State v. Scott

345 P.3d 295 (Table)

STATE of Kansas, Appellee

v.Aaron SCOTT, Appellant.

110,091.

Court of Appeals of Kansas.

March 27, 2015.

Review Denied Sept. 23, 2015.

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

Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., BUSER and POWELL, JJ.

MEMORANDUM OPINION

POWELL, J.

A jury of Aaron Scott's peers convicted him of possession of cocaine, possession of methamphetamine, possession of marijuana, and possession of paraphernalia. He now appeals from the jury's verdict, arguing we should reverse because: (1) the district court failed to issue a unanimity instruction after the State presented evidence of multiple acts; (2) the district court improperly instructed the jury on the concept of reasonable doubt; (3) the prosecutor misstated the law twice during closing arguments which prejudiced the jury and denied Scott a fair trial; (4) the “any quantity” rule of possession of narcotics under K.S.A.2014 Supp. 21–5706 is statutorily impermissible; and (5) cumulative error deprived Scott of a fair trial. While we agree with Scott that, strictly speaking, the district court's statements to the jury regarding reasonable doubt were incorrect, we are not firmly convinced the court's statements affected the outcome of the trial and, therefore, affirm Scott's convictions and the district court in all other respects.

Factual and Procedural Background

An unidentified source informed the Wichita Police Department that drugs and guns were being sold at Scott's residence in Wichita, and another unnamed source confirmed the sale of drugs at that location to police. Based on this information and a trash pull, Officer Aaron Chaffee applied for and received a no-knock search warrant of Scott's home, which was executed by the police on October 17, 2010.

Scott and his 7–year–old son were the only people in the residence when the police entered, and Scott was quickly detained and removed from the house. Chaffee found the following items in Scott's house: (1) a digital scale with a powdery residue on a table in the living room; (2) marijuana and a glass pipe that appeared to contain burnt marijuana in Scott's bedroom; (3) an additional pipe in Scott's bedroom; and (4) a baggie containing three smaller baggies of marijuana in Scott's bedroom dresser.

After being removed from his house, Scott was placed in the back of a patrol car that had been used earlier that day to execute at least one methamphetamine-related search warrant. Officers had searched the backseat of the patrol car before executing the search warrant at Scott's residence and found nothing.

After handcuffing and placing Scott in the backseat of the patrol car, the officers moved Scott to the front passenger seat of the car and advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Scott voluntarily agreed to waive his rights and freely admitted to possessing the marijuana and pipes found in his bedroom. With respect to the scale, Scott acknowledged that he knew it was in his house but claimed it belonged to a friend.

Next, although Scott had been searched before being placed in the patrol car, he laughingly said to Officer David Inkelaar, “They didn't even search me.” Inkelaar then removed Scott from the front of the patrol car and searched him, finding nothing incriminating. Meanwhile, Officer Joshua Hutchins checked the backseat of the patrol car and found a baggie of methamphetamine. When asked about the methamphetamine, Scott said it was not his.

Scott was charged with possession of marijuana, possession of methamphetamine, possession of paraphernalia, and possession of cocaine. A jury convicted him as charged, and the district court imposed a controlling 37–month prison sentence.

Scott timely appeals.

Did the District Court Commit Clear Error When it Did Not Provide a Unanimity Instruction?

“A defendant has a right to a unanimous jury verdict. See K.S.A. 22–3421 ; K.S.A. 22–3423(1)(d) ; Foster, 290 Kan. at 712. When a violation of this right is asserted, an appellate court must determine first whether it is presented with a multiple acts case. This is a question of law over which the appellate court exercises unlimited review. Voyles, 284 Kan. at 244. If the case is a multiple acts case, the appellate court must then determine whether error was committed because either the State must have informed the jury which act to rely upon for each charge during its deliberations or the district court must have instructed the jury to agree on the specific criminal act for each charge in order to convict. The failure to elect or instruct is error. See 284 Kan. at 244–45. When there is error, the final question is whether the error warrants reversal or was harmless. The test for harmlessness when a unanimity instruction was not requested or its absence not objected to is the clearly erroneous standard articulated in K.S.A. 22–3414(3). 284 Kan. at 252–53. In other words, an appellate court must be firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given. See State v. King, 297 Kan. 955, 979–80, 305 P.3d 641 (2013) ; see also State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013) (noting court's decision to omit the ‘real possibility’ language from Voyles test to avoid confusion with the constitutional harmless error test).” State v. Santos–Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014).

A. This is a multiple acts case.

First, we must determine whether we have a multiple acts case before us. 299 Kan. at 18.

“In a multiple-acts case, several acts are alleged and any one of them could constitute the crime charged. In such a case, either the State must inform the jury which act it contends constitutes the crime or the court must instruct the jury that its members must all agree on the specific criminal act.” State v. Torres, 294 Kan. 135, Syl. ¶ 3, 273 P.3d 729 (2012).

Scott and the State agree that the prosecution presented multiple sources of evidence for both the cocaine and methamphetamine possession charges. Specifically, with respect to the cocaine charge, the State presented evidence of the scale with cocaine residue and cocaine on a pipe. With respect to the methamphetamine charge, the State presented evidence of the scale with methamphetamine residue and the baggie of methamphetamine found in the back of the patrol car.

B. Given the State's election, the district court did not err in failing to provide the jury with a unanimity instruction.

Because we have determined this is a multiple acts case, we must next decide whether the district court erred when it did not give a unanimity instruction. See Santos–Vega, 299 Kan. at 18. The State contends there was no error because if the prosecutor has informed the jury which act to rely upon for each charge during its deliberations, then the district court is not required to issue a unanimity instruction. 299 Kan. at 18.

Scott concedes the State initially directed the jury to rely on the cocaine residue on the scale and the methamphetamine found in the backseat of the patrol car but contends this election was “unmade” during the prosecutor's rebuttal closing when she explicitly referenced and argued multiple acts. Specifically, Scott cites the following passage from the prosecutor's rebuttal closing:

“When I reviewed the evidence and testimony that had been admitted in this case, I did find something interesting. It seems like each of these items was separate, even though the marijuana and the paraphernalia were in the defendant's bedroom, the cocaine was in the defendant's residence in the living room, the methamphetamine was in the car. So you would think, well, it is possible that none of these have a connection? Interesting thing I noted was when we heard Jennifer Miller testify that the pipes, themselves, tested positive for cocaine and THC. The pipe that was in the defendant's bedroom has cocaine in it. The pipe that [defense counsel] has just stood up here and said he admits it. ‘Don't worry about it; he did it.’ It has cocaine in it.

“The scale that has the cocaine on it in the living room also tested for meth—methamphetamine, which is also found in the patrol car. Ladies and gentlemen, there is a connection based upon the laboratory testing-independent testing.

“Maybe you don't think that the defendant, again, picked up the scale that was used for cocaine, anything like that. The State only has to prove that he knowingly kept the item in a place where the person has some measure of access and right of control. This is his living room and on the table right next to his couch—one of the two couches that are actually in this living room—right by the lamp that was turned on when officers entered the house. Did he have a right of access? Did he have a measure of control? And, again, this was cocaine, which was also found in the pipe in his bedroom. ”

According to Scott, the prosecutor's comments encouraged the jury to convict based on multiple possible acts of possession of methamphetamine and cocaine and is the precise reason why the district court should have issued a unanimity instruction.

The State counters that a unanimity instruction was not required because the prosecutor only discussed evidence of multiple acts when responding to Scott's argument that there was nothing linking Scott to the methamphetamine and cocaine. Scott argued that the scale containing the cocaine residue was not his; the prosecution responded by reminding the jury that a pipe containing cocaine was also found in Scott's home, thereby making it more likely that Scott would possess a scale with cocaine residue. Similarly, Scott asserted that the baggie of methamphetamine found in the back of the patrol car did not belong to him; the prosecutor rebutted this argument by reminding the jury of...