified an assistant manager of Poorman's, and the assistant manager
came to the store around midnight. The assistant manager determined that an intruder had
gained entry into Poorman's by prying open the foyer door and breaking the window on
the inside door. The intruder had stolen a roll of quarters, and the store manager's .38
caliber pistol was also missing from a desk drawer.

State Farm Insurance—Brandon Meyer

Around the same time, the alarm system at a nearby State Farm Insurance office
alerted the owner, Brandon Meyer, of a possible break-in. Meyer contacted the police
department and reported the situation. When Meyer arrived at the office the next morning
to meet with law enforcement, he noticed that someone had cut all of the utility wires on
the outside of the building and pried open the back door; there was damage to the door
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frame and the door itself. According to Meyer, it cost him approximately $700 to repair
the damaged door. Although the intruder had rifled through the front desk area and
moved paperwork around, it did not appear that anything was missing from the office.

Hutchinson Income Tax and Financial Services

When Guy Gann arrived at Hutchinson Income Tax and Financial Services on the
morning of May 14, 2014, he noticed that the police were investigating a break-in at the
nearby State Farm Insurance office. He then noticed that the back door at his business
was broken. Gann flagged down a police officer and informed him that someone had
forced open the back door of his business and had cut the phone lines. According to
Gann, the intruder stole between $40 and $60 from his cash drawer and a "small tin of
coins [that held] numerous silver dollars and silver halves." Additionally, it cost Gann
approximately $500 to replace his damaged back door.

Sara Lee Bakery

On the morning of May 14, 2014, Richele Calvert received a phone call from the
police informing her that the Sara Lee Bakery store where she worked had been
vandalized. Upon arriving at the store, Calvert noticed the security alarm was blaring, the
front door was ajar, its glass was broken, and there was "glass everywhere." Although
nothing of value appeared to be missing from inside the bakery, the intruder had opened
drawers in the manager's office and left the back door ajar. According to Calvert, it cost
approximately $350 to repair the front door.

Dahm Family Dentistry

Dr. John Dahm received a telephone call around 3:30 a.m. on May 14, 2014, from
his office's alarm company. He immediately went to his office, where he observed that
the glass in the office's front outer doors was broken. Dr. Dahm and a police officer
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entered the business and noticed a drop of what appeared to be blood near the reception
desk. Although nothing was stolen from the office, it cost Dr. Dahm approximately $400
to repair the glass doors. The police officer took two swabs of the apparent blood droplet,
and the police department sent the swabs to the Kansas Bureau of Investigation (KBI) for
examination. Dr. Dahm later testified that it was office practice to clean the office at the
end of every business day and that they would have noted if blood had been present when
they were cleaning and removed it. Dr. Dahm further testified that Jones has never been
one of his patients.

The Strand Hair Salon

On May 14, 2014, Darrell Miller, the coowner of The Strand hair salon was
notified that someone had entered the salon without authorization. Consequently, Miller
met a police officer at the salon to assess the situation. In doing so, he noticed that the
glass on the salon's front door had been broken. In addition, he noticed damage to a metal
door at the back of the salon. According to Miller, the door handle was broken, the lock
was damaged, and there were shoe prints on the outside of the door. Additionally,
someone had opened the salon's back window and kicked out the window screen. The
police officer observed a footprint on the concrete portion of the window's ledge.
Moreover, the police found a cloth glove approximately 100 yards behind the salon. The
police department also sent the glove to the KBI for examination. According to Miller,
the intruder stole approximately $5 from a soda machine. In addition, it cost
approximately $1,500 to repair the front door, about $120 to replace the window screen,
and around $2,400 to fix the damaged metal door.

Papa Murphy's Pizza

John Allen, who owned a Papa Murphy's Pizza franchise located nearby, received
a phone call from a police dispatcher at approximately 4 a.m. on May 14, 2014. Papa
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Murphy's is located in the same building as the Hutch Vapor shop and a State Farm
Insurance office. The dispatcher advised Allen that his business had been broken into.
When Allen and his wife went to the business, they found that it was not in the same
condition it had been in when they closed it the previous evening. In particular, they
found the glass on his south door was broken and the "clip" which is used to secure the
back door had been removed. Although nothing was stolen from inside the business, it
cost Allen approximately $400 to repair the damaged door. Allen also accessed video
from his surveillance system showing the burglary in progress. He provided the video to
the police department. This footage was later admitted into evidence at trial.

Hutch Vapor Shop

Michael Depew, who owns and operates Hutch Vapor Shop, was notified around
3:30 a.m. on May 14, 2014, that his business—which is located in a suite next to Papa
Murphy's Pizza—had been burglarized. Upon arriving at his shop, Depew discovered that
someone had broken the front door. After gaining entry to the business, the intruder had
pried open the cash register and stole around $200. The intruder also went into Depew's
office, and about $200 was taken from a petty cash container. It cost Depew
approximately $600 to repair the damage to the front door.

State Farm Insurance—Andy Fry

Andy Fry, who owned a separate State Farm Insurance office in the same building
as several of the other businesses discussed above, was notified by a police dispatcher of
a potential burglary around 3:30 a.m. on May 14, 2014. Upon arriving at his office, Fry
noticed that the front door had been pried open. The glass on the door had been shattered,
and Fry noticed that the dead bolt had been pulled away from the door. Fry subsequently
discovered that an intruder had stolen approximately $140 from a money box and from a
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bank bag. In addition, it cost Fry around $900 to install new glass and window graphics
on the damaged front door.

Schroeder Family Chiropractic

Police also notified Dr. Christopher Schroeder, who has an office located in the
same building as some of the other businesses, of a possible burglary in the early morning
hours of May 14, 2014. When Dr. Schroeder arrived at his office, he found that the glass
in the front door had been shattered. Dr. Schroeder then discovered that the intruder had
broken a light switch, rifled through the office's bank deposit bag and cashbox, and had
stolen between $100 and $150 of petty cash. According to Dr. Schroeder, it cost him
around $500 to repair the front door.

Clear Choice Hearing

During the early morning hours of May 14, 2014, the Hutchinson Police
Department called Sara L. Hinsdale to inform her about a burglary at Clear Choice
Hearing. When Hinsdale arrived at the business, she noticed that "someone had taken a
crowbar or some device to pull the metal back" on the front door in order to gain entry.
Although things were out of place inside the business, Hinsdale did not notice anything
missing. It cost Clear Choice Hearing approximately $200 to repair the damage to the
front door.

Young Pediatric Dentistry

Dr. Kricket C. Young was called by a member of her staff that her dental office
had been broken into. Dr. Young went to her office and found it in disarray. Someone
had used some form of tool to pry into the front door, which damaged the woodwork. She
also found that all of the cabinets and desk drawers in the front office were open.
Likewise, all of the desk drawers in Dr. Young's private office had been opened.
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Although it appears that nothing was stolen from her office, it cost Dr. Young $488.83 to
repair the damaged front door.

2500 North Main Street Building

Jack Martin owns the commercial building in which several of the businesses
discussed above were located. He was notified during the early morning hours of May 14,
2014, that a number of offices had been broken into. The building has a common area and
each of the businesses has its own door and office space. Martin learned that the office
suites leased to six different businesses had been burglarized. When he went to the
building, he found damage to several doors. Martin had to replace an interior door that
went into a common hallway as well as several other doors at a total cost of $2,700.
Martin also paid $1,410 to replace the door and the frame for one of the businesses and
paid $236 for minor repairs to other doors to businesses in the building. The various
business owners in the 2500 North Main Street Building also testified as to damages to
their companies beyond the doors repaired by their landlord, Martin.

a. Think Toner and Ink

Sandra Linebarger, an employee of Think Toner and Ink, was called by a police
dispatcher a little before 4 a.m. on May 14, 2014. The dispatcher informed Linebarger
that someone had broken into Think Toner and Ink and requested her to come to the
business. When Linebarger arrived at the office, she noticed that someone had "peeled
back" the lock from the front door. Linebarger also found that the intruder had removed
the cash drawer from the cash register and saw that one roll of dimes and one roll of
quarters, worth a total of $7, was missing. Linebarger further observed that the back door,
which leads into Star Lumber and Supply's storage room, was ajar. According to
Linebarger, the door is locked at the close of business each day.

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b. Midwest Hearing Aid Inc.

Police called Kathy Hendershot, an employee of Midwest Hearing Aid Inc., at
approximately 3:30 a.m. on May 14, 2014. She was informed that the business had been
burglarized. Consequently, Hendershot went to Midwest Hearing Aid Inc. and found that
the back door appeared to have been kicked in. The glass door that opened into a
common hallway in the office building had a hole in the bottom, and the glass was
shattered. After going through her business, Hendershot concluded that the intruder stole
approximately $20 from a cash drawer.

c. Physical Therapy Consulting Services

Terri Goss, the owner of Physical Therapy Consulting Services located within the
commercial office building, arrived at work on the morning of May 14, 2014. At that
time, she discovered that someone had kicked in the front door, breaking the door frame.
Once inside the office, Goss discovered that someone had rifled through the contents of a
small safe in the main office area, broke into a storage area, and went through a large
cabinet that stored medical records. As far as she could tell, the intruder did not take
anything from her business.

d. Allstate Insurance

Anna Krehbiel is an Allstate Insurance agent who has an office located in the 2500
Main Street Building. A dispatcher contacted her at approximately 3:30 a.m. on May 14,
2014, and told her that someone had broken into her office. Upon arriving there, Krehbiel
noticed that someone had pried the metal away from the lock on her door. After
observing the broken door, Krehbiel went inside her office, where she discovered that
$30 in cash and some quarters were missing from a cash box. Although Martin paid to
replace the door, Krehbiel estimated that it would cost her between $500 and $600 to tint
the new door and add her agency's signage.
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e. Star Lumber and Supply

Jerry Feldman, the owner of Star Lumber and Supply, received a call from one of
his employees around 4:45 a.m. on May 14, 2014. The employee informed Feldman that
there had been a burglary at the business. Feldman immediately went to his business and
discovered that someone had "busted out the jam" of the door that connects his business
to the next door business, Physical Therapy Consulting Services. Feldman noticed that
the intruder had rifled through his desk drawer. A couple of weeks after the burglary,
Feldman noticed that an LED flashlight—that he recalled seeing on his desk the day
before the burglary—was missing.

f. Shelter Insurance

Mike Davis, a Shelter Insurance agent, arrived at his office around 9 a.m. on the
morning of May 14, 2014. He discovered that someone had broken into the office by
kicking in or prying open a door, which is located off of a common hallway. When
checking his office, Davis found everything in disarray. Davis explained, "[T]he door
[was] kicked in, files had been rummaged through. My kid's pictures were on the floor.
[The intruder] went through my desk drawers, took some stuff out. There were some
blank business checks that were on the floor." Davis determined that a new cell phone,
which had not yet been activated, was missing.

The Police Investigation

Following the string of burglaries, the Hutchinson Police Department assigned
Detective Curtis Black to investigate. The detective quickly learned that the Papa
Murphy's business had surveillance video of the burglary that occurred at that location.
He obtained a copy of this footage from Allen as well as a copy of a surveillance video
from a Kwik Shop located near Clear Choice Hearing. Subsequently, Detective Black
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reviewed the Kwik Shop video and identified defendant Jones walking into the Kwik
Shop at 4:17 a.m. on May 14, 2014.

Detective Black noticed the individual depicted in the two surveillance videos had
numerous similarities. He testified the person in both videos wore clothing and shoes
with identical markings and color. He also noted that the hairline on the man was the
same in both videos and that the man was wearing only one glove in the video from the
pizza shop.

Casey Slaughter, a supervisor at the Wichita Police Department, was subsequently
asked to assist in the investigation. Slaughter's team evidently focused on serial property
crimes and was available to assist other departments. Detective Black's office provided
Slaughter with two photos of an individual they were attempting to locate. On May 30,
2014, Slaughter located Jones in Wichita.

During his investigation, Detective Black noticed that someone had cut phone
lines located near the pizza and vapor shops. The detective also observed footprints in the
gravel alleyway directly behind Papa Murphy's Pizza "just right out the back door area
[and] within a couple feet of where the phone lines were cut." The detective took pictures
and used a plaster cast to take an impression of the footprints. Black obtained a good
copy of the footprints and recognized a "Nike swish and the full impression of the heel"
from the impression.

The two swabs of what appeared to be blood found at John Dahm Family
Dentistry was sent to the KBI for testing. The Department also sent the KBI the glove
found behind the hair salon. The Department also forwarded swabs of DNA collected
from the inside of Jones' mouth to the KBI for comparison.

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KBI forensic scientists confirmed that the red droplets found at the dentist office
was human blood. Moreover, it was determined that the DNA profile from the blood
collected from the dentist office matched the DNA profile of Jones. KBI scientists also
concluded that the profile of a major DNA contributor found in the glove was consistent
with Jones' DNA profile.

The Criminal Proceedings

The State charged Jones with 19 counts of nonresidential burglary, 1 count of theft
of a firearm, 1 count of criminal damage to property valued at $1,000 to $25,000, 7
counts of theft, and 11 counts of criminal damage to property valued at less than $1,000.
Prior to trial, the State informed the district court that it planned to introduce testimony
from Scott Burchard, Jones' parole officer with the Missouri Department of Corrections,
and Todd King, a detective in the Springfield, Missouri police department. According to
the State, Burchard and King both knew Jones and recognized him in the surveillance
videos. In fact, they were the ones who identified Jones during Detective Black's
investigation.

The State also announced its intention to elicit evidence—through the testimony of
Burchard and King—that the burglaries committed in Hutchinson met Jones' known
modus operandi. In particular, the State sought to introduce evidence that Jones was
known as the "phone line burglar" because his "pattern of conduct" was to "cut the phone
lines of businesses and then burglarize them [or commit] strip mall burglaries . . . by
breaking the windows and stealing only cash." Jones' attorney objected to the
introduction of this evidence. After considering the arguments of counsel, the district
court concluded that Burchard and King could not testify about Jones' prior criminal acts.
While the court held that the witnesses could be used to identify Jones from the videos, it
could not testify about Jones' prior criminal convictions from Missouri.

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On the morning of the second day of Jones' trial, his attorney raised additional
objections to the anticipated testimony of Burchard and King regarding their
identification of the individual on the two surveillance videos. The district court,
however, agreed with the State's contention that Jones' objection was untimely because he
failed to file a written motion prior to trial. In reaching this conclusion, the district judge
cited K.S.A. 22-3216, which required a written motion prior to trial.

Jones renewed his objection later in the trial. After taking the matter under
advisement, however, the district court overruled the objection, finding that Burchard and
King would be allowed to testify about their identification of the person on the videos but
would not be permitted to testify that they knew Jones based on his involvement in the
criminal justice system in Missouri. Jones' attorney also subsequently objected to the
men's testimony on the ground that allowing them both to testify as to the identity of the
person on the videos would be cumulative. The district judge disagreed.

Subsequently, Burchard testified that he has been a resident of Springfield,
Missouri, for approximately 15 years and that he had known Jones since November of
2012 and had spoken to him "approximately 30 or plus times." Burchard then testified
that he recognized Jones on the surveillance videos. Likewise, King testified that he has
been a resident of Springfield, Missouri, since about 1994 and had known Jones since
1998. He indicated that he is able to recognize Jones both in person and on video because
he has had the opportunity to see him on several occasions. The State then showed him
the video, and King identified the person depicted as Jones.

In addition, the State elicited the testimony of several other witnesses at trial. The
State presented the DNA evidence taken from the blood droplet, and the glove was
admitted into evidence, as was the plaster cast of the footprints found near the door of the
burgled pizza shop. Law enforcement officers further testified that Jones was wearing
"two white [Nike tennis] shoes, dark blue jeans and a black tank top" when he was
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located. Although a forensic analysis was not performed on his shoes, Detective Black
compared the plastic cast and the photographs of the alleyway footprints to photographs
of the tennis shoes recovered from Jones. Black testified that "[t]hey are the exact same
shoe print impressions and the Nike symbol, the tread wear; everything is the same."
Moreover, Detective Black indicated that when he saw the shoes recovered from Jones,
he knew those were the same shoes worn by the man in the Kwik Shop video and that left
impressions in the gravel outside the Papa Murphy's store.

At the conclusion of the trial, the jury found Jones guilty on all of the charges. The
district court subsequently sentenced him to a controlling 68-month prison term. The
district court also sentenced Jones to a consecutive 12-month jail term, which was
deemed to be satisfied due to the jail credit he had earned while awaiting trial. In a
subsequent hearing, the district court ordered Jones to pay $8,109.81 in restitution.
Thereafter, Jones timely appealed.

ANALYSIS

Jury Nullification

While Jones acknowledges that criminal defendants are not entitled to have the
jury instructed on its inherent power of nullification, he contends that the district court
erred by compelling the jury to convict him based on the reasonable doubt instruction the
jurors were given. As Jones candidly concedes, he did not object to the district court's
written instruction on reasonable doubt. A party cannot claim error for the district court's
giving or failing to give a jury instruction unless (1) the party objects before the jury
retires, stating distinctly the matter to which the party objects and the grounds for the
objection; or (2) the instruction or the failure to give the instruction is clearly erroneous.
State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). In the absence of a timely
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objection, we review the reasonable doubt instruction given to the jury in this case under
a clearly erroneous standard.

When determining whether an instruction was clearly erroneous, we first
determine whether there was any error at all. In making this determination, we must
consider whether the instruction was legally and factually appropriate based on a review
of the entire record. If we find that the district court erred in giving a challenged
instruction, then the court must determine whether we are firmly convinced that the jury
would have reached a different verdict had the instruction error not been given. The party
claiming a clearly erroneous instruction—in this case Jones—carries the burden of
establishing the degree of prejudice necessary for reversal. State v. Williams, 295 Kan.
506, 515-16, 286 P.3d 195 (2012).

As found by this court in Silvers v. State, 38 Kan. App. 2d 886, 173 P.3d 1167,
rev. denied 286 Kan. 1180 (2008), jury nullification is:

"'A jury's knowing and deliberate rejection of the evidence or refusal to apply the
law either because the jury wants to send a message about some social issue that is larger
than the case itself or because the result dictated by law is contrary to the jury's sense of
justice, morality, or fairness.' [Citation omitted.]" 38 Kan. App. 3d at 888.

Jury nullification is always a possibility because there is nothing prohibiting a jury
from acquitting a defendant if it desires to do so. The Kansas Supreme Court, however,
has expressly disapproved of the use of a jury nullification instruction that tells jurors that
they may "do what they think is fair" or that they are entitled to act upon their
conscientious feelings as to a fair outcome and to acquit the defendant if they believe
justice requires such a result. See State v. Naputi, 293 Kan. 55, 65-67, 260 P.3d 86 (2011)
(citing State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 [1973]). On the other
hand, jury instructions cannot forbid a jury from exercising its power of nullification nor
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can they "compel a jury to convict, even if it finds all elements proved beyond a
reasonable doubt." State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014).

Here, the district court properly instructed the jury about its role and about the
State's burden of proof. In particular, the instructions described the jury's function and
duty in a manner consistent with K.S.A. 22-3403(3). This statute states: "When the trial
is to a jury, questions of law shall be decided by the court and issues of fact shall be
determined by the jury." Likewise, the district court's instructions are consistent with
K.S.A. 2016 Supp. 60-247(d), which provides that "[t]he jurors must swear or affirm to
try the case conscientiously and return a verdict according to the law and the evidence."

Jones also acknowledges that the reasonable doubt instruction the district court
provided the jury is identical to PIK Crim. 4th 51.010 (2012 Supp.). Jones argues,
however, that it was legally inappropriate for the district court to utilize the PIK
instruction because its use of the word "should"—rather than "may"—requires a jury to
always find a defendant guilty if the elements of the crime charged are proven beyond a
reasonable doubt. We disagree.

We note numerous opinions of this court have rejected the argument that the use
of the word "should" in PIK Crim. 4th 51.010 prohibits a jury from exercising the power
of nullification. See State v. Allen, 52 Kan. App. 2d 729, 733-36, 372 P.3d 432 (2016);
see also State v. Cuellar, No. 112,535, 2016 WL 1614037, at *1-2 (Kan. App. 2016)
(unpublished opinion), rev. denied 306 Kan. ____ (April 17, 2017); State v. Jones, No.
111,386, 2015 WL 4716235, at *5-6 (Kan. App. 2015) (unpublished opinion), rev. denied
303 Kan. 1080 (2016). As can be seen from a review of these cases, our court has
consistently found:



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"[T]he instruction at issue here 'does not upset the balance between encouraging jury
nullification and forbidding it. . . . [U]nlike the words must, shall, and will, the word
should does not express a mandatory, unyielding duty or obligation; instead, it merely
denotes the proper course of action and encourages following the advised path.' Hastings,
2016 WL 852857, at *4." Allen, 52 Kan. App. 2d at 735.

For these reasons, we conclude that the district court did not commit error in
instructing the jury regarding reasonable doubt.

Failure to Give Eyewitness Identification Instruction

Next, Jones contends that the district court erred when it failed to give the jury an
instruction regarding the various factors jurors should consider in weighing eyewitness
reliability as found in PIK Crim. 4th 51.110 (2013 Supp.). In particular, Jones asserts that
an eyewitness identification instruction should have been given because Depew—the
owner of the Hutch Vapor Shop—testified that he believed Jones was the person he saw
on the surveillance video taken during the burglary of Papa Murphy's Pizza. Jones
admits, however, that he did not object to the district court's failure to give an eyewitness
identification instruction. As such, we review the failure to give this instruction under the
clear error standard of review set forth in the previous section of this opinion.

A district court should normally give a PIK Crim. 4th 51.110 instruction "'in any
criminal action in which eyewitness identification is a critical part of the prosecution's
case and there is serious question about the reliability of the identification.' [Citations
omitted.]" (Emphasis added.) State v. Duong, 292 Kan. 824, 836, 257 P.3d 309 (2011).
Consequently, our Supreme Court has outlined five factors—known as the Saenz
factors—for the purpose of determining whether there was a question about the reliability
of an eyewitness identification. See State v. Saenz, 271 Kan. 339, 354, 22 P.3d 151
(2001). These factors include:

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"'(1) the opportunity of the witness to view the defendant at the time of the crime, (2) the
witness' degree of attention, (3) the accuracy of the witness' prior descriptions of the
criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.'" Duong, 292 Kan. at 836.

All of these factors relate to someone who observes a crime in progress or shortly
thereafter—for example, observing someone running from the scene of a crime.

Here, we find that a PIK Crim. 4th 51.110 instruction was neither legally nor
factually appropriate. There was no allegation that Depew was an eyewitness to the
crimes or that he observed Jones shortly after the crimes were committed. Instead, Depew
simply offered a lay opinion as to the identity of the individual he believed was depicted
on the surveillance video from the pizza shop. Furthermore, Depew admitted that he had
no direct knowledge regarding who burglarized his business because he was not present
at the scene. Instead, he testified that the basis for his belief was his observation of both
the video and seeing Jones in the courtroom. Moreover, Jones did not object to Depew
rendering his opinion. Under all these circumstances, it was not clearly erroneous for the
district court to fail to give an eyewitness identification instruction to the jury.

Multiplicity

Jones further contends that his conviction for burglarizing the building located at
2500 North Main Street, which is owned by First Choice Leasing, and his convictions for
burglarizing several businesses leasing space in that building were multiplicitous. As
such, he argues that his convictions for these charges violated K.S.A. 2013 Supp. 21-
5807(a)(2) and the Double Jeopardy Clauses of the Fifth Amendment to the United States
Constitution and § 10 of the Kansas Constitution Bill of Rights. Questions involving
multiplicity are questions of law subject to unlimited appellate review. State v. Belt, 305
Kan. 381, 407, 381 P.3d 473 (2016).

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Multiplicity is the charging of a single offense as more than one count on a
charging document. State v. Pham, 281 Kan. 1227, 1246, 136 P.3d 919 (2006). However,
Jones did not raise this issue below and—as a general rule—we do not consider issues for
the first time on appeal. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). As
Jones correctly points out, however, appellate courts have entertained multiplicity
challenges for the first time on appeal "'to serve the ends of justice [or] prevent a denial
of fundamental rights.' [Citation omitted.]" See State v. Kleypas, 305 Kan. 224, 258, 382
P.3d 373 (2016); State v. Weber, 297 Kan. 805, 809, 304 P.3d 1262 (2013). Because
multiplicity presents a purely legal question in this case and Jones' right to a fair trial is
involved if he has been punished more than once for the same crime, we will consider
this issue on the merits. See State v. Appleby, 289 Kan. 1017, 1026, 221 P.3d 525 (2009);
State v. Walker, 283 Kan. 587, 609, 153 P.3d 1257 (2007).

Determining whether convictions are multiplicitous involves two steps. First, we
must determine whether the convictions arise from the same conduct. If they do, then we
examine the statute or statutes under which a defendant has been convicted to determine
whether the legislature intended to allow more than one unit of prosecution. State v.
Schoonover, 281 Kan. 453, 496, 133 P.3d 48 (2006). To determine whether the
convictions arise from the same conduct, we are to consider a variety of factors, such as
whether the acts occurred at or around the same time or in the same place, as well as
whether the acts were motivated by some fresh impulse. To determine if the legislature
intended to allow more than one unit of prosecution, the language of the statute controls.
281 Kan. at 496-97.

Here, all of the charges that Jones contends are multiplicitous are burglaries
committed at the 2500 North Main Street building. Although it is unclear how long Jones
was in each business, the record on appeal suggests that each of the break-ins was
committed close to the same time as Jones moved from one office to the next. Arguably,
19

he was motivated by a fresh impulse as he broke into each business as the evidence
suggests he hoped to find more money or other items to steal.

Regardless, Jones was convicted under the same statute—K.S.A. 2013 Supp. 21-
5807(a)(2)—that makes it illegal for a person to enter into any building or other structure
that is not a dwelling without authority in order to commit theft. Because the plain
language of the statute refers to any "building . . . or other structure" this court has
previously held that the legislature intended that a person can be charged separately for
each building or structure that is burglarized. Moreover, as this court has previously
found, leased portions of a building that are separately enclosed and secured are to be
treated as separate buildings or structures in burglary cases. See State v. Parker, 48 Kan.
App. 2d 68, 84-85, 282 P.3d 643 (2012), rev. denied 297 Kan. 1254 (2013) (hospital
room is temporarily leased to patients and designed to protect occupants' privacy and
security; entry into room with intent to commit a crime is sufficient to support burglary
charge, even if defendant did not unlawfully enter into hospital); see also Bedard v. State,
118 Nev. 410, 414, 48 P.3d 46 (2002) (burglary of separate office suites within same
office building not multiplicitous); State v. Foster, No. 113,883, 2016 WL 4500953, at *4
(Kan. App. 2016) (unpublished opinion) (entry into private apartment within home
constituted an unlawful entry, even if defendant had permission to enter home in which
apartment was located), rev. denied 306 Kan. ____ (2017).

Here, each of the businesses that leased office space from First Choice Leasing
had its own door as well as other features intended to exclude others from entry into the
respective businesses and to protect the security of each company's separate property.
Because each of the businesses had its own space and was secured separately from the
other businesses in the building, we conclude that for the purposes of the burglary statute,
each of the individual businesses was a distinct structure from the building in which it
was located. See State v. Vinyard, 32 Kan. App. 2d 39, 42-43, 78 P.3d 1196 (2003). Thus,
the burglary charges were not multiplicitous and the district court did not err in allowing
20

each unit of prosecution to be presented to the jury to determine whether Jones was guilty
beyond a reasonable doubt.

Sufficiency of Evidence

In the alternative, Jones argues that if he could be charged with burglarizing each
of the individual businesses in the 2500 North Main Street building, the State's evidence
was insufficient to establish that he burglarized First Choice Leasing. When the
sufficiency of evidence is challenged in a criminal case, this court reviews all of the
evidence in the light most favorable to the State, and the conviction(s) 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. Laborde, 303 Kan. 1, 6, 360
P.3d 1080 (2015). In determining whether there is sufficient evidence to support a
conviction, the appellate court generally will not reweigh the evidence or assess the
credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016).

In order to prove that Jones was guilty of burglarizing the building owned by First
Choice Leasing, the State was required to show that he entered into the building located
at 2500 North Main Street without authority with the intent to commit theft. K.S.A. 2013
Supp. 21-5807(a)(2). In this case, the State presented evidence that Jones entered into the
building's common area—which was locked—without authority. It also presented
circumstantial evidence that the reason he entered into the building was to commit theft
because once inside, he illegally accessed businesses located within the building and stole
property from them. Kansas law clearly establishes that a burglary conviction does not
require proof that the defendant actually completed a theft after an unlawful entry. See
State v. Potts, 304 Kan. 687, 697, 374 P.3d 639 (2016). The criminal intent necessary to
support a burglary conviction "'is rarely susceptible of direct proof; it is usually inferred
from the surrounding facts and circumstances.'" State v. Hargrove, 48 Kan. App. 2d 522,
565-66, 293 P.3d 787 (2013). Based upon the entire record before the jury, it could
21

reasonably infer Jones unlawfully entered the premises possessed by First Choice
Leasing to commit a theft, even if ultimately no property was taken from the common
areas under First Choice Leasing's control.

Identification Witnesses

Jones also contends that the district court improperly admitted evidence that
invaded the province of the jury when it allowed Burchard and King to opine that he was
the individual depicted on the Kwik Shop surveillance video. In determining whether a
district court abused its discretion in the admission of evidence, we first determine if the
evidence is relevant. If so, we then determine if—under the applicable rules of
evidence—whether the evidence is admissible and whether the probative value of the
evidence is substantially outweighed by the potential for undue prejudice. State v.
Everett, 296 Kan. 1039, 1044, 297 P.3d 292 (2013).

As a general rule, all relevant evidence is admissible. K.S.A. 60-407(f). According
to K.S.A. 60-401(b), relevant evidence is that having "any tendency in reason to prove
any material fact." Moreover, evidence is material when the fact it supports is in dispute
and is significant under the substantive law of the case. State v. McCormick, 305 Kan. 43,
47, 378 P.3d 543 (2016). "'Evidence is probative if it furnishes, establishes, or contributes
toward proof.'" McCormick, 305 Kan. at 47.

In the present case, identification of the person depicted in the surveillance videos
was relevant, material, and probative because Jones denied that he was the person who
committed the burglaries. Thus, the identity of the burglar was in issue. Likewise, the
Kwik Shop video was taken near the estimated time of the burglaries and in a store
located very close to the burglaries.

22

District courts have broad discretion as to whether to allow a witness to offer his
or her opinion on a matter. State v. Lowrance, 298 Kan. 274, 293, 312 P.3d 328 (2013).
Under K.S.A. 2016 Supp. 60-456(a), a lay witness may render an opinion if it is
rationally based on the witness' perception, is helpful to understanding the witness'
testimony, and is not based on scientific or technical knowledge. As long as the opinion
testimony satisfies these criteria, it is admissible even if "it embraces the ultimate issue or
issues to be decided by the trier of the fact." K.S.A. 2016 Supp. 60-456(d).

A review of the record reveals that both Burchard and King were personally
acquainted with Jones and had known him for a number of years prior to the burglary. As
such, they had information that would not be readily available to jurors simply by
observing Jones sitting in the courtroom during his trial. This evidence was particularly
helpful to the jury because it appears from the record that Jones had changed his
appearance between the time the crimes were committed and the time of trial.

Hence, Burchard and King were able to offer valuable information based on their
personal perception during the investigation of the burglaries and at trial due to their
familiarity with Jones' physical characteristics. See United States v. Fulton, 837 F.3d 281,
297 (3d Cir. 2016) (opinion testimony regarding challenged identifications is permissible
where the witness has had sufficient contact with the defendant to achieve a level of
familiarity that renders the testimony helpful to the jury); United States v. Beck, 418 F.3d
1008, 1015 (9th Cir. 2005) (probation officer who had multiple prior contacts with the
defendant was permitted to testify regarding his opinion that the person depicted in a
bank surveillance photograph was the defendant); see also Moreland v. State, 207 Md.
App. 563, 573, 53 A.3d 449 (2012). As such, the testimony given by Burchard and King
is admissible under K.S.A. 2016 Supp. 60-456.


23

Finally, we note that the district court protected Jones from undue prejudice by
prohibiting the State from eliciting testimony regarding how Burchard and King knew
Jones. Furthermore, the district court prohibited the State from introducing any evidence
of Jones' prior criminal conduct. Ultimately, the jurors were free to agree or disagree with
the Missouri witnesses' opinions if they were not convinced that Jones was the person
they saw on the surveillance video played during the trial. In addition, we do not find the
admission of this opinion testimony to be unduly prejudicial because—as indicated
above—Depew provided similar testimony without objection from Jones. Therefore, we
do not find that the district court erred in admitting the opinion testimony of Burchard
and King.

Sentencing Journal Entry

In addition, Jones points out that the journal entry of sentencing incorrectly
reflects the sentences the district court handed down for his two misdemeanor convictions
for criminal damage to property. As the State concedes, the district court pronounced a
sentence of 6 months on each of these convictions to run concurrent to Jones' other
sentences. However, the journal entry of sentencing reflects a sentence of 12 months' jail
time on each of those misdemeanor convictions.

A sentence is effective when pronounced from the bench. State v. Tafoya, 304
Kan. 663, 666, 372 P.3d 1247 (2016). Furthermore, a journal entry that imposes a
sentence at variance with the sentence pronounced from the bench is erroneous and must
be corrected to reflect the actual sentence imposed. State v. Mason, 294 Kan. 675, 677,
279 P.3d 707 (2012). As such, we find that it is appropriate to vacate that portion of
Jones' sentence that relates to the two misdemeanor convictions for criminal damage to
property and to remand this case to the district court for entry of a nunc pro tunc journal
entry to correct the error.

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Cumulative Error

Finally, Jones contends that cumulative trial errors require the reversal of his
convictions. When conducting a cumulative error analysis, appellate courts aggregate
"'all errors and, even though those errors would individually be considered harmless,
analyzes whether their cumulative effect on the outcome of the trial is such that
collectively they cannot be determined to be harmless.' [Citation omitted.]" State v.
Fisher, 304 Kan. 242, 263, 373 P.3d 781 (2016). In other words, the question becomes
whether the totality of the circumstances substantially prejudiced the defendant and
deprived him or her of a fair trial. 304 Kan. at 263. "'No prejudicial error may be found
upon this cumulative effect rule, however, if the evidence is overwhelming against the
defendant.' [Citations omitted.]" State v. Williams, 303 Kan. 585, 604, 363 P.3d 1101
(2016).

Based on our review of the record, we do not find cumulative error in this case.
Other than the sentencing error regarding the two misdemeanor convictions, we have
found no error. This sentencing error can be simply remedied by the entry of a journal
entry nunc pro tunc. See State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009) ("One
error is insufficient to support reversal under the cumulative effect rule.").

Even if we had found other errors in this case, we conclude that the evidence
presented against Jones at trial is sufficiently compelling to establish any other error was
harmless. The evidence presented included DNA evidence from blood left at the scene of
one of the crimes, DNA evidence taken from a glove left near one of the crime scenes,
and surveillance videos. Accordingly, even if we found more than one error, we would
not find that the cumulative effect resulted in an unfair trial.



25

CONCLUSION

Although there are no perfect trials, we are convinced that the district court made
sure that Jones received a fair trial. Furthermore, based on our review of the record in this
case, we conclude that the evidence supporting Jones' guilt was more than sufficient to
support his convictions. We, therefore, affirm his convictions, vacate that portion of his
sentence relating to his misdemeanor convictions for criminal damage to property, and
remand this case to the district court for entry of a nunc pro tunc journal entry.

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