State v. Weis

NOT DESIGNATED FOR PUBLICATION

No. 113,069

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KENNETH G. WEIS,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed March 25, 2016. Reversed
and remanded with instructions.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

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

Before STANDRIDGE, P.J., LEBEN and POWELL, JJ.

Per Curiam: On three occasions, two witnesses saw Kenneth Weis near the
Salvation Army's donation bins with his bicycle, going through the bins or arranging
items in a cart attached to his bicycle. Based on the testimony of these two witnesses, a
jury convicted him of two counts of felony theft and one count of misdemeanor criminal
trespass.

On appeal, Weis complains that the testimony of one of those witnesses about
other times Weis was at the Salvation Army—not charged here—may have improperly
led to his convictions: Specifically, a witness said that he'd seen Weis there about 60
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different times and that Weis had stolen from the Salvation Army before in incidents that
hadn't been reported to police. When such evidence is presented, the trial judge is
supposed to instruct the jury that the evidence can be considered only for a limited
purpose, such as the defendant's intent, but not to show the defendant's general
propensity, or tendency, to commit crimes. No such limiting instruction was given here,
and Weis complains that this made his trial unfair.

After careful review of the evidentiary record, we have concluded that the lack of
a limiting instruction likely influenced the trial's outcome because evidence of a
defendant's prior bad acts, also known as propensity evidence, was highly prejudicial and
the other evidence in the case was not especially strong. We therefore reverse Weis'
convictions and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

The key facts in this case come from the trial testimony of two witnesses: Police
Officer Christopher Shultz and Salvation Army volunteer Steven Boher. On November
22, 2012, while on routine patrol around 12 a.m., Shultz saw Weis standing on a bicycle
halfway inside one of the drop-off bins in the back parking lot of the Salvation Army.
According to testimony from a Salvation Army representative, because of Weis' past
dealings at the Salvation Army, he had been advised in 2005 that he could not be in the
Salvation Army store or on any Salvation Army property. The Salvation Army had five
large donation bins located on its property, all of which had padlocked spring-loaded
doors on their donation slots. Warning signs on the donation bins read: "Stealing is a
crime! Anyone caught removing items from this box will be prosecuted. This is Salvation
Army Property."

Shultz confronted Weis and saw a cart attached to his bicycle containing a boxed
DVD-VHS combination player and two blenders. Weis denied he was taking property
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from inside the donation bin; rather, he told Shultz he was attempting to rearrange items
inside the bin to make room for things he was donating. When Shultz looked into the bin,
he determined it was not full. Shultz testified that he did not actually see Weis take any
property from the bin and load it into his cart. The estimated value of the items in the cart
was $60.

Roughly 6 months later, on April 28, 2013, around 3 p.m., Boher saw Weis
standing on his bicycle by one of the donation bins. Boher testified that he saw Weis take
a computer tower and clothing out of a donation bin and put them into a cart attached to
his bicycle. Weis saw Boher and rode away. Boher went to the police station to make a
report. The value of the computer tower was estimated to be $300, but the police didn't
recover any allegedly stolen items. At trial, Boher admitted he could not say for certain
that Weis had not initially donated the items and then changed his mind.

On May 19, 2013, Boher again found Weis by the Salvation Army donation bins.
Boher testified that he had seen Weis going though clothing on the loading dock and
putting it into a cart attached to his bicycle. Boher photographed Weis this time and then
called the police. Law enforcement located Weis and stopped him. Weis admitted to
being at the Salvation Army and to having been previously advised he was not allowed
on the property.

The State charged Weis with three counts of felony theft and three counts of
misdemeanor criminal trespass. Before trial, the State filed a motion under K.S.A. 2015
Supp. 60-455 to admit evidence that Weis had previously been convicted of stealing from
the Salvation Army. The State argued that the conviction was relevant to prove motive,
identity, and knowledge. The district judge denied the motion because she felt the
"potential for prejudice outweighs the probative value and that a limiting instruction
would be unlikely to protect against that prejudice."

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At trial, while defense counsel cross-examined Boher about his observations of
Weis, Boher interjected comments about having seen Weis at the Salvation Army
donation box on many other occasions:

"Q. [Defense:] So after Mr. Weis wheeled off, you went to the Law Enforcement Center
and you made a report?
"A. That time I called the cops. I even took a picture of him. I tried to get a picture with
my cell phone that time before I lost him.
"Q. So—
"A. So I took a picture of him with the cart and stuff, but the cops couldn't find the cart or
anything in it. He stashed it some place. They could never find it.
"Q. So what we're talking about now that was the May 19th incident; is that right?
"A. I only seen him there about 60 different times, so I can't say. As far as date goes,
that's been a while. The second time I caught him is when I called the cops and that's
when he was on his bicycle at that location there. Date wise, I can't remember. I'm getting
turned around here for me.
"Q. On the second, the later incident, that was in the daytime also; is that true?
"A. Both three [sic] of them were during daytime. The rest were in the evening. The ones
I turned in were during the daytime, usually on a Sunday." (Emphasis added.)

Although the emphasized statements suggested Weis' prior bad acts and shouldn't have
been admitted under the district court's pretrial ruling, the defense did not object, ask for
a mistrial, or request a limiting instruction. Defense counsel was at a bit of a
disadvantage, however, as the information wasn't really responsive to the questions
asked, and defense counsel might have felt that objecting would further highlight the
prejudicial testimony. See State v. Berney, 51 Kan. App. 2d 719, 726, 353 P.3d 1165
(2015).

Additionally, during redirect examination by the prosecutor, Boher again
interjected highly prejudicial comments:

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"Q. [State:] Second time you saw him leaning halfway inside the storage bin?
"[Defense]: Objection, leading.
"A. Yeah, he—
"THE COURT: Just a minute.
"Q. What was the second time?
"A. He was hanging inside. I caught him so many times, it's getting hard to tell, but those
were the main ones." (Emphasis added.)

The defense again did not object to these statements, ask for a mistrial, or request a
limiting instruction.

After the State presented its case, the district court granted Weis' request to
dismiss three of the six charges because there wasn't enough evidence to support them:
the November 2012 criminal-trespass charge, the April 2013 criminal-trespass charge,
and the May 2013 felony-theft charge. The jury found Weis guilty of the remaining
charges: the November 2012 and April 2013 felony-theft charges and the May 2013
misdemeanor-criminal-trespass charge. The district court sentenced Weis to 12 months'
probation with an underlying sentence of 12 months in prison.

Weis has appealed to this court.

ANALYSIS

Weis argues that the district court should have given the jury a limiting instruction
on the use of prior-bad-acts evidence as required by K.S.A. 2015 Supp. 60-455. Weis did
not request such an instruction from the district court.

We review the legal appropriateness of a limiting instruction without any required
deference to the district court's conclusions; we review the factual appropriateness in the
light most favorable to the defendant. State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202
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(2012). Because Weis did not raise this issue before the district court, "the failure to give
the instruction will be reversible only if clearly erroneous." State v. Gunby, 282 Kan. 39,
58, 144 P.3d 647 (2006); see K.S.A. 2015 Supp. 22-3414(3).

Our Supreme Court has stated that the "admissibility of any and all other crimes
and civil wrongs evidence will be governed by K.S.A. 60-455." 282 Kan. at 57. Subject
to certain exceptions, evidence of prior bad acts is not admissible to show a person's
propensity to commit crimes. K.S.A. 2015 Supp. 60-455(a). However, evidence of prior
bad acts "is admissible when relevant to prove some other material fact including motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident." K.S.A. 2015 Supp. 60-455(b). When admitting evidence of prior bad acts
under K.S.A. 2015 Supp. 60-455, "the district judge must give a limiting instruction
informing the jury of the specific purpose for admission." 282 Kan. 39, Syl. ¶ 3. In other
words, the court instructs the jury that evidence of prior bad acts is admissible to prove
some material fact, such as intent, but not to show the defendant's general propensity to
commit crimes.

Here, the jury heard testimony from Boher that he saw Weis at the Salvation Army
about 60 different times, that Boher had caught Weis many times on the property, and
that Weis had committed previous thefts that Boher had not reported to the police. This
testimony could have strongly suggested to the jury that Weis had committed crimes on
prior occasions at the Salvation Army, that Weis had several uncharged thefts and
trespasses, and that Weis was a habitual thief at the Salvation Army. See State v. Rambo,
208 Kan. 929, 930, 495 P.2d 101 (1972) (stating testimony that witness had previously
seen defendant taking property could have been interpreted by jury as prior theft
committed by defendant), overruled on other grounds by Gunby, 282 Kan. at 56-57.
While being "caught" certainly is not the same as a conviction, it could lead jurors to
infer that Weis had committed prior wrongs. So evidence of prior bad acts was admitted
at trial, making a limiting instruction factually appropriate. And legally, K.S.A. 2015
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Supp. 60-455 requires a limiting instruction for prior-bad-acts evidence even if, like here,
the defense doesn't object to the admission of the evidence, so the district court should
have given a limiting instruction. State v. Breeden, 297 Kan. 567, 581, 304 P.3d 660
(2013).

The State argues that Weis invited the error. The State notes that the prior-bad-acts
evidence first came out when Weis' counsel was cross-examining Boher. Although Boher
added more information during the State's redirect, the State notes that this happened
only after Weis' counsel had objected to the State's use of leading questions, which, the
State suggests, were intended to prevent bad-acts evidence from coming out. Thus, the
State argues, Weis invited the error and waived the protections of K.S.A. 2015 Supp. 60-
455. See State v. Anthony, 282 Kan. 201, 215, 145 P.3d 1 (2006) (prior-bad-acts
testimony elicited during defense's cross-examination of witness invited error).

While it is true that a defendant's own presentation of prior-bad-acts evidence
waives the protection of the statute, such a waiver has only been found when the
defendant testifies at trial. See State v. Greene, 214 Kan. 78, 82, 519 P.2d 651 (1974)
(defendant's own admissions on direct examination waived protection of K.S.A. 60-455),
disapproved on other grounds by Wilbanks v. State, 224 Kan. 66, 74, 579 P.2d 132
(1978); State v. Ralls, 213 Kan. 249, 255-56, 515 P.2d 1205 (1973) (defendant waived
protections of K.S.A. 60-455 when he admitted prior-bad-acts evidence during direct
examination). Weis didn't testify in this case. Additionally, he didn't really "present" the
problematic testimony; the witness volunteered it, going well beyond the question asked
to do so.

We also reject the State's claim of invited error. Courts have found invited error
when the defendant specifically elicited prior-bad-acts evidence. See Anthony, 282 Kan.
at 215; State v. Outland, No. 100,274, 2010 WL 744778, at *13 (Kan. App. 2010)
(unpublished opinion) (prior-bad-acts testimony elicited during defendant's own cross-
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examination was invited error), rev. denied 291 Kan. 917 (2011). Here, defense counsel's
questions were meant to clarify the witness' testimony, not to elicit bad-acts evidence, so
there was no invited error. Boher's testimony about prior bad acts could not have been
anticipated from the questions asked.

Because the district court should have given the jury a limiting instruction, we
must now determine whether failing to do so amounts to "clear error," which would
require a new trial. See Breeden, 297 Kan. at 584. After reviewing the entire record, we
must order a new trial if we are firmly convinced that the jury's verdict would have been
different without the error. See State v. Trujillo, 296 Kan. 625, 630-31, 294 P.3d 281
(2013); State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012); Berney, 51 Kan. App.
2d at 729-32 (Leben, J., concurring); State v. Arb, No. 111,009, 2015 WL 5311834, at *5-
6 (Kan. App. 2015) (unpublished opinion).

Without an appropriate limiting instruction as required by K.S.A. 2015 Supp. 60-
455, the Kansas Supreme Court has recognized that at least three types of prejudice can
follow when evidence of prior bad acts is admitted:

"'First, a jury might well exaggerate the value of other crimes as evidence proving that,
because the defendant has committed a similar crime before, it might properly be inferred
that he committed this one. Second[], the jury might conclude that the defendant deserves
punishment because he is a general wrongdoer even if the prosecution has not established
guilt beyond a reasonable doubt in the prosecution at hand. Third[], the jury might
conclude that because the defendant is a criminal, the evidence put in on his behalf
should not be believed.'" State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 (1973) (quoting
Vernon's Kansas Statutes Annotated, Rules of Evidence, § 60-455, p. 376).

These types of improper prejudice to the defendant's case likely occurred here. Of
the five witnesses who testified at trial, only two—Shultz and Boher—actually saw the
alleged thefts. However, Shultz testified that he did not see Weis pull any items from the
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bin, did not see Weis load any items onto his cart, and did not have any direct evidence to
contradict Weis' statement to the officer that he was trying to make room in the bin to
donate the items. Boher, meanwhile, had difficulty remembering the dates of the alleged
thefts he had seen that the State had charged. While he stated that he saw Weis taking
specific items, those items were never recovered. Furthermore, Boher, like Shultz, could
not say with certainty that Weis had not initially donated the items and then changed his
mind.

In the absence of strong evidence of guilt and in light of Boher's statements that
Weis had committed thefts he did not report, that he had caught Weis "so many times,"
and that he witnessed Weis approximately 60 different times behind the Salvation Army,
it is very likely that the jury: (1) inferred that Weis committed these crimes because he
had been "caught . . . so many times," (2) determined that Weis deserved punishment
because he was generally a wrongdoer, and (3) determined that because of his past
wrongdoing, the theories Weis put forth in defense should not be believed. See Davis,
213 Kan. at 58.

It's hard in this case even to say what material fact the evidence of prior bad acts
was relevant to. It may have been relevant to Weis' intent, especially on the specific
occasion that Schultz said he had been partway in the donation box and Weis said he had
been rearranging items to make room for his donation. The questionable testimony came
up, though, in response to an attorney's attempt to confirm whether Boher was correctly
remembering a specific charged event—so the jury also could have considered it with
respect to how well Boher remembered what had occurred on the specific dates the State
charged Weis with theft and trespass. In any case, the district court was required to
determine what relevant facts this evidence could prove and to tell the jurors that they
could consider it only for that limited purpose. See PIK Crim. 4th 51.030. That
instruction wasn't given.

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Finally, we note that the district court ruled the prior-bad-acts evidence
inadmissible to begin with, finding that the prejudice from the admission of such
evidence outweighed its probative value and that even a limiting instruction could not
cure the prejudicial effect of the evidence. This finding emphasizes the extremely
prejudicial nature of the evidence that was eventually allowed in at trial. While the
district court, before trial, determined that a limiting instruction would not cure the
prejudice, our position as a reviewing court is different. We must presume that the jury
would have followed a limiting instruction if one had been given. See State v. Sisson, 302
Kan. 123, 131, 351 P.3d 1235 (2015). In the absence of such an instruction, however, it
seems quite likely that this highly prejudicial evidence was considered for the improper
purposes that have led to the rule requiring a limiting instruction. See Davis, 213 Kan. at
58. We are firmly convinced that if a limiting instruction had been given—instructing the
jury that the evidence of Weis' prior bad acts was not admissible to show Weis'
propensity to commit crimes—then the jury would have reached a different result. We
therefore reverse Weis' convictions and remand the case to the district court for a new
trial.

* * *

POWELL, J., dissenting: I must dissent from the majority's decision to reverse
Weis' convictions and order a new trial. The prejudice to Weis did not come from the
failure of the district court to give a limiting instruction concerning the prior bad acts
evidence; it was the admission of that evidence that prejudiced Weis. Because Weis'
counsel never objected to the admission of the prior bad acts evidence, Weis cannot
complain on appeal about the wrongful admission of such evidence. See State v. Verser,
299 Kan. 776, 784, 326 P.3d 1046 (2014). Knowing this, Weis instead complains about
the failure to give a limiting instruction as required by K.S.A. 2015 Supp. 60-455.
Unfortunately for Weis, and as the district court found, the evidence was so prejudicial
that the prejudice from its admission outweighed its probative value.
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Moreover, assuming, as we must, that the jury would have obeyed a limiting
instruction, when viewing the evidence in the light most favorable to the State, there was
sufficient evidence to convict Weis independent of any prior bad acts evidence.
Accordingly, it would have made no difference in the outcome of the trial as the jury
would have convicted him anyway. Therefore, in my view, we have no choice but to
affirm Weis' convictions.