State v. Carpenter

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NOT DESIGNATED FOR PUBLICATION

No. 117,579

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHANE WILLIAM CARPENTER,
Appellant.

MEMORANDUM OPINION


Appeal from Greenwood District Court; MICHAEL E. WARD, judge. Opinion filed July 27, 2018.
Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before HILL, P.J., PIERRON and MALONE, JJ.

PER CURIAM: A jury convicted Shane Carpenter of one count of distribution of
methamphetamine and one count of possession of methamphetamine. Carpenter appeals,
arguing: (1) the district court erred in instructing against jury nullification; (2) the
evidence was not sufficient to support his convictions; and (3) the district court erred in
using his prior criminal convictions in sentencing him. Finding no error, we affirm.

Sergeant Jason Meyers of the Greenwood County Sheriff's Office had heard that
Robin Davidson was selling methamphetamine in Greenwood County and was waiting
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for an opportunity to talk to him. Meyers got that opportunity when Davidson was
detained for altering a Vehicle Identification Number (VIN) on a motorcycle. When
Meyers questioned Davidson about the altered VIN, Davidson offered to talk about his
involvement in selling methamphetamine and suggested he could help Meyers arrest
other drug dealers. Davidson mentioned Carpenter as someone from whom he could buy
methamphetamine. He ultimately signed a cooperating individual agreement, and the
State never prosecuted him for the altered VIN.

On November 6, 2015, Sgt. Meyers met with Davidson to set up a controlled buy.
Davidson called Carpenter to "find out if he was still good to make a deal." Meyers
listened in on the call. He had trouble understanding what Carpenter said, but he heard
Davidson ask Carpenter if he had a digital scale for weighing.

Davidson made arrangements to go to Carpenter's house and buy
methamphetamine. Sgt. Meyers and another officer strip-searched Davidson to make sure
he had no contraband on him. They gave him $100 in cash to buy 1 gram of
methamphetamine. Meyers dropped Davidson off about half a block from Carpenter's
house and watched him walk to Carpenter's front door. Two other officers were parked
about a block away to watch the transaction.

Sgt. Meyers saw Davidson go into Carpenter's house. While Davidson was in the
house, Meyers could not see what was happening or if anyone came in or out of the back
door. Davidson was wearing a recording device, but the recording did not have anything
notable on it. About 13 minutes later, Davidson came out of the house and returned to
Meyer's car. He handed Meyers two plastic baggies with a white crystal substance inside.
Davidson told Meyers he had given Carpenter the $100 in exchange for
methamphetamine. The substance later tested positive for methamphetamine.

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On November 10, 2015, Davidson suggested he could buy again from Carpenter.
Sgt. Meyers and another officer strip-searched Davidson, gave him another $100 in cash,
and placed a body wire on him. Officers dropped Davidson off near Carpenter's house
and watched him walk inside. While Davidson was inside, Meyers heard Davidson and
Carpenter talking about needing to leave the house to get methamphetamine.

About 10 minutes later, Davidson and Carpenter left Carpenter's house. Sgt.
Meyers followed them on foot for about 10 minutes, but he could not see them the entire
time. After walking about 5 or 6 blocks, Davidson and Carpenter split up. Meyers
continued to follow Davidson. During this time, Meyers did not see anyone else meet
with Davidson, but Meyers also lost sight of him at times. Carpenter met back with
Davidson, and they returned to Carpenter's house. Carpenter went inside and Davidson
kept walking. Meyers lost sight of Davidson again. Davidson eventually met with the
officers and turned over a plastic bag with a white crystal substance in it. The substance
later tested positive for methamphetamine.

On February 24, 2016, officers executed a search warrant on Carpenter's house. A
deputy found a plastic baggie with white residue in Carpenter's pants pocket. The residue
later tested positive for methamphetamine. While the residue was visible, a forensic
scientist testified that someone could not tell whether it was methamphetamine just by
looking at it.

The State charged Carpenter with two counts of unlawful distribution of
methamphetamine, a level 4 drug felony, and one count of unlawful possession of
methamphetamine, a level 5 drug felony.

At trial, Davidson testified he had made two controlled buys from Carpenter and
both times he got methamphetamine in a plastic bag in exchange for money. He did not
specifically remember the details of the November 6 controlled buy because Carpenter
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was his friend and he had been to Carpenter's house many times. He stated it was "just
the same routine that we did." He explained the routine with the officers was to "meet
back at where they dropped me off at or another location where they said and give them
what I bought and [the] recording device and go be strip-searched again." He said he got
methamphetamine from Carpenter at Carpenter's house on the first buy, but Carpenter
had to leave the house to go get it.

As for the buy on November 10, Davidson remembered leaving Carpenter's house
with Carpenter. According to Davidson, Carpenter always had to go get
methamphetamine from somewhere else. He explained that he gave Carpenter money
before they split up, and Carpenter returned with methamphetamine that he then gave to
Davidson.

The jury convicted Carpenter of one count of distribution and one count of
possession. The jury acquitted him of the second count of distribution based on the events
of November 10, 2015. The district court sentenced Carpenter to 49 months'
imprisonment for distribution, and a concurrent 11-month sentence for possession.
Carpenter appeals.

Jury Instructions

Carpenter first challenges the district court's concluding jury instruction,
Instruction No. 8. This instruction told the jury, in part, "Your verdicts must be founded
entirely upon the evidence admitted and the law as given in these instructions." Carpenter
asserts this instruction impermissibly prohibited jury nullification. The State responds
that the appellate court has already concluded this instruction is not erroneous, citing
State v. Moss, No. 113,034, 2016 WL 3856824 (Kan. App. 2016) (unpublished opinion),
rev. denied 306 Kan. 1327 (2017).

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"When analyzing jury instruction issues, an appellate court follows a three-step
process by: (1) Determining whether the appellate court can or should review the issue,
i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
appeal; (2) considering the merits to determine whether error occurred; and (3) assessing
whether the error requires reversal. State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d
877 (2015). Whether a party has preserved a jury instruction issue affects the reversibility
inquiry at the third step. 302 Kan. at 752; see also K.S.A. 2015 Supp. 22-3414(3) ('No
party may assign as error the giving or failure to give an instruction . . . unless the party
objects thereto before the jury retires to consider its verdict . . . unless the instruction or
the failure to give an instruction is clearly erroneous.')" State v. Louis, 305 Kan. 453, 457,
384 P.3d 1 (2016).

At trial, Carpenter objected to the district court's use of Instruction No. 8, arguing
"should" was more appropriate than "must." Since Carpenter properly preserved this
issue, we will consider whether any error occurred below. We are required to consider
whether the instruction was legally appropriate, using an unlimited review of the record.
305 Kan. at 457.

Instruction No. 8 was Legally Appropriate

Carpenter claims Instruction No. 8 was not legally appropriate because the word
"must" incorrectly informed the jury it could not nullify the verdict. Jury nullification is
the inherent power of juries "to disregard the rules of law and evidence in order to acquit
the defendant based upon the jurors' sympathies, notions of right and wrong, or a desire
to send a message on some social issue." State v. Allen, 52 Kan. App. 2d 729, 734, 372
P.3d 432 (2016), rev. denied 306 Kan. 1320 (2017). Jury nullification is always a
possibility. Silvers v. State, 38 Kan. App. 2d 886, 890, 173 P.3d 1167 (2008). Even so,
our Supreme Court has held that the district court must not instruct on jury nullification.
State v. McClanahan, 212 Kan. 208, ¶¶ 3, 4, 510 P.2d 153 (1973). On the other hand, our
Supreme Court has also held the district court may not instruct against nullification nor
compel a jury to convict. State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014).
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Instruction No. 8 is legally appropriate because it neither forbids nor encourages
jury nullification. This instruction comes directly from PIK Crim. 4th 68.010, and it
describes the jury's duty to consider the admitted evidence and stated law in reaching a
verdict. This duty exists "when the jury finds the defendant guilty, when the jury finds the
defendant not guilty, and when the jury nullifies the verdict." State v. Mitchell-Boyles,
No. 114,799, 2017 WL 129949, at *12 (Kan. App. 2017) (unpublished opinion), rev.
denied 306 Kan. 1327 (2017). This instruction is consistent with K.S.A. 22-3403(3),
which states that "[w]hen the trial is to a jury, questions of law shall be decided by the
court and issues of fact shall be determined by the jury." Likewise, it is consistent with
K.S.A. 2017 Supp. 60-247(d), which states that "jurors must swear or affirm to try the
case conscientiously and return a verdict according to the law and the evidence."
(Emphasis added.) See Moss, 2016 WL 3856824, at *17. As a result, many panels of this
court have found that the instruction at issue does not impermissibly preclude jury
nullification. See, e.g., State v. Trotter, No. 114,753, 2017 WL 3668908, at *3-5 (Kan.
App. 2017) (unpublished opinion), rev. denied 307 Kan. 993 (2018); Mitchell-Boyles,
2017 WL 129949, at *12-13; Moss, 2016 WL 3856824, at *17.

Carpenter relies on Smith-Parker to support his argument that Instruction No. 8
discouraged jury nullification. The Smith-Parker court held that an instruction telling
jurors "[i]f you do not have a reasonable doubt . . . that the State has proven murder in the
first degree. . . , then you will enter a verdict of guilty" was clearly erroneous. 301 Kan. at
163-64. The court found that this use of "will" comes too close to directing a verdict in
favor of the State. 301 Kan. at 164. The court similarly disapproved of the word "must"
in a reasonable doubt instruction. 301 Kan. at 164.

Carpenter tries to draw a parallel between the Smith-Parker holding and
Instruction No. 8, but this comparison is inapt. In Smith-Parker, the court addressed the
use of "must" and "will" in the context of a reasonable doubt instruction. The reasonable
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doubt instruction tells a jury what to do once it has decided the State has met its burden of
proof. In Smith-Parker, that instruction ordered the jury to return a guilty verdict. On the
other hand, Carpenter's challenged instruction simply informs the jury what to consider in
deciding whether the State has met its burden—"the evidence as admitted and the law as
given in these instructions." Thus, "the challenged instruction does not directly implicate
jury nullification in the same way as the language found wanting in Smith-Parker."
Trotter, 2017 WL 3668908, at *4.

Furthermore, as the State points out, Carpenter's proposed change to the jury
instruction would lead to other problems. At trial, Carpenter suggested that the district
court should replace "must" with "should." As the Trotter court explained: "The use of
'should' in the instruction would simply inform jurors they can (but need not) confine the
boundaries of their deliberations to the admitted evidence and the stated law, fostering the
notion they could investigate on their own by visiting a relevant place or exploring on the
internet." 2017 WL 3668908, at *4.

Sufficiency of the Evidence

Carpenter argues the evidence was insufficient to support his convictions for
distribution and possession of methamphetamine. He contends that "no rational factfinder
could have found Davidson's testimony sufficient to sustain a conviction for distribution
of methamphetamine." He also asserts that the circumstantial nature of the evidence
required the jury to engage in inference stacking to convict him. The State does not
directly address Carpenter's allegations of inference stacking but generally argues the
evidence was sufficient to support Carpenter's convictions.

"'When the sufficiency of the evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt.' [Citation
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omitted.]" State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). "'In making a
sufficiency determination, the appellate court does not reweigh evidence, resolve
evidentiary conflicts, or make determinations regarding witness credibility. [Citations
omitted.]'" State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016). It is only in rare cases
where the testimony is so incredible that no reasonable fact-finder could find guilt
beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233
Kan. 1, 5-6, 660 P.2d 945 (1983).

Circumstantial evidence may support a verdict, if that evidence provides a basis
for the fact-finder to make a reasonable inference about the fact in issue. Circumstantial
evidence, to be sufficient, need not exclude every other reasonable conclusion. State v.
Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). If the State relies solely on circumstantial
evidence to support a conviction, it must prove the circumstances themselves and it
cannot ask the jury to infer or presume circumstances from other circumstances. Asking
the jury to make a presumption based on another presumption is known as "inference
stacking," and it cannot support a conviction. State v. Banks, 306 Kan. 854, 859, 397 P.3d
1195 (2017).

Distribution of Methamphetamine

Carpenter challenges the evidence supporting his conviction for unlawful
distribution of methamphetamine. He states the only direct evidence of this crime was
Davidson's testimony. He argues Davidson's testimony about the controlled buy was
sparse, and "no rational juror would have found Davidson's testimony, alone, sufficient to
convict [him]."

Carpenter then asserts that Sgt. Meyer's testimony about this buy provided no
direct evidence and required the jury to engage in inference stacking. He highlights that
Meyers testified he gave Davidson money, he saw Davidson go into Carpenter's home,
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and then Davidson returned with methamphetamine. According to Carpenter, this
required the jury "to first infer that Davidson obtained the methamphetamine when he
was inside the house and, second, to infer that [Carpenter] gave Davidson this
methamphetamine" to reach a guilty verdict.

The flaw in Carpenter's argument is the jury did not have to rely solely on
Davidson's testimony or solely on Sgt. Meyers' testimony. The jury could consider both
witnesses' testimony together in reaching a verdict. While Davidson's testimony lacked
detail, his testimony was not so incredible that no reasonable fact-finder could rely on it
in reaching a verdict. Davidson testified he went to Carpenter's house on two occasions to
buy methamphetamine from Carpenter, but he could not remember all the details because
he had been to Carpenter's house many times before. Meyers' testimony corroborated
some of Davidson's testimony and established that the first buy took place on November
6. And while Meyers could not testify directly to what happened when Davidson was in
Carpenter's house, Davidson's testimony filled in this gap. Ultimately, Carpenter's
conviction for this charge comes down to a determination of Davidson's and Meyers'
credibility, a job for the jury, not us.

Possession of Methamphetamine

Carpenter claims the State required the jury to engage in inference stacking to
convict him of possession of methamphetamine. Carpenter states that "[t]he residual
amount of methamphetamine in the baggie found in [his] pocket was not detectable to the
naked eye." He contends that in order for the jury to conclude he intentionally possessed
this residual amount, it had to infer his intent "because (1) he had been engaged in drug-
related activity in the past, and (2) officers found the baggie in his pocket." According to
Carpenter, this was impermissible inference stacking.

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To begin with, Carpenter is incorrect when he says the residue in the baggie could
not be seen with the naked eye. Trial testimony established the white residue was visible,
but an observer would not be able to tell it was methamphetamine just by looking at it.

That said, the scenario Carpenter describes is not inference stacking because the
State proved the circumstances themselves. First, the State put on evidence that Carpenter
was familiar with drug-related activity. Davidson admitted being involved in drug sales
almost his entire life and stated he knew Carpenter. Davidson also testified Carpenter
sold him methamphetamine, and the methamphetamine he bought was in plastic baggies.
Meyers testified he overheard Davidson and Carpenter talking about digital scales and
going to another location to buy methamphetamine. Second, the State presented
testimony from an officer who said he found the plastic baggie in Carpenter's pocket. As
a result, the jury did not have to stack inferences here. Instead, it had two circumstances
from which it could draw the same inference.

If Carpenter is arguing the circumstantial evidence cannot support his conviction,
this argument also fails. The jury convicted Carpenter of unlawful possession of a
controlled substance under K.S.A. 2017 Supp. 21-5706. "'Possession' means having joint
or exclusive control over an item with knowledge of and intent to have such control or
knowingly keeping some item in a place where the person has some measure of access
and right of control." K.S.A. 2017 Supp. 21-5701(q). Carpenter's primary contention at
trial was the State had failed to prove he knew the white residue in the plastic baggie was
methamphetamine.

In Allen, the court held that circumstantial evidence was enough to show the
defendant knowingly possessed a residual amount of methamphetamine. A police officer
stopped Allen and found "a scale with 'a white powdery residue on it'" in Allen's truck. 52
Kan. App. 2d at 730. Testing confirmed the powder was methamphetamine. A jury
convicted him of possession of methamphetamine. Allen appealed, arguing the State
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failed to prove he knowingly possessed the drug. He claimed because the officer
"discovered only a small amount of methamphetamine residue on the scale, the residue
constituted an oversight on his part and not something he knowingly possessed." 52 Kan.
App. at 732. The Allen court rejected this argument, noting trial testimony showed the
residue was visible to the naked eye. The court held that because the officer found the
scale in Allen's truck, sufficient evidence supported "the conclusion that Allen knew
about and controlled the methamphetamine residue." 52 Kan. App. 2d at 733; see also
State v. Rooney, No. 116,539, 2017 WL 3948438, at *3 (Kan. App. 2017) (unpublished
opinion) (holding jury could reasonably infer defendant knowingly possessed
methamphetamine residue in baggie because the baggie was in her possession, she was
familiar with drug activity, and she knew there was a substance in baggie).

Likewise, Carpenter had a plastic baggie with white powder residue in his pants
pocket. The residue was visible to the naked eye. Carpenter also associated with a drug
dealer and drug activity. He had either sold Davidson methamphetamine in a plastic
baggie or been present when Davidson acquired methamphetamine in one. A jury could
reasonably infer from these circumstances that Carpenter knew about and controlled the
methamphetamine residue in his pocket. When viewed in the light most favorable to the
State, sufficient evidence supports Carpenter's convictions.

Sentencing

Carpenter argues the district court violated Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it increased his sentence based on his
criminal history without first requiring the State to prove his criminal history to a jury
beyond a reasonable doubt. He did not object to the use of his criminal history in this
way, but the Kansas Supreme Court has held that appellate courts can consider the
application of Apprendi for the first time on appeal. State v. Anthony, 273 Kan. 726, 727,
45 P.3d 852 (2002). Carpenter concedes that the Kansas Supreme Court has already
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rejected this argument in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). He
raises it now to preserve it for possible federal review.

We are duty bound to follow Kansas Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position. State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). There is no such indication here. The
district court thus did not err in using Carpenter's criminal history without first requiring
the State to prove it beyond a reasonable doubt to a jury.

Affirmed.