State v. Jackson (Updated - July 15, 2013)

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No. 107,848


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

NAAZIR MUHAMMAD JACKSON,
Appellant.


SYLLABUS BY THE COURT

1.
The prosecutor's use of a painting of George Washington as an analogy in
discussing the concept of reasonable doubt during voir dire, while discouraged, was not
improper.

2.
Aiding and abetting under K.S.A. 21-3205(1) does not create a separate crime but,
rather, extends criminal liability to a person other than the principal actor. Therefore, all
persons involved are equally responsible for all the actions of the others, meaning aiders
and abettors may be charged, tried, and convicted in the same manner as principals.

3.
Aiding and abetting does not provide an alternative means of committing a crime.
First, the aiding and abetting statute does not set out alternative material elements of the
underlying crime. Second, K.S.A. 21-3205(1), describing one who "intentionally aids,
abets, advises, hires, counsels or procures" another to commit a crime with intent to
promote or assist in its commission, merely provides descriptors as to how a person
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participates in the crime. Third, and more fundamentally, K.S.A. 21-3205(1) only
provides factual circumstances that impose equal liability on a person who aids and abets
the principal actor.

4.
Although there are minor differences in the meaning of the terms aids, abets,
advises, hires, counsels, and procures, these terms do not entail materially different or
distinct ways of committing a particular crime. The thrust of K.S.A. 21-3205 is that a
person who knowingly induces or assists another person to commit a crime is criminally
responsible for the crime regardless of the extent the person participates in the actual
commission of the crime. K.S.A. 21-3205(1) does not set forth alternative means of
committing a crime.

5.
The use of "person or presence" in the aggravated robbery instruction merely
describes the victim's proximity to the property taken, and the two words are simply two
options used to describe different factual circumstances in which aggravated robbery can
occur. Therefore, the phrase "person or presence" in the aggravated robbery statute does
not create an alternative means of committing the crime.

6.
Under the facts of the present case, the jury's questions neither invoked legally
significant explanatory answers nor were they of the nature to require the defendant's
attorney to consult with the defendant on trial strategy. The defendant's presence would
not have changed any of the answers to any of the posed questions; therefore, it is safe to
conclude beyond a reasonable doubt that the error of excluding the defendant from the
discussion about the answers to the jury's questions was harmless.

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Appeal from Riley District Court; DAVID L. STUTZMAN, judge. Opinion filed July 12, 2013.
Affirmed.

Marsha J. Sonner, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender
Office, for appellant.

Barry Disney and Kendra Lewison, assistant county attorneys, Barry Wilkerson, county attorney,
and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., ARNOLD-BURGER and POWELL, JJ.

POWELL, J.: Naazir Jackson appeals his convictions for one count of aggravated
robbery, one count of aggravated burglary, and two counts of possession of drug
paraphernalia. He argues several points of error: (1) The prosecutor's misconduct during
voir dire denied him a fair trial; (2) there was insufficient evidence to support the
alternative means for aggravated robbery; (3) the court committed reversible error in
answering four written jury questions outside of Jackson's presence; and (4) there was
insufficient evidence to support his convictions for possession of drug paraphernalia.

Because we find: First, that the prosecutor's use of a painting analogy was not
prosecutorial misconduct; second—with regard to the crime of aggravated robbery—that
principal versus aiding and abetting, the phrase "aids or abets" in the aiding and abetting
instruction, and the phrase "person or presence" in the aggravated robbery instruction do
not constitute alternative means of committing the crime; third, the trial court committed
harmless error by answering the jury's questions outside the presence of the defendant;
and fourth, there was sufficient evidence to support the defendant's convictions for
possession of drug paraphernalia, Jackson's convictions are affirmed.

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FACTUAL AND PROCEDURAL HISTORY

On April 18, 2011, around noon, Christopher Detar-Newbert and Meagan Rocha
were in the bedroom they shared in their apartment when Detar-Newbert heard a knock at
the door. Looking through the peephole, he saw Jackson, whom he recognized from a
prior acquaintance, so he opened the door. When he opened the door, Jackson and a
second man were standing close to the door. Detar-Newbert did not recognize the second
man, who appeared to have a gun with a blue handkerchief around the gun's visible stock
tucked into the top of his pants. Detar-Newbert later described the gun as what he
believed to be a black semi-automatic handgun.

Jackson ordered Detar-Newbert to be quiet and go into his room. Detar-Newbert
complied, and the two men followed him into his room where Rocha was asleep on the
bed. Detar-Newbert woke Rocha, then Jackson ordered them to open the small safe
sitting next to the bed. Rocha opened the safe; Jackson proceeded to take the cash and a
small bag of marijuana from the safe and put them into the other man's black backpack.
Jackson and the second man then left the apartment. Detar-Newbert estimated that there
was between $350 to $450 cash and about $20 to $30 worth of marijuana in the safe.

About 30 to 40 minutes later, Detar-Newbert called the police; at 12:58 p.m.,
Riley County Police Officer Carl Stevens was dispatched to the apartment. When the
police arrived, Detar-Newbert provided them with a description of both men who had
robbed them. Though neither Detar-Newbert nor Rocha knew Jackson's name, they
recognized him as being a friend of a mutual friend, Deangelo Grimm. A couple of
months prior to the date of the robbery, Detar-Newbert, Rocha, and their friend Grimm
had all been to Jackson's apartment. Then, a couple of weeks before the robbery, Jackson
had come to Detar-Newbert and Rocha's apartment with Grimm.

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Detar-Newbert and Rocha went with detectives to a neighboring apartment
complex and pointed out Jackson's apartment. The detectives ascertained the names of
the tenants in that apartment; one of them, Jackson, fit the physical description given by
Detar-Newbert and Rocha. A review of the surveillance footage from a few minutes prior
to the time of the robbery showed two black males walking from Jackson's apartment
complex towards the victims' apartment complex. A short time later, the same two
individuals walked past the surveillance cameras in the opposite direction towards
Jackson's apartment complex.

Detar-Newbert identified Jackson as one of the robbers when presented with a
photo line-up. A search warrant was obtained for Jackson's apartment, and the apartment
was searched later that same day. One of the detectives who was positioned outside the
door of the apartment testified that he could smell the odor of burnt marijuana emanating
from within the apartment. Jackson and the suspected second robber were both found
within the apartment. The police searched both men and found $162 in cash on Jackson
and $159 in cash on the other man.

When officers searched Jackson's bedroom, they located a box in Jackson's closet
that contained a black air pistol (BB gun) that resembled a semi-automatic handgun.
Wrapped around the pistol was a blue bandanna. Under the bed was a Wal-Mart bag that
contained the packaging from the air pistol and a receipt indicating it was purchased on
April 11, 2011—7 days before the robbery. The officers also found a small digital scale
on the dresser and some plastic baggies in the top dresser drawer.

Officers found empty packaging from Swisher Sweets cigars and discarded loose
tobacco in a trash can. One of the police sergeants, a former narcotics detective, testified
at trial that one common way to ingest marijuana is to smoke a "blunt," which is a cigar
that has had the tobacco hollowed out and replaced with marijuana. One of the most
common brands of cigars used as blunts is Swisher Sweets. The sergeant also testified
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that it is common for marijuana users to own a small scale and that plastic baggies are the
most common container in which marijuana is stored. The sergeant had personally
examined the baggies and scale found in the defendant's bedroom and had observed
flecks of green vegetation on the items that were consistent with the appearance of
marijuana.

From the area surveillance footage, the detectives identified the second robber as
exiting the bus at Jackson's apartment complex at 12:06 p.m., before the robbery
occurred. He was wearing a white t-shirt with a very distinct memorial logo on the front,
and he was wearing a black Nike backpack with a Nike logo. Officers searched this man's
apartment and found the distinctive white t-shirt seen on the video. Other surveillance
footage from 12:21 p.m. showed this same man wearing this distinctive white shirt
walking with an individual who had long hair roughly the same length as Jackson's hair.

During the weeks that followed Jackson's arrest, he remained in jail and made a
number of phone calls. The police monitored these phone calls, and Jackson was aware of
this. Jackson made a phone call to his girlfriend, asked her to get in touch with the man
identified as the second robber, and find out why he had not been arrested. Jackson also
called his mother and told her that the second robber was deeper in "it" than he was and
he had a good plan to get the victims to drop the charges.

The trial was held on October 26-27, 2011. During deliberations, the jury sent out
four questions by note. These questions were handled between the court and counsel in
chambers off the record. The questions and answers were retained in the court file and
made part of the record.

The jury convicted Jackson of aggravated robbery, aggravated burglary, and two
counts of misdemeanor possession of drug paraphernalia. Jackson was sentenced to a
controlling prison term of 94 months with the Kansas Department of Corrections.
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Jackson's motion for dispositional departure to probation and durational departure was
denied.

Jackson timely appeals his convictions asserting four allegations of error.

DID THE USE OF AN ANALOGY CONCERNING AN INCOMPLETE PAINTING
DURING VOIR DIRE CONSTITUTE PROSECUTORIAL MISCONDUCT?

Jackson's first allegation of error is that the prosecutor committed misconduct by
using an analogy during voir dire in an attempt to improperly define the burden of proof.
Relying on a prior decision of our court, State v. Crawford, 46 Kan. App. 2d 401, 262
P.3d 1070 (2011), petition for rev. granted in part May 21, 2012, Jackson claims the
prosecutor's analogy had the effect of diluting the burden of proof.

Standard of Review

The Kansas Supreme Court has recently reaffirmed the two-step analysis an
appellate court must use in evaluating allegations of prosecutorial misconduct during voir
dire. State v. Stevenson, 297 Kan. ___, 298 P.3d 303 (2013). "First, the court determines
whether the prosecutor's comments were outside the wide latitude allowed in discussing
the evidence. Second, if misconduct is found, the appellate court determines whether
those comments constitute plain error . . . ." Stevenson, 298 P.3d at 306 (citing State v.
Burnett, 293 Kan. 840, 850, 270 P.3d 1115 [2012]).

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Analysis

Prosecutor's Wide Latitude

It is common for prosecutors to use analogies to help explain the concept of
beyond a reasonable doubt during trial. However, our Supreme Court has found "that
prosecutors embellish on the definition of the burden of proof in criminal cases at their
peril." State v. Magallanez, 290 Kan. 906, 914, 235 P.3d 460 (2010). An "argument
designed to define reasonable doubt . . . with unusual or seemingly clever analogies" is a
dangerous path for prosecutors. Crawford, 46 Kan. App. 2d at 416.

In this case, Jackson argues that the prosecutor's use of an analogy to define the
beyond a reasonable doubt standard by employing a painting of George Washington with
some flakes of the paint missing diluted the burden of proof and constitutes prosecutorial
misconduct. During voir dire the following exchange took place between the prosecutor
and prospective jurors:

"Q: . . . [The defendant is] obviously charged with a crime. Ms. [P.], that doesn't
mean that he's guilty. It is just simply an allegation of the State making it. Do you
understand that?
"A : Uh-huh.
"Q: It's our responsibility to prove beyond a reasonable doubt that he is guilty. Are
you presuming that the defendant is guilty just because we have charged him?
"A: No.
"Q: Okay. Is there anyone who has trouble with that concept? Obviously, there is
going to be evidence but we have to prove it and you can't give the State, Ms. [P.], a head
start. You can't say well if they charge him that he must be guilty. We start at square one.
Do you understand that?
"A: Right.
. . . .
"Q: . . . Ms. [H], who is Bob Ross?
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. . . .
"A: He's a painter on TV.
"Q: . . . When he starts [painting] that he starts with a blank canvas and . . . when the
Judge talks about presumption of innocence . . . what I would like [you] to think of is that
it's a blank canvas. We don't know what is going to be painted but you got to presume
that he's innocent. And then we put on evidence, as the trial progresses [ ] we'll have one
witness who will get up and put a little bit of paint, a little bit of evidence on the canvas.
We'll have another one. Eventually, a picture will start to form. And Ms. [W], your job
then at the end of the trial is to sit back and determine has the State shown me a picture
that I know what it is beyond a reasonable doubt. Do you understand that?
"A: Yes.
"Q: Have you ever seen that picture of George Washington and at the very bottom
that there is no paint on it? Have you ever seen that?
"A: No.
"Q: I think that they had to move it from the White House when the British invaded.
Does anyone know the picture I'm talking about? You can still tell that [it] is George
Washington, correct, even though that there might be a little spot on the painting that is
missing? Mr. [H], you could say beyond a reasonable doubt who that was, right?
"A: Absolutely. Yes.
"Q: And so Ms. [W], when the Judge says that we have to prove our case beyond a
reasonable doubt, you realize that not every little corner of the painting has to have paint
on it. Do you understand that?
"A: Yeah.
"Q: As long as you can tell beyond a reasonable doubt what it is?
"A: Yes."

Jackson argues that this use of the George Washington painting analogy is outside
the scope of a prosecutor's latitude because it is similar to the analogy that this court held
to be prosecutorial misconduct in Crawford.

In Crawford, the defendant claimed that he was denied a fair trial because the
prosecutor committed reversible prosecutorial misconduct by "misrepresenting the
definition of reasonable doubt and minimizing the standard of proof during voir dire and
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closing argument." 46 Kan. App. 2d at 409. During voir dire, the prosecutor and
prospective jurors had the following discussion:

"'Q: Okay. You have seen jigsaw puzzles. Have you seen jigsaw puzzles where
maybe one or two pieces, a couple pieces are missing throughout the puzzle?
"'A: I don't know. I suppose.
"'Q: Okay. Go with me here then, just go with me for a second. We have got a big
puzzle like this, the scene is a lighthouse and the ocean and the waves crashing against
the rocks, a [sic] there's couple gulls flying around. Got that?
"'A: Got it.
"'Q: Okay. If you're missing some of the pieces to the lighthouse and some of the
pieces to the ocean, do you then say, well, that just can't be a lighthouse and an ocean
because there's some pieces missing?
"'A: No.
"'Q: . . . [S]o even though there's some pieces missing, you're able to say that looks
like a lighthouse and an ocean?
"'A: Yeah, I'm sure.
"'Q: That's kind of what I'm talking about is reasonable doubt. There's probably
always going to be some question something that doesn't get answered. The question is,
when you put the pieces together, even if there are some pieces missing, does that mean it
didn't happen? No. So—and that's kind of why I bring that up. Thanks.'" 46 Kan. App. 2d
at 411-12.

The prosecutor also referred to the jigsaw puzzle analogy in closing arguments by
stating:

"'You get to determine credibility of witnesses, and when I talked in voir dire
about the jigsaw puzzle, and the scene with the lighthouse and the ocean, there are always
going to be pieces of the puzzle missing because none of us were there. None of you were
there. The question you got to ask yourself is just because a piece of the puzzle—pieces
of the puzzle are missing, does that mean you can't see the whole picture? Are those
questions reasonable in your mind?'" 46 Kan. App. 2d at 412.

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The Crawford court held this constituted prosecutorial misconduct because the
prosecutor suggested through the use of his analogy in voir dire and in closing arguments
that the jury may convict the defendant if it "'looked like'" he committed the crimes. The
prosecutor cannot suggest to the jury that it might convict on anything less than proof
beyond a reasonable doubt. 46 Kan. App. 2d at 414.

Jackson claims that the analogy of a painting of George Washington is extremely
similar to the jigsaw puzzle analogy used in Crawford and therefore reduced the State's
burden by telling the jurors that they can convict as long as they get the overall point the
prosecution is attempting to prove. Since the court found the jigsaw puzzle analogy
constituted misconduct, Jackson claims that the painting analogy should also constitute
misconduct.

The State argues that Crawford cannot be interpreted to mean the prohibition of all
use of analogies by prosecutors when explaining reasonable doubt, especially when
solely used in the voir dire process. The State distinguishes this present case from
Crawford by pointing out that the misconduct in Crawford came during closing
arguments when the prosecutor urged the jury to convict if it "'looked like'" the defendant
committed the crime. But, in this case, the prosecutor did not refer to the painting analogy
in closing arguments, and during voir dire the prosecutor stressed that the State must
prove each element and find guilt beyond a reasonable doubt.

This case is also similar to Stevenson. In Stevenson, during voir dire, the
prosecutor showed the jury a sign with the words "Wheel of Fortune" printed on it but
with one letter missing. The prosecutor pointed out that, although there was a letter
missing, there was no reasonable doubt about which letter was needed to complete the
title. The prosecutor continued:

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"'As to reasonable doubt, when we apply that standard, does anybody think that
I'm going to have to have a videotape of exactly how everything happened? It would be
impressive if I did, right? If you were there, you saw every step of the way, that would be
beyond all doubt.
"'Does anybody think that I have to put you in that position?
. . . .
"'. . . Now, what if in your mind I have put on enough evidence to prove beyond a
reasonable doubt that it occurred this way. Okay. So you are to that point, you've made
your decision beyond a reasonable doubt.
"'But then you say you know what, I wish they would have done whatever. Okay
. . . I guess the question I'm asking is do you think there's always something you could do
in an investigation for instance?
"'PROSPECTIVE JUROR . . . : I would say up to a point. But at some point in
time there's just nothing else you can do.'" Stevenson, 298 P.3d at 307.

"The prosecutor followed up this exchange by asking, 'Does everybody
understand what I'm trying to say here? That I have to put on enough evidence to prove
beyond a reasonable doubt? I do not have to put on every possible piece of evidence in
existence . . . .'" Stevenson, 298 P.3d at 307.

From reviewing the exact questions and wording used by the prosecutor during
voir dire, our Supreme Court concluded that the prosecutor was "drawing a distinction
between the concept of proof beyond a reasonable doubt and proof beyond all doubt,
rather than attempting to provide a meaning for 'reasonable doubt."' Stevenson, 298 P.3d
at 307. The analogy stated the prosecutor's burden and did not misstate the law; therefore,
the analogy did not fall outside the wide latitude afforded prosecutors. Because the
analogy was inside the prosecutor's wide latitude, the court did not analyze the second
step in the prosecutorial misconduct analysis. Stevenson, 298 P.3d at 308.

Similar to the Stevenson analogy, in this case the prosecutor's analogy and
comments about the painting of George Washington also served to explain to the
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potential jury members that the prosecutor's burden was not one to show proof beyond all
doubt. The prosecutor clarified, "'[W]hen the Judge says that we have to prove our case
beyond a reasonable doubt, you realize that not every little corner of the painting has to
have paint on it.'" The prosecutor stressed that the defendant was presumed innocent, it
was the State's burden to put paint on that "'blank canvas'" of innocence, and it was the
jury's responsibility to decide whether the picture presented by the State was identifiable
beyond a reasonable doubt. In no way did the prosecutor attempt to diminish the State's
burden of proof or try to explain the possible differences between how much paint verses
blank space might rise to the level of beyond a reasonable doubt. Moreover, the
prosecutor never mentioned the painting analogy after voir dire, and the jury was given a
correct statement of the law regarding reasonable doubt in the jury instructions. As used
in this particular case, the George Washington painting analogy falls within the wide
latitude afforded prosecutors and, therefore, does not constitute prosecutorial misconduct.
See also State v. Galloway, No. 106,895, 2013 WL 517699, at *2-4 (Kan. App. 2013)
(unpublished opinion) (use of President Obama's birth certificate controversy as analogy
to define reasonable doubt not error).

Plain Error Analysis

Even if we held this analogy to be outside the wide latitude afforded to
prosecutors, the misconduct was not so prejudicial that it denied Jackson fair trial. See
Stevenson, 298 P.3d at 308 (statements may not be so prejudicial as to deny defendant a
fair trial). In making this determination we must consider three factors: (1) whether the
misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the
prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming
nature that the misconduct would likely have had little weight in the minds of jurors.
State v. Brinklow, 288 Kan. 39, 44, 200 P.3d 1225 (2009).

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Jackson claims that the prosecutor's conduct was gross and flagrant because the
prosecutor used this analogy only 1 month after a panel of this court issued the Crawford
decision. However, our Supreme Court has stated: "With regard to the first factor—
whether the misconduct was gross and flagrant—we consider whether the misconduct
was repeated, was emphasized, violated a long-standing rule, violated a clear and
unequivocal rule, or violated a rule designed to protect a constitutional right." State v.
Stafford, 296 Kan. 25, 58-59, 290 P.3d 562 (2012) (citing State v. Marshall, 294 Kan.
850, Syl. ¶ 6, 281 P.3d 1112 [2012]). There was no long-standing rule, a clear and
unequivocal rule, or a rule protecting constitutional rights here, so the prosecutor's
comments were not gross and flagrant.

The second factor is whether a prosecutor's misconduct was motivated by ill will.
"In analyzing [this factor], we consider whether the misconduct was deliberate, repeated,
or in apparent indifference to a court's ruling." Stafford, 296 Kan. at 59. There is no
evidence to support that the prosecutor's comments were showing indifference to the
court's ruling or deliberately against this court's ruling in Crawford. The prosecutor did
not use the jigsaw puzzle analogy, and he did not repeat any aspect of the painting
analogy at any other time during the trial.

The last factor is whether the evidence was of such a direct and overwhelming
nature that the misconduct would likely have had little weight in the minds of the jurors.
"[T]he State, as the party 'benefitting from the prosecutorial misconduct, bears the burden
to establish beyond a reasonable doubt that the error did not affect the defendant's
substantial rights, i.e., there is no reasonable possibility the error affected the verdict.'"
Stafford, 296 Kan. at 59 (quoting State v. Inkelaar, 293 Kan. 414, 431, 264 P.3d 81
[2011]).

The State argues that the prosecutor's comments were very brief. After the
comments were made, the defense attorney had many opportunities to discuss the beyond
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a reasonable doubt standard and even ask potential jurors individually whether they
would hold the State to the burden of proof beyond a reasonable doubt.

Furthermore, the evidence presented at trial directly and overwhelmingly pointed
to Jackson having committed the charged offenses. The two victims both positively
identified Jackson as one of the men in their apartment and testified to witnessing
Jackson take the cash and marijuana out of their bed-side safe. The victims had been to
Jackson's apartment before and were able to show the police which apartment was his.
When the police searched Jackson's apartment, the smell of burnt marijuana was in the
apartment, the man later identified as the other man with Jackson in the victims'
apartment was in Jackson's apartment, and a search of both men turned up about the same
amount of cash that had been taken from the victims' safe. Inside Jackson's room, the
police also found the blue bandanna wrapped around the very real-gun-looking air pistol
that the victims testified the two men used to intimidate them.

Therefore, even if this court were to hold that the painting analogy was outside of
the wide latitude given to prosecutors, the conduct was neither gross and flagrant nor
motivated by ill will, and there was overwhelming evidence that allowed the jury to find
beyond a reasonable doubt that Jackson was guilty.

DID THE JURY INSTRUCTIONS ON AGGRAVATED ROBBERY
PRESENT ALTERNATIVE MEANS, AND, IF SO, IS THERE SUFFICIENT EVIDENCE
TO SUPPORT EACH ALTERNATIVE MEANS?

Jackson's second allegation of error asserts that we must reverse his conviction of
aggravated robbery because the district court instructed the jury on alternative means of
committing the crime and the State failed to present sufficient evidence of each
alternative means. Jackson identifies three instances of alternative means: (1) principal
versus aiding and abetting; (2) the phrase "aids or abets" in the aiding and abetting
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instruction; and (3) the phrase "person or presence" in the aggravated robbery instruction.
For the reasons more fully explained below, we find none of these instances constitutes
alternative means and therefore find there was sufficient evidence to convict Jackson of
aggravated robbery.

Standard of Review

In Kansas, a criminal defendant has the right to a unanimous jury verdict. See
K.S.A. 22-3421. However, this right is not a federal or state constitutional right, but a
statutory one. State v. Voyles, 284 Kan. 239, 250, 160 P.3d 794 (2007). An alternative
means issue can arise when a single offense may be committed in multiple ways. State v.
Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). "'[W]here a single offense may be
committed in more than one way, there must be jury unanimity as to guilt for the single
crime charged. Unanimity is not required, however, as to the means by which the crime
was committed so long as substantial evidence supports each alternative means.
[Citations omitted.]'" Timley, 255 Kan. at 289 (quoting State v. Kitchen, 110 Wash. 2d
403, 410, 756 P.2d 105 [1988]). The State must meet the "'super-sufficiency of the
evidence' requirement" for each means. State v. Swindler, 296 Kan. 670, 676, 294 P.3d
308 (2013). "If the State fails to present sufficient evidence to support each means,
reversal is required." Swindler, 296 Kan. at 676 (citing State v. Rojas-Marceleno, 295
Kan. 525, 544, 285 P.3d 361 [2012]). "This safeguard prevents a jury, partially or wholly,
from reaching a finding of guilt based on insufficient evidence." State v. Snover, 48 Kan.
App. 2d 298, 300, 287 P.3d 943 (2012), petition for rev. filed December 10, 2012.

Deciding whether a case of alternative means exists requires statutory
interpretation over which the appellate courts have unlimited review. State v. Brown, 295
Kan. 181, 193-94, 284 P.3d 977 (2012).

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"And because alternative means questions are ultimately resolved on the sufficiency of
the evidence, that standard of review is whether, after considering all of the evidence,
viewed in the light most favorable to the prosecution, the appellate court is convinced
that a rational factfinder could have found the defendant guilty beyond a reasonable
doubt on each of the alternative means presented." State v. Cato-Perry, 48 Kan. App. 2d
92, 94-95, 284 P.3d 363 (2012) (citing State v. McCaslin, 291 Kan. 697, 710, 245 P.3d
1030 [2011]).

Analysis

Aiding and Abetting as Alternative Means to Principal Liability

First, Jackson argues that the district court instructed the jury to convict him of
aggravated robbery if it found Jackson "intentionally took property from the person or
presence of Christopher David Detar-Newbert and Meagan Lyn Rocha" as either a
principal or as an aider or abettor, thereby creating alternative means upon which he
could have been found guilty of aggravated robbery. The State argues that the aiding and
abetting statute, K.S.A. 21-3205(1) (this statute was repealed and recodified in July 2011,
but this crime was committed in April 2011), from which the jury instructions were
based, does not create alternative means of committing aggravated robbery.

This is not the first time the question of whether aiding and abetting, as opposed to
being a principal, is an alternative means of committing the crime has been before this
court. Various panels of this court have differed on this issue. E.g., Snover, 48 Kan. App.
2d at 303 (aiding and abetting is not an alternative means); Cato-Perry, 48 Kan. App. 2d
at 96 (aiding and abetting is an alternative means); State v. Boyd, 46 Kan. App. 2d 945,
953-54, 268 P.3d 1210 (2011) (aiding and abetting is an alternative means), petition for
rev. filed January 23, 2012, cross-petition for rev. filed February 6, 2012; State v.
Kittman, No. 107,519, 2013 WL 1339902, at *4 (Kan. App. 2013) (unpublished opinion)
(aiding and abetting is not an alternative means), petition for rev. filed April 29, 2013.
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See also State v. Gonzalez, No. 104,612, 2012 WL 3822474, at *10 (Kan. App. 2012)
(unpublished opinion) (panel divided on question of whether aiding and abetting is an
alternative means).

In Boyd, the panel found aiding and abetting under K.S.A. 21-3205(1) to be an
alternative means to conviction as a principal. While acknowledging that "aider and
abettor liability applies to pretty much every substantive criminal offense," the panel
concluded there is the danger that jurors who might favor conviction of the defendant as
an aider or abettor rather than as a principal would actually choose acquittal rather than
conviction if the aiding and abetting option was not present. Boyd, 46 Kan. App. 2d at
953-54. While admittedly such logic has some appeal, we must respectfully disagree
because "the long history of Kansas law on this subject does not support the conclusion
that aiding and abetting is an alternative means of committing a crime." Cato-Perry, 48
Kan. App. 2d at 99 (Ward, J., dissenting).

Because jury unanimity is not a constitutional right, our court may extend
alternative means protection to the area of aiding and abetting only by interpreting K.S.A.
21-3205(1): "A person is criminally responsible for a crime committed by another if such
person intentionally aids, abets, advises, hires, counsels or procures the other to commit
the crime."

Since statehood, the aiding and abetting statute has meant that "'[t]he one acting,
the one present, aiding and abetting, and the one absent, counseling, aiding and abetting,
are declared to be equally and alike guilty.'" Cato-Perry, 48 Kan. App. 2d at 99 (Ward, J.
dissenting) (quoting State v. Cassady, 12 Kan. 550, 556, 1874 WL 666 [1874]); see also
State v. Robinson, 293 Kan. 1002, 1037-38, 270 P.3d 1183 (2012) (under shared
accomplice liability, all persons involved are equally as responsible for all the actions of
the others); State v. Williams & Reynolds, 217 Kan. 400, 404, 536 P.2d 1395 (1975) (all
participants in crime equally guilty without regard to extent of their participation); State
19

v. Turner, 193 Kan. 189, 196, 392 P.2d 863 (1964) (all participants in the crime equally
guilty); State v. Wolkow, 110 Kan. 722, 726, 205 Pac. 639 (1922) (out-of-state aider and
abettor equally guilty as in-state principals); State v. Roberts, 95 Kan. 280, 288, 147 Pac.
828 (1915) (all participants equally guilty regardless of extent of their participation). As a
result, our state's jurisprudence has not distinguished between principal liability and aider
and abettor liability. State v. Jackson, 201 Kan. 795, 799, 443 P.2d 279 (1968) (one who
aids and abets may be treated as principal); State v. Potter, 15 Kan. 302, 321, 1875 WL
811 (1875) (aider and abettor may be regarded by jury as a principal). Therefore,
"prosecutors have generally not bothered to distinguish between principals and aiders and
abettors in charging codefendant cases." Cato-Perry, 48 Kan. App. 2d at 100 (Ward, J.,
dissenting); see also State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009) (aider and
abettor may be charged as principal); State v. Green, 254 Kan. 669, 687, 867 P.2d 366
(1994) (person who aids and abets may be charged as principal); State v. Garcia, 243
Kan. 662, 666, 763 P.2d 585 (1988) (aider and abettor may be convicted as a principal);
State v. Goering, 225 Kan. 755, 758-59, 594 P.2d 194 (1979) (aider and abettor may be
charged, tried, and convicted in same manner as principal); State v. Cook, 149 Kan. 481,
483-84, 87 P.2d 648 (1939) (aider and abettor may be charged as principal); Snover, 48
Kan. App. 2d at 303 (person charged as principal may be convicted as aider and abettor if
supported by the evidence).

"All that has historically mattered is that the State proves each element of the
crime and the defendant on trial played a willing role in the commission or furtherance of
the crime as either the principal or as the aider and abettor. To be guilty under the theory
of aiding and abetting, a defendant 'must willfully and knowingly associate himself with
the unlawful venture and willfully participate in it as he would in something he wishes to
bring about or to make succeed.'" Cato-Perry, 48 Kan. App. 2d at 100 (Ward, J.,
dissenting) (quoting State v. Schriner, 215 Kan. 86, Syl. ¶ 6, 523 P.2d 703 [1974]).

Moreover, just 3 months after the Boyd decision, our Supreme Court held that
aiding and abetting under K.S.A. 21-3205(1) does not create a separate crime but, rather,
20

"extends criminal liability to a person other than the principal actor." Robinson, 293 Kan.
at 1038. The United States Court of Appeals for the Tenth Circuit has interpreted the
federal aiding and abetting statute, 18 U.S.C. § 2 (2006), in a similar fashion. See United
States v. Scroger, 98 F.3d 1256, 1262 (10th Cir. 1996).

More recently, the panel in Snover also disagreed with the Boyd analysis. The
Snover panel started from the underlying premise of accomplice liability—all participants
in a crime are equally guilty without regard to the extent of each one's participation. The
panel further pointed out that the aiding and abetting statute, K.S.A. 21-3205(1), does not
define a separate crime; it merely "'explains the circumstances under which a person may
be criminally responsible for a crime committed by another person.'" Snover, 48 Kan.
App. 2d at 302. Of particular note to the Snover panel was the fact that the Supreme
Court of Washington, the same court Timley favorably cited regarding the alternative
means doctrine, has held principal and accomplice liability are not alternative means of
committing an offense. See State v. McDonald, 138 Wash. 2d 680, 687, 981 P.2d 443
(1999). The Washington court reasoned that extending the alternative means doctrine to
accomplice liability would contradict its holdings concerning "the emptiness of any
distinction between principal and accomplice liability." 138 Wash. 2d at 687-88.
Applying the same reasoning, the Snover panel concluded that applying the alternative
means doctrine would contradict the well-settled law in this state regarding criminal
liability. Accordingly, the Snover panel held the aiding and abetting statute does not
create alternative means of committing a single offense. 48 Kan. App. 2d at 303. We
adopt this reasoning.

Finally, very recently and after the decisions in Boyd and Snover, our Supreme
Court in Brown clarified the test to be used when examining whether a criminal statute
contains alternative means of committing the crime:

21

"[A] court must analyze whether the legislature listed two or more alternative distinct,
material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in
some statutes, causation elements. Or, did the legislature list options within a means, that
is, options that merely describe a material element or describe a factual circumstance that
would prove the element? The listing of alternative distinct, material elements, when
incorporated into an elements instruction, creates an alternative means issue demanding
super-sufficiency of the evidence. Often this intent can be discerned from the structure of
the statute. On the other hand, the legislature generally does not intend to create
alternative means when it merely describes a material element or a factual circumstance
that would prove the crime. Such descriptions are secondary matters—options within a
means—that do not, even if included in a jury instruction, raise a sufficiency issue that
requires a court to examine whether the option is supported by evidence." Brown, 295
Kan. at 199-200.

Conducting this analysis as directed by Brown strengthens our conclusion that
aiding and abetting does not constitute an alternative means of committing a crime. First,
the aiding and abetting statute does not set out alternative material elements of the
underlying crime. Second, K.S.A. 21-3205(1), describing one who "intentionally aids,
abets, advises, hires, counsels or procures" another to commit a crime with intent to
promote or assist in its commission, merely provides descriptors as to how a person
participates in the crime. Third, and more fundamentally, K.S.A. 21-3205(1) only
provides factual circumstances that impose equal liability on a person who aids and abets
the principal actor. Accordingly, in Jackson's case, we hold the jury instruction on aiding
and abetting did not create an alternative means of committing the crime of aggravated
robbery, and the super-sufficiency requirement does not apply.

"Aids or Abets" as Alternative Means

Second, Jackson argues that the phrase "aids or abets" in the aiding and abetting
instruction constitutes alternative means of committing aggravated robbery and there was
insufficient evidence to convict him of abetting in the crime. We find this claim of error
22

also without merit for the rationale set forth by another panel of our court in State v.
Johnson, 46 Kan. App. 2d 870, 885-86, 265 P.3d 585 (2011).

In Johnson, the defendant was convicted of aggravated battery. Among her
contentions of error on appeal, Johnson argued that there was insufficient evidence to
support her conviction by aiding and abetting, claiming the aiding and abetting statute set
forth alternative means to commit the crime. After conducting an analysis of the history
of aiding and abetting similar to what we have done above, the court concluded:

"Although there are minor differences in the meaning of the terms 'aids,' 'abets,'
'advises,' 'hires,' 'counsels,' and 'procures,' we find that these terms do not entail
materially different or distinct ways of committing a particular crime. The thrust of
K.S.A. 21-3205 is that a person who knowingly induces or assists another person to
commit a crime is criminally responsible for the crime regardless of the extent the person
participates in the actual commission of the crime. We conclude that K.S.A. 21-3205(1)
does not set forth alternative means of committing a crime." 46 Kan. App. 2d at 885-86.

We agree with this analysis as it comports with our Supreme Court's command in
Brown to determine whether there are "two or more alternative distinct, material elements
of a crime" versus merely a listing of "options within a means." 295 Kan. at 200. We hold
that the words "aids" or "abets" as they appear in the aiding and abetting statute are not
alternative means of committing the crime of aggravated robbery.

"Person or Presence" as Alternative Means

Third, Jackson argues that the element of taking property from the "person or
presence" of the victims in the aggravated robbery instruction also raises an alternative
means issue. Jackson relies on State v. Robinson, 27 Kan. App. 2d 724, 728, 8 P.3d 51
(2000), which held that the taking of property from an individual's "person" is more
restrictive than taking property from an individual's "presence." Conversely, the State
23

argues that alternative means are not created by the phrase "person or presence" and
relies on the more recent case of Boyd, in which the court held that "taking property from
the person or the presence" of the victim does not create alternative means. 46 Kan. App.
2d at 950.

In Robinson, the issue before the court concerned what the State must prove when
the jury instruction on robbery only included the language of taking from the victim's
"person" and omitted the "presence" language. In that situation, the State must
specifically prove that the property taken was indeed from the victim's person rather than
the victim's general presence. Robinson, 27 Kan. App. 2d at 727-28. However, the
Robinson panel only conducted a sufficiency of the evidence analysis as it specifically
applied to a tailored jury instruction. It did not conduct an alternative means analysis;
therefore, it does not apply in this case. See State v. Saudy, No. 105,603, 2012 WL
6734503, at *5 (Kan. App. 2012) (unpublished opinion) (Robinson court dealt with an
instruction error and not alternative means), rev. granted May 20, 2013 (on State's cross-
petition for review on intent to take issue).

The use of "person or presence" describes the victim's proximity to the property
taken. When conducting the Brown analysis on this point, it is apparent that the two
words are simply two options used to describe different factual circumstances in which
aggravated robbery (or robbery) can occur.

"The essence of the crime [of robbery] is forcibly taking property when a person is
present. The term 'from the person or the presence' of the victim describes the proximity
of the property and the individual. It does so with phraseology that overlaps. Taking
property from the presence of the victim (who need not be the owner of whatever the
perpetrator seizes) describes an area in the general vicinity of the victim. Taking property
from the person of the victim refers to the immediate environs of the body such as a
pocket, a purse, or the hands. Thus, a taking 'from the person' is actually encompassed
within a taking 'from the presence' of the victim. The robbery and aggravated robbery
24

statutes would criminalize the same range of conduct even if the phrase 'the person' had
been omitted from the definitions of those crimes. Accordingly, taking property from the
person of the victim and taking property from the presence of the victim do not constitute
alternative means of committing aggravated robbery.
". . . Taking property from the presence of the victim is a comparable umbrella
term covering taking property from the person of the victim. The Schreiner court
recognized some degree of redundancy may be tolerated in criminal statutes to enhance
the objective of giving fair notice of the proscribed conduct. [Citation omitted]." Boyd, 46
Kan. App. 2d at 950-51 (citing State v. Schreiner, 46 Kan. App. 2d 778, 785, 264 P.3d
1033 [2011]).

Moreover, the Boyd panel emphasized the historical difference between robbery—
or in the present case, aggravated robbery—and theft in determining the actus reus of
robbery. "Robbery entailed obtaining the property from the individual by a direct threat
or application of force. The crime created a volatile, potentially deadly confrontation." 46
Kan. App. 2d at 951. "In contrast, theft . . . entailed no such danger to the victim. The
thief worked by stealth and secured the victim's property without his or her knowledge.
[Citation omitted]." 46 Kan. App. 2d at 951. "The legislature's use of the phrasing 'taking
property from the person or the presence of another' merely serves to criminalize the peril
associated with the crimes of robbery and aggravated robbery. We reject [the defendant's]
argument that alternative means lurk somewhere beneath that statutory language." 46
Kan. App. 2d at 951-52.

The Boyd court's analysis of "person or presence" has been followed by multiple
panels of our court to show that the phrase "person or presence" does not create
alternative means of committing the crime. See State v. Edwards, 48 Kan. App. 2d 383,
Syl. ¶ 5, 290 P.3d 661 (2012), rev. granted May 20, 2013; State v. Moore, No. 106,209,
2013 WL 1010284, at *3-4 (Kan. App. 2013) (unpublished opinion), petition for rev.
filed April 8, 2013; Saudy, 2012 WL 6734503, at *5; State v. Delacruz, No. 106,082,
25

2012 WL 1352865, at *4-5 (Kan. App. 2012) (unpublished opinion), petition for rev.
filed May 10, 2012.

We agree with the Boyd panel's excellent analysis on this point because it
comports with the Brown test on alternative means. We hold that the phrase "person or
presence" in the aggravated robbery statute does not create an alternative means of
committing the crime. Therefore, since no alternative means issue is present in this case,
there is no need to weigh the sufficiency of the evidence regarding whether the defendant
took property from the person or the presence of the victims. The record clearly supports
that Jackson took the property out of the victims' safe which was sitting next to the bed
on which the victims were sitting. Accordingly, there was sufficient evidence to establish
that the property was taken from the presence of the victims, which is all that is needed to
satisfy that element of aggravated robbery.

DID THE TRIAL COURT COMMIT ERROR BY ANSWERING THE JURY'S QUESTIONS
IN WRITING OUTSIDE THE PRESENCE OF DEFENDANT?

Jackson's third allegation of error is that the district court violated his statutory and
constitutional right to be present during every critical stage of the trial by formulating
answers to the jury's questions with counsel off the record, in chambers, and outside his
presence. The State replies that there was no error, but if there was, it was harmless.

Standard of Review

A defendant has a constitutional and statutory right to be present at every stage of
his trial. U.S. Const. Amend. VI; K.S.A. 22-3405. "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.
Wells, 296 Kan. 65, 89, 290 P.3d 590 (2012). If there was indeed a violation of the
26

defendant's rights, the error is then subject to the same harmless error analysis as other
constitutional violations. See State v. Adams, 292 Kan. 151, 164, 254 P.3d 515 (2011).

Analysis

During deliberations, the jury asked four questions to the judge, each via a written
note. The district court and counsel addressed each of the questions in the judge's
chambers and off the record. The judge wrote the answer on the same sheet of paper
containing the jury's question, and the paper was returned to the jury. The four questions
from the jury and each answer were:

Question #1: "Did [the victims] have to ask the defendant to leave in order to remove
authority."
Answer #1: "You must decide this case based on the evidence as you remember it and
the instructions given."
Question #2: "Are we permitted to make a determination or have an opinion on the
truthfulness of testimony."
Answer #2: "Please refer to instruction No. 2."
Question #3: "What is the legal definition of 'resionable [sic] doubt?'"
Answer #3: "There is no legal definition for 'reasonable doubt.'"
Question #4: "May we see the 'baggies'?"
Answer #4: "We are having that exhibit returned. It was inadvertently sent back to the
RCPD. The bailiff will bring it to you when it arrives."

Violation of Jackson's Right to Be Present

K.S.A. 22-3420(3) sets out a defendant's statutory rights:

"After the jury has retired for deliberation, if they desire to be informed as to any
part of the law or evidence arising in the case, they may request the officer to conduct
them to the court, where the information on the point of the law shall be given, or the
27

evidence shall be read or exhibited to them in the presence of the defendant, unless he
voluntarily absents himself, and his counsel and after notice to the prosecuting attorney."
(Emphasis added.)

Jackson claims that it was error for the trial court to answer the jury's questions
using a written note rather than in open court. K.S.A. 22-3420(3) neither requires that the
jury be brought back into the courtroom in order to ask the court a question, nor does it
require that the judge only respond to the jury's questions in open court. Wells, 296 Kan.
at 91. The possible violation in this case is not whether the court should have answered
the questions in the courtroom or in writing, but, rather, whether the defendant was
present or voluntarily absent when the court's answers were discussed and written in
chambers. See State v. Coyote, 268 Kan. 726, 732, 1 P.3d 836 (2000); State v. Bell, 266
Kan. 896, 919, 975 P.2d 239, cert. denied 528 U.S. 905 (1999).

The Kansas Supreme Court set out the following rule to protect defendants' right
to be present:

"A trial court, when confronted with a question submitted to it by a jury during
deliberations is required to advise counsel, provide the parties with the question, and give
them an opportunity for input in the presence of the defendant. Thereafter, the court is
required to respond in writing to the jury in the presence of the defendant." Coyote, 268
Kan. at 732.

Our Supreme Court upheld and applied the Coyote rule in Wells. The Wells jury
asked for the definition of "abets." The defendant was present during the court's
discussion with the attorneys and, over the defense attorney's objection, the court sent a
definition back to the jury. Because Wells was present during the discussion, the court
held her rights were not violated. 296 Kan. at 92.

28

In this case, the State argues that the record is insufficient to establish whether
Jackson was present in chambers when the judge and attorneys discussed and answered
the jury questions. The State claims that if the transcript is completely silent, it is
insufficient; therefore, the claim of error fails. The State is incorrect.

If the record is silent regarding whether the defendant was present or absent during
the discussion in chambers between the judge and the attorneys, then the court will
presume that the defendant was not present. State v. Betts, 272 Kan. 369, 391, 33 P.3d
575 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317
(2006). A defendant may voluntarily waive his or her right to be present, but if the record
does not reflect that the defendant personally waived the right or his or her attorney
waived it after consulting his or her client, then a waiver will not be presumed from a
silent record. State v. Acree, 22 Kan. App. 2d 350, 353, 916 P.2d 61, rev. denied 260
Kan. 995 (1996).

In this case, there is no mention in the record of Jackson being or not being in
chambers with the judge and attorneys when the jury questions were discussed and
answered. There is no record of his attorney discussing the questions with his client or
Jackson voluntarily waiving his right to be present. Therefore, under the presumption that
where the record is silent, the defendant is not present, Jackson is presumed to have been
absent from the chambers; thus, his rights were violated.

Harmless Error Test

The degree of certainty by which the court must find a constitutional error is
harmless beyond a reasonable doubt that there was no impact on the trial's outcome. In
other words, the court must find there is no reasonable possibility that the error
contributed to the verdict. State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012). Moreover, the party benefiting from the error has the
29

burden of production to prove beyond a reasonable doubt that the constitutional error did
not contribute to the verdict obtained. 292 Kan. at 569.

In Bell, 266 Kan. 896, the trial court responded to the jury's question outside the
presence of the defendant, but the court's answer accurately stated the law and placed no
undue emphasis on the defendant's guilt or innocence. The Bell court concluded beyond a
reasonable doubt that the error did not change the verdict. 266 Kan. at 920. The same was
true in State v. Murdock, 286 Kan. 661, 684-85, 187 P.3d 1267 (2008), where the trial
court's answer to the jury was an accurate statement of law and did not place undue
emphasis on either possible verdict outcome, so the Murdock court found that the error
had very little likelihood of changing the verdict.

The jury's questions in this case were completely innocuous. The court responded
by accurately stating the law, pointing the jury back to the jury instructions, and
reminding the jurors that they must decide the case on the evidence as they remember it
only. The questions neither invoked legally significant explanatory answers nor were they
of the nature to require Jackson's attorney to consult with him on trial strategy. Jackson's
presence in the chambers would not have changed the answers to any of the posed
questions. Though it is hard to prove a negative, it is safe to conclude beyond a
reasonable doubt that the error of Jackson not being present for the in-chambers
discussion about the answers to the jury's questions was harmless.

WAS THERE SUFFICIENT EVIDENCE TO CONVICT JACKSON OF
POSSESSION OF DRUG PARAPHERNALIA?

In his final allegation of error, Jackson contends the State failed to present
sufficient evidence to convict him of possession of drug paraphernalia because there was
no evidence presented at trial that the scale or baggies found in his residence was used to
ingest, inhale, or otherwise introduce a controlled substance into the human body.
30


Standard of Review

When the sufficiency of evidence is challenged in a criminal case, this court
reviews such claims by looking at all the evidence in a light most favorable to the
prosecution and determining whether a rational factfinder could have found the defendant
guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091
(2012).

Analysis

Jackson was charged with four counts—two felonies and two counts of drug
paraphernalia for the scale and baggies found in his room. Jackson's complaint
specifically arises from the wording used in the information. The charges for the baggies
and the scale both read in pertinent part as follows:

"Defendant . . . did then and there unlawfully use or possess with the intent to use an item
of drug paraphernalia, as defined in K.S.A. 65-4150(c) as amended, scale [baggies], to
ingest, inhale, or otherwise introduce a controlled substance . . . into the human body.
(Contrary to K.S.A. 2009 Supp. 21-36a09[b][2]) . . . ."

Jackson does not present this claim as an issue of a defective charging document
but only as a sufficiency of the evidence issue. The charge as recorded in the information
is in fact incomplete. The full statutory language in K.S.A. 2010 Supp. 21-36a09(b)(2)
states that it is illegal to use "any drug paraphernalia to store, contain, conceal, inject,
ingest, [or] inhale . . . a controlled substance into the body." (Emphasis added.) The
charging document does not contain those three italicized words; however, Jackson made
no argument that this omission limited his right to a fair trial, prejudiced his ability to
prepare a defense, or prohibited him from raising the conviction in a subsequent
31

prosecution as would be required in the post-Hall analysis of a defective charging
document. See State v. Hall, 246 Kan. 728, Syl. ¶¶ 11-12, 793 P.2d 737 (1990), overruled
in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
Therefore, this court will not discuss the validity of the charging document.

Sufficiency of the Evidence

There was ample evidence presented to the jury to support that Jackson was in
possession of drug paraphernalia that he intended to use. The scale and the baggies were
found in Jackson's bedroom among his personal items. One detective testified that he
could smell the odor of burnt marijuana emanating from Jackson's residence when
officers entered to execute the search warrant. Another police officer testified that the
baggies contained what appeared to be marijuana residue and that baggies were the most
common container used to store marijuana. This officer also testified that scales are
utilized by drug users to make sure they have received the quantity of drugs for which
they paid, and she observed marijuana residue on the scales. Reviewing all the evidence
in the light most favorable to the prosecution, a rational factfinder could have found
Jackson guilty beyond a reasonable doubt.

Relying only on his sufficiency of the evidence argument, Jackson neither raises
any concerns regarding the jury instructions nor alleges jury confusion in his brief. At the
end of the trial, the judge went through the jury instructions with both counsel on the
record, and neither objected to anything in the two drug paraphernalia instructions. The
two jury instructions did not include the "ingest, inhale, or otherwise introduce a
controlled substance into the human body" language that Jackson has now put at issue.
The jury instructions simply read, in pertinent part, that the State must prove "[t]hat the
Defendant intentionally used or possessed with the intent to use drug paraphernalia,
specifically: a digital scale [baggies]."

32

Based on those instructions, the jury had more than enough evidence to convict
Jackson of having "used or possessed with the intent to use" the scale and baggies. Any
variations or exclusions of the multiple words used in the drug paraphernalia statute to
describe "use" in the charging documents was ultimately harmless error.

Affirmed.