State v. Cushinberry

1

NOT DESIGNATED FOR PUBLICATION

No. 114,324

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICHARD CUSHINBERRY,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed April 14, 2017. Affirmed in
part, reversed in part, and remanded.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., BUSER and POWELL, JJ.

Per Curiam: This is an appeal of Richard Cushinberry's three drug convictions.
Cushinberry raises three issues. First, he asserts that clear error was committed when the
trial court failed to provide the jury with a culpable state of mind instruction related to the
drug charges. Second, he contends the evidence at trial was insufficient to sustain the
convictions. Third, Cushinberry complains that his conviction of unlawful possession of
drug paraphernalia should be reversed because the elements instruction did not contain all
of the elements of the crime necessary to sustain the conviction.
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Upon our review of the record and the parties' briefs, we affirm Cushinberry's
convictions for possession of codeine and possession of marijuana. However, we reverse
his conviction for possession of drug paraphernalia, vacate the sentence, and remand for
further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of November 17, 2013, Richard and Angela Cushinberry had a
heated argument in their home. As a result, Angela called the police. Officers Ryan
Allison and Glenn McMurray of the Hutchinson Police Department responded shortly
thereafter and separated the couple. Angela alleged that during the dispute Cushinberry
had thrown a vase and shattered the bedroom mirror. Cushinberry admitted breaking the
mirror but claimed it occurred accidentally when he kicked a bed which caused the mirror
to fall and break. Based on the officers' investigation, Cushinberry was arrested for
criminal damage to property.

After his arrest, Cushinberry asked the officers to retrieve his cell phone that he
carried in his backpack. Officer Allison testified that Cushinberry could not recall which
pocket contained the cell phone and ultimately asked the officers to "bring the bag with
him." When asked about its contents, Cushinberry stated there was nothing inside the bag
"that might get him in trouble or shouldn't be there." Officer Allison subsequently
searched the bag and discovered "a green plastic container that had marijuana residue in
it . . . a smoking pipe that had burned marijuana residue in it," and a prescription pill
bottle with a different person's name on it. In addition, Officer Allison discovered "lots of
pills" in other small packages throughout the backpack. The officer collected all of the
items as evidence.

Cushinberry observed the search of his backpack and stated that the marijuana was
for "medicinal purposes." Officer Allison informed Cushinberry "the State of Kansas did
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not recognize medicinal marijuana," to which Cushinberry responded, "I know." The
Kansas Bureau of Investigation conducted tests on the glass smoking pipe and a pill
found within Cushinberry's backpack. Tests detected marijuana (THC) in the pipe and
codeine in the pill.

The State charged Cushinberry with possession of codeine, a severity level 5 drug
felony in violation of K.S.A. 2013 Supp. 21-5706(a); possession of marijuana, a class A
misdemeanor in violation of K.S.A. 2013 Supp. 21-5706(b)(3); use or possession with
intent to use drug paraphernalia, a class A misdemeanor in violation of K.S.A. 2013
Supp. 21-5709(b)(2); and criminal damage to property, a class B misdemeanor in
violation of K.S.A. 2013 Supp. 21-5813(a)(1) and (b)(3). Cushinberry pled not guilty.

After a trial, the jury found Cushinberry guilty of the first three charges but
acquitted him of criminal damage to property. Cushinberry was sentenced to a controlling
sentence of 18 months of mandatory drug treatment with an underlying prison term of 24
months and 12 months' postrealease supervision.

Cushinberry timely filed this appeal.

FAILURE TO PROVIDE A CULPABLE STATE OF MIND JURY INSTRUCTION

On appeal, Cushinberry first contends the trial court failed to comply with K.S.A.
2013 Supp. 21-5202(d) when it omitted a culpable state of mind instruction in
conjunction with the elements of the three drug charges which were contained in
Instruction Nos. 6, 7, and 8. In particular, Cushinberry contends the trial court was legally
required to inform the jury that to convict him of these specific drug crimes, the crimes
"had to be committed intentionally, knowingly, or recklessly."

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When reviewing challenges to jury instructions, Kansas courts follow a multistep
analysis:

"'(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
appellate court must determine whether the error was harmless.' [Citation omitted.]" State
v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).

Our review of this issue is unlimited. State v. Wade, 284 Kan. 527, 534, 161 P.3d
704 (2007).

The first step of reviewability concerns whether this court may exercise its
appellate jurisdiction and whether the defendant raised any objection to the instructions at
trial. State v. Simmons, 295 Kan. 171, 175, 283 P.3d 212 (2012). Cushinberry does not
contest jurisdiction in his brief, nor did he object to Instruction Nos. 6, 7, and 8 at trial on
the basis that the necessary culpable state of mind was not provided to the jury. When a
party fails to object to a jury instruction at trial but challenges that instruction on appeal,
appellate courts review the trial court's conduct for clear error. K.S.A. 2013 Supp. 22-
3414(3). Thus, Cushinberry "'must firmly convince [this court] that the giving of [a
different] instruction would have made a difference in the verdict.' [Citation omitted.]"
State v. Soto, 301 Kan. 969, 984, 349 P.3d 1256 (2015).

The second step of the analysis considers the legal appropriateness of the jury
instruction proposed by Cushinberry. In this case, we consider the legal appropriateness
of an instruction that included a statement regarding the culpable state of mind necessary
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to commit the three drug offenses. The instructions Cushinberry objects to contain almost
identical language. For example, Instruction No. 6 read:

"In Count One, Richard Cushinberry is charged with unlawfully possessing
codeine. Richard Cushinberry pleads not guilty. To establish this charge, each of the
following claims must be proved:
"1. Richard Cushinberry possessed codeine.
"2. This act occurred on or about the 17th day of November, 2013, in Reno
County, Kansas.
"'Possession' means having joint or exclusive control over an item with
knowledge of and the 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."

Instruction Nos. 6, 7, and 8 are identical to PIK Crim. 4th 57.040 to be submitted
to the jury in use and possession of drugs and drug paraphernalia cases. Nevertheless, for
the first time on appeal, Cushinberry objects to these instructions and alleges they did not
prescribe a culpable mental state as required by Kansas law.

Cushinberry presents the following argument. K.S.A. 2013 Supp. 21-5706(a)
provides: "It shall be unlawful for any person to possess any opiates, opium or narcotic
drugs, or any stimulant . . . or a controlled substance analog thereof." This statute,
according to Cushinberry, does not "set forth any particular culpable state of mind."
Consequently, Cushinberry asserts that K.S.A. 2013 Supp. 21-5202(d) applies in this
particular case. That statute provides: "If the definition of a crime does not prescribe a
culpable mental state, a culpable mental state is nevertheless required unless the
definition plainly dispenses with any mental element." K.S.A. 2013 Supp. 21-5202(d). As
a result, Cushinberry argues that Instruction Nos. 6, 7, and 8 should have provided that
his conduct was "committed intentionally, knowingly, or recklessly." See K.S.A. 2013
Supp. 21-5202(a); PIK Crim. 4th 52.300. Lastly, Cushinberry asserts that PIK Crim. 4th
52.010—which contains the definitions for each culpable mental state—should have been
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included in the jury instructions and the trial court erred when it failed to add this
language.

Cushinberry's argument is contrary to Kansas caselaw. As the State points out, our
court recently rejected an identical argument in State v. Hanks, No. 114,640, 2016 WL
4585620 (Kan. App. 2016) (unpublished opinion). In that case, the defendant objected to
the jury instruction for possession of methamphetamine, raising a similar argument to the
one presented by Cushinberry. Our court rejected the defendant's claim that the
possession instruction was erroneous stating: "[The defendant] ignores the clear
language of the instruction defining the mental state required for possession." 2016 WL
4585620, at *2. The court continued:

"Standing alone, K.S.A. 2015 Supp. 21-5706(a) does not identify a culpable mental state.
But in K.S.A. 2015 Supp. 21-5701(q), the introductory statute in Article 57 dealing with
crimes involving controlled substances, the term 'possession' as used in Article 57 is
defined so as to include having control over an item with 'knowledge of and intent to
have such control.' Reading these statutes together, as we are required to do, K.S.A. 2015
Supp. 21-5706(a) and K.S.A. 2015 Supp. 21-5701(q) predicate [the defendant's]
conviction upon a showing that she possessed the methamphetamine knowing that she
had control over it and intending to exercise such control." (Emphasis added.) 2016 WL
4585620, at *2.

According to our court, in Hanks, the trial court's "instruction defined the crime of
possessing the methamphetamine as 'having joint or exclusive control over [it] with
knowledge of and the intent to have such control or knowingly keeping [it] in a place
where [she] has some measure of access and right of control.'" 2016 WL 4585620, at *3.
The court concluded that the instruction identified the culpable mental state of mind
necessary to support a conviction. 2016 WL 4585620, at *3.

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We find the holding and rationale of Hanks is persuasive and controls the outcome
here given the similar facts and defendant's legal argument. Because the district court in
this case provided the statutory definition for possession in Instruction Nos. 6, 7, and 8, it
also informed the jury of the required culpable mental state. We find no instructional
error in this regard.

Moreover, assuming there was error, we would next consider whether the trial
court's omission of the instruction was clearly erroneous. To find clear error, an appellate
court must be firmly convinced the jury would have reached a different verdict absent the
instructional error. State v. Gleason, 305 Kan. 794, ___, 388 P.3d 101, 109 (2017). This
inquiry requires the reviewing court to consider the evidence as memorialized in the
record on appeal to determine the error's impact. See State v. Cheever, 304 Kan. 866,
886-87, 375 P.3d 979 (2016).

As discussed in the next issue, we have reviewed the record on appeal and have
concluded there was substantial competent evidence to prove that Cushinberry knowingly
and intentionally possessed the contraband found in his backpack. In this regard,
Cushinberry's defense at trial was not that he accidentally or inadvertently possessed the
contraband but that Angela put it in his backpack. In light of the trial evidence, we
conclude the jury would not have reached a different verdict had it received the culpable
state of mind instruction which Cushinberry now claims was required.

SUFFICIENCY OF THE EVIDENCE

Next, Cushinberry contends there was insufficient evidence to convict him of
possession of codeine, possession of marijuana, and possession of drug paraphernalia.
Cushinberry structures his argument around the same culpable state of mind premise
asserted in his first issue, namely, that the trial evidence failed to show his conduct was
intentional, knowing, or reckless.
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When a criminal defendant challenges the sufficiency of evidence, appellate courts
review all the trial evidence in the light most favorable to the State. This court will
uphold a conviction if, based on the evidence presented at trial, it is convinced that a
rational factfinder could have found the defendant guilty beyond a reasonable doubt.
State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015). The reviewing court will not
reweigh the evidence or assess the credibility of witnesses. State v. Daws, 303 Kan. 785,
789, 368 P.3d 1074 (2016).

In support of his contention, Cushinberry asserts that his decision to bring the
backpack with him to jail demonstrates that he did not intentionally or knowingly possess
drugs or drug paraphernalia. He argues that "it is completely illogical that [he] would
have invited the specter of additional charges by allowing the police to search the
backpack if he had known items of contraband were inside it."

On the other hand, several evidentiary facts support the State's position that
Cushinberry's possession of the contraband was knowing and intentional. At trial, Officer
Allison testified that he discovered the drugs and drug paraphernalia inside Cushinberry's
backpack—an important fact Cushinberry did not dispute. Angela testified that
Cushinberry always carried his backpack with him and that he had been through drug
rehabilitation before but "kept getting worse." Moreover, the State and Cushinberry
stipulated that the pill and glass pipe found in Cushinberry's backpack tested positive for
codeine and THC respectively. Most importantly, Cushinberry told Officer Allison that
he used the marijuana found in his backpack for "medicinal purposes," yet understood
that such use was illegal in Kansas. This evidence undercut Cushinberry's defense theory
that Angela placed the contraband in his backpack. It also contravened Cushinberry's
argument on appeal that the evidence did not show his knowing and intentional conduct.

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Upon our review of the entire record, we are convinced that a rational factfinder
could have found beyond a reasonable doubt that Cushinberry knowingly and
intentionally possessed both the drugs and drug paraphernalia.

FAILURE TO PROVIDE A PROPER POSSESSION OF
DRUG PARAPHERNALIA INSTRUCTION

Finally, Cushinberry contends he was deprived of his due process rights when the
trial court failed to include every element of the crime for possession of drug
paraphernalia in Instruction No. 8. The instruction as initially written and read to the jury
provided:

"In Count Three, Richard Cushinberry is charged with unlawfully using drug
paraphernalia. Richard Cushinberry pleads not guilty. To establish this charge, each of
the following claims must be proved:
"1. Richard Cushinberry used a black pipe used to inhale marijuana;
"2. This act occurred on or about the 17th day of November, 2013, in Reno
County, Kansas.
"'Possession' means having joint or exclusive control over an item with
knowledge of and the 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." (Emphasis
added.)

During trial, as the trial court read Instruction No. 8 to the jury, the State objected.
The prosecutor argued to the trial court:

"[F]or the crime of possession of paraphernalia the State does not have to show he used
the pipe that day. Just that he possessed the pipe that day. I believe the language in
sentence one, thereof used a black pipe on the 17th day is incorrect. It's possessed the
black pipe that had been used to inhale marijuana." (Emphasis added.)

10

Defense counsel objected that any modification to Instruction No. 8 would confuse the
jury, and as a result, it should remain unchanged.

The trial judge ruled, "I'm going to go ahead and make that change. I will instruct
the jury and reread [Instruction] No. 8 and before we send the jury back I will correct
their copies." Thereafter, the trial judge read the amended version of Instruction No. 8 to
the jury which, as modified, stated in pertinent part:

"In Count Three, Richard Cushinberry is charged with unlawfully using drug
paraphernalia. Richard Cushinberry pleads not guilty. To establish this charge, each of
the following claims must be proved:
"1. Richard Cushinberry possessed a black pipe used to inhale marijuana."
(Emphasis added.)

This amended instruction did result in a jury question. During deliberations, the
foreman wrote a note to the court asking: "In Count 3 [Instruction No. 8], should the
charge read that [Cushinberry] is charged with possession not using?" This question
resulted in another conference between the parties and the trial court, with the State
asking that the instruction be amended once again, and the defense reiterating its
objection to any modification. After considering the arguments, the trial court ruled that it
would further amend Instruction No. 8 to instruct the jury: "[I]n Count III Richard
Cushinberry is charged with unlawfully possessing drug paraphernalia." (Emphasis
added.)

On appeal, Cushinberry argues that, despite these amendments, the district court
still provided an instruction to the jury that was missing an element of the crime.

K.S.A. 2013 Supp. 21-5709(b) provides: "It shall be unlawful for any person to
use or possess with intent to use any drug paraphernalia to . . . (2) store, contain, conceal,
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inject, ingest, inhale or otherwise introduce a controlled substance into the human body."
(Emphasis added.)

The PIK instruction for use or possession of drug paraphernalia reflects this
language and reads:

"The defendant is charged with unlawfully (using drug paraphernalia)
(possessing drug paraphernalia with intent to use it). The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant (used insert description of object) (possessed insert
description of object with the intent to use it) as drug paraphernalia to insert one of the
following:
. . . .
 store, contain, conceal, inject, ingest, inhale or otherwise introduce into
the human body insert name of controlled substance.
"2. This act occurred on or about the ___ day of _______, ___, in _______
County, Kansas." PIK Crim. 4th 57.100.

Cushinberry points out that Instruction No. 8, as finally explained to the jurors
after their question about it during deliberations, failed to include the italicized language:
"possessed a black pipe with intent to use it" as provided in both K.S.A. 2013 Supp. 21-
5709(b) and PIK Crim. 4th 57.100. Cushinberry alleges this omission deprived him of his
due process rights because "[he] was found guilty of a crime when the jury was never
asked to find all the elements of the crime with which he was charged."

In response, the State first contends we should not review this issue because at
trial Cushinberry never objected to Instruction No. 8 on a constitutional due process
basis. Second, the State essentially concedes that Instruction No. 8 lacked the "with intent
to use it" element to the crime. However, the State contends this omission did not
constitute clear error which would require reversal of the possession of drug
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paraphernalia conviction. Our standard of review regarding this matter is the same as
provided in the first issue regarding instructing the jury on a culpable state of mind. See
Woods, 301 Kan. at 876.

Is this issue appropriate for our review? Although Cushinberry objected in the
district court about the modifications made to Instruction No. 8, he did not base his
objections on a due process violation. Generally, issues not raised before the district court
may not be raised on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014).
There are, however, three exceptions to this rule, including that consideration of the issue
is necessary to serve the ends of justice or to prevent denial of fundamental rights. State
v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Cushinberry asserts this exception, arguing that a failure to find him guilty of all
the elements of possession of drug paraphernalia constituted a denial of his fundamental
right to due process. A jury instruction that fails to include an element of the offense
implicates a defendant's right to jury trial protected by the Sixth Amendment to the
United States Constitution and § 10 of the Kansas Constitution Bill of Rights. See Neder
v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 114 L. Ed. 2d 35 (1999). We are
persuaded that Cushinberry may raise this issue for the first time on appeal.

Next, as implicitly conceded by the State, the final, modified Instruction No. 8 did
not allow the jury to consider and unanimously agree on the essential element of the
crime that Cushinberry possessed the black pipe with the intent to use it as drug
paraphernalia. Because the district court did not sufficiently inform the jury of all the
elements of the charged crime, we find error.

Was this instructional error harmless? When a district court erroneously omits an
element of the charged offense, the United States Supreme Court has recognized that the
error may be harmless if the omitted element was "uncontested and supported by
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overwhelming evidence." Neder, 527 U.S. at 17. The Kansas Supreme Court adopted this
same standard in State v. Richardson, 290 Kan. 176, 182-83, 224 P.3d 553 (2010). Under
this standard, an appellate court determines whether the record contains evidence that
could rationally lead to a contrary finding with respect to the omitted element. If not, then
the district court's error was harmless. 290 Kan. at 182-83; see State v. Olivares, No.
110,313, 2014 WL 6676063, at *6 (Kan. App. 2014), rev. denied 302 Kan. 1018 (2015).

Upon our review of the record, there were facts which tended to show that
Cushinberry had previously used the black pipe to smoke marijuana. Still, Cushinberry's
intent to use the pipe to smoke marijuana as of the date of the offense was not
"uncontested and supported by overwhelming evidence." Neder, 527 U.S. at 17.
Cushinberry testified at trial, "as far as the marijuana, yes, I used to use it, but I don't use
it no more. I just quit. I just quit." When specifically asked, "Now, at that point in time,
November 17th, 2013, were you using marijuana?" Cushinberry denied it. Moreover,
Cushinberry claimed the black pipe was actually a broken piece of pipe. Under cross-
examination, the following colloquy occurred:

"Q. And you stated that you have used marijuana in the past?
"A. Yes.
"Q. And you stated that the, what the officer found in the black pouch was in
fact a piece of a marijuana pipe?
"A. A broken piece, yes, it was.
"Q. So that pipe had been used to smoke marijuana?
"A. Yes.
"Q. And you knew it was in your backpack?
"A. I did not know it was in there. Why would I have a broken piece of
something to smoke out of if it was broke? It was just in the bottom of that zip thing.
There was no marijuana in the thing. It was only about that big. A broken piece of a
pipe."

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We are persuaded that Cushinberrry's intent to use the black pipe to smoke
marijuana at the time of the offense was controverted. As such, he had a due process right
to have the jury consider whether he possessed the pipe with the intent to use marijuana.

When an error infringes upon a party's federal constitutional right, a court will
declare constitutional error harmless only where the party benefiting from the error
persuades the court "beyond a reasonable doubt that the error complained of will not or
did not affect the outcome of the trial in light of the entire record, i.e., proves there is no
reasonable possibility that the error affected the verdict." State v. Ward, 292 Kan. 541,
569, 256 P.3d 801 (2011) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17
L. Ed. 2d 705 (1966).

Given the jury's question about the twice-modified Instruction No. 8, and the
controverted testimony about Cushinberry's intent at the time he possessed the black pipe,
we are not persuaded beyond a reasonable doubt that the instructional omission did not
affect the outcome of the trial in light of the entire record as it pertains to the offense of
possession with intent to use drug paraphernalia. Finding clear error, we reverse this
conviction and vacate the sentence.

The possession of codeine and possession of marijuana convictions are affirmed.
The possession with intent to use drug paraphernalia conviction is reversed, the sentence
is vacated, and the matter is remanded to the district court for further proceedings.

Affirmed in part, reversed in part, and remanded for further proceedings.