State v. Daws

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,716

STATE OF KANSAS,
Appellee,

v.

MICHAEL C. DAWS,
Appellant.

SYLLABUS BY THE COURT

1.
Under K.S.A. 2015 Supp. 21-5807(b), aggravated burglary is defined as
"knowingly and without authority entering into or remaining within any building . . . in
which there is a human being, with intent to commit a felony . . . therein." As used in the
statute, the phrases "entering into" and "remaining within" each refer to a legally distinct
factual situation. The entering into element is satisfied when the evidence shows a
defendant crossed the plane of a building's exterior wall. Remaining within refers to a
defendant's presence in the building's interior after entry, authorized or unauthorized, has
been accomplished.

2.
K.S.A. 2015 Supp. 21-5807(b) requires a human being's presence in the dwelling,
but the crime can be committed either by entering into or remaining within the structure.

3.
When the defendant is charged only with the entering into means of committing
aggravated burglary, the human being must be present at the time of entry. The contrary

1
holdings of State v. Reed, 8 Kan. App. 2d 615, 663 P.2d 680, rev. denied 234 Kan. 1077
(1983), and its progeny are overruled.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 1,
2013. Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed February 19,
2016. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district
court is reversed, and the challenged conviction is reversed.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of the
same office, was on the brief for appellant.

Edmond D. Brancart, chief deputy district attorney, argued the cause, and Christopher Mann,
assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: There are two ways of committing aggravated burglary under K.S.A.
2015 Supp. 21-5807(b): a person can either "enter into" or "remain within" the dwelling.
Michael C. Daws was convicted of aggravated burglary after a homeowner returned to
discover the front door kicked in and Daws inside. The jury was instructed it had to find
Daws "knowingly entered . . . a residence . . . without authority . . . with the intent to
commit theft . . . at the time there was a human being in the dwelling." (Emphasis added.)
In other words, the jury was instructed as to the first of the two ways of committing
aggravated burglary. Daws argues his conviction should be reversed because the evidence
is undisputed that the homeowner was not in the dwelling when he entered it.

The Court of Appeals affirmed his conviction based upon its existing caselaw that
the victim does not have to be in the dwelling at the time defendant enters it—so long as
the victim arrives before defendant leaves. State v. Daws, No. 108,716, 2013 WL
2
5925960, at *3-5 (Kan. App. 2013) (unpublished opinion), rev. granted January 15, 2015.
A majority of this court reverses the aggravated burglary conviction and overrules the
line of cases the Daws panel relied on. See State v. May, 39 Kan. App. 2d 990, Syl. ¶ 1,
186 P.3d 847, rev. denied 287 Kan. 768 (2008); State v. Romero, 31 Kan. App. 2d 609,
610-12, 69 P.3d 205 (2003); State v. Fondren, 11 Kan. App. 2d 309, 310-12. 721 P.2d
284, rev. denied 240 Kan. 805 (1986); State v. Reed, 8 Kan. App. 2d 615, 616-19, 663
P.2d 680, rev. denied 234 Kan. 1077 (1983). Under the aggravated burglary statute and
these facts, the State should have charged Daws with "remaining within" the dwelling,
which it did not do.

FACTUAL AND PROCEDURAL BACKGROUND

During the middle of the day on November 20, 2011, Raul Flores Ramos stopped
by the house he was moving out of. The front door was shut, but it had been kicked in
and the door jamb broken. He entered and discovered Daws in the living room. Ramos
told Daws to leave, and Daws complied. Afterwards, Ramos discovered some boxes had
been moved around and property removed from them. Ramos also noticed two grocery
bags containing property that did not belong to him. The State charged Daws with
aggravated burglary based on the intent to commit theft. The information alleged Daws
"did unlawfully without authority enter into a building . . . which is a dwelling, in which
there was a human being, to wit: Raul Flores, with the intent to commit a theft therein."
(Emphasis added.)

At trial, Daws admitted he was in the house. He testified he saw someone kick in
the front door, followed that person inside, and then stayed for a night because he thought
the house was abandoned. Daws confirmed Ramos found him inside the next day and that
he left when asked. Daws testified he never intended to take any property.

3
 At the jury instruction conference, Daws requested a lesser included offense
instruction for simple burglary because the victim was not in the house when Daws
entered it. The State argued it did not matter when the victim was in the house as long as
he was there while the burglary was occurring. The district court refused the simple
burglary instruction, noting "the caselaw does not differentiate" between circumstances
when the victim was present at the time of entry or arrived later.

Consistent with the charge as described in the information, the jury was instructed
on aggravated burglary based on the State's theory that Daws "knowingly entered a
building" without authority. This instruction was consistent with PIK Crim. 4th 58.130,
and stated in relevant part:

"To establish this charge, each of the following claims must be proved:
1. That the defendant knowingly entered a building . . . which is a dwelling;
2. That the defendant [ ] Daws did so without authority;
3. That the defendant did so with the intent to commit Theft therein;
4. That at the time there was a human being in the dwelling, to-wit: Raul Flores; and
5. That this act occurred on or about the 20th day of November, 2011, in Wyandotte
County, Kansas."

The district court also issued what is referred to as the any/any reasonable doubt
instruction, which states in relevant part:

"The test you must use in determining whether the defendant is guilty or not
guilty is this: If you have a reasonable doubt as to the truth of any of the claims required
to be proved by the State, you must find the defendant not guilty. If you have no
reasonable doubt as to the truth of any of the claims required to be proved by the State,
you should find the defendant guilty." (Emphasis added.)

4
 The jury convicted Daws of aggravated burglary. The district court sentenced
Daws to the standard term in the applicable grid box, factoring in his criminal history
score.

Daws timely appealed to the Court of Appeals, raising five issues: (1) There was
insufficient evidence of aggravated burglary because the victim was not present upon
entry; (2) the district court should have instructed the jury on simple burglary; (3) the
district court erroneously denied a motion for mistrial; (4) the jury was improperly
instructed on reasonable doubt; and (5) the district court violated Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it used Daws' criminal
history to enhance his sentence. The Court of Appeals affirmed in Daws, 2013 WL
5925960, at *5-9.

Daws petitioned for this court's review of all his claims except the denial of the
motion for mistrial. We granted review, and jurisdiction is proper. See K.S.A. 60-2101(b)
(review of Court of Appeals decisions).

Before proceeding, we note the last two issues have already been decided
adversely to Daws in other cases. We upheld the "any/any" reasonable doubt instruction
in State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013) ("While the older PIK
instruction used in Herbel's trial was not the preferred instruction, it was legally
appropriate."). And, as Daws concedes, this court has repeatedly held the State is not
required to prove a defendant's criminal history to the jury beyond a reasonable doubt.
See, e.g., State v. Hall, 298 Kan. 978, Syl. ¶ 6, 319 P.3d 506 (2014). We dispose of those
latter two issues based on these prior decisions.

5
 REVERSAL OF THE AGGRAVATED BURGLARY CONVICTION

Aggravated burglary requires a human being's presence in the dwelling, but the
crime can be committed either by "entering into" or "remaining within" the structure.
Since Daws was convicted under the "entering into" means, the issue is whether his
conviction must be reversed because there was no human being present in the house
when he entered it.

Standard of Review

When sufficiency of the evidence is challenged, an appellate court reviews all
evidence in a light most favorable to the prosecution. The court must be convinced a
rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness
credibility determinations. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).

Discussion

The distinction between burglary and aggravated burglary is that aggravated
burglary requires an additional element—the presence of a human being. Compare
K.S.A. 2015 Supp. 21-5807(a) and K.S.A. 2015 Supp. 21-5807(b). The aggravated
burglary statute provides:

"Aggravated burglary is, without authority, entering into or remaining within any
building, manufactured home, mobile home, tent or other structure, or any vehicle,
aircraft, watercraft, railroad car or other means of conveyance of persons or property in
which there is a human being with intent to commit a felony, theft or sexually motivated
crime therein." (Emphasis added.) K.S.A. 2015 Supp. 21-5807(b).

6
 "[T]he phrases 'entering into' and 'remaining within' refer to legally distinct factual
situations." State v. Gutierrez, 285 Kan. 332, Syl. ¶ 2, 172 P.3d 18 (2007). Stated another
way, these phrases constitute alternative means of committing the crime. State v.
Frierson, 298 Kan. 1005, 1011, 319 P.3d 515 (2014). The entering into element is
satisfied when the evidence shows a defendant crossed the plane of a building's exterior
wall. In contrast, the remaining within element refers to a defendant's presence in the
building's interior after entry has occurred. Gutierrez, 285 Kan. at 337. Both situations
may take longer than a mere moment, but "remaining within connotes at least briefly
continuous behavior." 285 Kan. at 337-38.

The focus on these alternative means is dictated by the State's decision to
prosecute Daws for unlawfully entering the dwelling, as opposed to pursuing the alternate
approach that Daws committed aggravated burglary by remaining within the dwelling. He
argues that under the State's entering into theory, a human being must be present when
the defendant enters the building. And since it is undisputed that the homeowner was not
present when Daws entered, he contends there is insufficient evidence to support his
conviction.

The Court of Appeals caselaw the Daws panel relied on to affirm the conviction
under these facts stems from State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973). In Lora,
the defendant was convicted of two counts of aggravated burglary based on a fact pattern
in which Lora was lying in wait to commit rape when the victims returned home. Lora
argued it was error to convict him of aggravated burglary because there were no persons
present when he entered the house. The Lora court quickly disposed of this challenge
based on the language of the aggravated burglary statute.

It held the convictions were proper because of "the provision in this statute which
in the alternative proscribes knowingly and without authority 'remaining within any
7
building . . . in which there is some human being, with intent to commit a felony . . .
[therein.]'" 213 Kan. at 195. Notably, the Lora court did not address how the jury was
instructed, but an earlier portion of the decision indicates the State charged both means.
Accordingly, the Lora court's holding, at the very least, implies that the person must be
present at the time of entry when convicting under the entering into means. Otherwise, it
would have been unnecessary to cite the remaining within means of committing
aggravated burglary to uphold Lora's conviction. See 213 Kan. at 195. This would seem
to answer the question presented, but the Court of Appeals interpreted Lora differently
when presented with this issue in Reed, 8 Kan. App. 2d 615, and that interpretation has
been applied by that court ever since.

In Reed, the homeowner returned to discover burglars, and the two defendants
were charged with aiding and abetting "'entering into a building . . . occupied during the
time of said entrance'"—even though the State conceded no one was inside when the
burglars entered. 8 Kan. App. 2d at 616. A divided panel upheld the convictions, holding
that a charge of aggravated burglary "need not specify the point in time at which a victim
was present so long as it is alleged that a human being was present sometime during the
course of the burglary." (Emphasis added.) 8 Kan. App. 2d at 618-19.

The majority relied on dicta from a different issue in Lora distinguishing between
aggravated burglary and burglary based on the additional requirement that the place be
occupied "'during the course of the burglary.'" 8 Kan. App. 2d at 617. And this language
was taken out of context and was seemingly viewed as meaning that the aggravated
burglary continues until the burglar vacates the premises. The majority also referred to
the PIK instruction Notes on Use that stated: "'When a person enters the premises after
the burglary has commenced but before the defendant has left the premises, the offense
constitutes aggravated burglary.'" 8 Kan. App. 2d at 617 (quoting PIK Crim. 2d 59.18,
Notes on Use).
8
 Notably, this PIK statement remains in the current version of the instruction and
suffers from a lack of citation to any authority. See PIK Crim. 4th 58.130, Notes on Use.
But the statement does not misstate the law because, as this court held in Lora,
aggravated burglary has been committed if a person enters before the defendant leaves
under the remaining within means. 213 Kan. at 195. Nevertheless, the PIK statement is
confusing because it fails to distinguish between the two means of committing aggravated
burglary. In other words, the statement is too broad if read to apply to both means, which
appears to be how the Reed panel interpreted it.

Regarding Lora, the Reed majority held: "Despite Lora's apparent reliance on the
'remaining within' clause, it is our conclusion that the rationale of the opinion need not
confine its holding." 8 Kan. App. 2d at 618. It further held that the "troublesome
language of the statute" concerning remaining within relates "to the timing of the
burglar's formation of intent rather than the victim's presence." 8 Kan. App. 2d at 618.

The tipping point for the Reed panel majority seems to be its conclusion that the
victim suffers the same danger regardless of whether he or she is present when the
burglar enters or when he or she arrives later. The panel wrote:

"The purpose behind the aggravated burglary statute is to describe a more serious offense
than simple burglary when there is the possibility of contact between the victim and the
burglar and the accompanying potential for a crime against the person to occur. This
danger is just as great regardless of when during the burglary the victim comes to be in
the building. 8 Kan. App. 2d at 616.

Judge Rees dissented. He would have held there was insufficient evidence of
aiding and abetting aggravated burglary because the victim was not present when the
burglars entered the building. 8 Kan. App. 2d at 622. (Rees, J. dissenting). And he
9
criticized the majority for suggesting the burglary was not completed until the accused
exits the premises, noting this conflicted with the statute's plain language. 8 Kan. App. 2d
at 622-23. Judge Rees would have held that the statute requires the victim's presence at
the time the defendant enters when convicting under the entering into means. 8 Kan. App.
2d at 624 ("The temporal requirement concerning the presence of the [victim] is precisely
the link that elevates a burglary to an aggravated burglary.").

Judge Rees' dissent never gained traction. Subsequent decisions from the Court of
Appeals, including Daws, have followed Reed. See May, 39 Kan. App. 2d at 993;
Romero, 31 Kan. App. 2d at 610-12; Fondren, 11 Kan. App. 2d at 310-12; State v.
Montgomery, No. 108,164, 2014 WL 349558, at *4-6 (Kan. App. 2014) (unpublished
opinion), petition for rev. filed March 3, 2014; Daws, 2013 WL 5925960, at *3-5.

Even so, the rule has differed slightly between panels and that suggests an
infirmity. For example, the May panel stated: "We have consistently held that the
presence of a person in a structure at any time during a burglary constitutes aggravated
burglary." 39 Kan. App. 2d at 993. While in Fondren, the panel held that "[t]he
occupancy requirement is satisfied so long as there are human beings present when the
ulterior felony or theft is committed." 11 Kan. App. 2d at 311. Both rationales are
questionable although the flaw is more obvious in Fondren, which undeniably reads an
element into aggravated burglary that is not present—the commission of the ulterior
felony. It becomes clear that the May panel's holding suffers from the same flaw when
one attempts to define "during a burglary." Such statements suggest aggravated burglary
is not complete until the defendant vacates the premises, which is contrary to the statute's
plain language. See K.S.A. 2015 Supp. 21-5807(b).

As charged and instructed in this case, aggravated burglary is defined as "without
authority, entering into . . . any building . . . in which there is a human being with intent
10
to commit . . . theft . . . therein." K.S.A. 2015 Supp. 21-5807(b) (no charge on instruction
made for remaining within). A defendant is not required to commit the ulterior crime to
complete the aggravated burglary. See K.S.A. 2015 Supp. 21-5807(b); see also State v.
Shinn, No. 112,118, 2015 WL 4366534, at *3 (Kan. App. 2015) (unpublished opinion)
(holding the defendant "did not have to successfully commit a theft; he only had to intend
to do so" to commit aggravated burglary). And because aggravated burglary is complete
once unauthorized entry occurs, the Court of Appeals view impermissibly extends the
crime until the burglar leaves or completes the ulterior felony. See State v. Phillips, 295
Kan. 929, 944-45, 287 P.3d 245 (2012) (aggravated robbery complete when defendant
takes possession of victim's property, so prosecutor's closing argument misstated the law
by saying crime not complete until defendant left the premises).

It is "a basic premise of Anglo-American criminal law that the physical conduct
and state of mind must concur." 1 LaFave, Substantive Criminal Law § 6.3(a), p. 451 (2d
ed. 2003) (discussing actus reus and mens rea). In the context of aggravated burglary,
this idea is embodied in this court's holdings that "[t]o support a conviction for
aggravated burglary, the intent to commit a felony and the unauthorized entering into or
remaining within must at some point in time coexist." Gutierrez, 285 Kan. at 338-39; see
also State v. Bowen, 262 Kan. 705, 709, 942 P.2d 7 (1997) ("The specific intent in an
aggravated burglary, where one is charged with entering into the dwelling without
authority, must exist at the time of the unauthorized entry.").

But the aggravated burglary statute's human presence element is not governed by
this rule because it does not involve the required physical conduct (entering into) or the
state of mind (intent to commit the ulterior crime). The human presence element is more
aptly described as an attendant circumstance. See 1 LaFave, Subst. Crim. L. § 6.3(b).
When the elements of a criminal statute include an attendant circumstance, that attendant
circumstances must concur with the other elements. 1 LaFave, Subst. Crim. L. § 6.3(b) p.
11
455 ("With crimes which require physical conduct, mental fault, and attendant
circumstances, the circumstances must concur with the conduct and fault."). To hold
otherwise collapses the two means of committing aggravated burglary.

In light of the uncontroverted testimony that Daws spent a day inside the victim's
home before the homeowner returned, the remaining within means of committing
aggravated burglary was the appropriate charge. Since the jury was only instructed on the
entering into means of committing aggravated robbery and the victim was not present
when Daws entered the residence, we hold there was insufficient evidence to sustain the
aggravated burglary conviction and reverse that conviction. This necessarily requires us
to overrule Reed and its progeny as they relate to the crime of aggravated burglary when
the defendant is only charged with unauthorized entering into a building or residence and
another person is not present at that time. Based on this, it is unnecessary to address the
remaining issue concerning the defendant's request for a simple burglary instruction.

Accordingly, we reverse the Court of Appeals decision that affirmed the district
court and reverse the challenged conviction for aggravated burglary.

***

LUCKERT, J., dissenting: I disagree with the majority's decisions (1) to overrule
State v. Reed, 8 Kan. App. 2d 615, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983), and
its progeny and (2) to reverse Michael C. Daws' aggravated burglary conviction because
of insufficient evidence. Not only do I disagree with the majority's reasoning that led to
those decisions, I am troubled the law surrounding burglary and aggravated burglary
becomes more confused under the majority's rationale.

12
 I disagree with the majority's reasoning in two major respects. First, unlike the
majority, I do not believe the legislature intended to create two "means" of committing
burglary simply by describing two factual circumstances that amount to burglary—that is,
an unauthorized presence achieved either by an entering in or remaining within. Second, I
do not read K.S.A. 2015 Supp. 21-5807(b) (aggravated burglary) to require that all
elements must be present at the moment a burglar crosses the plane of a dwelling's
exterior wall (or that of any other structure or "means of conveyance" covered by the
statute) when the State has charged only the option of "enter[ing] into." Rather, the
burglary continues as long as the burglar maintains an unauthorized presence in the
dwelling, another structure, or a means of conveyance. Thus, the crime can be proven by
establishing a concurrence of all the elements and attendant circumstances at some point
in time while the burglar remains within the structure without authority. See 3 LaFave,
Substantive Criminal Law § 21.1(g) pp. 221-22 (2d ed. 2003).

With regard to the first point of disagreement of whether the two factual
circumstances constitute alternative means, I recognize our past caselaw has so held. E.g.,
State v. Cook, 286 Kan. 1098, 1107, 191 P.3d 294 (2008) ("Where the jury is instructed
that the single offense of aggravated burglary may be committed by either the
unauthorized 'entering into' or 'remaining within' a structure, an alternative means case
has been presented."). But in State v. Brown, 295 Kan. 181, 192-200, 284 P.3d 977
(2012), we clarified the analysis for determining when the legislature intended to create
an alternative means crime. We explained that phrases joined by the word "or" do not
necessarily constitute alternative means. Rather, if alternatives merely describe a material
element or describe the factual circumstances that can prove a material element, they are
options within a means rather than alternative means.

Post-Brown, in State v. Frierson, 298 Kan. 1005, 1011, 319 P.3d 515 (2014), we
noted that the State had not presented any argument that the status of aggravated burglary
13
as an alternative means crime had changed after our decision in Brown. Without a request
to change our approach, we applied our prior holdings that aggravated burglary was an
alternative means crime. Likewise, in this case, the State has not requested us to revisit
our pre-Brown caselaw. Generally, I am reluctant to decide an issue without proper
argument and consideration. But failing to consider the question in this case leads the
court to reverse a long line of cases and confuses the law of aggravated burglary.
Consequently, it becomes necessary to reconsider whether the phrases "entering into" and
"remaining within" are truly alternative means, as opposed to being phrases that manifest
the legislature's intent to describe the "material element or a factual circumstance that
would prove the crime [of aggravated burglary]," i.e., options within a means. See
Brown, 295 Kan. at 200.

I reach this conclusion in part because of the prior statutory law and common law
from which the current crimes of burglary and aggravated burglary descend. See K.S.A.
2015 Supp. 21-5103(a) ("No conduct constitutes a crime against the state of Kansas
unless it is made criminal in this code or in another statute of this state, but where a crime
is denounced by any statute of this state, but not defined, the definition of such crime at
common law shall be applied."); State v. Engel, 166 Wash. 2d 572, 578-80, 210 P.3d
1007 (2009) (when determining if options stated in criminal provision create alternative
means courts may look to common-law definition of crime to determine legislative
intent); see also Brown, 295 Kan. at 193 (noting that Kansas has borrowed from
Washington's caselaw regarding alternative means).

The statutory crime of burglary loosely descends from the crime of breaking and
entering, which was recognized at common law and in early Kansas statutes. At common
law, a completed crime did not occur simply by creating a breach or an opening—a
breaking. Rather, the burglar had to physically intrude into the structure, even if only
momentarily. Modern statutory formulae dispense with the breaking but still require an
14
entry into—in other words, a presence within a structure. Nevertheless, they uniformly
convey the essence of a breaking through some word or words that require proving that
the burglar's presence is not privileged. For example, statutes may use the term
"unlawful," "unauthorized," "without consent," or "trespass." See 3 LaFave, Subst. Crim.
L. § 21.1(a), (b), pp. 208-12. K.S.A. 2015 Supp. 21-5807(b) conveys the essence of
"breaking" through the word "unauthorized" and, in my view, uses the alternatives of
entering into or remaining within to explain that the burglar must assert some physical
presence inside the structure.

The phrase "remaining within" expands the reach of the modern crime beyond the
reach of conduct condemned at common law—that is, the mere "entering." This
"statutory expansion" makes "great sense" because, as Professor LaFave explains, it
allows charging burglary in a situation where an individual enters the premises with
authority (such as a bank customer) but remains once that authority is withdrawn or
ceases (such as when the bank customer hides until the bank closes and then steals the
bank's money). 3 LaFave, Subst. Crim. L. § 21.1(b), p. 212. By expanding the criminal
act, the legislature did not intend to create legally distinct crimes. Instead, the intent was
to describe all surreptitious factual circumstances where the presence could become
unauthorized. Put simply, there is one "means" to commit burglary—unauthorized
presence—and the statute describes two options.

As this court has explained, the concepts of entering in and remaining within can
overlap or be distinct—a burglar can cross the plane of the outside walls and immediately
exit, can both enter and remain without authority, can enter with authority and lose
permission, or can have fluctuating periods where authority is granted, taken away, and
perhaps even be granted again. See Frierson, 298 Kan. at 1012 (quoting State v.
Gutierrez, 285 Kan. 332, 337, 172 P.3d 18 [2007]). All of these situations involve an
entry and an unauthorized presence within the structure, and the inclusion of both phrases
15
merely describes the various factual circumstance encompassed in the range of scenarios.
Such descriptions of factual circumstances do not create alternative means. See Brown,
295 Kan. at 200.

Indeed, the factual scenario in State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973),
which the majority discusses, amounts to reversible error under an alternative means
analysis. In that case, the State charged Lora with both entering into and remaining
within. Lora had waited for victims to return home in order to commit a rape, meaning
there was no person present when he "entered in." Nevertheless, this court upheld his
aggravated burglary conviction because there was evidence that he had "remained
within." 213 Kan. at 195. Under an alternative means analysis—where evidence must
support both means—Lora's aggravated burglary conviction was reversible because
insufficient evidence supported the entering into means. See Brown, 295 Kan. at 188
(noting that charges of alternative means require substantial evidence to support each
alternative means).

Under the majority's holding on the alternative means issue, however, the State
cannot charge both factual descriptions in every case and rely on Lora to save an
aggravated burglary conviction. Practically speaking, charging a clear-cut case becomes
complicated by the fear that an evidentiary discrepancy about when exactly a person
entered or when exactly intent formed might lead to insufficient evidence supporting one
of the theories. Splitting the crime of aggravated burglary into distinct parts seems an
exercise in form over substance and wipes out the "good sense" the statutory expansion
was intended to accomplish.

This seems especially true in light of the continuing nature of the crime of
aggravated burglary, my second point of disagreement with the majority's opinion. For
three decades since Reed, 8 Kan. App. 2d at 618, aggravated burglary occurred
16
"whenever a human being is present in the building during the course of the burglary."
(Emphasis added.) Now here, unlike Reed, the majority does not view aggravated
burglary as a continuing crime. In overruling Reed and its progeny, the majority notes
that under the entering into theory a "burglary is complete as soon as unauthorized entry
occurs," regardless of whether the criminal later completes the intended ulterior crime.
That is true. But that only means that at that point there is sufficient evidence to support a
conviction—that does not necessarily mean the actions constituting the offense have
ended. See K.S.A. 2014 Supp. 21-5807(b); see also, e.g., People v. Davis, 18 Cal. 4th
712, 718, 76 Cal. Rptr. 2d 770, 958 P.2d 1083 (1998) ("[B]urglary is complete upon the
slightest partial entry of any kind, with the requisite intent, even if the intended larceny is
neither committed nor even attempted."); State v. Office of Public Defender, 2012-
NMSC-029, ¶ 41 285 P.3d 622 (N.M. 2012) ("'The crime of burglary is complete when
there is an unauthorized entry with the requisite intent.'"). I view the plain statutory
language, which is contained in one sentence rather than in subparts of the statute, as
describing what can be a continuous factual circumstance—an entering into along with a
remaining within. See Brown, 295 Kan. at 196 ("[A] legislature will signal its intent to
state alternative means through structure, separating alternatives into distinct subsections
of the same statute.").

Indeed, "burglary is in fact a rather unique type of attempt law, as all the required
elements merely comprise a step taken toward the commission of some other offense." 3
LaFave, Subst. Crim. L. § 21.1(g), pp. 221-22. Unlike other attempt laws, burglary does
not merge with the completed offense. Thus, through burglary, the legislature has
authorized additional punishment for the commission or attempted commission of a
crime in a particular way. See State v. McClanahan, 251 Kan. 533, 537-38, 836 P.2d
1164 (1992) (recognizing that burglary does not merge with intended theft); 3 LaFave,
Subst. Crim. L. § 21.1(g), p. 222.

17
 Some crimes, by their nature, do not happen instantaneously. Because burglary is
the punishment of actions taken to accomplish some other crime, it is hard to view it as
something other than a crime that continues so long as those actions are ongoing. See
K.S.A. 2015 Supp. 21-5107(f) ("An offense is committed either when every element
occurs, or, if a legislative purpose to prohibit a continuing offense plainly appears, at the
time when the course of conduct . . . is terminated.); see also State v. Gainer, 227 Kan.
670, 673, 608 P.2d 968 (1980) ("To constitute a continuing offense it must plainly appear
in the statute defining such offense that there is a clear legislative purpose to make the
prohibited course of conduct a continuing offense."); State v. Zimmer, 198 Kan. 479, 504,
426 P.2d 267 ("Kidnapping, which involves the detention of another, is a continuing
offense."), cert. denied 389 U.S. 933 (1967).

The United States Supreme Court explained the concept in the context of
conspiracy, which, by its nature, is a continuing crime so long as the conspirators engage
in overt acts towards its commission because "each day's acts bring a renewed threat of
the substantive evil Congress sought to prevent." Toussie v. United States, 397 U.S. 112,
122, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970). The Reed justification echoes that same
sentiment, finding evidence sufficient to support an aggravated burglary on the entering
into theory regardless of when a victim became present:

"The purpose behind the aggravated burglary statute is to describe a more serious offense
than simple burglary when there is the possibility of contact between the victim and the
burglar and the accompanying potential for a crime against the person to occur. This
danger is just as great regardless of when during the burglary the victim comes to be in
the building." 8 Kan. App. 2d at 616.

Concededly, the Reed conceptualization of aggravated burglary as a continuing
crime becomes strained when the focus is only on the entering into statutory language.
But I read the phrases of "entering into" and "remaining within" as describing the range
18
of factual circumstances that can be used to prove an unauthorized presence in the
structure, and I suggest the legislature intended that language to convey the continuing
nature of the crime. We should recognize that the Reed conceptualization of aggravated
burglary as—by its nature—a continuing offense made enough sense that the legislature
has not changed it for decades. See McIver v. State Highway Commission, 198 Kan. 678,
683, 426 P.2d 118 (1967) ("The failure of the legislature to disapprove the interpretation
amounts to a ratification by it."). But see In re Adoption of J.M.D., 293 Kan. 153, 166,
260 P.3d 1196 (2011) ("[T]his court has not always found that legislative inaction, even
for long periods of time, precludes the subsequent correction of judicially created rules
which are contrary to the plainly worded statutes.").

This case illustrates how splitting aggravated burglary into distinct parts confuses
the crime: Daws entered into the home when no person was present—he completed a
standard burglary. Later, while Daws maintained his unauthorized presence in the home,
a person came in. At that point, Daws remained within the home. Seemingly, under the
majority analysis in this case, Daws committed a subsequent aggravated burglary that
was factually and legally distinct from the initial burglary.

I doubt that multiple convictions for acts similar to Daws' could withstand a
multiplicity analysis because I believe it was the legislature's intent to collapse the two
factual circumstances, thereby generally proscribing any unauthorized presence in a
building with the intent to commit a felony. See State v. Schoonover, 281 Kan. 453, 471-
72, 133 P.3d 48 (2006) ("When the prosecution is based upon the same conduct, there
can be only one conviction for that minimum unit of prosecution," which is "the nature of
the conduct proscribed."). While one might argue the rule of lenity weighs in favor of
reading K.S.A. 2015 Supp. 21-5807(b) to state alternative means in this case, when
viewed broadly from a unit of prosecution standpoint a stronger argument can be made
that lenity suggests treating the two options as descriptions of factual circumstances. I
19
find it problematic to view aggravated burglary not as a continuing crime but as a series
of completed crimes.

In essence, the majority's rationale seems to interject confusion into the law
surrounding the crime of aggravated burglary. I would not change the longstanding
caselaw of this state, which has recognized aggravated burglary as a continuing crime,
because I find the rationale in Reed compelling. But I would clarify the alternative means
analysis in light of our decision in Brown to apply the legislative intent as merely
describing factual circumstances rather than alternative means.

This would mean that, contrary to the majority's suggestion, the State need not
prove that a person was in the dwelling at the moment Daws entered without authority.
The plain language of K.S.A. 2015 Supp. 21-5807(b) does not demand the concurrence if
both options are read together as allowing for a continuing act. Nor is such a reading
demanded by general principles of law.

The majority cites Professor LaFave for the "basic premise of Anglo-American
criminal law that the physical conduct and state of mind must concur." 1 LaFave
Substantive Criminal Law § 6.3(a), p. 451 (2d ed. 2003). It then cites two cases to
support its conclusion this coexistence must occur at the moment of the unauthorized
entry when the State charges only the option of entering into. In one of these cases,
Gutierrez, 285 Kan. at 338-39, the court held that "[t]o support a conviction for
aggravated burglary, the intent to commit a felony and the unauthorized entering into or
remaining within must at some point in time coexist." (Emphasis added.) This language is
consistent with my reading of the statute as providing for a continuing crime and does not
specifically state that intent must be present at the moment of entry. The second case does
support the majority's view. See State v. Bowen, 262 Kan. 705, 709, 942 P.2d 7 (1997)

20
("The specific intent in an aggravated burglary, where one is charged with entering into
the dwelling without authority, must exist at the time of the unauthorized entry.").

Nevertheless, the holding in Bowen and the view adopted by the majority ignores
the point made by Professor LaFave in the two sentences that follow the one the majority
quotes. He states:

"Although it is sometimes assumed that there cannot be such concurrence unless the
mental and physical aspects exist at precisely the same moment in time, the better view is
that there is a concurrence when the defendant's mental state actuates the physical
conduct. That is, mere coincidence in point of time is not necessarily sufficient, while the
lack of such unity is not necessarily a bar to conviction." (Emphasis added.) 1 LaFave,
Subst. Crim. L. § 6.3(a), p. 451.

Professor LaFave illustrates by explaining that "[t]he physical conduct might begin first
but continue until the requisite state of mind occurs." 1 LaFave, Subst. Crim. L. § 6.3(a),
p. 451 n.5. He provides an example that illustrates that the various elements can occur in
sequences other than only mental state actuating physical conduct. In that example of an
assault case, a driver inadvertently parked a car on an officer's foot and "then, upon
learning what he had done, did not move the car, as the requisite act was 'continuing.'" 1
LaFave, Subst. Crim. L. § 6.3(a), p. 451 n.5.

Here, we have evidence to support what Professor LaFave considered to be the
better view, which I believe is also consistent with the plain language of the aggravated
burglary statute and legislative intent. The State proved that Daws entered the dwelling
without permission and during the time he was in the dwelling without authority—i.e.,
during the time leading up to commission of the ulterior crime of theft—the other
elements and attendant circumstances coincided. Daws held the intent to commit a theft
while Ramos was also in the structure that Daws had entered without authority. See 1
21
LaFave, Subst. Crim. L. § 6.3(b) p. 455. I would conclude sufficient evidence supports
Daws' conviction for aggravated burglary.

Daws also argues the trial court erred in failing to instruct on the lesser included
offense of burglary. Daws can successfully meet the first two tests in our standard of
review for an alleged failure to give a jury instruction, which is set out in State v.
Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012): (1) Daws preserved this issue by
requesting the instruction during the jury instruction conference, and (2) an instruction on
burglary is legally appropriate as a lesser included offense of aggravated burglary, see
K.S.A. 2015 Supp. 21-5109(b)(1) (defining lesser included offense as lesser degree of
same crime); K.S.A. 2015 Supp. 21-5807 (defining burglary and aggravated burglary).

In the third step of the analysis, Daws must establish that the instruction is
factually appropriate because there is "some evidence which would reasonably justify a
conviction of some lesser included crime." K.S.A. 2015 Supp. 22-3414(3); Plummer, 295
Kan. 156, Syl. ¶ 1. Even if we assume Daws met that standard, in order for him to prevail
we must determine the failure to give the lesser included instruction was not harmless,
and I would not make this finding in Daws' favor. Daws did not dispute Ramos' presence
in the house. The only dispute related to whether Ramos had to be present at the instant
of Daws' entry into the house. Because I reject this legal argument, I would find that any
error in failing to give a lesser included offense instruction regarding burglary was
harmless.

In summary, there is no reasonable possibility that the jury, had it been instructed
on the lesser included offense, would have found Daws guilty of burglary instead of
aggravated burglary given the overwhelming evidence on the element that distinguishes
aggravated burglary from burglar—the presence of a person in the dwelling. See State v.
Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011) (If an error implicates a constitutional
22
right, then "a Kansas court must be persuaded beyond a reasonable doubt that there was
no impact on the trial's outcome, i.e., there is no reasonable possibility that the error
contributed to the verdict."), cert. denied 132 S. Ct. 1594 (2012); see also State v. Brown,
298 Kan. 1040, 1051, 318 P.3d 1005 (2014) (if constitutional harmless error standard is
met, then lower statutory standard under K.S.A. 2015 Supp. 60-261 is also satisfied).

I would affirm Daws' conviction for aggravated burglary.

ROSEN and STEGALL, JJ., join in the foregoing dissenting opinion.

23