State v. Reed , 8 Kan. App. 2d 615 ( 1983 )

Rees, J.:

Dissenting and concurring.

Despite different phraseology in the record on appeal and majority opinion, Floyd comes before us following his conviction of aggravated burglary (K.S.A. 21-3716) and attempted felony theft (K.S.A. 21-3301 and K.S.A. 21-3701[a]).

Floyd’s aggravated burglary conviction is based upon the State’s allegation and the jury’s decision that he aided and abetted the commission of an aggravated burglary by Tommy Bouser. See K.S.A. 21-3205. It cannot stand. The evidence failed to prove Bouser committed aggravated burglary as charged.

Our statutory definitions of burglary and aggravated burglary are as follows:

“Burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.” K.S.A. 21-3715.

“Aggravated burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is some human being, with intent to commit a felony or theft therein.” K.S.A. 21-3716.

Observing the use of the disjunctive “or” in the statutes, they plainly say burglary (K.S.A. 21-3715) is

(1) knowingly and without authority entering into a building with intent to commit a felony or theft therein, or

(2) knowingly and without authority remaining within a building with intent to commit a felony or theft therein, and aggravated burglary (K.S.A. 21-3716) is

(1) knowingly and without authority entering into a building in which there is some human being, with intent to commit a felony or theft therein, or

(2) knowingly and without authority remaining within a building in which there is some human being, with intent to commit a felony or theft therein.

The amended information upon which Floyd was tried charged that he “knowingly and without authority and with the intent to commit a theft . . . [did] aid and abet [the] entering into a building . . . occupied during time of said entrance . . . .” (Emphasis added.)

Without presently pertinent objection by the State, the trial judge proposed and gave the following instruction stating the charge against Floyd:

“[E]ach of the following claims must be proved:

"1. That the Defendant . . . intentionally aided or advised Tommy Bouser ... to knowingly enter the residence . . .

“2. That [Tommy Bouser] did enter . . . without authority;

“3. That . . . Tommy Bouser . . . had the intent to commit a theft therein;

“4. That at the time there was a human being in the residence . . . .” (Emphasis added.)

Whether Bouser’s nefarious conduct is within the proscriptions of our aggravated burglary statute is not the question before us. Floyd was tried on the State’s accusation that Bouser was guilty of the above-mentioned first alternative in the aggravated burglary statute. There is no material factual dispute. The question for our resolution is whether Bouser entered into a building in which there was another person. In my view, he did not.

I read the majority opinion as acceptance of the State’s argument that “entering into” is a term so elastic that in this case it encompasses all the time from Bouser’s crossing of the threshold of the residence’s unlocked door to and through the return and presence of Gallagher some 45 minutes to an hour later. During this time, Bouser ransacked the house, bagged the loot and capped off his visit by helping himself to a pre-departure midday luncheon purloined from the Gallagher larder. I cannot agree with the adopted elasticity concept. Not only is there no authority to support it, but to follow that reasoning must lead to the result that the commission of a burglary, whether simple or aggravated, is not completed until the accused exits the premises. Surely this is not so. The statutes say “entering into . . . any building” not “entering into, staying in and exiting any building.” They do not say “entering into and remaining within.” Neither does the aggravated burglary statute say entering into or remaining within a building with intent to commit a felony or theft and in which there is some human being during the course of the foray.

Under our statutes the elements of burglary consist of knowingly and without authority entering into or remaining within a building with intent to commit a felony or theft. A breaking is not required. Burglary and aggravated burglary are distinguished by the presence or absence of some person in the building entered or within which the accused remained. K.S.A. 21-3715; K.S.A. 21-3716; and Judicial Council comment to K.S.A. 21-3716.

In discussing common law burglary, it has been said “burglary is committed when, after breaking, the defendant enters with the requisite intent. Since the intended felony need not be committed nor even attempted, the burglary is completed upon the defendant’s entry. Therefore the burglary is completed at the precise point in time when it is committed; it is committed when any part of the defendant’s person or an instrument being used for the purpose of committing the felony intended passes the line of the threshold.” 3 Wharton’s Criminal Law § 334, p. 205 (14th ed. 1980).

I cannot agree with the majority that the rationale of the opinion in State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973), need not confine its holding. What is said in an opinion or the syllabus thereof always is to be read and interpreted in the light of the facts and questions present in the case. Ellis v. Union Pacific R. R. Co., 231 Kan. 182, 185, 643 P.2d 158 (1982); Wenzel Machinery Rental & Sales Co. v. Adkins, 189 Kan. 435, 438-439, 370 P.2d 141 (1962); Steck v. City of Wichita, 182 Kan. 206, 209, 319 P.2d 852 (1958). Otherwise, language meaningful for one case may erroneously become dogma for other cases despite essential differences. McKinney, Administrator v. Miller, 204 Kan. 436, 437, 464 P.2d 276 (1970).

Our aggravated burglary statute does not require that the burglar know there is another person in the building (State v. Price, 215 Kan. 718, 721, 529 P.2d 85 [1974]), but it does establish temporal requirements concerning the other person’s presence in the building. Assuming knowing conduct, absence of authority and the requisite intent, to be guilty of aggravated burglary the accused either must have entered a building in which there was another person or he must have remained within a building in which there was another person. The temporal requirement concerning the presence of the other person is precisely the link that elevates a burglary to an aggravated burglary.

Adapting to the language of the aggravated burglary statute the language of the amended information and the jury instruction, the charge alleged against Floyd and submitted to the jury was that Bouser entered a building in which there was some human being. Bouser did not. Floyd is not guilty of the charge.

To support a conviction, the information must be legally sufficient to charge a statutory offense and the State has the burden of proving the offense charged. State v. Williams, 196 Kan. 274, 285, 411 P.2d 591 (1966). A conviction upon a charge not made is denial of due process, State v. Minor, 197 Kan. 296, 298-299, 416 P.2d 724 (1966); due process requires the State to prove what it alleges, Krathy v. State, 406 So. 2d 53, 54 (Fla. Dist. Ct. App. 1981).

The Williams rule has been frequently acknowledged. State v. Brooks, 217 Kan. 485, 487-488, 536 P.2d 1365 (1975) (“salt of heroin” immaterial variance from “heroin”); State v. Kearns, 211 Kan. 158, 162, 505 P.2d 676, cert. denied 414 U.S. 841 (1973) (“Robert” Zimmerman immaterial variance from “Bob” Zimmerman); State v. Miles, 203 Kan. 707, 710, 457 P.2d 166 (1969) (evidence in negligent homicide case supported alleged rules of road violations causing accident); State v. Johnson, 189 Kan. 571, 573, 370 P.2d 107 (1962) (“Charles V. Rogers” immaterial variance from “Charles U. Rogers”); State v. Earley, 119 Kan. 446, 447, 239 Pac. 981 (1925) (“Ray Barber” immaterial variance from “Roy Barber”).

I find Floyd’s appeal from his aggravated burglary conviction controlled by Williams. There it was held embezzlement offenses charged were not proved. 196 Kan. at 286. Williams is succinctly summarized by the following paragraph from the opinion:

“It is fatal to the state’s conviction to charge Williams with taking money of Charles A. Bliss, when the proof shows the funds taken were strictly from the bank accounts of the C. A. Bliss Investment Company, a partnership. The partnership was a distinct business entity, and the taking of partnership funds, which under the law and the facts of this case were not, and could not be, the property of Charles A. Bliss, was not an offense charged in the information.” 196 Kan. at 285.

It is fatal to the State’s conviction of Floyd to have charged Bouser with entering a building in which there was another person when the proof shows there was not another person in the building when Bouser entered. Bouser’s entry into a building in which there was no other person was not and could not be the offense charged in the information, that is, aggravated burglary. The trial court erred in denying Floyd’s requested and timely motions for dismissal and acquittal.

The majority refers to State v. Lora, 213 Kan. 184, and its language that a burglar is guilty of aggravated burglary if there is another person present in the building during the course of the burglary. 213 Kan. at 187. Lora is distinguishable on its facts and issues. Lora was charged with entering and remaining. The relevant issue raised on appeal was whether under the statute (K.S.A. 21-3716) it is necessary to an aggravated burglary conviction that the other person was present in the building at the time of entry. Because of the alternative “remaining within” provision, that is not necessary. Furthermore, under the facts in Lora, the defendant, after unauthorized entry, had remained within a building in which there was another person while in one instance perpetrating rape and in the other instance attempting to perpetrate rape. On appeal, Lora did not raise as an issue a claim that there was a fatal variance between pleading and proof, that is, the claim that it was not proved Lora entered and remained as charged. 213 Kan. at 187, 191, 192. (Compare State v. Brown, 6 Kan. App. 2d 556, 560, 630 P.2d 731 [1981], where the defendant was charged with entering and remaining with intent to commit theft and we held the State had the burden to prove at a minimum entry with intent to commit theft.)

While not evident in either the majority opinion or this opinion, I find it clear that neither the preliminary hearing nor the bill of particulars “cured” the variance I find in the charge and proof. The State makes absolutely no contention of a “cure.” Its position is purely and simply that Bouser committed aggravated burglary as charged.

We are told Reed’s conviction of aggravated burglary was on an information charge, evidence, jury instruction and jury decision identical to that in Floyd’s trial. Accordingly, it is my opinion Reed’s aggravated burglary conviction should be reversed for the same reason that renders Floyd’s conviction erroneous.

Whether, under the evidence presented, Floyd or Reed could properly have been found guilty of aggravated burglary upon a charge Bouser “remained within” is a question on which I do not now venture an opinion. I take it this is also true for the majority.

I concur in the result reached by the majority on each of the other issues raised on appeal.