Kansas Supreme Court Announces State Must Prove Defendant Specifically Intended to Enter Dwelling in Which There Was a Person to Sustain Conviction for Attempted Aggravated Burglary, Overruling State v. Watson
The Supreme Court of Kansas held that the State must prove a defendant specifically intended to enter a dwelling in which there was a person to sustain a conviction for attempted aggravated burglary and thus expressly overruled State v. Watson, 885 P.2d 1226 (Kan. 1994), which had held to the contrary.
Donald Tinsley was watching television in his lighted living room at 10:30 p.m. on Saturday of Memorial Day weekend when his security system alerted him to motion on the back patio. Live video feed on his phone revealed a man wearing a hooded sweatshirt and his face partially covered with a handkerchief peering into the room through a window located behind the couch where Tinsley was seated. Tinsley called the police. After police cleared the scene, Tinsley observed mud on his patio beneath the window, an opened gate in the fence around his back yard, and footprints leading from the gate. A parole officer later identified Ron Richard Larsen Jr. as the person captured on the security video.
Larsen was charged with attempted aggravated burglary in connection with the Tinsley incident and with numerous other felonies stemming from his involvement in other crimes not relevant to this review. After a jury found him guilty of all charges, he appealed to the Court of Appeals (“COA”). The COA affirmed his judgment of conviction. The Kansas Supreme Court granted Larsen further review on issues of whether a conviction for aggravated burglary requires the State to prove Larsen had specific intent to burglarize a dwelling occupied by a human.
The Court observed that “[a]ggravated burglary is (1) without authority (2) entering or remaining in any dwelling, building, manufactured home, tent, or other structure that is not a dwelling (3) in which there is a human being, (4) with the intent to commit a felony, theft, or sexually motivated crime.” K.S.A. 2022 Supp. 21-5807(b). Simple, unaggravated burglary omits the requirement that a human being be present. K.S.A. 2022 Supp. 21-5897(a).
In Watson, the Kansas Supreme Court held that the aggravated burglary statute requires a defendant to enter a building with the intent to commit one of the enumerated crimes in the statute but that “there is no requirement of knowledge that there was someone within the building at the time the entry was made.” In the present case, the Court explained “had Larsen entered the Tinsley house, he could have been guilty of burglary without proof that he intended to enter an occupied house” under Watson.
But like the defendant in Watson, Larsen was convicted not of aggravated burglary but of attempted aggravated burglary. And just as Watson had argued that the State needed to prove an intent to enter a dwelling occupied by a person, Larsen made the same argument. The Watson Court rejected that argument on the ground that requiring the State “to prove knowledge of the presence of a human being to prove attempted aggravated burglary would place a greater burden on the State than would be required in proving the greater offense of aggravated burglary.”
But Larsen supplemented his argument by pointing out that the Watson decision did not discuss the legislatively imposed requirements in the attempt statute, making its analysis incomplete. In the present case, the Court observed that since the burglary statute does not include an attempt provision, the Court must look to the default definition of attempt in K.S.A. 2022 Supp. 21-5307, as required by State v. Mora, 509 P.3d 1201 (Kan. 2022). “That default definition requires proof of ‘any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.’” K.S.A. 2022 Supp. 21-5307(a). And the plain meaning of the phrase “intends to commit such crime” requires “the State to prove the defendant had specific intent to commit the intended crime, even if that crime as a completed crime does not require specific intent.” Mora. The Mora decision was supported by federal caselaw identifying an uncertainty that exists “regarding the defendant’s purpose to commit the underlying crime—an uncertainty that is not present in the case of a principal who actually commits the crime.” United States v. Sayetsitty, 107 F.3d 1405 (9th Cir. 1997).
Applying the rationale from Mora meant the State had to prove the defendant had specific intent to commit the underlying offense of aggravated robbery. By extending the Mora rule requiring specific intent of each element of the attempted crime to the present case, the Court explained that to convict Larsen of attempted aggravated burglary, the State had to prove Larsen had the specific intent to commit each element of the crime of aggravated burglary, viz., the specific intent to “enter into or remain within any: (1)(A) Dwelling in which there is a human being.” The Court observed that this “holding overrules contrary language in Watson.”
The Court declared that “Watson was originally erroneous or is no longer sound in light of K.S.A. 2022 Supp. 21-5301 and Mora.” Thus, the Court announced: “We thus depart from Watson to hold the Legislature has required the State to prove Larsen had the specific intent to commit the intended crime of aggravated burglary.”
Unfortunately for Larsen, the Court then carefully reviewed the evidence presented against him at trial and determined it was sufficient for a rational jury to conclude Larsen had the requisite specific intent to commit every element of aggravated burglary.
Accordingly, the Court affirmed Larsen’s attempted aggravated burglary conviction. See: State v. Larsen, 533 P.3d 302 (Kan. 2023).
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Related legal case
State v. Larsen
|533 P.3d 302 (Kan. 2023)
|State Supreme Court