State v. Perez-Hernandez

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NOT DESIGNATED FOR PUBLICATION

No. 112,690

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LEONARDO PEREZ-HERNANDEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Rice District Court; STEVEN E. JOHNSON, judge. Opinion filed January 8, 2016.
Affirmed.

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

Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.

Per Curiam: Leonardo Perez-Hernandez was convicted in a jury trial of felony
theft of diesel fuel. He timely appeals. On appeal, Perez-Hernandez presents two points
of error: (1) The district court erred by not striking all of the branch manager's testimony
because it contained inadmissible hearsay evidence; and (2) the district court erred by
giving a preliminary jury instruction at the beginning of the jury trial. We find the
testimony by the branch manager about the container's capacity was inadmissible
hearsay; however, the error in admitting the container's capacity was harmless given the
overwhelming volume of evidence to support Perez-Hernandez' guilt. Additionally, we
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find the district court did not err in giving the preliminary jury instruction at the start of
the trial. We affirm.

FACTS

Perez-Hernandez was charged with the theft of more than $1,000 of diesel fuel
from Farmers Co-op in Lyons. The theft occurred between September 23, 2012, and July
21, 2013. Perez-Hernandez pled not guilty.

After the jury was impaneled but prior to opening statements, the district court
read the jury preliminary instructions which included the following:

"You must not engage in activities or be exposed to any information that might
unfairly affect the outcome of this case. Any juror who violates these restrictions I have
explained to you jeopardizes the fairness of these proceedings and a mistrial could result
that would require the entire trial process to start over. As you can imagine, a mistrial is a
tremendous expense and inconvenience to the parties, the Court, and the taxpayers."

The parties did not have an opportunity to comment on, or object to, the preliminary
instructions before they were read. The record reflects Perez-Hernandez did not
contemporaneously object to the instruction.

The State called two witnesses to testify: The branch manager of Farmers Co-op
(the Co-op), and Chris Detmer, Lyons Chief of Police. The branch manager testified he
discovered the loss of approximately 729 gallons of diesel on September 24, 2012; 660
gallons of diesel on October 11, 2012; and another 398 gallons of diesel on October 23,
2012. Between the October losses, the branch manager installed new padlocks on the fuel
tanks. After the October 23 loss, the branch manager had the tanks pressure tested and
learned the tanks were not leaking. The branch manager testified there was no loss of
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diesel between October 23, 2012, and February 11, 2013. He testified he discovered a
loss of 517 gallons on February 11, and a loss of 687 gallons on March 12, 2013.

With the losses mounting, the branch manager reviewed his records and noticed a
pattern in the transactions—they involved late night transactions paid by credit cards
ending in No. 6698 and No. 4035 on multiple occasions and one transaction involving a
credit card ending in No. 9040. After the March loss, the branch manager installed a
surveillance camera in the canopy above the diesel dispenser.

On May 15, 2013, the branch manager discovered a loss of 729 gallons of diesel.
Upon review of the Co-op's records, he found three late night transactions: one utilizing
card No. 6698 and two utilizing a new card No. 6620. The total loss for the six thefts was
approximately 3,720 gallons of diesel worth $13,985.91.

During the branch manager's testimony, he discussed how the fuel dispensers
worked and how access is obtained to the inside of the pump through a locked door. He
said there are two pulser units attached to the pump shaft inside the fuel dispenser. The
pulser units count the revolutions of the shaft, and convert the revolutions into gallons,
which are shown on the dispenser's display. A specialized key is required to open the fuel
dispenser door and access the pulser unit.

The branch manager testified the pulser units found in Perez-Hernandez' truck
were tested on the fuel dispensers. When pulser No. 1 was attached to the fuel dispenser,
a container was filled with diesel, and the display registered 1.171 gallons. When pulser
No. 2 was connected to the fuel dispenser, and the same container was filled, the display
registered .58 gallons.

As the trial progressed, Perez-Hernandez filed a motion in limine to "prohibit the
introduction of any evidence or statements of any scientific results of testing" done by
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experts from the Division of Weights and Measures since the experts were not testifying.
The motion also argued the capacity of the container the diesel fuel was pumped into as
the pulsers found in Perez-Hernandez' truck were tested was hearsay. The branch
manager admitted he had no independent knowledge of the container's capacity. Perez-
Hernandez then moved to have the branch manager's testimony struck as it related to the
testing of the pumps and pulsers. The district court granted the motion in part and denied
it in part by ruling the State's witnesses could testify to their observations of the testing,
but not the science behind the testing.

Outside the presence of the jury, the branch manager testified the Division of
Weights and Measures provided the bucket used to test the pulsers. He was told by the
Division of Weights and Measures the bucket had a 5-gallon capacity. Perez-Hernandez
again moved to strike all of the branch manager's testimony related to the tests as
hearsay. The district court denied Perez-Hernandez' motion because it could not find the
branch manager's testimony "inherently unreliable."

Next, Chief Detmer was called and he testified the surveillance video from May
15, 2013, showed two semi-trucks pull up to the diesel fuel dispenser. Though the semi-
truck's passenger door partially obscured the view, Chief Detmer testified the dispenser's
cabinet door opened and closed prior to dispensing fuel. The surveillance video was
published to the jury.

Chief Detmer testified that during the ongoing investigation, he was called to the
Co-op at 2:17 a.m. on July 21, 2013, because two trucks matching the trucks in the May
15, 2013, video were at the Co-op. Chief Detmer's investigation recovered credit cards
ending in No. 6698 and No. 6620 from Perez-Hernandez, and a credit card ending in No.
4035 from the other driver. Chief Detmer also testified a key to the fuel dispenser cabinet
door and two pulser units were discovered in Perez-Hernandez' truck.

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After the State rested, Perez-Hernandez recalled the branch manager to the stand.
The branch manager testified pulser No. 1 dispensed between 5 and 10 gallons per gallon
registered depending on the battery pack used. He testified pulser No. 2 dispensed
between 10 and 20 gallons per gallon registered depending on the battery pack used.

The jury found Perez-Hernandez guilty. He was sentenced and now timely
appeals.

ANALYSIS

The branch manager's testimony contained both hearsay and nonhearsay
evidence.

An appellate court exercises de novo review of a challenge to the adequacy of the
legal basis of a district court's decision on the admission or exclusion of evidence. State
v. Bowen, 299 Kan. 339, 349, 323 P.3d 853 (2014). Here, Perez-Hernandez challenges
the district court's admission of the branch manager's testimony related to the testing of
the pulsers, arguing the branch manager's testimony was hearsay not within an exception
to the hearsay rule.

K.S.A. 2014 Supp. 60-460 defines hearsay as "[e]vidence of a statement which is
made other than by a witness while testifying at the hearing, offered to prove the truth of
the matter stated." Unless there is a statutory exception or constitutional concern, hearsay
is inadmissible. State v. Cosby, 293 Kan. 121, 128, 262 P.3d 285 (2011).

The branch manager's testimony that the measuring container's capacity was 5
gallons was based on hearsay. The branch manager testified he had no knowledge of the
container's capacity until personnel from the Division of Weights and Measures told him
it was a 5-gallon container. The branch manager also testified the container had a 5-
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gallon capacity and asserted that when filled, there were 5 gallons in the container.
Because the statement by the Division of Weights and Measures' personnel was an out-
of-court statement used to prove the truth of the matter that the container's capacity was 5
gallons, it was inadmissible hearsay. Further, the statement regarding the container's
capacity does not fall within any of the statutory exceptions to hearsay. See K.S.A. 2014
Supp. 60-460. Thus, the district court erred when it improperly admitted hearsay
evidence of the container's 5-gallon capacity.

Perez-Hernandez also argues the branch manager's testimony regarding the testing
procedures was hearsay because it went beyond a layman's knowledge of the pulser
testing process. Perez-Hernandez asserts the branch manager's testimony relied on
specialized knowledge of the testing process gleaned from conversations with experts
from the Division of Weights and Measures during their testing.

A lay witness may give opinion testimony if the judge finds the opinion is
rationally based on the perception of the witness, is helpful to a clearer understanding of
the witness' testimony, and is not based on scientific, technical, or other specialized
knowledge. K.S.A. 2014 Supp. 60-456(a). Perez-Hernandez argues State v. McFadden,
34 Kan. App. 2d 473, 122 P.3d 384 (2005), is analogous because the testimony relied on
specialized knowledge. In McFadden, the defendant was charged with driving under the
influence and transporting an open container. McFadden believed he had severe
adrenaline deficiency and believed his medical condition was responsible for his erratic
driving. After consulting with other individuals, labs, and conducting his own research,
McFadden wanted to testify about his beliefs about his medical condition. The district
court prohibited this line of testimony, and, on appeal, a panel of this court affirmed the
district court's ruling. The panel held lay witnesses may testify about external
appearances and medical conditions that are readily apparent but could not provide
testimony about medical matters "beyond the common knowledge of lay persons,"
including diagnoses or the medical condition's effects. 34 Kan. App. 2d at 478.
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McFadden actually supports the admissibility of the branch manager's testimony
regarding the testing process. While the branch manager discussed the testing procedure
with personnel from the Division of Weights and Measures before testing began, his
testimony was limited to his perception of testing performed on the pulser units. The
testing consisted of plugging in a confiscated pulser, activating the dispenser, dispensing
clear diesel into a container with a known capacity, and comparing the amount dispensed
to the number of gallons the dispenser registered as dispensed. Though the container the
diesel was dispensed into was considered specialized equipment, an observer did not
require any specialized knowledge to observe how the container was filled and what was
registered as the numbers of gallons pumped on the dispenser. The testing was easily
perceived and was certainly within the common knowledge of a lay person. The district
court did not err when it allowed the branch manager to testify, as nonhearsay, regarding
his observations of the testing procedures.

Perez-Hernandez' constitutional right to confront witnesses was violated.

Perez-Hernandez argues the district court violated his constitutional rights by
allowing the branch manager to testify regarding statements made by personnel from the
Division of Weights and Measures since Perez-Hernandez did not have the opportunity to
confront anyone from the Division of Weights and Measures. The Sixth Amendment to
the United States Constitution, as applied to the states by the Fourteenth Amendment to
the United States Constitution, grants the accused the right to confront the witnesses
against him. State v. Brown, 285 Kan. 261, 282, 173 P.3d 612 (2007). Issues related to
confrontation under the Sixth Amendment are reviewed de novo. Brown, 285 Kan. at
282.

Much of the testimony Perez-Hernandez challenges was not hearsay, was based on
the branch manager's personal observation, and does not violate Perez-Hernandez' right
of confrontation. However, since we have already found the testimony about the
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container's capacity was hearsay, we must determine how this impacted Perez-Hernandez'
constitutional right of confrontation. Testimonial hearsay statements implicate the
Confrontation Clause of the Sixth Amendment to the United States Constitution and are
inadmissible unless the defendant had a prior opportunity to cross-examine the declarant
and the declarant is unavailable to testify. State v. Noah, 284 Kan. 608, 611, 162 P.3d
799 (2007). In Brown, the Kansas Supreme Court identified a list of factors to determine
whether a hearsay statement is testimonial, including:

"(1) Would an objective witness reasonably believe such a statement would later
be available for use in the prosecution of a crime?
"(2) Was the statement made to a law enforcement officer or to another
government official?
. . . .
"(4) Was the level of formality of the statement sufficient to make it inherently
testimonial; e.g., was the statement made in response to questions, was the statement
recorded, was the declarant removed from third parties, or was the interview conducted in
a formal setting such as in a governmental building?" 285 Kan. at 291 (citing Davis v.
Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 [2006]; Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 [2004]; State v. Miller, 284
Kan. 682, 163 P.3d 267 [2007]; State v. Henderson, 284 Kan. 267, 160 P.3d 776 [2007]).

The capacity of the measuring container was testimonial hearsay. At the time of
testing, six people were present (four of whom were from the Division of Weights and
Measures), including a law enforcement officer. Based on the alleged method of theft
and the presence of law enforcement, an objective witness would reasonably believe
statements made during the testing would be used in the prosecution of the crime. Even
if the statement was not made to Chief Detmer, it was made in his presence. Presumably,
the statements were recorded since, in his motion in limine, Perez-Hernandez moved to
prohibit introduction of the video of the testing as evidence. Based on the Brown factors,
the measuring container's capacity was testimonial hearsay. Therefore, the hearsay was
only admissible if the declarant was unavailable and the defendant had a previous
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opportunity to cross-examine the declarant. No one from the Division of Weights and
Measures testified at any hearing in this case and Perez-Hernandez did not have an
opportunity to cross-examine anyone from the Division of Weights and Measures. The
district court erred when it admitted testimonial hearsay regarding the capacity of the
measuring container.

The admission of hearsay evidence involving the capacity of the measuring
container was harmless.

When an error infringes upon a party's federal constitutional right, a court will
declare a constitutional error harmless only when the party benefitting 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, reh. denied 386 U.S. 987 [1967]), cert. denied 132 S. Ct. 1594 (2012).

In addition to the inadmissible hearsay evidence, the State's evidence reflected:

 A video of Perez-Hernandez opening the door to the fuel dispenser on the
side where the pulser unit is installed;
 The specialized key needed to open the fuel dispenser's door found in
Perez-Hernandez' truck;
 The two pulser units found in Perez-Hernandez' truck; and
 Credit cards with account numbers linked to the earlier thefts.

In addition, the branch manager testified both confiscated pulsers were tested
using the same container. Both tests filled the container to the same level. When pulser
No. 1 was plugged in, the display registered 1.171 gallons had been pumped. Pulser No.
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2 displayed .58 gallons had been pumped. Filling the same container to the same level
resulted in dramatically different display readings depending on which confiscated pulser
was plugged into the dispenser. Had the district court properly excluded the hearsay, the
trial outcome would not have changed because the jury would have still heard testimony
indicating a large disparity in the amount of diesel pumped by the two confiscated
pulsers. Thus, any error from the district court's admittance of the container's capacity as
testimonial hearsay evidence was harmless.

Based on the overwhelming strength of all the evidence, there was more than
sufficient evidence for a rational factfinder to find Perez-Hernandez guilty beyond a
reasonable doubt of theft of more than $1,000 worth of diesel fuel.

The preliminary jury instruction was a correct statement of the law.

As part of its preliminary jury instructions, the district court instructed the jury:

"You must not engage in activities or be exposed to any information that might
unfairly affect the outcome of this case. Any juror who violates these restrictions I have
explained to you jeopardizes the fairness of these proceedings and a mistrial could result
that would require the entire trial process to start over. As you can imagine, a mistrial is a
tremendous expense and inconvenience to the parties, the Court, and the taxpayers."
(Emphasis added.)

Perez-Hernandez argues the inclusion of the italicized language was error. The
parties did not have an opportunity to object before the preliminary instructions were read
to the jury. However, because Perez-Hernandez did not make a contemporaneous
objection to the instruction, this court reviews the preliminary instruction for clear error.
State v. Tahah, 302 Kan. 783, 358 P.3d 819, 826 (2015).

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We need not analyze this issue further as our Supreme Court in Tahah found the
instruction was proper. The district court in Tahah gave a preliminary instruction
identical to the one given by the district court in this case. Like Perez-Hernandez, Tahah
argued the court should expand the holding of State v. Salts, 288 Kan. 263, 265-66, 200
P.3d 464 (2009), to preliminary instructions and hold the instruction was error. The
Kansas Supreme Court declined to expand the holding of Salts. Instead, the court held the
language of the preliminary instruction is "both legally and factually accurate in the
criminal context as well as the civil." Tahah, 358 P.3d at 827. The Court of Appeals is
duty bound to follow Kansas Supreme Court precedent. State v. Ottinger, 46 Kan. App.
2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The district court
did not err when it gave a preliminary instruction identical to the preliminary instruction
recently approved in Tahah.

Affirmed.