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No. 103,124 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. SHANNON J. ROLLINS Appellant. SYALLABUS BY THE COURT

1. Jury unanimity is a question of law over which this court has unlimited review.

2. In 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. In an alternative means case the jury must be unanimous as to guilt for the single crime charged, but need not be unanimous as to the particular means by which the crime was committed, so long as substantial evidence supports each alternative means.

3. When the sufficiency of the evidence is challenged in a criminal case, this court reviews all the evidence in the light most favorable to the prosecution to determine whether the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

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4. Theft is an act done with intent to deprive the owner permanently of the possession, use, or benefit of the owner's property by obtaining or exerting unauthorized control over property.

5. Under K.S.A. 2010 Supp. 21-3110(13), the words "obtains or exerts control over property" includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property. There is no quantifiable difference between the actions that constitute obtaining or exerting; these word create a distinction without a difference.

6. The terms "obtaining" and "exerting" are not different as they relate to the substantive elements of the offense of theft. They merely describe the same conduct.

7. A claim that a defendant was deprived of his or her statutory and constitutional right to be present during a portion of the trial raises legal questions that are subject to unlimited review on appeal.

8. A felony defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant's presence is essential to a fair and just determination of a substantial issue.

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9. It is an appellant's duty to designate the record to demonstrate his or her claims of error. Assertions made in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal. Thus, without an adequate record, a claim of error fails.

10. The district court has discretion whether to admit evidence not previously disclosed in discovery. Judicial discretion exercised within the appropriate legal parameters is protected if a reasonable person in the position of the district court could have made a similar decision.

11. Whether an adequate evidentiary foundation was laid is a question of fact for the trial court and largely rests in its discretion. So long as there is substantial competent evidence to support the finding, it will not be disturbed on appeal.

12. Cumulative error will not be found when the record fails to support the errors alleged on appeal by the defendant.

Appeal from Johnson District Court; THOMAS H. BORNHOLDT, judge. Opinion filed July 1, 2011. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six, attorney general, for appellee.

Before LEBEN, P.J., GREEN and MARQUARDT, JJ. 3

MARQUARDT, J.: Shannon Rollins appeals his jury conviction of theft, a severity level 9 nonperson felony. The district court sentenced Rollins to 11 months' imprisonment with no postrelease supervision. We affirm.

On August 4, 2008, Richard Orrison, Vice President of Wall Ties and Forms (Wall Ties), a manufacturer of aluminum forming systems that are used in the concrete industry, notified the police that two pallets or "skids" of aluminum forms had been stolen from Wall Ties.

During his internal investigation, Orrison watched one daytime and two nighttime surveillance videos that showed Rollins, a Wall Ties employee, using two forklifts to load the missing skids into a van the evening of July 31, 2008. The nighttime videos, along with eyewitness testimony, evidenced Rollins leaving the loading dock about 8:29 p.m. with the loaded van. He returned at 9:35 p.m. The missing skids were never located. Rollins was charged with theft under K.S.A. 21-3701(a)(1) and (b)(3).

During Rollins' trial, the district court overruled his contemporaneous and continuing objection to the State's attempt to introduce testimony concerning the daytime surveillance video. Orrison testified about what he saw on the daytime surveillance video. Tom Sharkey, the quality control grounds supervisor at Wall Ties, also testified that he viewed the daytime surveillance video. Sharkey testified that the daytime video showed Rollins moving the missing skids to a section of the loading dock reserved for square tubing and inactive orders. Sharkey noted this was odd because aluminum forms do not belong in that section of the loading dock.

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The State introduced Rollins' timesheet over his objection claiming that the State failed to produce it during discovery. The district court overruled Rollins' objection. The timesheet showed that Rollins arrived at work on July 31, 2008, at 4:20 p.m. and left work at 10:47 p.m. Although Rollins was scheduled to work the next day, Friday, August 1, 2008, the timesheet indicated he was absent that day and also on August 5 and 6.

Rollins testified that when he arrived for work on July 31, 2008, he was informed that the "first shift" failed to make a delivery. Rollins made the delivery of 16 7-foot square tubing units to BRB Contractors' construction site at 1701 Baltimore, Kansas City, Missouri. Rollins stated that "Mike" signed for the delivery, and Rollins filed the paperwork when he returned to Wall Ties. Rollins testified that after making this delivery he took an extended vacation due to his mother's recent death and his father's health issues.

In rebuttal, Carl Englican, vice president and partner of Wall Ties, testified: (1) Wall Ties only sells the 7-foot square tubing units internationally, not domestically; (2) there was no construction site at 1701 Baltimore in Kansas City, Missouri, on that date; and (3) Wall Ties had no client named BRB Contractors. Additionally, Wall Ties' human resources employee Melissa Martin testified that Rollins did not file a formal request for an extended vacation and could not take the time because he had only 1 vacation day available.

The jury convicted Rollins of theft, and he was sentenced to 11 months' imprisonment with no postrelease supervision. Rollins timely appeals claiming substantial competent evidence does not support the alternative means of "obtaining" and "exerting" the unauthorized control required for a theft conviction. Additionally, he claims the district court: (1) violated his constitutional rights when it dismissed the jury 5

for the evening outside of his presence; (2) abused its discretion in admitting the timesheet in violation of K.S.A. 22-3212; and (3) erred in admitting testimony concerning the daytime surveillance video without a proper foundation. Finally, Rollins argues cumulative errors deprived him of a fair trial.

SUBSTANTIAL COMPETENT EVIDENCE FOR THE THEFT CHARGE

Rollins claims the State charged him with committing theft by alternative means but failed to prove both means. Therefore, his conviction for theft must be reversed because the jury verdict was not unanimous. The State argues that this is not an alternative means case because the terms "obtaining" and "exerting" are indistinguishable in proving unauthorized control. The issue of jury unanimity is a question of law over which an appellate court has unlimited review. State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005).

In 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. State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159 (2010). "In an alternative means case the jury must be unanimous as to guilt for the single crime charged, but need not be unanimous as to the particular means by which the crime was committed, so long as substantial evidence supports each alternative means." State v. Becker, 290 Kan. 842, 855, 235 P.3d 424 (2010).

"When the sufficiency of the evidence is challenged in a criminal case, this court reviews all the evidence in the light most favorable to the prosecution to determine whether the court is convinced that a rational factfinder could have found the defendant

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guilty beyond a reasonable doubt." State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009).

To support his argument, Rollins claims K.S.A. 21-3701(a)(1) provides two possible means by which the crime of theft could occur. K.S.A. 21-3701(a) states: "Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property . . . (1) Obtaining or exerting unauthorized control over property . . . ." (Emphasis added.)

Rollins claims that Kansas treated the terms obtaining or exerting differently in State v. Kunellis, 276 Kan. 461, 78 P.3d 776 (2003). In Kunellis, 15-year-old Kenneth Kunellis and several others stole motorcycles from an Olathe Suzuki dealership, drove against traffic on a multilane highway while being pursued by police, and killed two people in a collision. After a 4-day trial, the jury found Kunellis guilty of burglary, theft, and two counts of felony murder.

On direct appeal, Kunellis argued, inter alia, that the jury instructions and verdict forms for felony murder and theft provided the jury with an inaccurate statement of the law. Kunellis claimed that the theft was not a continuing offense and that "a conviction for felony murder based upon a death occurring after the 'commission' of the theft, without more, cannot stand." 276 Kan. at 468.

The Kunellis court, after examining State v. Gainer, 227 Kan. 670, 672-74, 608 P.2d 968 (1980), and reviewing our criminal code's predecessor, the Illinois Criminal Code, determined that the theft was complete when Kunellis "obtained" control over the motorcycles. Therefore, there was no continuing theft that would support the felonymurder charges based on "Kunellis' unbroken 'exertion of control' over the motorcycles 7

from the time of theft until the time of the accident." 276 Kan. at 471. Kunellis' convictions were reversed, and the case was remanded for a new trial. 276 Kan. at 473. Rollins' case does not involve a felony-murder charge; therefore, the Kunellis case is not applicable here.

The State claims this is not an alternative means case because K.S.A. 2010 Supp. 21-3110(13) treats "[o]btains or exerts control" as one singular term and is defined to "include[] but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property."

Neither party cites any Kansas authority that is directly on point, but the State points to several Illinois cases that suggest "obtains" and "exerts" are two indistinguishable means of describing the same conduct, i.e., either term describes the same conduct and does not provide two alternative means of committing theft. See People v. Soskins, 128 Ill. App. 3d 564, 570, 470 N.E.2d 643 (1984) ("We held that the gravamen of the offense of theft described in section 16-1[a] is the unauthorized control of the property of another and that the statutory terms 'obtains' and 'exerts' describe the same offense and are indistinguishable means of accomplishing the proscribed conduct of unauthorized control."); People v. Poliak, 124 Ill. App. 3d 550, 556-57, 464 N.E.2d 304 (1984) ("The terms 'obtain' and 'exert' are indistinguishable means of accomplishing the proscribed conduct of unauthorized control. Therefore, the terms are not different as they relate to the substantive elements of the offense of theft."); People v. Muskgrave, 60 Ill. App. 3d 742, 744, 377 N.E.2d 595 (1978) ("[T]he supreme court ruled that section 161[d] conduct [obtaining control over property known to be stolen] is included in section 16-1[a] conduct because it is exerting unauthorized control over property.").

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Ultimately, resolution of this issue depends on the plain language of the statute. Under K.S.A. 2010 Supp. 21-3110(13), the phrase "obtains or exerts control over property" includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property. There is no quantifiable difference between the actions that constitute obtaining or exerting; these words create a distinction without a difference. One must necessarily obtain property one has exerted control over, and one must necessarily exert control over property one has obtained.

Therefore, although stated in the disjunctive in K.S.A. 21-3701(a)(1), the terms are not different as they relate to the substantive elements of theft; they merely describe the same conduct. Consequently, this is not an alternative means case. The district court did not err in instructing the jury on the elements of theft.

CONSTITUTIONAL RIGHTS

Rollins next claims, for the first time on appeal, that the district court violated his constitutional right to be present at all critical stages of his trial when it dismissed the jury for the evening during deliberations. The State, however, contends that Rollins failed to preserve this issue for appeal because a deliberating jury's evening adjournment is not a critical stage in a trial and does not implicate fundamental rights.

A claim that a defendant was deprived of his or her statutory and constitutional right to be present during a portion of the trial raises legal questions that are subject to unlimited review on appeal. State v. Engelhardt, 280 Kan. 113, 121, 119 P.3d 1148 (2005).

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First, there is no indication in the record on appeal that Rollins was not present when the district court dismissed the jury for the evening. After closing arguments, the district court told the bailiff to accompany the jury to the jury room to begin deliberations. The transcript continues:
"THE COURT: You'll have all the exhibits with you, including the video. And if you need to watch it, we'll make arrangements for the laptop or something to go back there and you can watch it on that. "(Whereupon the jury commences deliberations.) "(Whereupon the jury recesses for the evening and resumes delibe[r]ations Tuesday, July 21, 2009.)"

The next day, after appearances and noting that Rollins was present in the courtroom, the district court made a note for the record:
"THE COURT: The record should reflect that everybody is present that was here yesterday. We're outside the presence of the jury. I just wanted to make a little brief record that the jury deliberated until about 5:25, decided to go home. I admonished them not to talk to each other or anyone else about the case; to come in here at 9:00 and begin their deliberations; they couldn't start their deliberations until everybody was here. And I don't know if they're all here yet or not, they're all en route. And I also told them not to do any independent investigation or any googling or anything like that, decide the case based on what they heard here." (Emphasis added.)

Based on the record on appeal, there is no indication Rollins was not present when the district court dismissed the jury for the evening. There is also no indication in the record on appeal that the jury was brought back into the courtroom when it was dismissed for the evening. It is an appellant's duty to designate the record to demonstrate his or her claims of error. State v. McMullen, 290 Kan. 1, 5, 221 P.3d 92 (2009). Assertions made in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal. State 10

v. Bloom, 273 Kan. 291, 307, 44 P.3d 305 (2002). Thus, without an adequate record, the claim of error fails. Ludlow v. State, 37 Kan. App. 2d 676, 684, 157 P.3d 631 (2007).

K.S.A. 22-3405(1) provides in relevant part: "The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law." Our Supreme Court has interpreted K.S.A. 22-3405(1) to mean:

"[A] felony defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant's presence is essential to a fair and just determination of a substantial issue. The statutory command of K.S.A. 22-3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution that a criminal defendant be present at any critical stage of the proceedings against him or her." (Emphasis added.) Engelhardt, 280 Kan. 113, Syl.

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