State v. Judd

1

NOT DESIGNATED FOR PUBLICATION

No. 112,606

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MATTHEW SIDNEY JUDD,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed May 20, 2016.
Reversed in part, vacated, and remanded with directions.

Samuel Schirer, of Kansas Appellate Defender Office, for appellant.

Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., BRUNS, J., and WALKER, S.J.

Per Curiam: Defendant Matthew Judd appeals convictions for possession of
illegal drugs and paraphernalia following a jury trial in Lyon County District Court. Law
enforcement officers confiscated the contraband in a search of a mobile home Judd rented
and shared with several other people. We reverse and enter judgments of acquittal on a
conviction for possession of methamphetamine and a conviction for possession of
paraphernalia for lack of evidence showing Judd possessed the illicit items. We reverse
the remaining conviction for felony possession of marijuana and remand for a new trial
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because the prosecutor's closing argument alone or in combination with an error in the
jury instructions deprived Judd of a fair trial.

FACTUAL AND PROCEDURAL HISTORY

In late 2013, Lyon County Sheriff's Deputies Cory Doudican and Heath Samuels,
along with Emporia Police Officer Robert Shipley, went to the mobile home. The officers
were assigned to an interagency drug task force, although the precise purpose of their
visit that day isn't particularly clear from the record. As the officers approached the door
of the mobile home, Preston Dobson came out on the porch. Doudican smelled marijuana
and through the open front door saw a glass pipe—likely drug paraphernalia—on a table
in the living room.

The officers identified Dobson and determined he had outstanding warrants, so
they immediately arrested him. They searched Dobson and found small plastic bags and a
syringe, also likely drug paraphernalia. Dobson told them another person was inside. The
officers summoned the occupant to come out. When they heard nothing, they entered the
mobile home. The officers found Steven Carroll asleep in one of the bedrooms. They
awoke him and secured the mobile home while they sought a search warrant.

After promptly obtaining a warrant, Doudican and Samuels searched the mobile
home. In addition to the pipe Doudican had seen on the table, they found a zippered case
underneath the cushions of a sofa in the living room. The case contained a digital scale
and a glass pipe of the sort used to smoke illegal drugs. A similar pipe was found in
Carroll's bedroom. The officers also confiscated from the kitchen what they described as
a homemade smoking device fashioned from a plastic bottle. In the closet of a second
bedroom, the officers found a grinder they considered drug paraphernalia.

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Carroll told the officers he resided at the mobile home and used the bedroom
where he had been sleeping. He admitted the pipe found there belonged to him. Carroll
said Judd and his girlfriend used the second bedroom. The officers found men's and
women's clothing in that bedroom. Dobson had been staying at the mobile home for
several days. He slept on the couch in the living room and placed his belongings along
one wall of the living room. A third bedroom appeared to be the domain of a resident dog
and was described as being in a rather unhygienic state as a result. The law enforcement
officers noted a video security system, including a camera at the front of the mobile home
and a monitor inside. Neither Judd nor his girlfriend showed up at the mobile home while
the law enforcement officers were there.

A forensic chemist with the Kansas Bureau of Investigation found marijuana in the
grinder taken from Judd's bedroom and traces of methamphetamine in the glass pipe in
the zippered case.

The State charged Judd with possession of methamphetamine, a felony, based on
the residue in the glass pipe; felony possession of marijuana for the material in the
grinder; and one misdemeanor count of possession of paraphernalia for both the grinder
in the closet and the smoking device in the kitchen. In a 1-day trial in July 2014, the jury
convicted Judd of all three charges. The only witnesses were Doudican, Samuels, and the
KBI chemist. The officers testified to their interactions with Dobson and Carroll and their
search of the mobile home. Samuels provided undisputed testimony that only Judd had
signed the lease as a tenant of the mobile home. The State offered no out-of-court
statements from Judd, his girlfriend, or others that incriminated him.

At a later hearing, the district court sentenced Judd to a prison term of 30 months
for possession of methamphetamine to be served concurrently with lesser terms of
incarceration for possession of marijuana and possession of paraphernalia. Judd has
timely appealed.
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LEGAL ANALYSIS

Sufficiency of the Evidence

For his first issue on appeal, Judd challenges the sufficiency of the evidence to
support the convictions. In reviewing a sufficiency challenge, we construe the evidence in
a light most favorable to the party prevailing below, here the State, and in support of the
jury's verdicts. An appellate court will neither reweigh the evidence generally nor make
credibility determinations specifically. State v. Williams, 299 Kan. 509, 525, 324 P.3d
1078 (2014); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for
review is whether rational jurors could have found the defendant guilty beyond a
reasonable doubt. State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014). At the
same time, however, convictions may not rest on speculation or surmise. See State v.
Williams, 229 Kan. 646, 663-64, 630 P.2d 694 (1981); State v. Perez-Rivera, 41 Kan.
App. 2d 579, 582, 203 P.3d 735 (2009).

Pivotal here, all of the charges required the State to prove that Judd had possession
of the drugs or paraphernalia. For purposes of those crimes, "possession" is statutorily
defined as "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. 2015 Supp. 21-5701(q). The definition
requires the defendant know of the contraband and have some intent to or right of control.
See State v. Keel, 302 Kan. 560, 567, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865
(2016). The statute essentially codifies what had been a settled judicial explanation of
possession of drug-related contraband. Keel, 302 Kan. at 567; State v. Washington, 244
Kan. 652, 654, 772 P.2d 768 (1989); State v. Flinchpaugh, 232 Kan. 831, 833-34, 659
P.2d 208 (1983).

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The Kansas appellate courts have recognized that the observation or seizure of
drug contraband in a common area of a residence occupied by multiple individuals is
itself insufficient to convict an occupant of unlawful possession. Keel, 302 Kan. at 567-
68; State v. Cruz, 15 Kan. App. 2d 476, 489, 809 P.2d 1233, rev. denied 249 Kan. 777
(1991); see State v. Abbott, 277 Kan. 161, 167-68, 83 P.3d 794 (2004) (acknowledging
and applying rule to motor vehicle). Something more must link the defendant to the drugs
or paraphernalia. The appellate courts have identified various circumstantial and direct
indicia of knowledge and control that may forge that link. Those indicia include: (1) the
defendant's past use or sale of drugs; (2) the defendant's proximity to the contraband upon
which the charges have been based; (3) the location of the contraband in plain sight; and
(4) the defendant's incriminating statements or suspicious behavior related to the
contraband. Keel, 302 Kan. at 567-68; see also Abbott, 277 Kan. at 168 (noting those
indicia and including defendant's physical possession of other drugs or paraphernalia
when arrested or otherwise searched by law enforcement officers).

We consider the drugs and paraphernalia the officers found in the living room and
kitchen of the mobile home separately from the grinder they found in the bedroom Judd
shared with his girlfriend. But, as we explain, the disposition of the issue is unusual
because the State charged only one count of possession of paraphernalia, lumping
together the grinder and the altered plastic bottle as a single offense. Both Dobson and
Carroll had access to the common areas of the mobile home to the same extent as Judd.
Indeed, Dobson actually had been living in a common area for at least a couple of days
when the law enforcement officers showed up. The methamphetamine was discovered in
a zippered case hidden in the cushions of the sofa that Dobson had been using as a bed.
Judd was not present during the encounter with Doudican and Samuels. All of that put
Dobson in much greater proximity to the methamphetamine and weighed against Judd's
possession of it. And Dobson had personal possession of other drug contraband when the
officers arrived, meaning he was no stranger to those kinds of things. The State's
evidence included no representations from the residents of the mobile home attributing
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the zippered case or the methamphetamine to Judd or anyone else. Consistent with
Kansas law, a verdict convicting Judd of possession of the contents of the case, including
the methamphetamine, rested on unmoored speculation rather than reasoned inference. It
was, then, insufficiently supported in the evidence.

When trial evidence fails to establish the crime of conviction, an appellate court
should reverse the conviction, vacate the resulting sentence, and enter a judgment of
acquittal. See Tibbs v. Florida, 457 U.S. 31, 40-41, 102 S. Ct. 2211, 72 L. Ed. 2d 652
(1982); State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007); State v. Hollins, 9
Kan. App. 2d 487, 489-90, 681 P.2d 687 (1984). We do so here as to Judd's conviction
for possession of methamphetamine.

The same analysis guides our review of Judd's conviction for possession of
paraphernalia based on the altered plastic bottle the officers found in the kitchen. The
item could have been Dobson's or Carroll's and kept among their respective possessions
until Judd left the mobile home. Nobody testified the modified bottle was regularly kept
openly in the kitchen. Only speculation suggests Judd knew of the plastic bottle or had
sole or joint possession of it. The jurors were instructed that to find Judd guilty they had
to conclude he possessed both the modified bottle and the grinder. The evidence was
insufficient to do so. We, therefore, reverse that conviction, vacate that sentence, and
enter a judgment of acquittal.

Before turning to the grinder found in Judd's bedroom, we pause to say the jury's
errant conclusions are not especially surprising. As we discuss later, the jury instructions
did not adequately explain the legal principles governing possession of drug contraband
when law enforcement officers recover items from common areas of a residence with
multiple occupants. Moreover, the prosecutor's closing argument misstated the law to
place what amounted to near absolute liability on Judd for any contraband in the mobile
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home simply because he alone signed the lease. Those mistakes necessarily confounded
the jurors' ability to apply the law to the facts in this case.

The grinder and the marijuana it contained offer a materially different
circumstance than do the contraband in the common areas. The officers found the grinder
in a closet in a bedroom Judd and his girlfriend occupied to the exclusion of other
residents of the mobile home. That fact was undisputed at trial. But the officers' trial
testimony is vague about how the grinder was kept in the closet. Neither we nor the jurors
know if it was in plain sight, covered up by clothing, or hidden in a box or some other
container. The officers appear to have readily found the grinder, supporting an inference
that a person simply opening the closet would see it.

Accordingly, a factfinder could fairly conclude Judd had knowledge of the grinder
and at least common or joint possession of it with his girlfriend. That sets the grinder
apart from the drug contraband in the common areas of the mobile home. Who owned the
grinder is irrelevant. The crime requires possession of proscribed items. Simply put, a
person does not necessarily own everything he or she possesses (think hedge clippers
borrowed from a neighbor) or possess everything he or she owns (think a car loaned to a
child at college). Although less than overwhelming, the evidence would have supported
Judd's conviction for possession of paraphernalia based on the grinder alone. But that's
not how he was charged or how the possession of paraphernalia charge was presented to
the jury. The evidence, however, also establishes a sufficient, if thin, basis for upholding
Judd's conviction for possession of the marijuana found in the grinder. Judd offers no
argument about the sufficiency of the evidence as to the marijuana distinct from the
grinder, and the trial evidence doesn't really support one. We, therefore, reject the
sufficiency argument as to the marijuana conviction.


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Absence of Jury Instruction on Nonexclusive Possession

For his next point on appeal, Judd contends the district court erred in not giving
the jurors an instruction outlining the indicia supporting possession of drug contraband as
stated in Keel and Abbott. At trial, Judd neither requested that instruction nor objected to
the district court's failure to give it. But he did not request the instruction the district court
actually gave addressing possession and, thus, did not invite what he now challenges as
error. See State v. Dern, 303 Kan. 384, 397-98, 362 P.3d 566 (2015).

The Kansas Supreme Court has outlined the sequential steps to be taken in
assessing a claimed error in instructing jurors on the governing law. State v. Brown, 300
Kan. 542, 554-55, 331 P.3d 781 (2014); State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283
P.3d 202 (2012). The appellate court determines: (1) reviewability considering
preservation of the issue at trial and jurisdiction; (2) legal appropriateness of the
instruction; (3) factual support in the evidence for the instruction; and (4) harmlessness of
any actual error. Plummer, 295 Kan. 156, Syl. ¶ 1. The test for harmlessness borrows the
standards set forth in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied
132 S. Ct. 1594 (2012), for assessing errors that compromise a criminal defendant's
constitutional rights and those that do not. Plummer, 295 Kan. at 162-63. This method of
analysis governs all challenges to jury instructions, even those raised initially on appeal.
But when a criminal defendant challenges jury instructions for the first time on appeal,
the reviewing court must find any defect caused clear error to reverse. See K.S.A. 2015
Supp. 22-3414(3); State v. Haberlein, 296 Kan. 195, 203-04, 290 P.3d 640 (2012).

The omission may be reviewed, but we must apply the clearly erroneous standard.
An instruction on indicia of possession of drug contraband would seem to be both
factually and legally warranted in this case. The circumstances here arose from the
alleged possession of drug contraband where there may have been joint access and
control or possession. So the considerations were factually relevant to what the jurors had
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to decide. The indicia have been and remain part of the governing law in drug contraband
cases. See Keel, 302 Kan. at 567-68. We fail to see why an instruction outlining those
indicia would be legally inappropriate in this case.[1]

[1]An instruction informing jurors of factual considerations bearing on possession
was at one time included among the pattern instructions for criminal cases. See PIK
Crim. 3d 67.13-D. The instruction was to be given as part of a more general instruction
defining possession of drug contraband in those particular cases in which the facts
presented issues of "nonexclusive possession." No comparable instruction appears in PIK
Crim. 4th, and the change from PIK Crim. 3d is unexplained. Obviously, such an
instruction would not be factually appropriate in every drug case—only those in which
the defendant did not have exclusive possession of the contraband.

The district court instructed the jurors on possession simply by giving them
verbatim the statutory definition from K.S.A. 2015 Supp. 21-5701(q) and nothing more.
Although the definition is necessarily a correct statement of the law, that doesn't
automatically make it fully understandable to jurors in the fact-specific context of the
case they must decide. Nor is it, by any means, a complete statement of the relevant law.
The instruction refers to "joint control" and suggests the "knowledge of and the intent to
have such control" may be sufficient. The law requires the defendant to have actual
knowledge of the contraband. Keel, 302 Kan. 560, Syl. ¶ 1 (crime requires "specific
intent to exercise control over the [controlled] substance, with knowledge of the nature of
the substance"). The instruction then states alternatively that knowingly keeping an item
in a place over which the defendant has access and a right of control establishes
possession. But the instruction fails to explain in clear terms that Kansas law requires
more than the contraband be in a common area of a place to which the defendant and
others have access to satisfy the legal requirements for possession. Given the facts here,
the omission reflects a material gap in the relevant legal principles. In turn, the jurors
were given incomplete guidance on what constitutes possession, resulting in error. The
district court provided the jurors with a separate instruction stating Judd had to act
"intentionally" in possessing the drug contraband. But that information didn't really help
the jurors understand the concept of possession.
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Error alone, however, does not mandate relief. Judd must also demonstrate legal
prejudice. And we must measure the prejudice to Judd under a more rigorous standard
precisely because he failed to call the district court's attention to the error. The Kansas
Supreme Court has restated the test for granting relief in that situation to be "whether [the
appellate court] is firmly convinced that the jury would have reached a different verdict
had the instruction error not occurred." State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286
P.3d 195 (2012); see State v. Mireles, 297 Kan. 339, Syl. ¶¶ 5-7, 301 P.3d 677 (2013);
State v. Trujillo, 296 Kan. 625, 630-31, 294 P.3d 281 (2013). The burden is on Judd to
make that showing. See Williams, 295 Kan. 506, Syl. ¶ 5.

If we were wrong in concluding insufficient evidence supported the convictions
for possession of methamphetamine and for possession of the paraphernalia, this would
provide an alternative ground for reversing those convictions. The ultimate remedy,
however, would be a new trial rather than a judgment of acquittal. We, therefore, first
consider the instructional error as to those convictions. Assuming the evidence were
sufficient to support those convictions, it would have been barely so. Properly instructed,
the jurors could have entertained a reasonable doubt as to Judd's guilt because inferences
consistent with the indicia of possession outlined in Keel and Abbott would have more
strongly pointed to Carroll and Dobson. Given the thin evidence on those convictions, we
are firmly convinced there would have been a different result—either an acquittal or a
hung jury—requiring us to reverse and remand for a new trial as a remedy for the
instructional error.

The conviction for possession of the marijuana found in the grinder presents a
considerably closer question. The circumstantial evidence pointing toward Judd's
possession of the grinder (and the marijuana), perhaps jointly with his girlfriend, is
somewhat stronger. While an instruction on the indicia of possession almost certainly
would have aided the jurors in their consideration of that charge, we are not firmly
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persuaded the outcome would have been different. It would have been a better informed
outcome but not necessarily a different one. Considered against the clearly erroneous
standard, then, we decline to reverse the conviction for possession of marijuana on this
point.

State's Closing Argument

Judd next contends the prosecutor's closing argument amounted to misconduct
requiring reversal of all three convictions. We agree. In arriving at that conclusion, we
focus on one aspect of the closing argument. Judd has raised other complaints about the
argument, but we put them aside. The closing arguments were comparatively brief—each
side asked for 10 minutes to sum up. There really wasn't that much evidence to discuss.

Throughout her argument to the jurors, the prosecutor stated Judd could be held
legally accountable for all of the drugs and paraphernalia Doudican and Samuels found in
the mobile home because he had signed the lease as the tenant. To be plain, that is not the
law in Kansas with respect to drug contraband law enforcement officers find in common
areas of a dwelling occupied by more than one person. See Keel, 302 Kan. at 567-68;
Cruz, 15 Kan. App. 2d at 489. The prosecutor's articulated position would make a
resident owner of a dwelling criminally liable for any drug contraband guests or other
occupants might bring onto the premises. The result would be a form of strict criminal
liability that the law does not recognize.

The prosecutor, nonetheless, began the argument that way and returned to the idea
as an emphatic refrain. The prosecutor immediately told the jurors:

"The buck stops here. That's all there is to it. Mr. Judd is the only person on the
lease for that house [address omitted]. The only person on the lease[;] the owner of the
house. He had a bedroom there. Everyone else was staying there. You heard the officers
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testify they didn't know how long each of those other people had been there. Whether it
had been a short time or a long time. But the buck stops here."

The prosecutor reminded the jurors that drugs and paraphernalia were "throughout the
entire house" and then added for emphasis, "Mr. Judd's house." Later, she repeated that
contraband was found "[a]t his home" and again told the jurors, "The buck stops here." In
her rebuttal argument, the prosecutor closed this way: "What we have is paraphernalia
with methamphetamine and marijuana residue in Mr. Judd's house. Bucks [sic] stops
here. His name's on the lease." The prosecutor began and concluded her pitch to the
jurors with the same misstatement of the law. We have identified half a dozen references
the prosecutor made to Judd being on the lease or the owner of the mobile home as a
reason the jurors should find him guilty of the charges.

Kansas courts use a well-recognized, two-step test for measuring the impropriety
of closing arguments in criminal cases:

"'First, the appellate court must decide whether the comments fall outside the wide
latitude afforded a prosecutor in discussing the evidence and the law. Second, if the
prosecutor has exceeded those bounds, the appellate court must determine whether the
improper comments constitute plain error; that is, whether the statements prejudiced the
jury to the extent the defendant was denied a fair trial. State v. McReynolds, 288 Kan.
318, 323, 202 P.3d 658 (2009) (outlining mode of analysis); see State v. King, 288 Kan.
333, 351, 204 P.3d 585 (2009) (noting considerable range permitted advocates, including
prosecutor, in arguing their causes in jury summations).'" State v. Franco, 49 Kan. App.
2d 924, 938, 319 P.3d 551 (2014) (quoting State v. Schreiner, 46 Kan. App. 2d 778, 793-
94, 264 P.3d 1033 [2011], rev. denied 296 Kan. 1135 [2013]).

If the argument falls outside what is proper, the courts then look at three factors to
assess the degree of prejudice:

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"'(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed
ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors. None of these three factors is individually controlling. Moreover, the third
factor may not override the first two factors unless the harmless error tests of both K.S.A.
60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v.
California, 386 U.S. 18, [22-24,] 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) [conclusion
beyond a reasonable doubt that the error . . . changed the result of the trial], have been
met. [Citations omitted.]'" State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).

The Kansas Supreme Court has recently reiterated this test. See State v. Barber, 302 Kan.
367, 378-79, 353 P.3d 1108 (2015); State v. De La Torre, 300 Kan. 591, 608, 331 P.3d
815, cert. denied 135 S. Ct. 728 (2014).

As we have already indicated, a prosecutor may not misstate the law in closing
argument and engages in what is commonly characterized as misconduct by doing so. See
State v. Tahah, 302 Kan. 783, 791, 358 P.3d 819 (2015) (prosecutor's misstatement of
law in closing argument "constitutes error"); State v. Huddleston, 298 Kan. 941, 953, 318
P.3d 140 (2014) (prosecutor's erroneous characterization of premeditation in closing
argument misconduct); State v. Sellers, No. 112,858, 2015 WL 9287026, at *3 (Kan.
App. 2015) (unpublished opinion) ("A prosecutor commits misconduct by misstating the
law applicable to a case."). The prosecutor patently erred here. We, therefore, move to the
second phase of the analysis to gauge the resulting prejudice to Judd.

The prosecutor's argument seems undeniably gross and flagrant. The law is and
has been clear that the owner of a dwelling occupied by multiple residents is not
criminally liable for drug contraband by reason of his or her ownership interest alone. But
the prosecutor argued that very proposition to the jurors and repeatedly urged them to
convict Judd on that basis. The nature of the error and its repetition establish both
grossness and flagrancy. See State v. Ortega, 300 Kan. 761, 782, 335 P.3d 93 (2014)
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(hallmarks of grossly and flagrantly improper argument include "repeated comments
emphasizing an improper point [and] planned or calculated statements"). We have on
occasion excused an improper argument as harmless when the prosecutor's comments are
fleeting and seemingly spontaneous rather than part of a discernable theme. See State v.
Perales, No. 110,246, 2015 WL 6630443, at *4 (Kan. App. 2015) (unpublished opinion);
State v. Little, No. 104,794, 2012 WL 3000342, at *9-10 (Kan. App. 2012) (unpublished
opinion), rev. denied 297 Kan. 1252 (2013). Here, equating ownership of the premises
with guilt was not just a theme of the prosecutor's argument, it was the theme.

Similar considerations infuse the determination of prosecutorial ill will. In Ortega,
300 Kan. at 782, the court explained that repeated reliance on a plain misstatement of the
law evinces the requisite ill will to support prejudice. The prosecutor's argument here
falters in both respects. The thrust of the argument fell well short of a debatable legal
premise; it was obviously wrong. And the prosecutor hammered the jurors with the
erroneous assertion. Although the prosecutor neither attempted to skirt a ruling of the
district court prohibiting the argument nor forged ahead notwithstanding a sustained
objection from Judd's lawyer, the thematic use of an improper legal proposition to
promote a guilty verdict displays ill will.

Finally, we look at the quality of the evidence and ask whether it was so direct and
overwhelming as to render the prosecutor's misstatements in argument of little import to
the jurors in deciding to convict. Without repeating what we have already discussed, the
evidence was anything but direct and overwhelming. It was, at best, skimpy and, as to
some of the charges, wholly inadequate in our view. As we have indicated, the best
explanation for the jury's verdicts rests on the combined impact of the prosecutor's
closing argument and the omission of an instruction on the indicia of possession. The
jurors reasonably could have concluded the law holds a tenant signing a lease for a
dwelling responsible for drug contraband found on the premises even though other people
also lived there. Such a mistaken conclusion looms large here and fatally infects each of
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the verdicts. In short, the prosecutor's improper closing argument alone requires reversal
of all three convictions and remand for retrial.

Cumulative Error

Judd also argues that the cumulative effect of the errors in the district court
deprived him of a fair trial. Appellate courts will weigh the collective impact of trial
errors and may grant relief if the overall result of the imperfections deprives the
defendant of a fair hearing even when the errors considered individually could be
considered harmless. State v. Smith-Parker, 301 Kan. 132, 167-68, 340 P.3d 485 (2014).
An appellate court looks at the entire trial record to assess the aggregate effect of multiple
trial errors. 301 Kan. at 168.

We choose not to belabor this point. But if we have overestimated the prejudicial
impact of the prosecutor's closing argument as a discrete error requiring reversal, then the
cumulative effect of the improper argument and the flawed jury instructions considered in
tandem deprived Judd of a fair trial. Those errors in combination reasonably kept the
jurors from understanding and applying the correct legal principles to the facts they
found—all to Judd's detriment. Judd would, therefore, be entitled to relief in the form of a
new trial based on cumulative error. Cf. Smith-Parker, 301 Kan. at 168 (evidentiary
errors combined with instructional errors on pertinent legal principles resulted in
prejudicial cumulative error); State v. Magallanez, 290 Kan. 906, 926-27, 235 P.3d 460
(2010) (same).[2]

[2]Judd has asserted additional reasons that his convictions should be reversed and
he should receive a new trial. Given our rulings and the relief due Judd, we have no
reason to address those arguments and decline to do so. We have held that Judd should be
acquitted of two of the charges and is entitled to a new trial on the other charge.
Alternatively, we have determined he should receive a new trial on all of the charges.

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Finally, Judd has argued that his criminal history was incorrectly scored resulting
in too severe a presumptive sentence. The issue is moot, since we have reversed all of the
convictions and the concomitant sentences. Judd premised his substantive argument on
State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014), modified by Supreme Court
order September 19, 2014. After Judd filed his appellate brief, the Kansas Supreme Court
overruled Murdock. Keel, 302 Kan. 560, Syl. ¶ 9, 590-91. If we were to consider Judd's
sentencing argument on the merits, it would fail.

Conclusion

Judd's convictions for possession of methamphetamine and for possession of drug
paraphernalia are reversed for insufficient evidence. The sentences are vacated, and
judgments of acquittal on those charges are entered for Judd. Judd's conviction for
possession of marijuana based on the material found in the grinder is reversed. The
sentence is vacated, and the charge is remanded for a new trial. The district court shall
enter such additional orders as may be necessary and consistent with this opinion.