State v. Rhymes

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NOT DESIGNATED FOR PUBLICATION

No. 116,056

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ERIC JAMES RHYMES,
Appellant.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed
September 22, 2017. Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Kathryn Devlin, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., STANDRIDGE, J., and WALKER, S.J.

PER CURIAM: Eric James Rhymes, an inmate at Lansing Correctional Facility
(LCF), appeals following his conviction of trafficking contraband in a correctional
institution. Rhymes argues the district court lacked subject matter jurisdiction to enter
judgment against him because the jury convicted him of a crime different than the one
charged in the complaint. But Rhymes actually is arguing that the district court erred by
omitting an element of the charged offense from the jury instruction. Although we agree
the court erred by doing so, we find the error to be harmless. Rhymes also argues the
district court erred by denying a pretrial motion to suppress statements he made to an
LCF investigator. We find no error in the court's decision to deny Rhymes' motion.
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FACTS

Rhymes worked as a photography porter in the visiting area of LCF, taking
pictures of inmates and visitors. The visiting area was monitored by correctional officers
and video cameras in order to prevent, among other things, the introduction of contraband
into the facility. Inmates were subject to pat-down searches prior to entering the visiting
area and when leaving the visiting area. Consistent with this policy, Rhymes was
searched when he arrived for work and again before he left, but he otherwise had freedom
to move in and out of the visiting area without being searched while he was working.

On November 2, 2014, LCF Correctional Officer Royce Pittman conducted a
random search of inmates' coats that were hanging in a common area just outside the
visiting area. Inside the lining of one of the coats, Pittman discovered a homemade pocket
containing the fingers of surgical gloves that were filled with a substance later identified
as methamphetamine. Video footage from that day showed Rhymes hanging the coat up
and later accessing it several more times throughout the day. Rhymes was the only person
seen near the coat. When confronted, Rhymes admitted that the coat belonged to him but
denied ownership of the contraband inside. Officer Pittman filed a disciplinary report and
Rhymes was ultimately sanctioned for the incident.

The State later filed a criminal complaint against Rhymes, charging him with one
count of possession of methamphetamine and one count of trafficking contraband in a
correctional institution. The case proceeded to a jury trial. At trial, Tomas Zamora, a
former LCF investigator, testified that Rhymes admitted he owned the coat and confessed
he was "just basically muling the stuff in for other inmates." Zamora explained to the jury
that "[a] mule is someone who carries contraband into the facility." Because neither the
State nor the defense had any prior knowledge of Rhymes' confession to Zamora, the
district court declared a mistrial.

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The court scheduled the case for another jury trial. Before this second trial, the
State filed a notice of its intent to introduce Rhymes' confession into evidence. Rhymes
responded by filing a motion to suppress the statements he made to Zamora. In the
motion, Rhymes claimed the statements were inadmissible because they were involuntary
and unreliable. The court held a hearing to determine whether Rhymes' statements to
Zamora were voluntarily provided. After considering the evidence presented at the
hearing, the district court denied Rhymes' motion to suppress and deemed the statements
admissible at trial. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908
(1964). Over Rhymes' objections, Zamora then testified at the second trial that Rhymes
confessed to bringing large amounts of drugs into the facility in exchange for a small
amount of drugs for his own personal use. Zamora also testified that Rhymes admitted
during the interview to bringing methamphetamine into the facility on November 2, 2014.

The jury found Rhymes guilty of both possession of methamphetamine and
trafficking contraband in a correctional institution. Following the jury's verdict, Rhymes
filed a motion to set aside one of the convictions because the two convictions were
multiplicitous. The district court agreed and vacated Rhymes' conviction for possession
of methamphetamine. The court sentenced Rhymes to 53 months in prison based on the
conviction for trafficking contraband.

ANALYSIS

Rhymes raises two alternative arguments on appeal. First, Rhymes argues the
district court lacked subject matter jurisdiction over his conviction for trafficking
contraband in a correctional institution because the jury convicted him of an offense
different than the one charged in the criminal complaint. As discussed more fully below,
however, Rhymes' argument is actually a challenge to the jury instruction based on a
missing element of the crime. In the alternative, Rhymes argues the district court erred in
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denying his motion to suppress the statements he made to Zamora. We address each of
Rhymes' arguments below.

1. Jury instruction

To place Rhymes' argument in context, we begin our discussion with the relevant
provisions of K.S.A. 2013 Supp. 21-5914, which is the criminal statute prohibiting traffic
in contraband in a correctional facility:

"(a) Traffic in contraband in a correctional institution or care and treatment
facility is, without the consent of the administrator of the correctional institution or care
and treatment facility:
(1) Introducing or attempting to introduce any item into or upon the grounds of
any correctional institution or care and treatment facility;
(2) taking, sending, attempting to take or attempting to send any item from any
correctional institution or care and treatment facility;
(3) any unauthorized possession of any item while in any correctional institution
or care and treatment facility;
(4) distributing any item within any correctional institution or care and treatment
facility;
(5) supplying to another who is in lawful custody any object or thing adapted or
designed for use in making an escape; or
(6) introducing into an institution in which a person is confined any object or
thing adapted or designed for use in making any escape."

The State charged Rhymes with violating subsection (a)(1) of the statute:

"That on the 2nd day of November, 2014, in Leavenworth County, Kansas, Eric
J[.] Rhymes, then and there being present did unlawfully, feloniously and intentionally,
knowingly or recklessly introduce, or attempt to introduce, Methamphetamine, into or
upon the grounds of the Lansing Correctional Facility, a correctional institution. In
violation of K.S.A. 2013 Supp. 21-5914(a)(1) & (b)(2)(A), Traffic in Contraband in a
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Correctional Institution or Care and Treatment Facility, a severity level 5 nonperson
felony." (Emphasis added.)

When the district court issued oral and written jury instructions, however, it instructed the
jury with trafficking contraband in a correctional institution, contrary to subsection (a)(3)
of the statute:

"The defendant is charged with traffic in contraband in a correctional institution.
The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. The defendant had the unauthorized possession of methamphetamine
while in a correctional institution.
2. The defendant did so intentionally.
3. The defendant acted without the consent of the administrator of the
correctional institution.
4. This act occurred on or about the 2nd day of November 2014, in
Leavenworth County, Kansas." (Emphasis added.)

Because the jury convicted him of a crime (trafficking via possessing
methamphetamine within the correctional institution) that differed from the crime with
which he was charged (trafficking via introducing or attempting to introduce
methamphetamine to the correctional institution), Rhymes argues the court did not have
subject matter jurisdiction to enter judgment against him, which means his conviction
must be vacated. In response, the State claims Rhymes' challenge to jurisdiction is
actually an improper challenge to the sufficiency of the complaint.

Neither party has correctly framed the issue presented for decision here. The crux
of Rhymes' claim of error is that the criminal complaint charged Rhymes with trafficking
as defined by K.S.A. 2013 Supp. 21-5914(a)(1) (introducing or attempting to introduce
methamphetamine to the correctional institution), but the jury convicted Rhymes of
trafficking as defined by that statute in subsection (a)(3) (possessing methamphetamine
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within the correctional institution). Although Rhymes claims he was convicted of a crime
different than the one with which he was charged, the record does not support his claim.

The State charged Rhymes with traffic in contraband in a correctional institution
contrary to K.S.A. 2013 Supp. 21-5914, and the verdict form reflects that the jury found
Rhymes guilty of traffic in contraband in a correctional institution under that same
statute. Neither the jury instruction nor the verdict form referred to the applicable statute
governing the traffic of contraband in a correctional institution, let alone a particular
subsection of the statute. At the sentencing hearing, defense counsel briefly commented
that the jury had been instructed using the language in K.S.A. 2013 Supp. 21-5914(a)(3),
but there was no response to counsel's comment and no other statements on the record
regarding the issue. The presentence investigation report, the sentencing guidelines
journal entry of judgment, and the district court's journal entry of allocution all reflect
that the jury convicted Rhymes of traffic in contraband in a correctional institution under
K.S.A. 2013 Supp. 21-5914, albeit under subsection (a)(1). Based on the facts presented
and the applicable law, we find the issue is not, as Rhymes asserts, whether the court had
jurisdiction to enter judgment against Rhymes for the crime of conviction. Instead, the
issue is whether the court erred by providing a jury instruction that set forth elements of a
crime different than the elements of the crime as described in the charging document.

When reviewing a jury instruction challenge, an appellate court applies the
following standard of review:

"'(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, utilizing the test and
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degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).'" State v. Fisher, 304 Kan. 242, 256-57, 373 P.3d 781
(2016).

Rhymes concedes that he did not object to the district court's instruction below.
But "[a] court may consider an error in the instructions that has not been preserved as
required by subsection (d)(1) if the giving or failure to give an instruction is clearly
erroneous and the error affects substantial rights." K.S.A. 2016 Supp. 60-251(d)(2). Thus,
Rhymes' challenge to the jury instruction here is reviewable.

Next, we must determine whether there was any error. Although the instruction
provided the State had to prove the unauthorized possession of contraband in a
correctional institution in order to establish the charge, the instruction did not provide that
the State also had to prove that Rhymes introduced or attempted to introduce the
contraband into or upon the grounds of the correctional facility. This omission left the
jury without a legal standard to determine that aspect of the trafficking contraband
charge. As a result, the instruction was not legally appropriate and constituted error.

Having determined it was error to give the instruction that did not require the State
to prove that Rhymes introduced or attempted to introduce the contraband in his
possession, we next must determine whether that error was harmless. In a case like this,
where the error is omission of an element of the offense charged when instructing the
jury, the United States Supreme Court has recognized that error may be harmless only if
the omitted element was "uncontested and supported by overwhelming evidence." Neder
v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). The Kansas
Supreme Court adopted this standard in State v. Richardson, 290 Kan. 176, 182-83, 224
P.3d 553 (2010). In State v. Hargrove, 48 Kan. App. 2d 522, 530, 293 P.3d 787 (2013), a
panel of our court further clarified this elevated standard:
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"The test for harmlessness is twofold. Not only must the evidence bearing on the
omitted element approach the irrefutable, a defendant effectively has to concede that
component of the charged crime. Such a concession might be inferred from the absence
of contrary evidence or explanation developed in challenging the government's case or
offered as part of the defense case. The standard is particularly rigorous. A lesser measure
would permit a court to impermissibly supplant the jury's fact-finding duty in a criminal
case by substituting its assessment of the evidence on a contested issue."

Applying this elevated standard here, we find the evidence presented at trial to
prove Rhymes introduced or attempted to introduce methamphetamine into the
correctional facility is essentially irrefutable. Moreover, we infer from the absence of
contrary evidence or explanation at trial that Rhymes effectively conceded that he
committed the crime of introducing or attempting to introduce methamphetamine into the
correctional facility.

As a photography porter, Rhymes had freedom to move in and out of the visiting
area without being searched while he was working. On the day the contraband was found
in his coat, Rhymes was searched before entering the visiting area to take pictures of
inmates and their visitors. Video footage from that day showed Rhymes hanging the coat
up and later accessing it several more times throughout the day. Rhymes was the only
person seen near the coat. In a random search of inmates' coats hanging in the common
area outside the visiting area, Officer Pittman discovered methamphetamine in a pocket
inside the lining of the coat Rhymes hung up and accessed throughout the day. After
being read his Miranda rights, Rhymes confessed to Zamora that he brought the
methamphetamine into the facility on November 2, 2014, and that he was bringing large
amounts of unauthorized contraband (drugs) into the facility in exchange for a small
amount of drugs for his own personal use.

The evidence that Rhymes attempted to introduce methamphetamine into the
correctional facility is essentially irrefutable, and there is no evidence in the record from
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which we can reasonably infer that Rhymes did not attempt to do so. Rhymes did not
present any evidence or argue at trial that he did not attempt to introduce into the facility
the methamphetamine discovered in his coat lining. Neither does he make that argument
on appeal. Instead, he argues only that his conviction must be vacated because an element
of the offense charged was omitted from the jury instruction on that charge. It appears
from this argument that Rhymes is advocating for a structural error standard of review.
But both the United States Supreme Court and our Supreme Court have rejected that
argument in favor of a standard of review that recognizes an error may be harmless if the
omitted element was "uncontested and supported by overwhelming evidence." See Neder,
527 U.S. at 17; Richardson, 290 Kan. at 182-83. Upon review of the entire record here,
we find the omitted element (attempting to introduce contraband into the facility) was
both uncontested and supported by overwhelming evidence. In addition, the evidence
presented by the State to prove trafficking contraband in a correctional facility is the
same under the language of the complaint and the language of the jury instruction.

2. Motion to suppress

Rhymes argues the district court erred in denying his motion to suppress, claiming
that the statements he made to Zamora were involuntary and that the evidence
surrounding his alleged confession was unreliable.

Rhymes objected during Zamora's testimony at trial when the State sought to
introduce evidence of Rhymes' statements, thereby preserving the issue for appeal. See
State v. Richard, 300 Kan. 715, 726, 333 P.3d 179 (2014) (when district court denies
motion to suppress, moving party must object to introduction of that evidence at time it
was offered at trial to preserve issue for appeal). In reviewing the decision or ruling on a
motion to suppress a confession, the appellate court first reviews the factual findings
under a substantial competent evidence standard, then reviews the ultimate legal
conclusion de novo. In so doing, the appellate court does not reweigh the evidence, assess
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the credibility of witnesses, or resolve conflicting evidence. The State bears the burden of
proving by a preponderance of the evidence that a confession was voluntary. State v.
Dern, 303 Kan. 384, 392, 362 P.3d 566 (2015).

Our Supreme Court has held that "[a] criminal defendant is deprived of due
process when his or her conviction is based, in whole or in part, upon the coerced
statement of a witness." State v. Daniels, 278 Kan. 53, 65, 91 P.3d 1147 (2004). "The
primary consideration to be given to a criminal defendant's inculpatory statement is its
voluntariness." State v. Swindler, 296 Kan. 670, 678, 294 P.3d 308 (2013). In
determining whether a confession was voluntary, the court looks at the totality of the
circumstances surrounding the confession and considers the following nonexclusive
factors: (1) the accused's mental condition; (2) the manner and duration of the
interrogation; (3) the ability of the accused to communicate on request with the outside
world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in
conducting the interrogation; and (6) the accused's fluency with the English language.
State v. Woods, 301 Kan. 852, 867, 348 P.3d 583 (2015). The goal of examining these
factors is to determine whether a statement "was the product of the free and independent
will" of the person being interrogated. State v. Lane, 262 Kan. 373, 385, 940 P.2d 422
(1997).

At the hearing on Rhymes' motion to suppress, Zamora testified that he was the
lead investigator in Rhymes' case and that Rhymes had asked to speak with him about the
incident that occurred on November 2, 2014. Zamora met with Rhymes in a closed,
secure room. Rhymes was handcuffed during the conversation, which lasted
approximately 20 to 30 minutes. Zamora claimed he informed Rhymes that he was being
charged with felony crimes for introducing contraband into a correctional facility.
Zamora stated that prior to asking Rhymes any questions, he orally advised Rhymes of
his Miranda rights and that Rhymes indicated his understanding and waiver of those
rights by signing and initialing a form setting forth the rights. Zamora had no concerns
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about Rhymes' mental state or Rhymes' ability to understand their conversation.
According to Zamora, he recorded the interview on a tape recorder, but the recording was
deleted after Zamora left his job at LCF.

Zamora further testified that when he completed his initial report in November
2014 about the conversation with Rhymes, he did not include Rhymes' confession in the
report because he was considering whether to use Rhymes as a confidential informant
and was waiting to speak to his supervisor about that possibility. Zamora ultimately
decided not to use Rhymes as an informant based on unreliable information Rhymes had
given in the past. Zamora claimed he had forgotten that the confession was not included
in the report until he testified at Rhymes' first trial. In October 2015, Zamora filed an
addendum to his initial report that included Rhymes' confession.

Following Zamora's testimony, defense counsel asked the district court to exclude
any of Rhymes' statements not included in Zamora's initial report, alleging that such
statements were unreliable and untrustworthy. Defense counsel also argued that Rhymes'
statements could not be considered voluntary because his Miranda waiver occurred after
the prison disciplinary proceedings had been completed and Rhymes reasonably believed
that any investigation had ended. The district court ultimately concluded that Rhymes'
statements were voluntary and thus admissible, because Rhymes had contacted Zamora to
make a statement, Zamora advised Rhymes of his Miranda rights, and there was no
indication that Rhymes did not understand his rights or that the statements were
otherwise involuntary. The court further found the fact that Rhymes already had been
disciplined for the incident irrelevant with respect to the voluntariness of his statements
or his willingness to waive his rights. Finally, the court accepted Zamora's explanations
for why Rhymes' confession was not included in the initial report and why there was no
recording of the interview, concluding there had been no showing of bad faith.

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Rhymes advances two arguments in support of his claim that the district court
erred in denying his motion to suppress. First, Rhymes suggests that Zamora did not
conduct the interview fairly because Rhymes was unaware of the potential consequences
he faced by waiving his Miranda rights. Rhymes asserts that because he already had been
sanctioned as a result of prison disciplinary proceedings, he reasonably believed he
would not face any additional charges. Rhymes acknowledges Zamora's testimony stating
Zamora told Rhymes he had been charged with felony crimes. But Rhymes notes Zamora
did not include this information in the report and that the criminal charges against him
were not filed until several months after the interview. Thus, Rhymes contends that he
could not voluntarily have waived his Miranda rights because he did not know he was
facing criminal charges. Second, Rhymes argues that the evidence surrounding the
alleged confession was unreliable because Zamora failed to include information about the
confession in the initial report and never explained how including the confession in the
report would have prevented him from using Rhymes as a confidential informant.
Rhymes also points out that there was no evidence to corroborate the confession because
Zamora's recording had been deleted.

Factors that may raise red flags when considering whether an interrogation was
conducted fairly are if the police threatened a suspect or promised some benefit in
exchange for cooperation, minimized the seriousness of confessing to involvement in a
crime, falsely told the suspect that there was evidence indicating his or her involvement
in the crime, or used other deceptive techniques. See State v. Swanigan, 279 Kan. 18, 32-
36, 106 P.3d 39 (2005); State v. Fernandez-Torres, 50 Kan. App. 2d 1069, 1082-83, 337
P.3d 691 (2014). There is no evidence in the record that Zamora threatened Rhymes or
promised him any benefit in exchange for cooperation. Nor did Zamora minimize the
seriousness of confessing to involvement in a crime; rather, Zamora testified that he told
Rhymes he was facing felony criminal charges. And there is no indication that Zamora
provided false information regarding evidence of Rhymes' involvement in the crime or
used any other deceptive techniques.
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Moreover, there is substantial competent evidence in the record to support the
findings of fact made by the district court. Rhymes asked to speak with Zamora.
Nevertheless, Zamora informed Rhymes of his Miranda rights before any questioning
began. The conversation took place in a private room at LCF and lasted only 20 to 30
minutes. Zamora was handcuffed during the interview, which was standard practice at
LCF. There is no indication that Rhymes asked to communicate with anyone else during
the course of his interview, nor is there any indication that he would have been prevented
from doing so. In fact, Zamora informed Rhymes of his right to speak to an attorney and
that an attorney would be brought to the facility if Rhymes wanted to consult with one.
There is no suggestion that Rhymes lacked an understanding of the English language or
that he otherwise lacked an ability to understand Zamora's questions. The totality of the
circumstances present here support the district court's conclusion that Rhymes' confession
was voluntary. Rhymes' claim that the evidence surrounding the confession was
unreliable is no more than an invitation to assess Zamora's credibility and reweigh the
evidence that was presented to the district court, which we cannot do. See Dern, 303 Kan.
at 392. The district court did not err in denying Rhymes' motion to suppress.

Affirmed.