Thursday, August 12, 2010

Surgical application of harmless error

Rick Kittel and KU Defender Project student Drew Cummings won in State v. Brown, No. 101,819 (Kan. App. Aug. 6, 2010), obtaining a partial reversal in a Wyandotte County aggravated burglary prosecution. The substance of the issue involved a Boggs (blogged about here) issue:
In Boggs, the Kansas Supreme Court stated that the crucial distinction in admitting other crimes evidence under K.S.A. 60-455 on the issue of intent is not whether the crime is a specific or general intent crime but whether the defendant has claimed that his or her actions were innocent. When the defendant's acts are susceptible to two interpretations—one innocent and one criminal—then the intent with which the actions were committed becomes the critical element in determining their character. However, when a defendant does not assert that his or her actions were innocent but rather presents some other defense, there is no reason to admit evidence of other crimes or civil wrongs to prove intent. Here, Brown did not assert an innocent explanation for being inside the Ford residence on January 12, 2006. To the contrary, Brown testified at trial and generally denied entering the residence for any reason. Thus, although Brown's intent to commit a theft inside the residence was a material fact that the State was required to prove beyond a reasonable doubt, Brown did not dispute this particular material fact by asserting an innocent explanation for his actions as required in Boggs. Brown's not guilty plea was insufficient to place his intent in dispute at trial for purposes of admitting K.S.A. 60-455 evidence.

The State acknowledges that generally intent is only in dispute when the defendant asserts an innocent explanation for his or her actions. Nevertheless, the State argues in its brief that "this Court should broaden the requirements for admissibility of K.S.A. 60-455 evidence relevant to intent in burglary and/or aggravated burglary cases, even if prior jurisprudence does not currently demand the same." We decline the State's request to broaden the requirements for admissibility of evidence under K.S.A. 60-455. Intent becomes a disputed issue only when the defendant asserts an innocent explanation for his or her actions. Because Brown did not offer an innocent explanation for his actions, we conclude the district court erred by admitting evidence of his prior attempted burglary conviction in order to prove intent.
What was interesting to the appellate procedure geek in me was the precise application of the harmless error rule to this case. The COA reviewed the evidence and held that the error was reversible as to count one (aggravated burglary). But, because the evidence of a second incident was "substantially more compelling than the evidence supporting Count I," the COA held the error harmless as to counts two and three (burglary and theft).

I think this is the right approach with regard to harmless error. We tell juries all the time that each count is separate and errors may have different effects on different counts.

This also effectively shows why facts do matter in appellate cases (at least in the outcome, which is what matters).

[Update: the state did not file a PR and the mandate issued on September 9, 2010.]

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