State v. Rick

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NOT DESIGNATED FOR PUBLICATION

No. 116,859

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JESSE ORIN RICK,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed May 25, 2018.
Affirmed in part, reversed in part, and remanded with directions.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Brock Abbey, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., LEBEN and SCHROEDER JJ.

PER CURIAM: Jesse Rick appeals his jury trial convictions alleging the district
court failed to properly instruct the jury, the evidence was insufficient to convict him, and
the district court erred in assessing Board of Indigents' Defense Services (BIDS) attorney
fees to him. Our review reflects the district court properly instructed the jury as no
separate jury instruction setting out intent was required when the instruction for the crime
defined the intent element. The record reflects the evidence, although circumstantial on
some of the charges, was sufficient to support his jury trial conviction.

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Rick's final argument challenges the district court's order to reimburse BIDS for
his attorney fees. We agree the district court failed to follow State v. Robinson, 281 Kan.
538, 546, 132 P.3d 934 (2006), and we must remand for the reconsideration of Rick's
ability to reimburse BIDS for attorney fees under Robinson. Affirmed in part, reversed in
part, and remanded with directions.

FACTS

Rick was driving northbound on 8th Street in Salina before turning eastbound onto
Harsh Street at a high rate of speed. At the same time, Officers Jeremy Watkins and
Andrew Meek—who were wearing their police uniforms and were engaged in their
official duties—were crossing Harsh Street, approximately 75 feet away. Officers
Watkins and Meek motioned and yelled for Rick's vehicle to stop or slow down. The car
kept accelerating.

Rick's vehicle came within a few feet of hitting Officers Watkins and Meek; they
had to jump out of the middle of the road to avoid getting hit. Officer Watkins
immediately radioed the tag number and vehicle description to dispatch. Sergeant Brent
Rupert, who was in the area, pursued the vehicle.

After a short chase, Rick's vehicle came to a stop behind a house and he fled on
foot through a field. Officers apprehended Rick. Rick admitted he threw a set of silver
digital scales into the field. The scales later tested positive for methamphetamine. Police
searched the vehicle Rick was driving, uncovering a second set of digital scales, a glass
pipe with burnt white residue on it, a partially burnt brown cigarette, and a backpack
containing several empty small plastic baggies and other items.

The State charged Rick with aggravated assault of a law enforcement officer;
kidnapping; unlawful possession of a controlled substance (methamphetamine); unlawful
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possession of a controlled substance (marijuana); interference with law enforcement;
possession of drug paraphernalia; possession of drug paraphernalia with intent to use to
distribute; and driving while suspended. After the State rested at trial, the district court
granted a motion for acquittal on the kidnapping and driving while suspended charges.

Prior to closing arguments, the district court conducted a jury instruction
conference. Rick requested the district court instruct the jury on the definition of the
intentional culpable mental state in its instructions for unlawful possession of controlled
substances and unlawful possession of drug paraphernalia. The district court denied the
requested instructions. Rick also requested, and the district court agreed to give, an
instruction for assault on a law enforcement officer as a lesser included offense of
aggravated assault of a law enforcement officer. On the State's motion, the district court
also amended the complaint to include a charge of fleeing or attempting to elude a police
officer.

The jury convicted Rick of assault of a law enforcement officer, possession of
methamphetamine, possession of marijuana, interference with law enforcement by
obstructing official duty, possession of drug paraphernalia with the intent to use to
distribute, and fleeing or attempting to elude a police officer.

At Rick's sentencing hearing, the district court assessed Rick with BIDS attorney
fees of $2,600 plus the $100 application fee, finding "those are not an undue burden or
hardship."






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ANALYSIS

No separate intent instruction was required.

Rick timely requested the district court instruct the jury separately on the
definition of "intent" as it applied to the elements of possession of drug paraphernalia
with intent to use to distribute. He argues the district court erred when it declined to give
the requested instruction.

"When analyzing jury instruction issues, an appellate court follows a three-step
process by: (1) Determining whether the appellate court can or should review the issue,
i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
appeal; (2) considering the merits to determine whether error occurred below; and (3)
assessing whether the error requires reversal. Whether a party has preserved a jury
instruction issue affects the reversibility inquiry at the third step. . . .
"At the second step, we consider whether the instruction was legally and
factually appropriate, employing an unlimited review of the entire record. If the district
court erred, and the error did not violate a constitutional right, 'the error is reversible only
if [the court] determine[s] that there is a "reasonable probability that the error will or did
affect the outcome of the trial in light of the entire record."' [Citations omitted.]" State v.
Louis, 305 Kan. 453, 457-58, 384 P.3d 1 (2016).

Generally, a culpable mental state is an essential element of every crime. A
culpable mental state may be established by proving the defendant acted intentionally,
knowingly, or recklessly. K.S.A. 2017 Supp. 21-5202(a). Even if a statute does not
prescribe a culpable mental state, a culpable mental state is generally still required.
K.S.A. 2017 Supp. 21-5202(d). However, K.S.A. 2017 Supp. 21-5202(g) also states:

"If the definition of a crime prescribes a culpable mental state with regard to a
particular element or elements of that crime, the prescribed culpable mental state shall be
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required only as to specified element or elements, and a culpable mental state shall not be
required as to any other element of the crime unless otherwise provided."

K.S.A. 2017 Supp. 21-5709(b)(1) states: "It shall be unlawful for any person to
use or possess with intent to use any drug paraphernalia to . . . distribute a controlled
substance." K.S.A. 2017 Supp. 21-5701(q) defines possession 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." Scales are included in the definition of drug paraphernalia. K.S.A.
2017 Supp. 21-5701(f)(5).

In State v. Hanks, No. 114,640, 2016 WL 4585620 (Kan. App. 2016) (unpublished
opinion), a panel of this court addressed a similar issue. Hanks was convicted of
possession with intent to use drug paraphernalia to store, contain, conceal, inject, ingest,
inhale, or otherwise introduce a controlled substance into the human body.
Hanks complained the jury was not instructed on the definitions of intentional, knowing,
or reckless as they related to a culpable mental state. The panel found the plain language
of K.S.A. 2015 Supp. 21-5709(b)(2) required the defendant have intended to use the drug
paraphernalia. It found the intent to use was the only culpable mental state required to
sustain a conviction. The panel held "[t]he inclusion of 'with intent to use' in the jury
instruction foreclose[d] any requirement of an additional culpable mental state as an
element of this crime." 2016 WL 4585620, at *4. Pursuant to K.S.A. 2015 Supp. 21-
5202(g), the panel concluded no additional or separate mental state instruction needed to
be submitted to the jury. 2016 WL 4585620, at *4.

Based on the rationale in Hanks, Rick's requested jury instruction—which
included the definition of intentional as the required culpable mental state—was not
legally appropriate. The "intent to use" in the instruction given was the only culpable
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mental state required. The district court did not err when it declined to give Rick's
requested instruction.

Even if Rick's requested instruction was legally appropriate, he is not entitled to
relief. Again, Hanks is instructive. In that case, Hanks was also charged with possession
of methamphetamine. The district court's instructions defined possession of
methamphetamine as: "'having joint or exclusive control over [it] with knowledge of and
the intent to have such control or knowingly keeping [it] in a place where [she] has some
measure of access and right of control.'" 2016 WL 4585620, at *3. On appeal, Hanks
complained the instructions did not give the required definitions of intentional, knowing,
or reckless. The panel found the failure to define "intent" and "knowingly" did not render
the jury instructions defective because "[t]he legislature's definitions of the terms
'knowingly,' 'reckless,' and 'with intent' . . . do not differ from the dictionary definitions of
those words or from how those words are used by nonlawyers in their everyday
conversations. They did not need to be defined in the instructions. [Citations omitted.]"
2016 WL 4585620, at *4.

While the Hanks panel reviewed for clear error—Hanks did not object to the
instruction—the result is the same. Here, there is no reasonable probability the failure to
include the definition of intentional affected the outcome of the trial. The instruction used
normal, everyday words in their normal, everyday way and there is no indication the jury
was confused by the instruction. If there was error, it was harmless.

Rick's conviction for possession of drug paraphernalia with the intent to use to
distribute was supported by sufficient evidence.

Rick also challenges the sufficiency of the evidence supporting his conviction for
possession of drug paraphernalia with the intent to use to distribute. "'When the
sufficiency of evidence is challenged in a criminal case, this court reviews the evidence
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in a light most favorable to the State to determine whether a rational factfinder could
have found the defendant guilty beyond a reasonable doubt.' [Citation omitted.]" State v.
Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). "'In making a sufficiency
determination, the appellate court does not reweigh evidence, resolve evidentiary
conflicts, or make determinations regarding witness credibility.' [Citations omitted.]"
State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016). It is only in rare cases where the
testimony is so incredible that no reasonable fact-finder could find guilt beyond a
reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5-6,
660 P.2d 945 (1983); see State v. Naramore, 25 Kan. App. 2d 302, 322, 965 P.2d 211
(1998) (uncontroverted expert testimony that defendant physician's treatment was within
reasonable health care protocols insufficient to uphold murder and attempted murder
convictions).

A conviction of even the gravest offense can be based entirely on circumstantial
evidence, if such evidence provides a basis for a reasonable inference by the fact-finder
regarding the fact in issue. Circumstantial evidence, in order to be sufficient, need not
exclude every other reasonable conclusion. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d
836 (2016).

K.S.A. 2017 Supp. 21-5709(b)(1) states: "It shall be unlawful for any person to
use or possess with intent to use any drug paraphernalia to . . . distribute a controlled
substance." K.S.A. 2017 Supp. 21-5701(q) defines possession 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." In order to convict Rick, the evidence presented by the State had to
show he possessed drug paraphernalia and had the intent to use it to distribute a
controlled substance.


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K.S.A. 2017 Supp. 21-5701(d) states:

"'Distribute' means the actual, constructive or attempted transfer from one person
to another of some item whether or not there is an agency relationship. 'Distribute'
includes, but is not limited to, sale, offer for sale or any act that causes some item to be
transferred from one person to another. 'Distribute' does not include acts of administering,
dispensing or prescribing a controlled substance as authorized by the pharmacy act of the
state of Kansas, the uniform controlled substances act or otherwise authorized by law."

Rick argues there was no actual evidence presented of a sale. He also argues there
was very little circumstantial evidence presented to support his conviction for possession
of drug paraphernalia with the intent to use it to distribute a controlled substance. He
contends the evidence was "significantly less" than the evidence in State v. Gibson, 30
Kan. App. 2d 937, 52 P.3d 339 (2002). However, Gibson is easily distinguishable. In
Gibson, the question was whether there was sufficient evidence to convict him of
possession of marijuana with the intent to distribute, not possession of drug paraphernalia
with the intent to use to distribute a controlled substance. Gibson unquestionably
possessed marijuana; however, the officers only found a partial marijuana cigarette and
green vegetation in the apartment. In Gibson, the officers also found paraphernalia which,
when combined with the small amount of marijuana, "provided strong circumstantial
evidence" Gibson possessed marijuana with the intent to distribute. 30 Kan. App. 2d at
955.

Here, Rick admitted he possessed a scale with methamphetamine residue on it.
This satisfies the definition of drug paraphernalia. K.S.A. 2017 Supp. 21-5701(f)(5).
Thus, the question is whether there was sufficient evidence, either direct or
circumstantial, suggesting Rick intended to use the scale to distribute a controlled
substance. There was. Officer Meek testified he found a second set of digital scales, a
glass pipe with burnt white residue on it, and a partially burnt brown cigarette. Officer
Meek did not find "owe sheets" or large amounts of cash but found a backpack
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containing "several empty small plastic baggies." He later described the baggies as 2-inch
by 3-inch jewelry baggies. Officer Meek testified: "[The baggies] were empty at the time
and without finding significant amount of illegal narcotics at the time of discovery, the
empty baggies themselves, though suspicious, they weren't really significant to me for
any type of distribution charge, I would think." However, Officer Meek also testified that,
in his training and experience, baggies of this size are used for packaging drugs for sale
or distribution. The jury could have concluded, based on the baggies and Rick's
admission the scale was his, he possessed it all with the intent to use it to distribute
methamphetamine. Viewed in the light most favorable to the State, a rational fact-finder
could have found Rick guilty beyond a reasonable doubt of possession of drug
paraphernalia with intent to use to distribute a controlled substance. A conviction of even
the greatest offense may be sustained by circumstantial evidence. Logsdon, 304 Kan. at
25.

Rick's conviction for felony interference with a law enforcement officer is
supported by sufficient evidence.

Rick contends there was insufficient evidence supporting a conviction for felony
interference with a law enforcement officer. Specifically, he contends there was no
evidence Sergeant Rupert believed he was investigating a felony. Rick contends Sergeant
Rupert was merely investigating a car traveling at a high rate of speed, thus, he could
only have been convicted of misdemeanor interference with a law enforcement officer
based on his allegation he was only investigating a traffic offense. Rick's argument is
unpersuasive.

We discussed the standard of review when the sufficiency of the evidence is
challenged in our discussion of the previous issue.

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Rick relies on State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997), to support his
argument. In Hudson, a law enforcement officer saw a vehicle run a stop sign and
activated his lights and sirens. The driver of the vehicle attempted to drive away from law
enforcement who gave chase, reaching speeds of up to 70 miles per hour. The driver
eventually got out of the car and fled on foot. A short time later, Hudson was taken into
custody. Only after Hudson was arrested did law enforcement learn he had warrants. The
Kansas Supreme Court held: "The touchstone for the classification of the offense is the
reason for the officer's approaching the defendant who then flees or otherwise resists, and
not the status of the defendant." 261 Kan. at 538-39. Hudson is easily distinguishable.
Hudson was chased for running a stop sign, a misdemeanor act—not his active
warrants—the interference was properly classified as a misdemeanor. 261 Kan. at 538-
39.

Here, there is no dispute aggravated assault on a law enforcement officer is a
felony. K.S.A. 2017 Supp. 21-5412(e)(4). Despite Rick's contention Sergeant Rupert was
merely investigating a car traveling at a high rate of speed, the evidence actually shows
he was investigating aggravated assault on a law enforcement officer as he pursued Rick
to stop him. Sergeant Rupert testified he was in the area looking for a gray house when he
heard Officer Watkins "screaming on the radio, or yelling on the radio." Officer Watkins
was yelling a vehicle almost hit him and Officer Meek, and the vehicle was eastbound on
Harsh Street. Officer Watkins provided a description of the vehicle, including the tag
number. Sergeant Rupert testified he saw the vehicle traveling eastbound on Harsh Street
at a high rate of speed, activated his lights and sirens, and began pursuing the vehicle.
Sergeant Rupert pursued the vehicle until it came to a stop. Rick had already fled on foot.

Unlike the officer in Hudson—who attempted to stop a vehicle for a traffic
offense—Sergeant Rupert only pursued Rick after hearing Officer Watkins on the radio
saying that a vehicle almost hit him and Officer Meek. While it is true Rick was traveling
at a high rate of speed, it was not the reason from the pursuit. Sergeant Rupert pursued
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Rick because Rick nearly hit Officers Watkins and Meek with his vehicle. Although he
does not specifically say it, Sergeant Rupert gave chase because he was investigating a
felony crime—aggravated assault of a law enforcement officer. Viewed in the light most
favorable to the State, there is sufficient evidence supporting a conviction for felony
interference with a law enforcement officer since aggravated assault of a law enforcement
officer is a felony.

Rick's conviction for assault of a law enforcement officer is supported by
substantial evidence.

Rick contends there was insufficient evidence to convict him of assault of a law
enforcement officer. Specifically, he asserts the State failed to prove he knowingly
caused Officers Watkins and/or Meek reasonable apprehension of immediate bodily
harm. The standard of review in a sufficiency of the evidence challenge has been
discussed above.

In order to prove assault of a law enforcement officer, the State must show Rick
knowingly placed a uniformed law enforcement officer, who was engaged in the
performance of his official duties, in reasonable apprehension of immediate bodily harm.
See K.S.A. 2017 Supp. 21-5412. "A person acts 'knowingly,' or 'with knowledge,' with
respect to a result of such person's conduct when such person is aware that such person's
conduct is reasonably certain to cause the result." K.S.A. 2017 Supp. 21-5202(i).

Here, there is no dispute Officers Watkins and Meek were in uniform. Similarly,
there is no dispute they were performing their official duties. In addition, there is no
dispute the officers were placed in reasonable apprehension of immediate bodily harm.
Thus, the only question is whether Rick acted knowingly.

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Rick contends he did not. He asserts he told Officer Watkins he was not trying to
hit them but had panicked and hit the accelerator instead the brake pedal. He argues:
"Taking into consideration [his] reaction time and the speed the officers believe the car
was going as it came around the corner, it would have been nearly impossible for the car
to stop before reaching the point where the officers stood in the middle of the roadway."
Thus, he contends, the State failed to prove when he drove his car around the corner that
he did so knowing it would cause the officers to reasonably apprehend immediate bodily
harm.

Rick's argument is unpersuasive. The jury heard the evidence that Rick gave
multiple versions of the morning's events. He first told Officer Watkins his female
passenger stepped over the vehicle's console and pressed the accelerator with her foot.
After Officer Watkins told Rick his story was unbelievable, Rick indicated he panicked
when he came around the corner and must have hit the accelerator instead of the brake.
Rick's version of events changed practically any time someone questioned him about it.
Officer Watkins also testified Officer Chris Venables suggested the accelerator may have
been inadvertently pressed.

However, both officers testified consistently the vehicle kept speeding up, never
letting off the throttle. Officer Watkins indicated he and Officer Meek had to "jump" out
of the middle of the road. The vehicle came "within a few feet" of hitting the officers.

Rick's conviction for assault of a law enforcement officer does not reflect a lot of
direct evidence but it is clearly supported by the circumstantial evidence. A conviction of
even the gravest offense can be based entirely on circumstantial evidence, if such
evidence provides a basis for a reasonable inference by the fact-finder regarding the fact
in issue. Circumstantial evidence, in order to be sufficient, need not exclude every other
reasonable conclusion. Logsdon, 304 Kan. at 25. Here, Rick's version of events changed
multiple times. Neither Officer Watkins nor Officer Meek saw the vehicle attempt to
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brake; it just kept accelerating. In the light most favorable to the State, a reasonable jury
could find Rick was reasonably certain his conduct would place the officers in reasonable
apprehension of immediate bodily harm. There was sufficient evidence supporting the
conviction; Rick is not entitled to relief.

The district court failed to follow Robinson.

Finally, Rick asserts the district court erred when it assessed BIDS attorney fees
against him in the amount of $2,700. He claims the district court failed to consider his
financial resources and the nature of the burden imposition of attorney fees would
impose.

Sentencing courts, at the time of the initial assessment of BIDS attorney fees under
K.S.A. 22-4513, must consider the financial resources of the defendant and the nature of
the burden that payment will impose explicitly, stating on the record how those factors
have been weighed in the court's decision. Robinson, 281 Kan. at 546.

Resolution of this issue requires interpretation and application of K.S.A. 22-4513,
which is a question law subject to unlimited review. 281 Kan. at 539. The remedy for a
sentencing court's failure to make explicit findings is to remand to the lower court for
such findings. 281 Kan. at 548.

Here, the district court addressed BIDS attorney fees with the following colloquy:

"And Mr. Rick, are you employable when you're released on postrelease supervision?
"THE DEFENDANT: Am I employable?
"THE COURT: Yes. Can you get a job?
"THE DEFENDANT: I hope so.
"THE COURT: All right. Do you have any mental or physical disabilities that
prevent you from working full-time?
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"THE DEFENDANT: Not that I know of.
"THE COURT: And you have at least two children, correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: Do you have any other kids under the age of 18?
"THE DEFENDANT: No, sir.
"THE COURT: The Court is going to impose attorney fees in the amount of
$2,600, $100 for application fee. Find those are not an undue burden or hardship."

This is a well-settled area of the law and requires the district court to specifically
consider on the record, based on the defendant's individual situation, whether repayment
of BIDS attorney fees will cause an undue financial hardship. Our Supreme Court in
Robinson set out the rules to follow. 281 Kan. at 546-47.

Here, the district court did not explicitly consider the defendant's financial
resources or the burden the imposition of attorney fees would impose on him. While Rick
believes he will be able to work full time, there is no indication how much Rick will earn.
Similarly, the court did not inquire as to Rick's other assets or financial obligations. The
district court failed to explain how it weighed the factors it inquired about. It merely
concluded the attorney fees were not an undue burden or hardship. The district court
erred when it did not explicitly state on the record how it weighed Rick's financial
resources and the nature of the burden that payment of BIDS attorney fees would impose.
The district court's imposition of BIDS attorney fees is reversed and remanded for
findings consistent with Robinson.

Affirmed in part, reversed in part, and remanded with directions.