State v. Copeland

1

NOT DESIGNATED FOR PUBLICATION

No. 112,755

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WESLEY G. COPELAND SR.,
Appellant.


MEMORANDUM OPINION

Appeal from Chautauqua District Court; ROGER GOSSARD, judge. Opinion filed July 27, 2018.
Affirmed.

Sal Intagliata and Kathryn Stevenson, of Monnat & Spurrier, Chtd., of Wichita, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., BUSER and GARDNER, JJ.

PER CURIAM: Wesley G. Copeland Sr. appeals his convictions of one count of
aggravated assault, one count of unlawful manufacture of a controlled substance, multiple
counts of drug possession and unlawful possession of drug paraphernalia, and multiple
counts of criminal use of a weapon. Copeland argues that the district court (1) erred in
denying his pretrial motion to suppress his statements; (2) committed structural error by
granting a trial continuance outside of his presence without holding a hearing; and (3)
committed structural error in instructing the jury. We find no reversible error and affirm
the district court's judgment.

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FACTUAL AND PROCEDURAL BACKGROUND

On February 6, 2012, at about 8 a.m., Sedan Police Chief Cash Kimple spoke with
Dana Clanton, also known as Dana Copeland. Dana stated that earlier that morning she
and her boyfriend, Copeland, were arguing and Copeland became physically violent with
her. She stated that she went into her 10-year-old daughter's bedroom to console her.
Dana stated that after she laid down next to her daughter, Copeland came into the room
and pointed a gun at her. Dana became frightened for herself and her daughter's life.
Dana told Kimple that she wanted Copeland out of her home but he refused to leave.

Dana also stated that Copeland was acting paranoid—that he was walking around
the house armed with a gun; checking the doors, windows, and under the bed; and he had
not eaten or slept for three to four days. Based on the description of Copeland's behavior,
Kimple asked Dana if he was using bath salts or methamphetamine. Dana told Kimple
that she believed Copeland was using methamphetamine based on his paranoid behavior.

Kimple advised Dana to get a protection from abuse (PFA) order against Copeland
and not return to the house. Dana's handwritten PFA petition was consistent with her
initial statement to Kimple. Dana also spoke with Kimple and Chautauqua County Sheriff
Perry Russell after obtaining the temporary PFA order. Her statements were consistent
with her initial description to Kimple of the altercation with Copeland and Copeland's
behavior. She gave the officers more information about the firearms Copeland had in the
house. Dana stated that she believed, but was not entirely sure, that there was
methamphetamine in the house. She stated that she had recently bought Sudafed—that
contains pseudoephedrine, a drug compound used in manufacturing methamphetamine—
that had disappeared. Dana told the officers to use the back door when they went to the
house to serve Copeland with the temporary PFA order because Copeland may be
sleeping in the master bedroom and would not hear them at the front door.

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Later that day, Kimple and other law enforcement officers went to the house to
serve Copeland with the temporary PFA order. The officers used the back entrance and
could see Copeland lying on a bed through the glass door. The officers knocked on the
door and eventually Copeland told them to come in. Kimple stated that when he entered
the house he noted that there was an Uzi submachine gun on the bed and two rifles up
against the wall in the bedroom. After Copeland was helped out of bed, Kimple saw a
Springfield .45 caliber pistol next to where Copeland was lying. Kimple served Copeland
with the PFA order and arrested him for an aggravated assault against Dana.

During the search of the house, Deputy Richard Newby collected many firearms;
parts used to make a firearm automatic; and a tactical vest, computer case, and cabinet
containing boxes of bullets. In the master bedroom—where Copeland was found
earlier—officers located an Uzi submachine gun; two AR-15 rifles, one of which was
modified to become an automatic weapon; and a pistol lying on or near the bed.

The officers found a plastic bag containing white pills marked "M358" on a
counter in the utility room. Jeff Ryder, a Kansas Bureau of Investigation forensic
scientist, later tested and identified the pills as hydrocodone. Officers also found a pill
bottle in the master bedroom labeled "Hydrocodone" that had the personal identification
information ripped off. Ryder tested the pills inside the bottle and identified various
prescription medications, which included hydrocodone pills. The officers also found a red
metal can in the utility room that contained several burnt cigarettes. In Wesley Copeland
Jr.'s (Copeland's adult son) bedroom, the officers located a cigarette box that appeared to
contain one hand-rolled cigarette and a multicolored smoking pipe. Ryder testified that
the cigarette tested positive for marijuana and his tests on the smoking pipe detected
tetrahydrocannabinol, a psychoactive ingredient in marijuana.

The officers located various ingredients and tools used to manufacture
methamphetamine. Cedar Vale Police Chief Wayne Cline assisted in the investigation
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due to his training and experience in investigating clandestine laboratories. The officers
found a torn up lithium battery, coffee filters, many empty pseudoephedrine blister packs,
and a methamphetamine gas generator. They also found syringes and several spoons
containing an unknown substance. Ryder later tested and identified the substance on the
spoons as methamphetamine and pseudoephedrine. Cline stated that based on his
experience, the gas generator had been used within the last few days.

Newby testified that he conducted a computer search on the National Precursor
Law Exchange and Oklahoma Drug Tracker System. The systems track individuals'
purchases of medication containing pseudoephedrine and revealed that Copeland had
made many purchases in Kansas and Oklahoma between October 2011 and January 2012.

On February 17, 2012, the State charged Copeland in case No. 12CR6 with one
count of aggravated assault and one count of domestic battery for the incident involving
Dana. On April 16, 2012, the State charged Copeland in case No. 12CR13 with one count
of unlawful manufacture of a controlled substance; three counts of unlawful possession of
drug precursors or paraphernalia; one count of possession of methamphetamine; one
count of possession of hydrocodone; one count of possession of marijuana; one count of
possession of drug paraphernalia; and five counts of criminal use of a weapon. The State
later dismissed one of the counts of criminal use of a weapon.

In June 2013, Copeland filed a motion to suppress statements he made to Kimple
during the booking process and to Officer Lee Coate during his transportation to the jail.
Copeland argued that the statements should be suppressed because he had invoked his
right to counsel and did not voluntarily, knowingly, and intelligently waive his rights.

In February 2014, the district court held a hearing on the motion to suppress.
Kimple testified that he read the Miranda warnings to Copeland when he was arrested at
his residence on February 6, 2012, and Copeland invoked his right to remain silent.
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Copeland was booked into jail a short time later, and the State admitted a transcript of the
booking process because the video recording had some audio and visual problems. The
transcript of the booking interview begins with Kimple asking Copeland his birthdate,
driver's license number, and whether he had any other prescription medication other than
"Lortabs." Copeland stated in response to the prescription medication question: "There
should be pot and . . . meth." This response prompted Kimple to again read the Miranda
warnings to Copeland, and he again invoked his right to remain silent. Later in the
booking process the following exchange occurred:

"[Kimple]: Okay. You got some weapons in [the house] you're not supposed to?
"[Copeland]: I think—that's my father's.
"[Kimple]: Yeah.
"[Copeland]: And, you know, years ago and I just (inaudible)—
"[Kimple]: Okay. Okay. Like I said, I can't get you an attorney that—judge—
"[Copeland]: I understand."

Kimple admitted at the hearing that when he asked Copeland about the weapons at
the house, the question did not relate to the booking process. After the question about the
weapons, Kimple left the room. Then, the following exchange occurred:

"[Copeland]: Is Cash [Kimple] standing there?
"[Unidentified male]: No.
"[Coate]: You want him?"
"[Copeland]: Please.
"[Coate]: Hey, Cash?
"[Kimple]: Yes, sir.
"[Copeland]: I would really appreciate a cigarette. And so you know, the—the
meth I used, I made.
"[Kimple]: Oh, okay. Okay.
"[Copeland]: I take responsibility for it."

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Coate also testified at the hearing that he transported Copeland to the Elk County
jail. Coate stated that he did not ask Copeland any questions during the transport. But
Coate testified that Copeland told him during the transport that there was hydrochloric
acid underneath a plastic bucket in the tool room in the basement and that there was
marijuana in Wesley Jr.'s bedroom.

After hearing the evidence, the district court denied suppression of Copeland's
statements made to Coate during his transport, finding that the statements were voluntary
and not the result of questioning. The district court later denied the motion to suppress
Copeland's statements made during the booking process. The district court found that
Kimple's question about the weapons at the house was a routine booking question. As for
Copeland's statement expressing responsibility for the methamphetamine, the district
court found the statement was voluntary and not the result of a question by Kimple.

In July 2014, the State brought Copeland to trial before a jury. Dana testified at
trial that her prior statements about Copeland becoming physically violent with her were
lies, but she stated that Copeland did point a gun at her on February 6, 2012. The State
admitted a video recording of Wesley Jr. talking with Undersheriff Nick Reed in
February 2013. In the video, Wesley Jr. stated that he knew Copeland was cooking
"dope" at the residence. But Wesley Jr. testified at trial and disputed the statements he
made in the video interview with Reed. Wesley Jr. testified that he made the statements
because he wanted to strike a deal with the State in his own criminal case. Wesley Jr. also
testified that about 80 percent of the items in the basement belonged to him.

The jury found Copeland guilty of all charges, except the jury acquitted him on the
charge of domestic battery. In September 2014, the district court sentenced Copeland in
both cases to a controlling term of 162 months' imprisonment. Additional facts will be
discussed to address the issues. Copeland timely appealed.

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MOTION TO SUPPRESS

Copeland first argues that Kimple violated his right to counsel during the booking
process when he asked Copeland whether he had weapons that he should not have in his
home. Copeland argues that because his rights were violated here, all later statements he
made to law enforcement officers required suppression because substantial evidence does
not support that he validly waived his Miranda rights.

"When reviewing a motion to suppress evidence, the factual underpinnings of the
district court's decision are reviewed for substantial competent evidence and the ultimate
legal conclusion is reviewed de novo." State v. Cleverly, 305 Kan. 598, 604, 385 P.3d
512 (2016). "Substantial competent evidence is legal and relevant evidence a reasonable
person could accept to support a conclusion." State v. Bird, 298 Kan. 393, 399, 312 P.3d
1265 (2013). An appellate court "normally gives great deference to the factual findings of
the district court. The appellate court does not reweigh evidence, assess the credibility of
witnesses, or resolve conflicts in evidence. [Citations omitted.]" State v. Talkington, 301
Kan. 453, 461, 345 P.3d 258 (2015).

The parties do not contest the district court's findings that Copeland invoked his
right to counsel. Nor do the parties dispute that Copeland was in custody during the
booking process and the transport to Elk County Jail. Instead, the issue is whether
Copeland was subject to a custodial interrogation when he made the statements.

Law enforcement officers need not administer Miranda warnings before
questioning every person; but the procedural safeguards are triggered when a person is
both "(1) in custody and (2) subject to interrogation. A custodial interrogation is defined
as 'questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom in any significant way.' [Citations
omitted.]" State v. Warrior, 294 Kan. 484, 496, 277 P.3d 1111 (2012).
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Did Kimple interrogate Copeland during the booking process when he asked Copeland
whether he had illegal weapons at his house?

In Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 64 L. Ed. 2d 297
(1980), the United States Supreme Court explained that an interrogation as
conceptualized in Miranda v. Arizona, 384 U.S. 291, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), "must reflect a measure of compulsion above and beyond that inherent in custody
itself." The Court held that an interrogation occurs "whenever a person in custody is
subjected to either express questioning or its functional equivalent." 446 U.S. at 300-01.

In State v. Garcia, 233 Kan. 589, Syl. ¶ 6, 664 P.2d 1343 (1983), the Kansas
Supreme Court held that the routine gathering of background biographical information
for booking purposes from an accused after he or she had asserted their right to remain
silent or right to counsel does not constitute a custodial interrogation under Innis and
Miranda. In Garcia, the defendant argued that a detective violated his right against self-
incrimination and right to counsel when he asked questions from a "personal history
sheet," which included his name, address, physical description, description of his car,
names and addresses of relatives, prior arrests, and his parole officer. 233 Kan. at 602-03.
In sum, the court held that the five-minute interview did not constitute an "interrogation"
under Miranda and Innis because "none of the questions asked were designed to, nor in
actuality did, elicit any information concerning the crime charged or the appellant's
involvement in the crime." 233 Kan. at 607.

Copeland asserts that the district court erred in denying his motion to suppress
because his rights were violated when Kimple asked whether he had any weapons that he
was not supposed to have in his home. We agree. The district court improperly classified
Kimple's question about the weapons in Copeland's home as a routine booking question.
The question was not helpful in identifying or processing Copeland into jail or for
assessing available pretrial services. Also, it had the effect of eliciting an incriminating
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response about Copeland's involvement in the crimes charged because Copeland was
arrested for aggravated assault based, in part, on Dana's statements to Kimple that
Copeland pointed a gun at her. Thus, the district court erred in denying Copeland's
motion to suppress the question and response about weapons in Copeland's home.

A district court's erroneous admission of statements made in violation of a
defendant's Fifth Amendment rights is subject to the constitutional harmless error review.
State v. Salary, 301 Kan. 586, 607, 343 P.3d 1165 (2015). So to find the error harmless,
"this court must be persuaded beyond a reasonable doubt that there was no impact on the
trial's outcome, i.e., there is no reasonable possibility that the error contributed to the
verdict. As the party benefitting from the error, the State bears the burden of proving the
error was harmless. [Citations omitted.]" 301 Kan. at 607.

We agree with the State that the district court's failure to suppress the weapons-
related question and response was harmless because the evidence about the weapons was
properly admitted based on the lawful search of the home. In other words, because the
State properly admitted evidence about the location and the possession of weapons in the
lawful search of the home, there was no reasonable possibility that the error in admitting
Copeland's statement about the same weapons affected the outcome of the trial. Also,
though the question was improper, Copeland's response did not reveal any incriminating
information. Instead, Copeland responded that any illegal weapons in the house related in
some way to his father.

Did Kimple's improper question render all of Copeland's later statements inadmissible?

Copeland argues that because Kimple violated his right to counsel in asking the
weapons-related question, all statements made after that violation should be suppressed.
In particular, Copeland made a brief statement to Kimple at the end of the booking
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process in which Copeland took responsibility for making the methamphetamine.
Copeland also made statements to Coate during his transport to the jail.

Generally, when a defendant invokes his or her right to counsel during a custodial
interrogation, "all statements made after the invocation of the right must be suppressed."
Salary, 301 Kan. at 604. But Copeland's argument assumes that he was subject to an
"interrogation" when he made the statements to the police. As the district court found,
Copeland's later statements were voluntary and not the result of police questioning.

We agree with the district court that Copeland's statement taking responsibility for
the methamphetamine was voluntary and was not the result of police questioning. The
record reflects that the booking process had ended and Kimple had left the room. Then,
Copeland called for Kimple to return to the room so he could ask for a cigarette. Kimple
did not ask a question before Copeland made the statement about the methamphetamine.
Although Copeland previously had invoked his right to counsel, he waived that right and
voluntarily made a statement to Kimple about the methamphetamine without being
subjected to express questioning or its functional equivalent. Kimple's prior improper
question about the weapons did not render Copeland's later statement inadmissible.

During his transport to the Elk County Jail, Copeland told Coate that there was
hydrochloric acid in the basement of the house and that there was marijuana in Wesley
Jr.'s bedroom. The district court found that Copeland was not subject to an interrogation
when he made the statements to Coate. We agree. Substantial evidence supports a finding
that Copeland waived his right to counsel in making the statements. Coate testified at the
hearing on the motion to suppress that he did not question Copeland when he moved him
from the booking room to the vehicle and that the only conversation during the transport
was Copeland's voluntary statements. The district court did not err in admitting the
statements Copeland made to Coate during his transport to jail.

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Finally, in discussing harmless error, Copeland briefly argues that his assertions of
his right to counsel were improperly admitted at trial. These statements were not included
as part of Copeland's pretrial motion to suppress. Generally, a point raised incidentally in
a brief and not argued therein is deemed abandoned. State v. Sprague, 303 Kan. 418, 425,
362 P.3d 828 (2015). More importantly, we cannot consider whether there was error in
the admission of these statements because there was no contemporaneous objection to
these statements at trial. See K.S.A. 60-404. Thus, any issue relating to the admission of
Copeland's invocation of his right to counsel is not preserved.

TRIAL CONTINUANCE OUTSIDE OF COPELAND'S PRESENCE

For the first time on appeal, Copeland argues that the district court violated his
right to be present at a critical stage of his trial when it issued a written order, without
holding a hearing, which delayed his trial and granted the parties' agreement to strike the
trial from the docket. Copeland argues that this violation amounted to structural error
requiring the reversal of his convictions.

Criminal defendants charged with a felony have a constitutional and statutory right
to be present at all critical stages of their trial. U.S. Const. amend. V, VI, and XIV; Kan.
Const. Bill of Rights, § 10; K.S.A. 2017 Supp. 22-3405(a); State v. Davis, 284 Kan. 728,
731, 163 P.3d 1224 (2007). Whether a defendant's right to be present at a critical stage of
the trial was violated presents a question of law subject to unlimited review. State v.
Wright (Wright I), 305 Kan. 1176, 1178, 390 P.3d 899 (2017).

"Generally, a theory not asserted before the trial court—even an issue raising a
constitutional question—cannot be raised for the first time on appeal. [Citations
omitted.]" State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). The Kansas
Supreme Court recognizes three exceptions to this general rule:

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"(1) The newly asserted theory involves only a question of law arising on proved or
admitted facts and is determinative of the case; (2) consideration of the theory is
necessary to serve the ends of justice or to prevent the denial of fundamental rights; and
(3) the district court is right for the wrong reason. [Citations omitted.]" 299 Kan. at 493.

Copeland asserts that the first two exceptions apply. Because we agree that at least
the second exception applies here, we will consider this claim for the first time on appeal.
See State v. Knighten, 51 Kan. App. 2d 417, 427, 347 P.3d 1200 (2015) (defendant's right
to be present at all critical stages of trial addressed by court for first time on appeal).

Additional facts

Copeland was arraigned in both cases (12CR6 and 12CR13) on May 16, 2012,
while in custody. On October 10, 2012, the district court consolidated the two cases. At
that time, defense counsel had requested a continuance, and Copeland's speedy trial clock
was tolled. On January 23, 2013, Copeland's counsel requested another continuance and
agreed to a trial date of June 24, 2013. But defense counsel also placed the State and the
court on notice that Copeland wanted to have the case tried "as soon as possible."

Five days before the June 24, 2013 trial date, the district court found that another
continuance was necessary because material evidence was unavailable at that time. The
district court rescheduled the trial to August 5, 2013.

Meanwhile, on July 8, 2013, Copeland posted a surety bond and was released from
custody. On July 29, 2013, Copeland's attorney filed a request for another continuance to
review newly discovered evidence. At a hearing on July 31, 2013, Copeland waived his
speedy trial rights to allow his counsel time to review the evidence, and the district court
rescheduled the trial for January 6, 2014.

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However, on November 12, 2013, counsel for the State requested a continuance
because he had surgery and would be unavailable for the January 6, 2014 trial date.
Without holding a hearing, the district court granted the continuance "by agreement of
the parties" and removed the trial from the court's calendar. The court later rescheduled
the trial to begin on May 12, 2014.

On March 28, 2014, the State successfully argued a motion to revoke Copeland's
bond, and Copeland was placed back in custody on April 1, 2014. The district court again
continued the trial on May 12, 2014. Copeland remained in custody until his trial began
on July 10, 2014, and he was also facing a charge in Chautauqua County case No.
14CR18 for violating a protection order.

Did the district court err by granting a trial continuance outside of Copeland's presence?

The Kansas Supreme Court first addressed a defendant's right to be present at a
continuance hearing in State v. Brownlee, 302 Kan. 491, 354 P.3d 525 (2015). In that
case, defense counsel requested and was granted a continuance at a pretrial hearing
without the defendant being present at the hearing, and the continuance was assessed to
the defendant for speedy trial purposes. 302 Kan. at 494. The defendant later objected to
the continuance and argued that his statutory speedy trial right was violated because the
court erroneously assessed the continuance to the defendant. 302 Kan. at 507. The
defendant argued that his statutory and constitutional right to be present at all critical
stages of the proceedings had been infringed because he was not given the opportunity to
object in person to the critical continuance. 302 Kan. at 507.

Our Supreme Court ultimately held that the failure to allow the defendant to be
present at the continuance hearing was error under K.S.A. 2014 Supp. 22-3208(7), and
the defendant did not acquiesce in the continuance sought by defense counsel at the
hearing, so the delay caused by the continuance should not have been counted against the
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defendant for statutory speedy trial purposes. 302 Kan. at 508. But the court went on to
hold that under K.S.A. 2012 Supp. 22-3402(g), the Legislature, which created the
statutory speedy trial right in the first place, eliminated the remedy for its violation in
certain circumstances when a delay initially attributed to the defendant is later charged to
the State for any reason. 302 Kan. at 509-11. Thus, the defendant was denied any relief
for the violation of his right to be present at the hearing. 302 Kan. at 511.

Next, in State v. Dupree, 304 Kan. 43, Syl. ¶ 2, 371 P.3d 862 (2016), the court
reaffirmed its holding in Brownlee that a district court errs when it grants a defense
counsel's request for a trial continuance outside the defendant's presence:

"'Under the plain language of K.S.A. 22-3402, a continuance resulting from a
defendant's request stays the running of the statutory speedy trial period. When the
request is made by defense counsel, the request for continuance is attributable to the
defendant unless the defendant timely voices an objection. Because a defendant's
disagreement matters in a statutory speedy trial analysis, a defendant must have an
opportunity to be present to express that disagreement."

But like in Brownlee, the Dupree court held that under K.S.A. 2014 Supp. 22-
3402(g), the Legislature eliminated the remedy for a violation of the speedy trial statute
in certain circumstances when a delay initially attributed to the defendant is later charged
to the State for any reason. 304 Kan. at 50-51. The court went on to hold that K.S.A.
2014 Supp. 22-3402(g) does not create a vested right to dismissal, so the defendant was
not entitled to any relief for the violation of his right to be present at the continuance
hearing even though his statutory speedy trial rights would have otherwise been violated
before subsection (g) went into effect. 304 Kan. at 57.

In Wright I, 305 Kan. at 1178, the defendant again argued that his statutory and
constitutional right to be present at every critical stage was violated when his attorney
15

requested and received a trial continuance outside of his presence which affected his
statutory speedy trial right. After briefly discussing its rulings in Dupree and Brownlee,
the court stated: "We have no hesitance in ruling that [the defendant's] right to be present
at all critical stages of his trial was violated." 305 Kan. at 1178. But this time, the court
found that it was necessary to remand the case to the district court for factual findings to
permit the Supreme Court to determine whether the violation of the defendant's right to
be present amounted to harmless error. 305 Kan. at 1179-80. Specifically, the Supreme
Court ordered the district court to make factual findings on "'whether [the defendant's]
presence would have made any difference in the decision to grant the continuance.'" State
v. Wright (Wright II), 307 Kan. 449, 451, 410 P.3d 893 (2018).

On remand, the district court conducted an evidentiary hearing where counsel and
the judge who presided over the continuance hearing testified. After hearing the evidence,
the district court found that even if the defendant had been present at the continuance
hearing, the district court would have granted the continuance and charged the time to the
State, but the State would have still brought the case to trial within the statutory deadline.
307 Kan. at 452. Based on these findings, the Supreme Court found that the violation of
the defendant's right to be present at all critical stages was harmless error. 307 Kan. at
458. In a concurring opinion, two justices stated that they disagreed with the some of the
majority's conclusions on harmless error but pointed out that because the defendant was
only asserting a violation of his statutory speedy trial right, as opposed to a constitutional
speedy trial question, the district court's findings did not matter anyway because of the
effect of K.S.A. 2013 Supp. 22-3402(g) and the court's interpretation of that provision in
Brownlee. Wright II, 307 Kan. at 461-62 (Johnson, J., concurring).

Returning to our facts, the issue here differs somewhat from the continuances
granted in Brownlee, Dupree, and Wright where defense counsel requested and was
granted a continuance at a hearing outside the defendant's presence. Here, the record
reflects that the continuance was based on an agreement between the parties and was
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granted in a written order. But the law in Kansas is clear that the granting of a trial
continuance is a critical stage of a criminal proceeding, requiring the defendant's
presence. Because the district court granted the trial continuance outside of Copeland's
presence, we agree with Copeland that the district court's action violated his right to be
present at a critical stage of the proceedings.

The district court's error was not structural.

Copeland argues that the district court's error in granting the trial continuance in
November 2013 outside of his presence amounted to structural error requiring the
reversal of his convictions. An appellate court's consideration of whether an error is
structural or whether it may instead be declared harmless is a question of law over which
appellate courts have unlimited review. State v. McDaniel, 306 Kan. 595, 600, 395 P.3d
429 (2017); State v. Hill, 271 Kan. 929, 934, 26 P.3d 1267 (2001), abrogated on other
grounds by State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007).

"Structural errors 'are so intrinsically harmful as to require automatic reversal (i.e.,
"affect substantial rights") without regard to their effect on the outcome.' Neder v. United
States, 527 U.S. 1, 7, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)." Hill, 271 Kan. at 934.
"Errors are structural when they defy harmless-error analysis because they affect the
framework within which the trial proceeds." State v. Johnson, 53 Kan. App. 2d 734, 737,
391 P.3d 711, rev. granted 306 Kan. 1325 (2017). But only a few constitutional errors
have been found as structural, such as the total deprivation of counsel, the lack of an
impartial judge, the denial of a right to self-representation, the violation of a right to a
public trial, and an erroneous reasonable doubt instruction. 53 Kan. App. 2d at 736; see
United States v. Marcus, 560 U.S. 258, 263, 130 S. Ct. 2159, 176 L. Ed. 2d 1012 (2010).

Copeland argues the district court committed a structural error when it failed to
hold a hearing on the parties' motion to strike his jury trial from the docket because this
17

court's review of the issue will only amount to a speculative inquiry. But it is clear from
our discussion of the above cases that the Kansas Supreme Court has never viewed a
violation of the defendant's right to be present at a continuance hearing as structural error,
even though the error amounts to a violation of the defendant's constitutional right to be
present at all critical stages. In fact, in every case in which our Supreme Court has
addressed this issue, the court ultimately found the error to be harmless.

We reject Copeland's claim that the district court committed structural error by
granting a trial continuance outside of his presence without holding a hearing. While the
district court erred in violating Copeland's right to be present at all critical stages, the
error does not affect the entire framework of the trial so as to constitute structural error.
Like most trial errors, we must analyze whether the violation of Copeland's right requires
us to reverse his convictions rather than being harmless.

Harmless error analysis

Because the district court's error was not structural, a harmless error analysis is
appropriate. As we have stated, to find a constitutional error harmless, the appellate court
must be persuaded beyond a reasonable doubt that there was no impact on the trial's
outcome, i.e., there is no reasonable possibility that the error contributed to the verdict.
Salary, 301 Kan. at 607. As the party benefitting from the error, the State bears the
burden of proving the error was harmless. 301 Kan. at 607.

The record is clear that Copeland has never asserted a violation of his
constitutional right to a speedy trial. The only prejudice he asserts from the violation of
his right to be present is a possible violation of his statutory speedy trial right. But
Copeland's claim differs from the defendants' claims in Brownlee, Dupree, and Wright
because Copeland does not specifically assert that the district court's November 2013 trial
continuance extended the speedy trial clock beyond the statutory deadline.
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Here, in November 2013, the district court granted a trial continuance outside of
Copeland's presence without holding a hearing. The trial continuance was from January
6, 2014, to May 12, 2014. Copeland was not in custody when the trial continuance was
granted. But on March 28, 2014, the State successfully argued a motion to revoke
Copeland's bond, and Copeland was placed back in custody on April 1, 2014. He
remained in custody until his trial began on July 10, 2014, and he was also facing a
charge in Chautauqua County case No. 14CR18 for violating a protection order.

Although Copeland asserted a statutory speedy trial claim in district court, he did
not expressly argue that the district court's November 2013 order violated his speedy trial
right. While this appeal was pending, this court granted a joint request to remand to the
district court to reconstruct a hearing held on July 7, 2014, addressing Copeland's motion
to dismiss. But Copeland did not request a remand for additional factual findings about
the November 2013 continuance order, nor does he ask for a remand now. He simply
argues that the violation of his right to be present was structural error.

The district court's November 2013 order granted a continuance "by agreement of
the parties" and temporarily removed the trial from the court's calendar. Copeland was
being held on another charge for part of that time, so any delay after he was being held on
multiple charges could not have violated the speedy trial statute. See K.S.A. 2017 Supp.
22-3402(a). But even if we assume that the November 2013 trial continuance extended
the speedy trial clock beyond the statutory deadline, and even if we also assume that the
district court would have assessed the continuance solely to the State had Copeland been
present to object, he still faces the obstacle caused by K.S.A. 2017 Supp. 22-3402(g).

As we have discussed, K.S.A. 2017 Supp. 22-3402(g) provides that if a delay
initially attributed to the defendant is later charged to the State for any reason, such delay
shall not be used as a ground for dismissing a case or for reversing a conviction unless
the delay would result in a violation of the constitutional right to a speedy trial or there is
19

prosecutorial misconduct related to the delay. Copeland is not claiming a constitutional
speedy trial violation, nor is he claiming prosecutorial misconduct related to the delay.
He is asking us to reverse his convictions for the violation of his right to be present when
his trial was continued in November 2013, and the only prejudice he asserts from that
violation is that the trial delay initially attributed him, in part, should have been charged
solely to the State. That is the precise remedy the statute now bars.

We understand that the State bears the burden of proving any error was harmless.
Salary, 301 Kan. at 607. But based on the claims Copeland is asserting and the record
before us in this case, we find that he is not entitled to a reversal of his convictions based
on the violation of his right to be present when his trial continuance was granted. We
cannot discern any reason to remand this case to the district court for additional factual
findings on this issue. Thus, we conclude that the district court's error in granting a trial
continuance outside of Copeland's presence was harmless.

ERROR IN INSTRUCTING JURY

Finally, Copeland argues that the district court erred in instructing the jury that it
could find him guilty of the crimes if the State proved he committed one element of the
crimes. Copeland asserts that the error requires automatic reversal as structural error
because it lowered the State's burden to prove him guilty beyond a reasonable doubt.

Typically, this court reviews jury instructional errors under a four-step approach:

"'"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
20

appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 565 U.S. 1221 (2012)."' [Citation omitted.]" State v. Fisher, 304 Kan. 242, 256-
57, 373 P.3d 781 (2016).

Copeland concedes that he did not object to the district court's culpable mental
state instruction that he now challenges as erroneous on appeal. Due to his failure to
object, this court will review the alleged error—if the error is not found structural—under
the clearly erroneous standard. See K.S.A. 2017 Supp. 22-3414(3); State v. Brown, 306
Kan. 1145, 1164, 401 P.3d 611 (2017). The clearly erroneous standard is a two-step
review which requires "[this court to] first determine whether the instructions were
legally and factually appropriate, employing an unlimited review of the entire record. If
error is found, 'the defendant must firmly convince the court the jury would have reached
a different result without the error.' [Citations omitted.]" 306 Kan. at 1164.

Copeland argues that the district court diluted the State's burden of proof based on
the following jury instruction:

"Instruction No. 21
"The State must prove that the defendant committed one element of the crime of
manufacture of methamphetamine, possession of ephedrine, possession of lithium,
possession of coffee filters, Coleman camp fuel and a gas generator, possessed
methamphetamine, possessed hydrocodone, possessed marijuana, and possessed
paraphernalia.
"A defendant acts intentionally when it is the defendant's desire or conscious
objective to do the act complained about by the State.
"The State must prove that the defendant knowingly committed one element of the
crime of aggravated assault with a deadly weapon (gun), domestic battery, possessed an
Uzi submachine gun, possessed an AR-15 rifle, possessed a Springfield 1911 pistol, and
possessed a .22 pistol.
21

"A defendant acts knowingly when the defendant is aware of the nature of his
conduct that the State complains about, the circumstances in which he was acting, and
that his conduct was reasonably certain to cause the result complained about by the
State." (Emphases added.)

PIK Crim. 4th 52.010 (2012 ed.) used at Copeland's trial provides, in part:

"The State must prove that the defendant committed [one element of] the crime
insert one of the following:
 "intentionally."
"or
 "knowingly.
"or
 "recklessly."

It appears that the district committed a clerical error in preparing Instruction No.
21 for the jury. In the first paragraph of Instruction No. 21, the district court failed to
delete the bracketed words "one element of" and the court also failed to insert
"intentionally" as the appropriate culpable mental state. Yet the district court defined the
term "intentionally" in the very next paragraph. Likewise, the court failed to delete the
bracketed words "one element of" in the third paragraph of Instruction No. 21, but it did
insert and define the term "knowingly" as the appropriate culpable mental state.
Apparently no one noticed the errors because neither party objected to the instruction.

Instruction No. 21 is not legally appropriate. The State concedes the first sentence
in Instruction No. 21 is not legally appropriate because it omits the word "intentionally."
More importantly, the instruction incorrectly directed the jury that the State must prove
only one element of the crimes charged.

Copeland argues that the error in Instruction No. 21 was structural. As stated
above, this court's analysis of whether an error is structural or whether it may instead be
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declared harmless is a question of law over which appellate courts have unlimited review.
McDaniel, 306 Kan. at 600; Hill, 271 Kan. at 934. Structural errors "affect the framework
within which the trial proceeds." Johnson, 53 Kan. App. 2d at 737. As applied to jury
instructions, only a misstatement of the State's burden of proof has been held to be a
structural error. Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S. Ct. 2078, 124 L. Ed.
2d 182 (1993); Miller v. State, 298 Kan. 921, 938-39, 318 P.3d 155 (2014). Other jury
instruction errors, such as omitting an element of the charged crimes from the jury
instructions, are subject to a harmless error standard. See Neder, 527 U.S. at 9-10.

In Miller, the petitioner complained that his appellate counsel provided ineffective
assistance of counsel in failing to challenge an erroneous reasonable doubt instruction.
The Kansas Supreme Court agreed and explained:

"The incorrect written jury instruction at issue read: 'If you have a reasonable
doubt as to the truth of each of the claims required to be proved by the State, you must
find the defendant not guilty.' The word 'each' was substituted for 'any' in what was the
standard PIK jury instruction at that time. See PIK Crim. 3d 52.02 (2004 Supp.). This
substitution effectively told the jury it could acquit Miller only if it had a reasonable
doubt as to all of the elements the State was required to prove—rather than acquitting
him if it had a reasonable doubt as to any single element. As admitted by the State, the
written instruction was plainly wrong." 298 Kan. at 923.

Copeland argues Instruction No. 21 diluted the State's burden of proof because "a
literal understanding of the erroneous . . . instruction directed the jury to find [Copeland]
guilty if it had no reasonable doubt as to the truth on one element of each charged
offense." Copeland's argument has merit when Instruction No. 21 is read in isolation. But
appellate courts must examine "'jury instructions as a whole, without focusing on any
single instruction, in order to determine whether they properly and fairly state the
applicable law or whether it is reasonable to conclude that they could have misled the
jury.' [Citations omitted.]" State v. Mattox, 305 Kan. 1015, 1020, 390 P.3d 514 (2017).
23

Copeland concedes the district court properly instructed the jury using the
individual elements instruction for each applicable charge. Each elements instruction told
the jury: "To establish this charge, each of the following claims must be proved" and
listed the elements the State had to prove. Likewise, Copeland does not argue that the
reasonable doubt instruction—on its own—is erroneous, and the district court here
properly instructed the jury on burden of proof as follows:

"Instruction No. 23
"The State has the burden to prove the defendant is guilty. The defendant is not
required to prove he is not guilty. You must presume that he is not guilty unless you are
convinced from the evidence that he is guilty.
"The test you must use in determining whether the defendant is guilty or not
guilty is this: If you have a reasonable doubt as to the truth of any of the claims required
to be proved by the State, you must find the defendant not guilty. If you have no
reasonable doubt as to the truth of each of the claims required to be proved by the State,
you should find the defendant guilty." (Emphases added.)

Significantly, the error here is distinguishable from the structural error in Miller
where the actual reasonable doubt instruction unconstitutionally defined the State's
burden to prove the crime beyond a reasonable doubt. The error in the reasonable doubt
instruction in Miller tainted the entire set of instructions given to the jury to the extent
that the instructions as a whole did not fairly and properly state the applicable law on the
State's burden of proof. Here, the reasonable doubt instruction, as well as the elements
instruction for each individual charge, properly instructed the jury that the State must
prove each of the claims asserted by the State beyond a reasonable doubt.

The parties' closing arguments provide additional support that the jury was
properly instructed on the State's burden of proof. The State explained during closing
argument that it needed to prove all the elements of the charges. During closing, the State
reviewed each charge and discussed the evidence that supported the particular elements
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of each charge. The defense counsel also reviewed the burden of proof instruction in
closing arguments, stating: "The burden of proof is applicable to each and every element
of the claim that comprises the charge." Defense counsel also reviewed the reasonable
doubt test with the jury. Finally, in rebuttal closing, the State also stated that, based on the
evidence, it had proven every element of the case.

Based on a review of the instructions as whole and the parties' closing arguments,
the jury was properly instructed on the State's burden of proof beyond a reasonable doubt.
The jury instructions as a whole did not dilute the State's burden to prove Copeland guilty
beyond a reasonable doubt to the extent that it affected the entire framework of the trial.
We conclude that the error in Instruction No. 21 does not constitute structural error.

Copeland has not argued that his convictions require reversal under the clear error
standard. We find there was no clear error for the same reasons that we find there was no
structural error. Moreover, the evidence supporting the charges against Copeland was
substantial. Copeland does not firmly convince us that the jury would have reached a
different result with a proper culpable mental state instruction. Instruction No. 21 along
with the jury instructions as a whole were not clearly erroneous.

Affirmed.