A homeless man who was found guilty of first-degree burglary in Clark County Superior Court will get a new trial because the judge in the case gave an incorrect directive to the jury during his trial, the state Court of Appeals ruled Tuesday.
Arvell Kindell, 49, was visiting a former girlfriend on June 20, 2012, in violation of a no contact order when a law enforcement officer arrived, according to court records. Kindell fled her residence on a bicycle. He headed to the house of an acquaintance named Patricia Crowley and knocked on the door. When Crowley’s 10-year-old granddaughter answered the door, Kindell entered the house and asked Crowley if they could hide him.
Crowley and her granddaughter exited the back door of the house to meet police officers who were approaching the house. Meanwhile, Kindell apparently found Crowley’s shotgun and ammunition, which were hidden in her bedroom, and took them into the living room during a six-hour standoff with police, according to court records.
In September 2012, a jury found Kindell guilty of first-degree burglary and second-degree unlawful possession of a firearm. The jury also found that Kindell was armed with a firearm during the commission of the burglary. That finding allowed for a more severe sentence. He was sentenced to more than eight years in prison.
In order to convict him of first-degree burglary, the state had to prove that Kindell entered or remained in the house “with intent to commit a crime against a person or property therein,” Court of Appeals Judge Bradley Maxa wrote in a majority opinion.
During jury deliberations, jurors asked then-Superior Court Judge Rich Melnick whether unlawful possession of a firearm constitutes a crime against property.
“That is a factual determination you need to collectively decide,” Melnick replied, according to the appeals court opinion.
Maxa wrote that in fact, “as a matter of law, illegally possessing a firearm does not constitute a crime against property.”
The appeals court remanded the burglary charge for a new trial but affirmed the unlawful possession of a firearm conviction. The ruling means that Kindell will have to be resentenced.
Melnick is now a Division 2 judge on the state Court of Appeals, but he was not on the three-member panel that ruled on the Kindell appeal. The panel included Maxa, Acting Chief Judge Thomas Bjorgen and Judge Linda Lee.