State v. Preston

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NOT DESIGNATED FOR PUBLICATION

No. 114,718

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CECIL RICHARD PRESTON, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed March 24, 2017.
Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Lindsey Debenham, legal intern, Jodi Litfin, assistant district attorney, Chadwick J. Taylor,
district attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., HILL, J., and WALKER, S.J.

Per Curiam: Cecil Richard Preston, Jr., appeals from his conviction for
possession of methamphetamine. He asserts that the court's jury instruction on the crime
charged was improperly broader than the language contained in his indictment. In
addition, he contends the prosecutor made improper arguments during his trial warranting
the reversal of his conviction. Finally, Preston argues the cumulative effect of these errors
requires reversal. Because we find no substantial errors requiring reversal, we affirm.


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FACTS

On February 1, 2014, Officers William Lister, Matthew Cobb, and Kurtis
VanDonge were working the third patrol shift for the Topeka Police Department. The
officers were on foot patrol at 2 a.m. that day when they entered an apartment building on
Southwest Harrison Street checking the halls and basement for noise, loiterers, and other
problems.

The officers entered the basement, and Lister shined his flashlight into an empty
room near the elevator. With his flashlight, Lister saw a male subject facing him; he later
identified Preston as the man he observed. Lister first looked at Preston's hands to be sure
he was not armed; instead, Lister saw that Preston had a bottle of liquor in one hand and a
small white object in the other hand. Preston immediately threw away the white object in
his hand. Cobb, who entered the room after Lister, observed Preston with his hands at his
side, then one hand moved, and Cobb saw something in the air which landed on the
ground a few inches from Preston's foot.

Lister immediately pulled Preston out of the room and handcuffed him. Cobb went
into the room and picked up the white object. Upon examining it, Cobb observed what
appeared to be a clear plastic baggie containing a white crystalline substance; both Lister
and Cobb testified the white substance appeared to be methamphetamine.

Lister later field tested the substance, which tested positive for methamphetamine.
The officers searched Preston's person and found nothing else incriminating. There were
no other persons found in the basement. Lister observed nothing else on the floor in the
basement room. Cobb was wearing a body camera the night of the arrest. Cobb began
video recording when he started asking detailed questions to Preston after he was
arrested.

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The white substance was sealed in an evidence envelope and sent to the Kansas
Bureau of Investigation (KBI) for additional testing. A KBI chemist testified as to the
chain of evidence and confirmed that the baggie provided to her in the case contained
0.11 grams of methamphetamine.

In March 2014, Preston was indicted by a state grand jury of "unlawfully,
feloniously, and intentionally, possess[ing] any opiate, opium or narcotic drug, or a
stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 . . . to wit:
methamphetamine, contrary to the form of the statutes." (Emphasis added.)

During the trial, the court's opening instruction described the charge of possession
of methamphetamine which was later defined in the jury instructions. At the conclusion
of the trial, the court gave Instruction No. 7—without objection by Preston. This
instruction advised the jury that Preston was charged with unlawful possession of
methamphetamine and that he pled not guilty to the charge. The instruction stated that to
establish the charge, it had to be proved that Preston possessed methamphetamine on or
about February 1, 2014, in Shawnee County, Kansas. The instruction went on to define
"'[p]ossession'" as "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.) This
instruction matches PIK Crim. 4th 57.040 submitted by the State prior to trial; the
defense did not provide any proposed written instructions. In addition, the court gave
Instruction No. 8, which asserted that the "State must prove that the defendant committed
the crime either intentionally or knowingly" (emphasis added), and provided the standard
definition for those terms. Preston only objected where this instruction was placed in the
order of instructions, not the instruction itself.

After hearing the testimony set forth above, the jury convicted Preston of
possession of methamphetamine. Preston was ultimately sentenced to the standard
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presumptive sentence of 12 months' probation with an underlying prison term of 13
months' incarceration. Preston timely appealed from his conviction and sentence.

ANALYSIS

Jury instructions

On appeal, Preston first argues that the jury instruction on the charged crime
varied from the language of the grand jury indictment. Preston seems to allege that
instruction was inadequate because the indictment charged "intentional" conduct, but the
instruction permitted the jury to convict him upon proving conduct which was either
intentional or knowingly.

Preston acknowledges that his counsel did not object to the instruction at trial.
Accordingly, review of this issue is controlled by K.S.A. 2016 Supp. 22-3414(3) and the
analysis set out in State v. Herbel, 296 Kan. 1101, Syl. ¶ 7, 299 P.3d 292 (2013), and
State v. Williams, 295 Kan. 506, 511, 286 P.3d 195 (2012). As stated in Williams, K.S.A.
2016 Supp. 22-3413(3) creates a procedural hurdle by stating that no party may assign as
error a district court's giving or failure to give a particular jury instruction unless the
giving or failure to give the instruction is clearly erroneous. State v. Potts, 304 Kan. 687,
701-02, 374 P.3d 639 (2016). To establish clear error, "'the defendant must firmly
convince the appellate court that the giving of the instruction would have made a
difference in the verdict.' [Citation omitted.]" State v. Walker, 304 Kan. 441, 446, 372
P.3d 1147 (2016).

At the time of Preston's arrest, K.S.A. 2013 Supp. 21-5706(a) made it unlawful for
any person to "possess any opiates, opium or narcotic drugs" identified in portions of the
list of Schedule II drugs. "'Possession'" is defined as "having joint control or exclusive
control over an item with knowledge of and intent to have such control or knowingly
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keeping some item in a place where the person has some measure of access and right of
control." (Emphasis added.) K.S.A. 2016 Supp. 21-5701(q). This statutory language
matches the instruction given to the jury at the conclusion of the trial—Instruction No. 7.
However, Preston's objection seems to take issue with Instruction No. 8—which is
patterned after PIK Crim. 4th 52.010—by asserting the State must prove Preston acted
knowingly or intentionally in possessing the narcotic.

Preston relies heavily on State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15
(2009). Trautloff, however, does not clearly apply to the circumstances of this case. In
Trautloff, the defendant was charged with promoting the performance of sexually explicit
conduct by a minor and displaying such a picture. However, the jury instruction was not
limited to "display[ing]"; rather, the instruction used the full definition of promoting
including "procuring, selling, providing, lending, mailing, delivering, transferring,
transmitting, distributing, circulating, disseminating, presenting, producing, directing
manufacturing, issuing, publishing, displaying, exhibiting or advertising" the sexual
performance. 289 Kan. at 801-02. Because of the broad scope of evidence presented
regarding the defendant's activity, the court found that it could not rule out the possibility
that the jury found the defendant guilty of actions not charged in the information and
reversed the conviction. 289 Kan. at 802-03.

In this case, however, the instructions at issue addressed the intent required under
the statute to convict Preston. The statute itself required Preston to act both knowingly
and intentionally even though the indictment used the phrase "unlawfully, feloniously,
and intentionally, possess[ing]" methamphetamine. The difference in omitting
"knowingly" makes little difference.

"In 2011, our legislature amended the definitions of the various culpable mental
states. The terms 'intentionally' and 'knowingly' are now separated and ranked by degree,
with 'intentionally' being ranked as a higher degree of culpability than 'knowingly.'
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K.S.A. 2013 Supp. 21-5202(b)(1)-(2). The statute provides that when intentional conduct
is proven, knowing conduct is also proven. K.S.A. 2013 Supp. 21-5202(c)." State v.
Gooding, 50 Kan. App. 2d 964, 978-79, 335 P.3d 698 (2014).

Consequently, Preston's claim that the instruction was too broad by adding
uncharged elements such as in Trautloff is misplaced. The sole issue is whether the
disjunctive "or" used in Instruction No. 8, instructing that the State had to prove Preston
intentionally or knowingly possessed the methamphetamine, presents clear error in this
case. Preston claims reversal is required because it is possible the jury did not believe
Preston intended to possess the methamphetamine (inferring that it believed he only
knowingly possessed the methamphetamine).

But even if we accept, arguendo, that Instruction No. 8 does not precisely mirror
the language of the charge in the indictment handed down by the jury against Preston, we
still cannot conclude he is entitled to reversal of his conviction and a new trial. Based on
the record as a whole, Preston has failed to convincingly show "'the appellate court that
the giving of the instruction would have made a difference in the verdict.'" Walker, 304
Kan. at 446. Preston was found alone in a darkened area of a building with both a bottle
of liquor and the baggie in his hands. He quickly threw the baggie aside when the
officer's flashlight was shined upon him. There is no indication anyone else was present
until after Preston was arrested and no reasonable basis to infer that Preston found the
drugs in the unlit basement room and picked it up not knowing what it contained. Thus,
while it may have been error for the court to use the term "or" in Instruction No. 8, there
is no clear showing that this error impacted the jury's verdict.

Prosecutorial misconduct allegations

In his second issue on appeal, Preston challenges portions of the prosecutor's
closing argument, asserting the prosecutor misstated the law in discussing the nature of
an intentional action. Specifically, Preston takes issue with the prosecutor's statement
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regarding the requirement that the defendant had control of the drug with knowledge and
the intent to control the item. The prosecutor then stated:

"Well, ladies and gentlemen, let's use our common sense here. If you're holding
something in your hand, whether you pick it up off the ground or someone else gives it to
you, you know what's in your hand. You know what you're holding. And the only reason
you're holding something in your hand is if you have the intent to do that, if you have the
knowledge that you're doing that. There was no out off [sic] body experience here, no not
understanding what was going on, no evidence of that whatsoever. The defendant knew
what he was holding in his hand. He was possessing it."

The Supreme Court recently changed the legal analysis relating to claims of
improper actions of a prosecutor during trial to using a "prosecutorial error" focus. See
State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016). Under Sherman:

"Appellate courts will continue to employ a two-step process to evaluate claims
of prosecutorial error. These two steps can and should be simply described as error and
prejudice. To determine whether prosecutorial error has occurred, the appellate court
must decide whether the prosecutorial acts complained of fall outside the wide latitude
afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a
manner that does not offend the defendant's constitutional right to a fair trial. If error is
found, the appellate court must next determine whether the error prejudiced the
defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the
traditional constitutional harmlessness inquiry demanded by Chapman[v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is
harmless if the State can demonstrate '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., where there is no reasonable possibility that the error contributed to the
verdict.' [Citation omitted.]" Sherman, 305 Kan. at 109.

The Sherman opinion was issued after Preston's brief was filed but was discussed
in the State's brief. Thus, the parties rely on different legal analyses in discussing this
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issue. However, the application of either analysis reaches the same result. Preston
correctly notes that misstating the evidence is a serious violation and ordinarily
constitutes what is now "prosecutorial error." State v. Bridges, 297 Kan. 989, 1014, 306
P.3d 244 (2013). This begs the question, however, of whether the prosecutor's statements
about the extent to which the jury could infer the requisite culpable mental state from the
facts in this case exceeds the wide latitude permitted to prosecutors in crafting closing
arguments. State v. Scott, 271 Kan. 103, 114, 21 P.3d 516 (2001). This latitude allows a
prosecutor to make reasonable inferences based on the evidence. State v. De La Torre,
300 Kan. 591, 608, 331 P.3d 815 (2014).

Preston cites no authority for his contention that the prosecutor's arguments
exceeded the wide latitude the prosecutor possessed to argue the evidence. The baggie
containing methamphetamine was seen by two officers in Preston's hand. Preston was
alone in a dark room when discovered by police. Preston was standing up and there was
no evidence presented that Preston somehow stumbled onto the baggie in the darkened
room by happenstance. Under the facts of this case, the prosecutor did not argue
unreasonable inference based on the evidence presented.

Preston also takes issue with the prosecutor's statement in his rebuttal closing
argument responding to defense counsel arguments that Officer Cobb did not record their
investigation of the basement with his body camera. In rebuttal, the prosecutor stated,
"And if there was a video, what would it show you? It would show you exactly what
Officer Cobb and Officer Lister testified to. You have those facts already. You don't need
that camera." Preston asserts this remark was the prosecutor offering a personal opinion
as to the credibility of witnesses.

We agree that the prosecutor's comments constituted a personal vouching for the
State's evidence in this case and thus were unquestionably improper. This is true even
though the comments were made in response to defense counsel's statements. Our
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Supreme Court recently recognized that "'a prosecutor's improper comment or argument
can be prejudicial, even if the misconduct was extemporaneous and made under the stress
of rebutting arguments made by defense counsel. The extemporaneous, rebuttal nature of
a prosecutor's argument is merely a factor to be considered by an appellate court.'
[Citations omitted.]" State v. Roeder, 300 Kan. 901, 934, 336 P.3d 831 (2014), cert.
denied 135 S. Ct. 2316 (2015). Also, in State v. Sprague, 303 Kan. 418, 429, 362 P.3d
828 (2015), our Supreme Court explained that even if the prosecutor makes the improper
comment in rebuttal, "'[t]he open-the-door rule does not insulate a prosecutor from a
finding of misconduct.' [Citations omitted.]"

In this case, the prosecutor's comments would constitute misstating the evidence—
as there was no video—or a prosecutor's efforts to backdoor a personal opinion as to the
credibility of the officers. Much of the defense was based on inconsistencies between the
officers' testimony regarding their approach to the room, how Preston was seen tossing or
dropping or throwing the baggie, how the baggie was collected and put into evidence, in
addition to the lack of use of Officer Cobb's body camera. While the prosecutor could
have argued that the discrepancies between the officers' testimony were minor, he went a
step too far in asserting what a nonexistent video would show.

Under the pre-Sherman analysis, the second step of the two-step analysis, the
appellate court considers three factors: (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. State v. Williams, 299 Kan.
509, 540, 324 P.3d 1078 (2014). Before the third factor can ever override the first two
factors, an appellate court must be able to say that the harmlessness tests of both K.S.A.
2016 Supp. 60-261 and Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed.
2d 705 (1967), have been met. Williams, 299 Kan. at 540-41. Under the statutory
harmless error standard, the court must determine whether "'there is a reasonable
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probability that the error did or will affect the outcome of the trial in light of the entire
record.'" 299 Kan. at 541. Under Sherman, the court simply focuses on the constitutional
harmless error standard. 305 Kan. at 109.

In this case, the prosecutor erred in opining what the nonexistent body camera
video would show. Based on the totality of the facts, however, the State has shown that
the error did not affect the outcome of the trial in light of the entire record. Therefore, any
prosecutorial error was harmless beyond a reasonable doubt. The jury took over 3 hours
to consider the evidence and the arguments, including defense counsel's cross-
examination of the officers' varying testimony. We find this one statement by the
prosecutor, even if error, was not likely to affect the jury's decision in light of the minor
nature of the discrepancies in the officers' testimony.

Cumulative error

Finally, Preston argues he was denied a fair trial due to cumulative error.
Cumulative trial errors, when considered collectively, may require reversal of the
defendant's conviction when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. State v. Burns, 295 Kan. 951, 960, 287
P.3d 261 (2012), overruled on other grounds by State v. King, 297 Kan. 955, 305 P.3d
641 (2013). In light of the consistent testimony that Preston was standing in an unlit room
and discovered holding a baggie of what was later determined to be methamphetamine,
with no one else present, any error in the instruction and in the prosecutor's one improper
statement did not collectively deprive Preston of a fair trial.

Affirmed.