IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,187
STATE OF KANSAS,
Appellee,
v.
RAY J. STEVENS,
Appellant.
SYLLABUS BY THE COURT
1. An appellate court exercises unlimited review over issues of jury unanimity.
2. An appellate court applies a clearly erroneous standard to review a party's failure to object to a given jury instruction and to review a trial court's failure to give an instruction where the party neither requested it nor objected to its omission.
3. A complaint which charges two separate and distinct offenses in a single count is duplicitous. Duplicity is the joinder of two or more separate and distinct offenses in the same count, not the charging of a single offense involving multiple ways and means of action.
4. In an alternative means case, jury unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. The appellate court must be convinced, after reviewing all the evidence in the light most favorable to the prosecution, that a rational factfinder could have found that each means was proved beyond a reasonable doubt.
5. An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime. The overt act necessarily must extend beyond mere preparations made by the accused and must approach sufficiently near to the consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense.
6. The decision to grant or deny a motion for a new trial rests in the sound discretion of the district court. Judicial discretion is abused only when no reasonable person would take the view of the district court, and the party who asserts abuse of discretion bears the burden of showing it. The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.
7. Unlike subsection (a)(1) of K.S.A. 2006 Supp. 8-1567, subsection (a)(3) does not limit the introduction of "other competent evidence" to that found in K.S.A. 2006 Supp. 8-1013(f)(1), i.e., late-taken samples. Accordingly, the "other competent evidence" contained in 2006 Supp. 8-1013(f)(2), e.g., readings obtained from a partial alcohol concentration test on a breath testing machine–which includes a deficient sample–may be admissible in a criminal prosecution under (a)(3).
8. In a criminal case, the decision to continue a case lies within the sound discretion of the district court.
9. Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant. But evidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant has personal knowledge thereof, or if the facts become available to the defendant during trial and if he or she is not prejudiced in defending against those new facts.
10. Venue is a question of fact to be decided by the jury. It may be established by proof of facts and circumstances introduced in evidence from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred.
11. As a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal. Under the facts of this case, an exception to this general rule–to prevent denial of a fundamental right–will not be applied.
12. A sentencing court assessing fees to reimburse the Board of Indigents' Defense Services under K.S.A. 2006 Supp. 22-4513 must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.
13. Under the facts of this case, the district court erred in ordering the defendant to pay attorney fees to the Board of Indigents' Defense Services before taking into account his financial situation.
Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 323, 138 P.3d 1262 (2006). Appeal from Crawford district court; A. J. WACHTER, judge. Judgment of the Court of Appeals affirming in part and reversing in part the judgment of the district court is affirmed. Judgment of the district court is affirmed in part and reversed in part and remanded with directions. Opinion filed December 7, 2007.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of the same office, was on the briefs for appellant.
Brian P. Duncan, assistant county attorney, argued the cause, and Razmi M. Tahirkheli, assistant county attorney, John Gutierrez, county attorney, and Phill Kline, attorney general, were on the briefs for appellee.
The opinion of the court was delivered by
NUSS, J.: Ray Stevens appeals his conviction for operating or attempting to operate his vehicle under the influence of alcohol. The Court of Appeals affirmed his conviction, with one judge dissenting. See State v. Stevens, 36 Kan. App. 2d 323, 138 P.3d 1262 (2006). We granted Stevens' petition for review and the State's cross-petition for review; our jurisdiction is pursuant to K.S.A. 20-3018(b).
Between Stevens and the State, they present seven issues on appeal. Those issues, and our accompanying holdings, are as follows:
1. Did the district court err in failing to require the State to elect either (a) operating or (b) attempting to operate as the theory of prosecution, thus depriving Stevens of his right to a unanimous jury verdict? No.
2. Did the district court err in refusing to grant Stevens' motion for a new trial based on the admission of the deficient breath test results? No.
3. Did the district court err in refusing to grant a continuance based upon the State's failure to produce records of the deficient breath sample as well as the maintenance records of the Intoxilyzer 5000? No.
4. Does sufficient evidence support Stevens' conviction for driving under the influence in Crawford County? Yes.
5. Did the district court err in admitting Stevens' confession into evidence? No.
6. Did cumulative error deprive Stevens of his right to a fair trial? No.
7. Did the district court err in ordering Stevens to pay attorney fees to the Board of Indigents' Defense Services (BIDS) before taking into account his financial situation? Yes.
Accordingly, the judgment of the district court is affirmed regarding issues 1-6; the judgment regarding issue 7 is reversed and remanded for further proceedings as directed in the opinion. We affirm the Court of Appeals.
FACTS
During the afternoon of April 18, 2004, Officer Dave Justice of the Pittsburg Police Department was called to a residence for a criminal trespass complaint. Upon arrival, Justice saw a Jeep parked in the street with two people sitting in its front seat. As he approached, he saw Ray Stevens exit the driver's side and stumble toward the rear of the Jeep in the direction of the residence.
Justice unsuccessfully attempted to get Stevens' attention as he walked toward the front door of the residence. While Stevens knocked, Justice moved directly behind him and again yelled to get his attention. As Stevens turned around, Justice informed him that the resident of the house did not want him on the property.
Justice noticed a strong odor of alcohol coming from Stevens. When asked, Stevens admitted he had been drinking. He refused, however, to explain why he got out of the driver's side of the Jeep. After backup arrived, Justice approached the Jeep to contact the passenger. Justice then saw alcoholic beverage cans in both the driver's side and passenger's side door cup holders. He also noticed a brown paper bag that appeared to contain a liquor bottle with the seal broken. When the passenger handed Justice the bag, he discovered it contained a half-empty bottle of whiskey. The Jeep key was in the ignition.
At that time, Justice believed that Stevens was under the influence of alcohol. According to Justice, Stevens stated that he had driven the vehicle to the residence. Initially, Stevens agreed to take a field sobriety test. Justice first asked Stevens to touch the top of Justice's pen with his right index finger. Stevens smirked and attempted to touch the pen with his small finger; however, he missed the pen. When Justice asked him to redo the test, Stevens was able to touch the pen with the correct finger. Justice then asked Stevens to follow a pen with his eyes. Stevens, however, only focused on Justice and refused to follow the pen. Stevens also refused to complete balance tests.
Justice placed Stevens under arrest and took him to the police station. There, after Justice read Stevens the implied consent advisory, Stevens submitted to an Intoxilyzer 5000 test. Although Stevens agreed to take the breath test, he initially refused to blow into the machine. When Stevens did blow, he failed to provide enough air for a sufficient sample. According to the machine printout, Stevens blew a "deficient sample" with a .205 blood alcohol concentration.
The next day Stevens was charged with operating or attempting to operate a motor vehicle while under the influence of alcohol in violation of K.S.A. 2006 Supp. 8-1567(a)(3), and transporting an open container of alcoholic beverage in violation of K.S.A. 8-1599.
The same day, defense counsel filed a motion to suppress the breath test. The court denied the motion on present showing, allowing Stevens to later raise the issue.
The case proceeded to jury trial on September 23, 2004. Prior to voir dire, defense counsel asked that the State be required to choose its theory of prosecution, i.e., either operating or attempting to operate a vehicle while under the influence. The court, however, allowed the State to proceed under both theories.
Over defense counsel's objection, the court also admitted the deficient sample breath test results during the testimony of Sergeant David Roughton, the sergeant in charge of records and maintenance for the Intoxilyzer 5000.
Stevens was convicted of operating or attempting to operate a vehicle while under the influence of alcohol but was acquitted of the open container charge. Stevens moved for a judgment of acquittal or, alternatively, for a new trial; the district court denied the motions. He was subsequently sentenced to 12 months' probation with an underlying jail term of 12 months.
A majority of a Court of Appeals panel affirmed Stevens' conviction. The majority held: (1) The deficient breath test was admissible to establish a conviction under K.S.A. 2006 Supp. 8-1567(a)(3); (2) the district court did not err in refusing to grant a continuance or new trial based upon the deficient sample; (3) driving or attempting to drive while under the influence is an alternative means situation and the evidence was sufficient to support either means; (4) Stevens' voluntary statements to the officer that he had been drinking and, later, that he had driven to the residence were elicited during the investigational phase and not while Stevens was in custody; (5) there was no cumulative error; and (6) a district court is unable to adequately determine a defendant's ability to pay attorney fees to BIDS when it fails to first tax a specific amount claimed by BIDS. Because of the BIDS issue, the majority remanded the case for further proceedings. Then Judge, now Justice, Johnson dissented, arguing the evidence was insufficient to support the conviction upon the alternative means of attempting to operate a vehicle. Stevens, 36 Kan. App. 2d at 344-48.
ANALYSIS
Issue 1: The district court did not err in failing to require the State to elect either (a) operating or (b) attempting to operate as the theory of prosecution.
Stevens argues that the district court erred in failing to require the State to elect its theory of prosecution, thus depriving him of his right to a unanimous jury verdict. "This court exercises unlimited review over issues of jury unanimity. [Citation omitted.]" State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005).
The trial court allowed the State to proceed under a charge of operating or attempting to operate a motor vehicle while under the influence of alcohol in violation of K.S.A. 2006 Supp. 8-1567(a)(3), which provides in relevant part:
"(a) No person shall operate or attempt to operate any vehicle within this state while:
. . .
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle."
Consistent with the statute, the jury was instructed as follows:
"The defendant is charged with the crime of operating or attempting to operate a vehicle while under the influence of alcohol. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. That the defendant drove or attempted to drive a vehicle;
2. That the defendant, while driving or attempting to drive, was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle; and
3. That this act occurred on or about the 18th day of April 2004, in Crawford County, Kansas." (Emphasis added.)
As noted by the Court of Appeals, Stevens did not object to the instruction. 36 Kan. App. 2d at 336. In fact, he suggested a similar instruction. Further, he did not request a unanimity instruction, nor did he object to the failure to give it. This court uses a clearly erroneous standard to review a party's failure to object to a given instruction and to review a trial court's failure to give an instruction where the party neither requested it nor objected to its omission. K.S.A. 2006 Supp. 22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). Instructions are clearly erroneous only if the appellate court is firmly convinced that there is a real possibility that the jury would have rendered a different verdict if the trial error had not occurred. Cooperwood, 282 Kan. at 581. But obviously if there is no error, there is no need to apply the clearly erroneous standard. See generally State v. Sappington, 285 Kan. 158, 163-65, 169 P.3d 1096 (2007).
Pursuant to K.S.A. 22-3421, a criminal defendant has the right to a unanimous jury verdict. Although Stevens failed to request a separate jury instruction, he suggests that because operating or attempted operating were set out together, there is no way to know of which act the jury actually convicted him.
As also noted by the Court of Appeals, Stevens' argument suggests he views this as a multiple acts case. In such cases, several acts are alleged and any one of them could constitute the crime charged; the jury must be unanimous as to which act or incident constitutes the crime. State v. Voyles, 284 Kan. 239, 244-45, 160 P.3d 794 (2007).
Our threshold question is whether we are presented with a multiple acts case. This determination is a question of law over which an appellate court exercises unlimited review. 284 Kan. at 239, Syl. ¶ 1. An appellate court asks whether the defendant's conduct is part of one act or represents multiple acts which are separate and distinct from each other. "'Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by a "fresh impulse."'" Kesselring, 279 Kan. at 683. Here, Stevens' conduct did not consist of multiple acts; rather, it was a continuing course of conduct not motivated by a fresh impulse. Thus, a further multiple acts analysis is unwarranted.
In an alternative means case, on the other hand, a single offense may be committed in different ways. There must be jury unanimity as to guilt for the single crime charged, but not as to the particular means by which the crime was committed. See State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). Like the Court of Appeals, we conclude that we have an alternative means case: violation of K.S.A. 2006 Supp. 8-1567(a)(3) by more than one means (operating or attempting to operate).
As another preliminary consideration, we note that prior to oral argument Stevens filed a Rule 6.09 (2006 Kan. Ct. R. Annot. 45) letter of additional authority. Among other things, he argued that the charge against him was duplicitous. As this court explained in State v. Daniels, 278 Kan. 53, 71-72, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004):
"'A complaint which charges two separate and distinct offenses in a single count is duplicitous. Duplicity is the joinder of two or more separate and distinct offenses in the same count, not the charging of a single offense involving a multiplicity of ways and means of action. Duplicitous charging is a bad practice because it confuses the defendant as to how he or she must prepare a defense, and it confuses the jury.' [Citation omitted.]"
In support, Stevens points out that for other crimes, attempt is not part of the definition of the crime; rather, it is a separate statute. For example, Stevens notes that the focus of K.S.A. 2006 Supp. 65-4159 is the successful manufacture of a controlled substance, rather than a mere overt act toward the perpetration of a crime as required under the attempt statute, K.S.A. 2006 Supp. 21-3301.
As added support, Stevens cites Schad v. Arizona, 501 U.S. 624, 632, 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991). There, the defendant challenged Arizona's characterization of first-degree murder as a single crime for which a verdict was not limited to any one statutory alternative; he argued that premeditated murder and felony murder are separate crimes for which the jury must return separate verdicts. 501 U.S. at 630-31. We acknowledge that the Schad Court recognized that there is a "point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses." 501 U.S. at 633. However, that point was not reached in Schad under Arizona's scheme.
Nor is that point reached in the instant case. In Schad, Arizona agreed with Kansas and many other states that
"'it was not necessary that all the jurors should agree in the determination that [1] there was a deliberate and premeditated design to take the life of the deceased, or [2] in the conclusion that the defendant was at the time engaged in [a] the commission of a felony, or [b] an attempt to commit one: it was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute.'" [Citations omitted.] 501 U.S. at 641 (citing, among other cases, State v. Wilson, 220 Kan. 341, 552 P.2d 931 [1976]).
The Court concluded that "the jury's options in this case did not fall beyond the constitutional bounds of fundamental fairness and rationality." 501 U.S. at 645.
We similarly observe that in Kansas' first-degree murder statute, K.S.A. 21-3401, the legislature has defined that crime as the killing of a human being committed (1) intentionally and with premeditation; or (2) (a) in the commission of, or (b) in the attempt to commit an inherently dangerous felony. Approval of this specific statutory approach was inherent in Schad. We therefore conclude that if a first-degree murder conviction can constitutionally stand when a jury has not been required to specify whether a defendant was convicted of committing intentional premeditated murder or felony murder simply because a death occurred during the attempt to commit a particular felony, then a fortiori the instant statute allowing conviction of mere DUI–for commission (operating) or for mere attempt–is also constitutional. Our conclusion necessarily rejects Stevens' Daniels-based argument that the charge, and resultant jury instruction, is duplicitous.
Now that we have concluded that the DUI statute, like the first-degree murder statute, provides alternative means of committing the same crime, the issue becomes whether sufficient evidence supports both means of committing that crime. See Kesselring, 279 Kan. 671, Syl. ¶ 2 (Unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means.). The court must determine whether a rational trier of fact could have found that each means was proved beyond a reasonable doubt; the court must also review all the evidence in the light most favorable to the prosecution. As we stated in Kesselring, 279 Kan. at 679:
"'When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of 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.' [Citation omitted.]" (Emphasis added.)
After reciting this standard, the Kesselring court held "there was sufficient evidence to support a rational jury's belief that the defendant committed first-degree murder under either a theory of premeditation or felony murder." 279 Kan. at 679; see also Timley, 255 Kan. at 290 ("There was sufficient evidence, viewed in the light most favorable to the prosecution, that a rational factfinder could have found Timley guilty beyond a reasonable doubt of the crimes of rape and aggravated criminal sodomy either by the means of force or by the means of fear."). The same standard of review applies in the area of attempted crimes. See State v. Peterman, 280 Kan. 56, 59-60, 118 P.3d 1267 (2005).
Operating
Officer Justice saw Stevens exit the driver's side of the Jeep and stumble toward its rear in the direction of the residence. While speaking with Stevens, Justice noticed a strong odor of alcohol coming from him. When asked, Stevens admitted he had been drinking. Stevens refused, however, to explain why he got out of the driver's side of the Jeep. Justice saw the key in the ignition and an alcoholic beverage can in both the driver's side and passenger's side door cup holders. He also noticed a brown paper bag that appeared to contain a liquor bottle with the seal broken; when it was handed to him, he observed that it contained a half-empty whiskey bottle.
According to Justice, Stevens stated that he had driven the Jeep to the house. He did not reside there. Initially, Stevens agreed to take field sobriety tests; however, he was unable to complete the tests. Stevens submitted to an Intoxilyzer 5000 test; the deficient sample breath test registered an alcohol concentration of .205.
Based upon the foregoing, when viewed in the light most favorable to the prosecution, sufficient evidence supports Stevens' conviction under the "operating" means.
Attempting to Operate
Based upon the same evidence, the Court of Appeals majority concluded that sufficient evidence also supported the "attempt to operate" means. The majority noted that "'[m]ovement of the vehicle is not required in order to convict a defendant of DUI under the theory that defendant attempted to operate the vehicle.' [Citation omitted.]" 36 Kan. App. 2d at 337-38.
Judge Johnson disagreed:
"The majority is persuaded that the following facts are substantial evidence that Stevens tried but failed to drive his vehicle: (1) Stevens was occupying the driver's seat when Officer Justice arrived; (2) another person occupied the passenger seat; (3) the key was in the vehicle ignition; and (4) the vehicle was parked in front of another person's residence. I do not perceive these facts as creating a reasonable inference of a failed attempt to operate the vehicle. See State v. Johnson, 33 Kan. App. 2d 490, 502, 106 P.3d 65 (2004) (an inference may not rest upon another inference). To the contrary, the established fact that Stevens' vehicle was parked in front of another's residence creates the inference that Stevens was successful in driving his vehicle to that location. Stevens' actions in exiting the vehicle, proceeding to the front door of the residence, and knocking on the door support the inference that he drove there, rather than that he failed to drive. Indeed, that is the inference the prosecutor wanted the jury to draw when he argued that the more 'reasonable way to look at it is [Stevens] was in front of a house where he was not welcome, he just drove up, he was just jumping out wanting to make contact because he was not aware that he was not welcome there.'
"Unlike the situation in [State v.] Kendall, [274 Kan. 1003, 58 P.3d 660 [2002], Stevens' vehicle was not in the middle of the street, its engine was not running, its transmission was not in neutral, and its headlights and brake lights were not illuminated. Further, in closing argument, the prosecutor did not even suggest that Stevens made a failed attempt to drive the vehicle. When we review an alternative means case, we must consider whether a rational trier of fact could have found each alleged means of committing the crime to have been proved by the State beyond a reasonable doubt. See State v. Morton, 277 Kan. 575, 580, 86 P.3d 535 (2004). Here, the State failed to prove beyond a reasonable doubt that Stevens attempted to operate his vehicle, as opposed to actually operating the vehicle. Therefore, I would reverse and remand for retrial upon the sole means of committing DUI by operating a vehicle while under the influence. 36 Kan. App. 2d at 347-48.
We first observe that the dissent's reliance upon Morton fails to fully appreciate an important appellate court consideration, i.e., we must review the evidence in the light most favorable to the prosecution. Additionally, we must not reweigh the evidence or pass on the credibility of the witnesses. Kesselring, 279 Kan. 671, Syl. ¶ 3 (When reviewing the sufficiency of the evidence on alternative means, "this court will not reweigh the evidence. It is the jury's function, not ours, to weigh the evidence and determine the credibility of witnesses.").
We next observe that an attempt to commit a crime does not require much effort. K.S.A. 2006 Supp. 21-3301(a) defines attempt as "any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime." (Emphasis added.) See PIK Crim. 3d 55.01. In Peterman, 280 Kan. at 60-61, we acknowledged that
"Kansas law does not provide definitive rules as to what constitutes an overt act for attempting crime. The overt act necessarily must extend beyond mere preparations made by the accused and must approach sufficiently near to the consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. State v. Hedges, 269 Kan. 895, 905, 8 P.3d 1259 (2000)."
The Peterman court also observed: "Each case is dependent on its particular facts and the reasonable inferences the jury may draw from those facts." 280 Kan. at 61 (citing State v. Garner, 237 Kan. 227, 238, 669 P.2d 468 [1985]).
We conclude that the charge of an attempt to operate a vehicle under the influence of alcohol is sufficiently supported by the evidence. Stevens was sitting in the driver's side of the parked Jeep with the key in the ignition and another individual in the front. Alcoholic beverage containers were found inside the jeep. Stevens admitted he had been drinking and admitted further that he had driven the Jeep to the house where he did not reside. He was unable to satisfactorily complete the field sobriety tests and refused to explain why he had exited the Jeep from the driver's side. In viewing this evidence in the light most favorable to the prosecution, a jury could have reasonably inferred that by placing or leaving the key in the ignition and leaving the passenger in the Jeep's front seat as he knocked on the door, Stevens had intended to drive away from a house, where clearly he did not reside, within a short period of time after exiting the driver's seat. The key's placement, together with his consumption of alcoholic beverages, constituted the overt acts, i.e., steps in a direct movement toward the completed crime. The arrival of Officer Justice prevented the crime's execution.
Issue 2: The district court did not err in refusing to grant Stevens' motion for a new trial.
Stevens next argues that the district court erred in denying his motion for a new trial based upon the admission of the deficient breath test results into evidence.
The decision to grant or deny a motion for a new trial rests in the sound discretion of the district court. State v. Flynn, 274 Kan. 473, 513, 55 P.3d 324 (2002). Judicial discretion is abused only when no reasonable person would take the view of the district court. The party who asserts abuse of discretion bears the burden of showing it. See State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006). The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions. State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005). Moreover, resolution of this issue also necessitates interpretation of K.S.A. 2006 Supp. 8-1567 and K.S.A. 2006 Supp. 8-1013. Interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Rogers, 282 Kan. 218, 222, 144 P.3d 625 (2006).
In Stevens' pretrial motion to suppress the breath test results, he claimed that the deficient sample was not reliable evidence. The district court determined that it lacked sufficient evidence to determine whether the amount of the alcohol concentrate should be excluded. Although the court denied the motion, it granted Stevens "leave to present evidence to the court, either prior to trial or at trial, that the amou