1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,716

STATE OF KANSAS,

Appellee,

v.

MICHAEL C. DAWS,

Appellant.

SYLLABUS BY THE COURT

1.

Under K.S.A. 2015 Supp. 21-5807(b), aggravated burglary is defined as 

"knowingly and without authority entering into or remaining within any building . . . in 

which there is a human being, with intent to commit a felony . . . therein." As used in the 

statute, the phrases "entering into" and "remaining within" each refer to a legally distinct 

factual situation. The entering into element is satisfied when the evidence shows a 

defendant crossed the plane of a building's exterior wall. Remaining within refers to a 

defendant's presence in the building's interior after entry, authorized or unauthorized, has 

been accomplished.

2.

K.S.A. 2015 Supp. 21-5807(b) requires a human being's presence in the dwelling, 

but the crime can be committed either by entering into or remaining within the structure.

3.

When the defendant is charged only with the entering into means of committing 

aggravated burglary, the human being must be present at the time of entry. The contrary 
2

holdings of State v. Reed, 8 Kan. App. 2d 615, 663 P.2d 680, rev. denied 234 Kan. 1077 

(1983), and its progeny are overruled.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 1, 

2013. Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed February 19,

2016. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district 

court is reversed, and the challenged conviction is reversed. 

Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of the 

same office, was on the brief for appellant. 

Edmond D. Brancart, chief deputy district attorney, argued the cause, and Christopher Mann, 

assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were

on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: There are two ways of committing aggravated burglary under K.S.A. 

2015 Supp. 21-5807(b): a person can either "enter into" or "remain within" the dwelling. 

Michael C. Daws was convicted of aggravated burglary after a homeowner returned to 

discover the front door kicked in and Daws inside. The jury was instructed it had to find 

Daws "knowingly entered . . . a residence . . . without authority . . . with the intent to 

commit theft . . . at the time there was a human being in the dwelling." (Emphasis added.) 

In other words, the jury was instructed as to the first of the two ways of committing 

aggravated burglary. Daws argues his conviction should be reversed because the evidence

is undisputed that the homeowner was not in the dwelling when he entered it.

The Court of Appeals affirmed his conviction based upon its existing caselaw that 

the victim does not have to be in the dwelling at the time defendant enters it—so long as 

the victim arrives before defendant leaves. State v. Daws, No. 108,716, 2013 WL 
3

5925960, at *3-5 (Kan. App. 2013) (unpublished opinion), rev. granted January 15, 2015. 

A majority of this court reverses the aggravated burglary conviction and overrules the 

line of cases the Daws panel relied on. See State v. May, 39 Kan. App. 2d 990, Syl. ¶ 1, 

186 P.3d 847, rev. denied 287 Kan. 768 (2008); State v. Romero, 31 Kan. App. 2d 609, 

610-12, 69 P.3d 205 (2003); State v. Fondren, 11 Kan. App. 2d 309, 310-12. 721 P.2d 

284, rev. denied 240 Kan. 805 (1986); State v. Reed, 8 Kan. App. 2d 615, 616-19, 663 

P.2d 680, rev. denied 234 Kan. 1077 (1983). Under the aggravated burglary statute and 

these facts, the State should have charged Daws with "remaining within" the dwelling, 

which it did not do.

FACTUAL AND PROCEDURAL BACKGROUND

During the middle of the day on November 20, 2011, Raul Flores Ramos stopped 

by the house he was moving out of. The front door was shut, but it had been kicked in 

and the door jamb broken. He entered and discovered Daws in the living room. Ramos 

told Daws to leave, and Daws complied. Afterwards, Ramos discovered some boxes had 

been moved around and property removed from them. Ramos also noticed two grocery 

bags containing property that did not belong to him. The State charged Daws with 

aggravated burglary based on the intent to commit theft. The information alleged Daws 

"did unlawfully without authority enter into a building . . . which is a dwelling, in which 

there was a human being, to wit: Raul Flores, with the intent to commit a theft therein." 

(Emphasis added.)

At trial, Daws admitted he was in the house. He testified he saw someone kick in 

the front door, followed that person inside, and then stayed for a night because he thought 

the house was abandoned. Daws confirmed Ramos found him inside the next day and that 

he left when asked. Daws testified he never intended to take any property.
4

At the jury instruction conference, Daws requested a lesser included offense 

instruction for simple burglary because the victim was not in the house when Daws 

entered it. The State argued it did not matter when the victim was in the house as long as 

he was there while the burglary was occurring. The district court refused the simple 

burglary instruction, noting "the caselaw does not differentiate" between circumstances 

when the victim was present at the time of entry or arrived later.

Consistent with the charge as described in the information, the jury was instructed 

on aggravated burglary based on the State's theory that Daws "knowingly entered a 

building" without authority. This instruction was consistent with PIK Crim. 4th 58.130, 

and stated in relevant part: 

"To establish this charge, each of the following claims must be proved:

1. That the defendant knowingly entered a building . . . which is a dwelling;

2. That the defendant [ ] Daws did so without authority;

3. That the defendant did so with the intent to commit Theft therein;

4. That at the time there was a human being in the dwelling, to-wit: Raul Flores; and

5. That this act occurred on or about the 20th day of November, 2011, in Wyandotte 

County, Kansas." 

The district court also issued what is referred to as the any/any reasonable doubt 

instruction, which states in relevant part:

"The test you must use in determining whether the defendant is guilty or not 

guilty is this: If you have a reasonable doubt as to the truth of any of the claims required 

to be proved by the State, you must find the defendant not guilty. If you have no 

reasonable doubt as to the truth of any of the claims required to be proved by the State, 

you should find the defendant guilty." (Emphasis added.)
5

The jury convicted Daws of aggravated burglary. The district court sentenced 

Daws to the standard term in the applicable grid box, factoring in his criminal history 

score.

Daws timely appealed to the Court of Appeals, raising five issues: (1) There was 

insufficient evidence of aggravated burglary because the victim was not present upon 

entry; (2) the district court should have instructed the jury on simple burglary; (3) the 

district court erroneously denied a motion for mistrial; (4) the jury was improperly 

instructed on reasonable doubt; and (5) the district court violated Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it used Daws' criminal 

history to enhance his sentence. The Court of Appeals affirmed in Daws, 2013 WL

5925960, at *5-9.

Daws petitioned for this court's review of all his claims except the denial of the 

motion for mistrial. We granted review, and jurisdiction is proper. See K.S.A. 60-2101(b) 

(review of Court of Appeals decisions).

Before proceeding, we note the last two issues have already been decided 

adversely to Daws in other cases. We upheld the "any/any" reasonable doubt instruction 

in State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013) ("While the older PIK 

instruction used in Herbel's trial was not the preferred instruction, it was legally 

appropriate."). And, as Daws concedes, this court has repeatedly held the State is not 

required to prove a defendant's criminal history to the jury beyond a reasonable doubt. 

See, e.g., State v. Hall, 298 Kan. 978, Syl. ¶ 6, 319 P.3d 506 (2014). We dispose of those 

latter two issues based on these prior decisions.
6

REVERSAL OF THE AGGRAVATED BURGLARY CONVICTION

Aggravated burglary requires a human being's presence in the dwelling, but the 

crime can be committed either by "entering into" or "remaining within" the structure. 

Since Daws was convicted under the "entering into" means, the issue is whether his 

conviction must be reversed because there was no human being present in the house 

when he entered it.

Standard of Review

When sufficiency of the evidence is challenged, an appellate court reviews all 

evidence in a light most favorable to the prosecution. The court must be convinced a 

rational factfinder could have found the defendant guilty beyond a reasonable doubt. 

Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness 

credibility determinations. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).

Discussion

The distinction between burglary and aggravated burglary is that aggravated 

burglary requires an additional element—the presence of a human being. Compare 

K.S.A. 2015 Supp. 21-5807(a) and K.S.A. 2015 Supp. 21-5807(b). The aggravated 

burglary statute provides:

"Aggravated burglary is, without authority, entering into or remaining within any 

building, manufactured home, mobile home, tent or other structure, or any vehicle, 

aircraft, watercraft, railroad car or other means of conveyance of persons or property in 

which there is a human being with intent to commit a felony, theft or sexually motivated 

crime therein." (Emphasis added.) K.S.A. 2015 Supp. 21-5807(b).
7

"[T]he phrases 'entering into' and 'remaining within' refer to legally distinct factual 

situations." State v. Gutierrez, 285 Kan. 332, Syl. ¶ 2, 172 P.3d 18 (2007). Stated another 

way, these phrases constitute alternative means of committing the crime. State v. 

Frierson, 298 Kan. 1005, 1011, 319 P.3d 515 (2014). The entering into element is 

satisfied when the evidence shows a defendant crossed the plane of a building's exterior 

wall. In contrast, the remaining within element refers to a defendant's presence in the 

building's interior after entry has occurred. Gutierrez, 285 Kan. at 337. Both situations 

may take longer than a mere moment, but "remaining within connotes at least briefly 

continuous behavior." 285 Kan. at 337-38.

The focus on these alternative means is dictated by the State's decision to 

prosecute Daws for unlawfully entering the dwelling, as opposed to pursuing the alternate 

approach that Daws committed aggravated burglary by remaining within the dwelling. He 

argues that under the State's entering into theory, a human being must be present when 

the defendant enters the building. And since it is undisputed that the homeowner was not 

present when Daws entered, he contends there is insufficient evidence to support his 

conviction.

The Court of Appeals caselaw the Daws panel relied on to affirm the conviction 

under these facts stems from State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973). In Lora, 

the defendant was convicted of two counts of aggravated burglary based on a fact pattern 

in which Lora was lying in wait to commit rape when the victims returned home. Lora 

argued it was error to convict him of aggravated burglary because there were no persons 

present when he entered the house. The Lora court quickly disposed of this challenge 

based on the language of the aggravated burglary statute.

It held the convictions were proper because of "the provision in this statute which 

in the alternative proscribes knowingly and without authority 'remaining within any 
8

building . . . in which there is some human being, with intent to commit a felony . . .

[therein.]'" 213 Kan. at 195. Notably, the Lora court did not address how the jury was 

instructed, but an earlier portion of the decision indicates the State charged both means. 

Accordingly, the Lora court's holding, at the very least, implies that the person must be 

present at the time of entry when convicting under the entering into means. Otherwise, it 

would have been unnecessary to cite the remaining within means of committing 

aggravated burglary to uphold Lora's conviction. See 213 Kan. at 195. This would seem 

to answer the question presented, but the Court of Appeals interpreted Lora differently 

when presented with this issue in Reed, 8 Kan. App. 2d 615, and that interpretation has 

been applied by that court ever since. 

In Reed, the homeowner returned to discover burglars, and the two defendants 

were charged with aiding and abetting "'entering into a building . . . occupied during the 

time of said entrance'"—even though the State conceded no one was inside when the 

burglars entered. 8 Kan. App. 2d at 616. A divided panel upheld the convictions, holding 

that a charge of aggravated burglary "need not specify the point in time at which a victim 

was present so long as it is alleged that a human being was present sometime during the 

course of the burglary." (Emphasis added.) 8 Kan. App. 2d at 618-19.

The majority relied on dicta from a different issue in Lora distinguishing between 

aggravated burglary and burglary based on the additional requirement that the place be 

occupied "'during the course of the burglary.'" 8 Kan. App. 2d at 617. And this language 

was taken out of context and was seemingly viewed as meaning that the aggravated 

burglary continues until the burglar vacates the premises. The majority also referred to 

the PIK instruction Notes on Use that stated: "'When a person enters the premises after 

the burglary has commenced but before the defendant has left the premises, the offense 

constitutes aggravated burglary.'" 8 Kan. App. 2d at 617 (quoting PIK Crim. 2d 59.18, 

Notes on Use).
9

Notably, this PIK statement remains in the current version of the instruction and 

suffers from a lack of citation to any authority. See PIK Crim. 4th 58.130, Notes on Use. 

But the statement does not misstate the law because, as this court held in Lora, 

aggravated burglary has been committed if a person enters before the defendant leaves 

under the remaining within means. 213 Kan. at 195. Nevertheless, the PIK statement is 

confusing because it fails to distinguish between the two means of committing aggravated 

burglary. In other words, the statement is too broad if read to apply to both means, which 

appears to be how the Reed panel interpreted it.

Regarding Lora, the Reed majority held: "Despite Lora's apparent reliance on the 

'remaining within' clause, it is our conclusion that the rationale of the opinion need not 

confine its holding." 8 Kan. App. 2d at 618. It further held that the "troublesome 

language of the statute" concerning remaining within relates "to the timing of the 

burglar's formation of intent rather than the victim's presence." 8 Kan. App. 2d at 618.

The tipping point for the Reed panel majority seems to be its conclusion that the 

victim suffers the same danger regardless of whether he or she is present when the 

burglar enters or when he or she arrives later. The panel wrote:

"The purpose behind the aggravated burglary statute is to describe a more serious offense 

than simple burglary when there is the possibility of contact between the victim and the 

burglar and the accompanying potential for a crime against the person to occur. This 

danger is just as great regardless of when during the burglary the victim comes to be in 

the building. 8 Kan. App. 2d at 616. 

Judge Rees dissented. He would have held there was insufficient evidence of 

aiding and abetting aggravated burglary because the victim was not present when the 

burglars entered the building. 8 Kan. App. 2d at 622. (Rees, J. dissenting). And he 
10

criticized the majority for suggesting the burglary was not completed until the accused 

exits the premises, noting this conflicted with the statute's plain language. 8 Kan. App. 2d 

at 622-23. Judge Rees would have held that the statute requires the victim's presence at 

the time the defendant enters when convicting under the entering into means. 8 Kan. App. 

2d at 624 ("The temporal requirement concerning the presence of the [victim] is precisely 

the link that elevates a burglary to an aggravated burglary.").

Judge Rees' dissent never gained traction. Subsequent decisions from the Court of 

Appeals, including Daws, have followed Reed. See May, 39 Kan. App. 2d at 993; 

Romero, 31 Kan. App. 2d at 610-12; Fondren, 11 Kan. App. 2d at 310-12; State v. 

Montgomery, No. 108,164, 2014 WL 349558, at *4-6 (Kan. App. 2014) (unpublished 

opinion), petition for rev. filed March 3, 2014; Daws, 2013 WL 5925960, at *3-5. 

Even so, the rule has differed slightly between panels and that suggests an 

infirmity. For example, the May panel stated: "We have consistently held that the 

presence of a person in a structure at any time during a burglary constitutes aggravated 

burglary." 39 Kan. App. 2d at 993. While in Fondren, the panel held that "[t]he 

occupancy requirement is satisfied so long as there are human beings present when the 

ulterior felony or theft is committed." 11 Kan. App. 2d at 311. Both rationales are 

questionable although the flaw is more obvious in Fondren, which undeniably reads an 

element into aggravated burglary that is not present—the commission of the ulterior 

felony. It becomes clear that the May panel's holding suffers from the same flaw when 

one attempts to define "during a burglary." Such statements suggest aggravated burglary 

is not complete until the defendant vacates the premises, which is contrary to the statute's 

plain language. See K.S.A. 2015 Supp. 21-5807(b). 

As charged and instructed in this case, aggravated burglary is defined as "without 

authority, entering into . . . any building . . . in which there is a human being with intent 
11

to commit . . . theft . . . therein." K.S.A. 2015 Supp. 21-5807(b) (no charge on instruction 

made for remaining within). A defendant is not required to commit the ulterior crime to 

complete the aggravated burglary. See K.S.A. 2015 Supp. 21-5807(b); see also State v. 

Shinn, No. 112,118, 2015 WL 4366534, at *3 (Kan. App. 2015) (unpublished opinion) 

(holding the defendant "did not have to successfully commit a theft; he only had to intend 

to do so" to commit aggravated burglary). And because aggravated burglary is complete 

once unauthorized entry occurs, the Court of Appeals view impermissibly extends the 

crime until the burglar leaves or completes the ulterior felony. See State v. Phillips, 295 

Kan. 929, 944-45, 287 P.3d 245 (2012) (aggravated robbery complete when defendant 

takes possession of victim's property, so prosecutor's closing argument misstated the law 

by saying crime not complete until defendant left the premises).

It is "a basic premise of Anglo-American criminal law that the physical conduct 

and state of mind must concur." 1 LaFave, Substantive Criminal Law § 6.3(a), p. 451 (2d 

ed. 2003) (discussing actus reus and mens rea). In the context of aggravated burglary, 

this idea is embodied in this court's holdings that "[t]o support a conviction for 

aggravated burglary, the intent to commit a felony and the unauthorized entering into or 

remaining within must at some point in time coexist." Gutierrez, 285 Kan. at 338-39; see 

also State v. Bowen, 262 Kan. 705, 709, 942 P.2d 7 (1997) ("The specific intent in an 

aggravated burglary, where one is charged with entering into the dwelling without 

authority, must exist at the time of the unauthorized entry.").

But the aggravated burglary statute's human presence element is not governed by 

this rule because it does not involve the required physical conduct (entering into) or the 

state of mind (intent to commit the ulterior crime). The human presence element is more 

aptly described as an attendant circumstance. See 1 LaFave, Subst. Crim. L. § 6.3(b). 

When the elements of a criminal statute include an attendant circumstance, that attendant 

circumstances must concur with the other elements. 1 LaFave, Subst. Crim. L. § 6.3(b) p. 
12

455 ("With crimes which require physical conduct, mental fault, and attendant 

circumstances, the circumstances must concur with the conduct and fault."). To hold 

otherwise collapses the two means of committing aggravated burglary. 

In light of the uncontroverted testimony that Daws spent a day inside the victim's 

home before the homeowner returned, the remaining within means of committing 

aggravated burglary was the appropriate charge. Since the jury was only instructed on the 

entering into means of committing aggravated robbery and the victim was not present 

when Daws entered the residence, we hold there was insufficient evidence to sustain the 

aggravated burglary conviction and reverse that conviction. This necessarily requires us 

to overrule Reed and its progeny as they relate to the crime of aggravated burglary when 

the defendant is only charged with unauthorized entering into a building or residence and 

another person is not present at that time. Based on this, it is unnecessary to address the 

remaining issue concerning the defendant's request for a simple burglary instruction.

Accordingly, we reverse the Court of Appeals decision that affirmed the district 

court and reverse the challenged conviction for aggravated burglary. 

* * *

LUCKERT, J., dissenting: I disagree with the majority's decisions (1) to overrule 

State v. Reed, 8 Kan. App. 2d 615, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983), and 

its progeny and (2) to reverse Michael C. Daws' aggravated burglary conviction because 

of insufficient evidence. Not only do I disagree with the majority's reasoning that led to 

those decisions, I am troubled the law surrounding burglary and aggravated burglary 

becomes more confused under the majority's rationale. 
13

I disagree with the majority's reasoning in two major respects. First, unlike the 

majority, I do not believe the legislature intended to create two "means" of committing 

burglary simply by describing two factual circumstances that amount to burglary—that is, 

an unauthorized presence achieved either by an entering in or remaining within. Second, I 

do not read K.S.A. 2015 Supp. 21-5807(b) (aggravated burglary) to require that all 

elements must be present at the moment a burglar crosses the plane of a dwelling's 

exterior wall (or that of any other structure or "means of conveyance" covered by the 

statute) when the State has charged only the option of "enter[ing] into." Rather, the 

burglary continues as long as the burglar maintains an unauthorized presence in the 

dwelling, another structure, or a means of conveyance. Thus, the crime can be proven by 

establishing a concurrence of all the elements and attendant circumstances at some point 

in time while the burglar remains within the structure without authority. See 3 LaFave, 

Substantive Criminal Law § 21.1(g) pp. 221-22 (2d ed. 2003). 

With regard to the first point of disagreement of whether the two factual 

circumstances constitute alternative means, I recognize our past caselaw has so held. E.g., 

State v. Cook, 286 Kan. 1098, 1107, 191 P.3d 294 (2008) ("Where the jury is instructed 

that the single offense of aggravated burglary may be committed by either the 

unauthorized 'entering into' or 'remaining within' a structure, an alternative means case 

has been presented."). But in State v. Brown, 295 Kan. 181, 192-200, 284 P.3d 977 

(2012), we clarified the analysis for determining when the legislature intended to create 

an alternative means crime. We explained that phrases joined by the word "or" do not 

necessarily constitute alternative means. Rather, if alternatives merely describe a material 

element or describe the factual circumstances that can prove a material element, they are 

options within a means rather than alternative means.

Post-Brown, in State v. Frierson, 298 Kan. 1005, 1011, 319 P.3d 515 (2014), we 

noted that the State had not presented any argument that the status of aggravated burglary 
14

as an alternative means crime had changed after our decision in Brown. Without a request 

to change our approach, we applied our prior holdings that aggravated burglary was an 

alternative means crime. Likewise, in this case, the State has not requested us to revisit 

our pre-Brown caselaw. Generally, I am reluctant to decide an issue without proper 

argument and consideration. But failing to consider the question in this case leads the 

court to reverse a long line of cases and confuses the law of aggravated burglary. 

Consequently, it becomes necessary to reconsider whether the phrases "entering into" and 

"remaining within" are truly alternative means, as opposed to being phrases that manifest 

the legislature's intent to describe the "material element or a factual circumstance that 

would prove the crime [of aggravated burglary]," i.e., options within a means. See 

Brown, 295 Kan. at 200. 

I reach this conclusion in part because of the prior statutory law and common law 

from which the current crimes of burglary and aggravated burglary descend. See K.S.A. 

2015 Supp. 21-5103(a) ("No conduct constitutes a crime against the state of Kansas 

unless it is made criminal in this code or in another statute of this state, but where a crime 

is denounced by any statute of this state, but not defined, the definition of such crime at 

common law shall be applied."); State v. Engel, 166 Wash. 2d 572, 578-80, 210 P.3d 

1007 (2009) (when determining if options stated in criminal provision create alternative 

means courts may look to common-law definition of crime to determine legislative 

intent); see also Brown, 295 Kan. at 193 (noting that Kansas has borrowed from 

Washington's caselaw regarding alternative means). 

The statutory crime of burglary loosely descends from the crime of breaking and 

entering, which was recognized at common law and in early Kansas statutes. At common 

law, a completed crime did not occur simply by creating a breach or an opening—a 

breaking. Rather, the burglar had to physically intrude into the structure, even if only 

momentarily. Modern statutory formulae dispense with the breaking but still require an 
15

entry into—in other words, a presence within a structure. Nevertheless, they uniformly 

convey the essence of a breaking through some word or words that require proving that 

the burglar's presence is not privileged. For example, statutes may use the term 

"unlawful," "unauthorized," "without consent," or "trespass." See 3 LaFave, Subst. Crim. 

L. § 21.1(a), (b), pp. 208-12. K.S.A. 2015 Supp. 21-5807(b) conveys the essence of 

"breaking" through the word "unauthorized" and, in my view, uses the alternatives of 

entering into or remaining within to explain that the burglar must assert some physical 

presence inside the structure. 

The phrase "remaining within" expands the reach of the modern crime beyond the 

reach of conduct condemned at common law—that is, the mere "entering." This 

"statutory expansion" makes "great sense" because, as Professor LaFave explains, it 

allows charging burglary in a situation where an individual enters the premises with 

authority (such as a bank customer) but remains once that authority is withdrawn or 

ceases (such as when the bank customer hides until the bank closes and then steals the 

bank's money). 3 LaFave, Subst. Crim. L. § 21.1(b), p. 212. By expanding the criminal 

act, the legislature did not intend to create legally distinct crimes. Instead, the intent was 

to describe all surreptitious factual circumstances where the presence could become 

unauthorized. Put simply, there is one "means" to commit burglary—unauthorized 

presence—and the statute describes two options. 

As this court has explained, the concepts of entering in and remaining within can 

overlap or be distinct—a burglar can cross the plane of the outside walls and immediately 

exit, can both enter and remain without authority, can enter with authority and lose 

permission, or can have fluctuating periods where authority is granted, taken away, and 

perhaps even be granted again. See Frierson, 298 Kan. at 1012 (quoting State v. 

Gutierrez, 285 Kan. 332, 337, 172 P.3d 18 [2007]). All of these situations involve an 

entry and an unauthorized presence within the structure, and the inclusion of both phrases 
16

merely describes the various factual circumstance encompassed in the range of scenarios. 

Such descriptions of factual circumstances do not create alternative means. See Brown, 

295 Kan. at 200.

Indeed, the factual scenario in State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973), 

which the majority discusses, amounts to reversible error under an alternative means 

analysis. In that case, the State charged Lora with both entering into and remaining 

within. Lora had waited for victims to return home in order to commit a rape, meaning 

there was no person present when he "entered in." Nevertheless, this court upheld his 

aggravated burglary conviction because there was evidence that he had "remained 

within." 213 Kan. at 195. Under an alternative means analysis—where evidence must 

support both means—Lora's aggravated burglary conviction was reversible because 

insufficient evidence supported the entering into means. See Brown, 295 Kan. at 188 

(noting that charges of alternative means require substantial evidence to support each 

alternative means). 

Under the majority's holding on the alternative means issue, however, the State 

cannot charge both factual descriptions in every case and rely on Lora to save an 

aggravated burglary conviction. Practically speaking, charging a clear-cut case becomes 

complicated by the fear that an evidentiary discrepancy about when exactly a person 

entered or when exactly intent formed might lead to insufficient evidence supporting one 

of the theories. Splitting the crime of aggravated burglary into distinct parts seems an 

exercise in form over substance and wipes out the "good sense" the statutory expansion 

was intended to accomplish.

This seems especially true in light of the continuing nature of the crime of 

aggravated burglary, my second point of disagreement with the majority's opinion. For 

three decades since Reed, 8 Kan. App. 2d at 618, aggravated burglary occurred 
17

"whenever a human being is present in the building during the course of the burglary." 

(Emphasis added.) Now here, unlike Reed, the majority does not view aggravated 

burglary as a continuing crime. In overruling Reed and its progeny, the majority notes 

that under the entering into theory a "burglary is complete as soon as unauthorized entry 

occurs," regardless of whether the criminal later completes the intended ulterior crime. 

That is true. But that only means that at that point there is sufficient evidence to support a 

conviction—that does not necessarily mean the actions constituting the offense have 

ended. See K.S.A. 2014 Supp. 21-5807(b); see also, e.g., People v. Davis, 18 Cal. 4th 

712, 718, 76 Cal. Rptr. 2d 770, 958 P.2d 1083 (1998) ("[B]urglary is complete upon the 

slightest partial entry of any kind, with the requisite intent, even if the intended larceny is 

neither committed nor even attempted."); State v. Office of Public Defender, 2012-

NMSC-029, ¶ 41 285 P.3d 622 (N.M. 2012) ("'The crime of burglary is complete when 

there is an unauthorized entry with the requisite intent.'"). I view the plain statutory 

language, which is contained in one sentence rather than in subparts of the statute, as 

describing what can be a continuous factual circumstance—an entering into along with a 

remaining within. See Brown, 295 Kan. at 196 ("[A] legislature will signal its intent to 

state alternative means through structure, separating alternatives into distinct subsections 

of the same statute.").

Indeed, "burglary is in fact a rather unique type of attempt law, as all the required 

elements merely comprise a step taken toward the commission of some other offense." 3 

LaFave, Subst. Crim. L. § 21.1(g), pp. 221-22. Unlike other attempt laws, burglary does 

not merge with the completed offense. Thus, through burglary, the legislature has 

authorized additional punishment for the commission or attempted commission of a 

crime in a particular way. See State v. McClanahan, 251 Kan. 533, 537-38, 836 P.2d 

1164 (1992) (recognizing that burglary does not merge with intended theft); 3 LaFave, 

Subst. Crim. L. § 21.1(g), p. 222. 
18

Some crimes, by their nature, do not happen instantaneously. Because burglary is 

the punishment of actions taken to accomplish some other crime, it is hard to view it as 

something other than a crime that continues so long as those actions are ongoing. See 

K.S.A. 2015 Supp. 21-5107(f) ("An offense is committed either when every element 

occurs, or, if a legislative purpose to prohibit a continuing offense plainly appears, at the 

time when the course of conduct . . . is terminated.); see also State v. Gainer, 227 Kan. 

670, 673, 608 P.2d 968 (1980) ("To constitute a continuing offense it must plainly appear 

in the statute defining such offense that there is a clear legislative purpose to make the 

prohibited course of conduct a continuing offense."); State v. Zimmer, 198 Kan. 479, 504, 

426 P.2d 267 ("Kidnapping, which involves the detention of another, is a continuing 

offense."), cert. denied 389 U.S. 933 (1967). 

The United States Supreme Court explained the concept in the context of 

conspiracy, which, by its nature, is a continuing crime so long as the conspirators engage 

in overt acts towards its commission because "each day's acts bring a renewed threat of 

the substantive evil Congress sought to prevent." Toussie v. United States, 397 U.S. 112, 

122, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970). The Reed justification echoes that same 

sentiment, finding evidence sufficient to support an aggravated burglary on the entering 

into theory regardless of when a victim became present: 

"The purpose behind the aggravated burglary statute is to describe a more serious offense 

than simple burglary when there is the possibility of contact between the victim and the 

burglar and the accompanying potential for a crime against the person to occur. This 

danger is just as great regardless of when during the burglary the victim comes to be in 

the building." 8 Kan. App. 2d at 616. 

Concededly, the Reed conceptualization of aggravated burglary as a continuing 

crime becomes strained when the focus is only on the entering into statutory language. 

But I read the phrases of "entering into" and "remaining within" as describing the range 
19

of factual circumstances that can be used to prove an unauthorized presence in the 

structure, and I suggest the legislature intended that language to convey the continuing 

nature of the crime. We should recognize that the Reed conceptualization of aggravated 

burglary as—by its nature—a continuing offense made enough sense that the legislature 

has not changed it for decades. See McIver v. State Highway Commission, 198 Kan. 678, 

683, 426 P.2d 118 (1967) ("The failure of the legislature to disapprove the interpretation 

amounts to a ratification by it."). But see In re Adoption of J.M.D., 293 Kan. 153, 166, 

260 P.3d 1196 (2011) ("[T]his court has not always found that legislative inaction, even 

for long periods of time, precludes the subsequent correction of judicially created rules 

which are contrary to the plainly worded statutes.").

This case illustrates how splitting aggravated burglary into distinct parts confuses 

the crime: Daws entered into the home when no person was present—he completed a 

standard burglary. Later, while Daws maintained his unauthorized presence in the home, 

a person came in. At that point, Daws remained within the home. Seemingly, under the 

majority analysis in this case, Daws committed a subsequent aggravated burglary that 

was factually and legally distinct from the initial burglary. 

I doubt that multiple convictions for acts similar to Daws' could withstand a 

multiplicity analysis because I believe it was the legislature's intent to collapse the two 

factual circumstances, thereby generally proscribing any unauthorized presence in a 

building with the intent to commit a felony. See State v. Schoonover, 281 Kan. 453, 471-

72, 133 P.3d 48 (2006) ("When the prosecution is based upon the same conduct, there 

can be only one conviction for that minimum unit of prosecution," which is "the nature of 

the conduct proscribed."). While one might argue the rule of lenity weighs in favor of 

reading K.S.A. 2015 Supp. 21-5807(b) to state alternative means in this case, when 

viewed broadly from a unit of prosecution standpoint a stronger argument can be made 

that lenity suggests treating the two options as descriptions of factual circumstances. I 
20

find it problematic to view aggravated burglary not as a continuing crime but as a series 

of completed crimes. 

In essence, the majority's rationale seems to interject confusion into the law 

surrounding the crime of aggravated burglary. I would not change the longstanding 

caselaw of this state, which has recognized aggravated burglary as a continuing crime, 

because I find the rationale in Reed compelling. But I would clarify the alternative means 

analysis in light of our decision in Brown to apply the legislative intent as merely 

describing factual circumstances rather than alternative means. 

This would mean that, contrary to the majority's suggestion, the State need not 

prove that a person was in the dwelling at the moment Daws entered without authority. 

The plain language of K.S.A. 2015 Supp. 21-5807(b) does not demand the concurrence if 

both options are read together as allowing for a continuing act. Nor is such a reading 

demanded by general principles of law. 

The majority cites Professor LaFave for the "basic premise of Anglo-American 

criminal law that the physical conduct and state of mind must concur." 1 LaFave 

Substantive Criminal Law § 6.3(a), p. 451 (2d ed. 2003). It then cites two cases to 

support its conclusion this coexistence must occur at the moment of the unauthorized 

entry when the State charges only the option of entering into. In one of these cases, 

Gutierrez, 285 Kan. at 338-39, the court held that "[t]o support a conviction for 

aggravated burglary, the intent to commit a felony and the unauthorized entering into or 

remaining within must at some point in time coexist." (Emphasis added.) This language is 

consistent with my reading of the statute as providing for a continuing crime and does not 

specifically state that intent must be present at the moment of entry. The second case does 

support the majority's view. See State v. Bowen, 262 Kan. 705, 709, 942 P.2d 7 (1997) 
21

("The specific intent in an aggravated burglary, where one is charged with entering into 

the dwelling without authority, must exist at the time of the unauthorized entry."). 

Nevertheless, the holding in Bowen and the view adopted by the majority ignores 

the point made by Professor LaFave in the two sentences that follow the one the majority 

quotes. He states:

"Although it is sometimes assumed that there cannot be such concurrence unless the 

mental and physical aspects exist at precisely the same moment in time, the better view is 

that there is a concurrence when the defendant's mental state actuates the physical 

conduct. That is, mere coincidence in point of time is not necessarily sufficient, while the 

lack of such unity is not necessarily a bar to conviction." (Emphasis added.) 1 LaFave, 

Subst. Crim. L. § 6.3(a), p. 451.

Professor LaFave illustrates by explaining that "[t]he physical conduct might begin first 

but continue until the requisite state of mind occurs." 1 LaFave, Subst. Crim. L. § 6.3(a), 

p. 451 n.5. He provides an example that illustrates that the various elements can occur in 

sequences other than only mental state actuating physical conduct. In that example of an 

assault case, a driver inadvertently parked a car on an officer's foot and "then, upon 

learning what he had done, did not move the car, as the requisite act was 'continuing.'" 1 

LaFave, Subst. Crim. L. § 6.3(a), p. 451 n.5. 

Here, we have evidence to support what Professor LaFave considered to be the 

better view, which I believe is also consistent with the plain language of the aggravated 

burglary statute and legislative intent. The State proved that Daws entered the dwelling 

without permission and during the time he was in the dwelling without authority—i.e., 

during the time leading up to commission of the ulterior crime of theft—the other 

elements and attendant circumstances coincided. Daws held the intent to commit a theft 

while Ramos was also in the structure that Daws had entered without authority. See 1 
22

LaFave, Subst. Crim. L. § 6.3(b) p. 455. I would conclude sufficient evidence supports 

Daws' conviction for aggravated burglary. 

Daws also argues the trial court erred in failing to instruct on the lesser included 

offense of burglary. Daws can successfully meet the first two tests in our standard of 

review for an alleged failure to give a jury instruction, which is set out in State v. 

Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012): (1) Daws preserved this issue by 

requesting the instruction during the jury instruction conference, and (2) an instruction on 

burglary is legally appropriate as a lesser included offense of aggravated burglary, see 

K.S.A. 2015 Supp. 21-5109(b)(1) (defining lesser included offense as lesser degree of 

same crime); K.S.A. 2015 Supp. 21-5807 (defining burglary and aggravated burglary).

In the third step of the analysis, Daws must establish that the instruction is 

factually appropriate because there is "some evidence which would reasonably justify a 

conviction of some lesser included crime." K.S.A. 2015 Supp. 22-3414(3); Plummer, 295 

Kan. 156, Syl. ¶ 1. Even if we assume Daws met that standard, in order for him to prevail 

we must determine the failure to give the lesser included instruction was not harmless, 

and I would not make this finding in Daws' favor. Daws did not dispute Ramos' presence 

in the house. The only dispute related to whether Ramos had to be present at the instant 

of Daws' entry into the house. Because I reject this legal argument, I would find that any 

error in failing to give a lesser included offense instruction regarding burglary was 

harmless. 

In summary, there is no reasonable possibility that the jury, had it been instructed 

on the lesser included offense, would have found Daws guilty of burglary instead of 

aggravated burglary given the overwhelming evidence on the element that distinguishes 

aggravated burglary from burglar—the presence of a person in the dwelling. See State v. 

Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011) (If an error implicates a constitutional 
23

right, then "a Kansas court must be persuaded beyond a reasonable doubt that there was 

no impact on the trial's outcome, i.e., there is no reasonable possibility that the error 

contributed to the verdict."), cert. denied 132 S. Ct. 1594 (2012); see also State v. Brown, 

298 Kan. 1040, 1051, 318 P.3d 1005 (2014) (if constitutional harmless error standard is 

met, then lower statutory standard under K.S.A. 2015 Supp. 60-261 is also satisfied). 

I would affirm Daws' conviction for aggravated burglary.

ROSEN and STEGALL, JJ., join in the foregoing dissenting opinion.