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State v. Dixon6/3/2005
r read it to yourself and try to give us the exact quote that Wallace Dixon gave you?
"A: That I overheard?
"Q: Yes.
"A: He didn't -- I heard -- what I heard is, I'll burn it up, and that's when all the commotion had started and that's when I threw the gas out the window.
"Q: And what happened after that? After you got the gas and you guys threw it out the window what did you do?
"A: We went to Donnie Wishon's house."
Wishon is Hall's friend in Emporia. As we have seen, the evidence shows that the bucket of gasoline was purchased after the first burglary and before Hall and Hayes were taken to the residence of Hall's friend.
From this review of the evidence, it does not appear that a rational trier of fact could have found that Dixon had the intent to commit aggravated arson the first time he entered Alicia Shaw's apartment on July 29, 2001.
Dixon also asserts that there is not sufficient evidence to support the instruction on entering the apartment with intent to commit criminal damage to property. This argument was not presented to the trial court.
For the instruction on the second burglary, defense counsel objected on two grounds--that there was no evidence of intent to commit theft or criminal damage to property and that a multiple acts instruction was needed. The trial court simply stated that " hose objections have been noted and overruled." On appeal, Dixon argues there is no evidence that he entered Alicia's apartment the second time with the intent to commit theft. The State fails to address the issue of evidence of intent to commit theft. Nothing in the testimony of Griffin, the only person who reentered Alicia's apartment with Dixon, seems to indicate that theft was an intent.
The nonexistence of direct evidence of Dixon's intent does not end the inquiry. Intent, a state of mind existing at the time the offense is committed, does not need to be and rarely can be directly proven. It may be established by acts and circumstances and inferences reasonably deducible from evidence of acts and circumstances. See State v. Wilkins, 269 Kan. 256, 264-68, 7 P.3d 252 (2000). In Wilkins, we held the evidence was sufficient to convict the defendant of burglary where the evidence was that he was found in a pawn shop, having broken in through a hole in the roof. 269 Kan. at 264. In the present case, there was a second entry into the apartment and from the evidence of his unlawful conduct in the first entry it could reasonably be inferred that Dixon intended to continue such conduct during the second entry.
The remaining question is whether Dixon's burglary convictions can stand in spite of the absence of evidence sufficient to support each theory for the burglary charges. In State v. Johnson, 27 Kan. App. 2d 921, 923-26, 11 P.3d 67, rev. denied 270 Kan. 901 (2000), the Court of Appeals considered essentially the same question and concluded that the convictions should not be disturbed.
"Our Supreme Court in State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 ), stated:
'"In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Kansas Personal Injury Attorneys
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