Residential burglary requires proof of contemporaneous intended use of building

Michelle A. Davis won in State v. Downing, No. 116,629 (Kan. January 24, 2020), obtaining reversal of a Reno County burglary conviction. The state charged burglary of a dwelling, but did not provide testimony that the building entered met the definition of a dwelling. The owner of the building indicated that no one lived in it at the time and that there were no plans for someone to live in it or rent it. The state argued that the jury could infer the purpose of the building. The KSC held that proof that the building was a dwelling was an essential element of the offense:

K.S.A. 2018 Supp. 21-5807(a)(2) also supports a present-intent requirement to distinguish between a dwelling and a nondwelling structure, rather than simply using a building design approach. That statute makes burglary of a place illegal even if that place is "not a dwelling" and it gives examples where that crime can occur—enumerating building designs that would ordinarily be considered in the abstract as "intended for use as" habitations, such as manufactured homes and mobile homes. This strongly points to something else besides building design to differentiate dwelling from nondwelling burglaries. 

We agree with the [COA] panel. Absent proof the place burgled was used as a human habitation, home, or residence, the statute's plain language requires a showing of proof that, someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose. And based on that, the sufficiency question in Downing's case turns on whether the evidence at trial, viewed in the light most favorable 11 to the State, was sufficient for "a rational fact-finder" to find that the farmhouse was "intended for use" as a human habitation, home, or residence when the crime occurred. 

Reviewing the state's evidence with this test, the KSC held that the state not prove that the building was a dwelling at the time of the alleged entry.

Finally, the KSC rejected the state's request to have the case remanded with directions to resentence Ms. Downing for nonresidential burglary as a lesser-included offense. The KSC held that the state had failed to sufficiently argue the point:

The State claims the crime of burglary of a structure under K.S.A. 21-5807(a)(2) is a lesser included offense of burglary of a dwelling under K.S.A. 21-5807(a)(1), making remand appropriate. But this argument was not raised until the State's petition for review in our court. It should have been presented as an alternative argument to the lower courts. Because of that, we decline to address it on the merits. Adding to the State's difficulties, it failed to give any statutory analysis supporting its claim, which supplies yet another basis for declining to entertain the question at this late stage.

As a result, the KSC simply reversed the burglary conviction.

Exceptional circumstances justified successive habeas motion

Michael P. Whalen and Krystle M.S. Dalke won in Littlejohn v. State, No. 115,904 (Kan. App. January 10, 2020)(unpublished), reversing the summary dismissal of  motion pursuant to K.S.A. 60-1507. The COA had initially reversed, but the KSC granted the state's PR and held that a movant had to show exceptional circumstances to reach the merits of a successive motion. On remand from the KSC, the COA found that Mr. Littlejohn had shown such circumstances:

Here, while Littlejohn's previous attorneys recognized the importance of his mental capacity in the overall scheme of his admissions and culpability, his trial counsel did not raise the issue as a defense to the specific intent necessary to commit the crimes for which he was charged nor to further bolster his claim that Littlejohn was a victim who was compelled to participate in the crime through compulsion. He did not mention Littlejohn's low IQ at all during the trial, including opening and closing statements.

Littlejohn was 18 years old when the senseless and horrific murder for which he was convicted occurred. He was sentenced to life in prison plus months. With a diagnosis of mental retardation, charges based solely on an aiding and abetting theory, and a defense of compulsion we believe justice would be served by an evidentiary hearing to determine whether Littlejohn's trial counsel's performance was ineffective and whether Littlejohn was prejudiced by it. Littlejohn has met his burden. Accordingly, we find there are exceptional circumstances shown to allow Littlejohn to bring a successive K.S.A. 60-1507 motion. Therefore, we reverse and remand for a hearing on the issue of whether trial, appellate, and 60-1507 counsel were ineffective for failing to investigate or present Littlejohn's mental capacity defense. In doing so, we specifically express no opinion on the merits of such contentions.

[Update: the state did not file a PR and the mandate issue on February 19, 2020.]