State v. Taylor

1

NOT DESIGNATED FOR PUBLICATION

No. 118,160

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DANE LARON TAYLOR,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed February 1, 2019.
Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., HILL and SCHROEDER, JJ.

PER CURIAM: Dane Laron Taylor appeals his convictions for aggravated robbery,
three counts of aggravated assault with a deadly weapon, possession of THC with the
intent to distribute, and two counts of possession of drug paraphernalia with the intent to
use to distribute. He claims the district court erred when it admitted a screenshot from
security camera footage that had been brightened. He argues the altered screenshot
violated the best evidence rule since the original screenshot was not admitted into
evidence for the jury to consider with the brighter version. Taylor also claims the
prosecutor committed error by telling the jury it had no right to jury nullification during
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voir dire, misstated evidence, and vouched for officers' credibility during closing
arguments. We find no reversible error and affirm.

FACTS

Following the robbery of a Topeka Kwik Shop on August 29, 2016, the State
charged Taylor with aggravated robbery, six counts of aggravated assault with a deadly
weapon, and criminal possession of a firearm. Two weeks before his jury trial, the State
moved to amend the complaint to include possession of tetrahydrocannabinols (THC)
with intent to distribute and two counts of possession or use of drug paraphernalia with
intent to distribute a controlled substance.

At the hearing on the motion to amend, Taylor argued the amendment would
substantially prejudice him because he believed the State had not intended to pursue
those charges since the State had the evidence from the beginning of the case. He also
argued he would not have a chance to conduct testing. Taylor objected to the State
charging possession of THC with intent to distribute instead of possession of marijuana
with the intent to distribute. Nonetheless, the district court granted the motion to amend.

The trial started two weeks later. During voir dire, the prosecutor explained the
jury's duty to apply the instructions given by district court. He continued, telling the jury:

"But in the event you read some instruction and you think, you know what, I don't like
that for whatever reason, I didn't know that that was the law, and I don't like it and I don't
want to apply it, well, you don't have that right. The law that the Judge gives you, you're
going to take an oath that you're going to apply the law, all right? The facts as you find
them will be up to you, but the law that is given to you, you have to follow as instructed
by the Judge."

Taylor did not object to the prosecutor's statement.
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Because Taylor does not challenge the sufficiency of the evidence against him, it
is unnecessary to explain in detail the evidence presented against him during his
weeklong trial. Highly summarized, the State presented evidence a black male entered a
Topeka Kwik Shop around 11 p.m. with a gun, told the patrons to get down, took the
cash register till, and fled on foot. Without objection, the State admitted security camera
footage of the robbery showing the robber was a black male with a tattoo on his hand.

Officer Joshua Miller testified he was a certified K-9 handler and was on patrol
with his police service dog, Rio, on August 29, 2016. He received a dispatch over his
radio about an aggravated robbery at a Kwik Shop near his location. Miller testified he
and Rio began tracking from the southeast corner of the parking lot eastbound to
Humboldt and turned northbound on Humboldt. Rio led Miller across a pedestrian
footbridge to Girard before Rio turned south on Girard. Rio led him behind a house
toward a car parked behind the house. Other officers were already at this address
investigating a reckless driving call—a vehicle had driven over the pedestrian
footbridge—that had been reported in the area. Rio continued toward a tree-lined area
where officers were using flashlights and a cash register till had been found. The district
court admitted Miller's bodycam footage.

The video showed a difference in Rio's behavior a few houses down Humboldt.
Miller interpreted this as the track changing. He noted the suspect could have gotten into
some other means of transportation—or simply changed shoes—and it would have
changed the track. On cross-examination, Miller admitted Rio did not often track cars,
but reiterated Rio tracked ground disturbance. Miller testified Rio could be tracking
ground disturbance—whether left by a person, bicycle, or car, Miller could not say.

Detective Jared Strathman testified he reviewed the store's security camera video
when he arrived at the scene. He observed what appeared to be a tattoo on the robber's
hand that came to a point near the thumb. After he left the store, he went to the Girard
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Street address—which belonged to Taylor's grandmother—and discovered the vehicle
behind the house belonged to Taylor. Using Facebook, Strathman searched for Taylor
and saw a picture of Taylor, a black male, with a tattoo running down his arm and
coming to a point at his thumb.

The State moved to admit Exhibit 27, a screenshot from the admitted security
camera footage. Taylor objected to its admission, arguing the screenshot had been altered
by increasing its brightness. He also argued there was an original of the screenshot, and
the State could use the original, but Exhibit 27 had been altered. Strathman testified he
used Microsoft Word to brighten the image. He also believed he adjusted the sharpness or
the contrast but did not alter the contents of the picture in any way. The district court
ultimately admitted Exhibit 27.

During closing arguments, the prosecutor told the jury:

"And you saw on [Miller's] video that police are already there. Well, how did
they know to go there? They weren't necessarily looking for the robber, because
remember, the calls that came in and radio traffic, there was a report at that time of an
erratic or reckless driver, possibly in a gold Camry, that had gone on Girard and went
behind a house there. So you have a different group of officers kind of responding to that
situation, which· matches up where the K-9 ends up. It starts making some sense that
these two things may be linked. They didn't make this stuff up.
. . . .
"And, remember, it was in the radio traffic or one of the 911 calls where they
said they saw someone jump in a car, this gold or tan Camry, on Humboldt, and take off.
Jump in a car. That is consistent with what Officer Miller and Rio were able to determine
when they were tracking on Humboldt, that that change of disturbance into the street is
consistent with somebody jumping in a car. Again, Officer Miller didn't know any of that
information when Rio was doing what Rio does, he's just following what Rio does."
(Emphases added.)

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Taylor did not object to the prosecutor's comments.

The jury convicted Taylor of aggravated robbery, three counts of aggravated
assault with a deadly weapon, criminal possession of a firearm, possession with the intent
to distribute THC, and two counts of possession of drug paraphernalia with the intent to
use to distribute.

ANALYSIS

Exhibit 27 does not violate the best evidence rule.

Taylor argues the district court erred when it admitted Exhibit 27, a still frame
photograph from the security camera video, because the still frame photograph had been
altered and the State did not admit the original into evidence as well. On appeal, we
review best evidence challenges for an abuse of discretion. State v. Gauger, 52 Kan. App.
2d 245, 249, 366 P.3d 238 (2016), rev. denied 305 Kan. 1254 (2017). A judicial action
constitutes an abuse of discretion if (1) no reasonable person would take the view adopted
by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact.
State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

In Kansas, the best evidence rule is codified in K.S.A. 60-467, which states:

"(a) As tending to prove the content of a writing, no evidence other than the
writing itself is admissible, except as otherwise provided in these rules, unless the judge
finds that: (1) If the writing is a telefacsimile communication as defined in subsection (d)
and is used by the proponent or opponent as the writing itself, such telefacsimile
communication shall be considered as the writing itself; (2) (A) the writing is lost or has
been destroyed without fraudulent intent on the part of the proponent, (B) the writing is
outside the reach of the court's process and not procurable by the proponent, (C) the
opponent, at a time when the writing was under the opponent's control has been notified,
expressly or by implication from the pleadings, that it would be needed at the hearing,
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and on request at the hearing has failed to produce it, (D) the writing is not closely related
to the controlling issues and it would be inexpedient to require its production, (E) the
writing is an official record, or is a writing affecting property authorized to be recorded
and actually recorded in the public records as described in exception (s) of K.S.A. 60-460
and amendments thereto or (F) calculations or summaries of content are called for as a
result of an examination by a qualified witness of multiple or voluminous writings, which
cannot be conveniently examined in court, but the adverse party shall have had a
reasonable opportunity to examine such records before trial, and such writings are present
in court for use in cross-examination, or the adverse party has waived their production, or
the judge finds that their production is unnecessary."

The State contends Taylor did not allege a violation of the best evidence rule
before the district court and thus did not preserve the issue for review. The State argues
Taylor never mentioned the words "best evidence rule" and contends Taylor argued the
picture was unreliable, not that it violated the best evidence rule.

The State's argument is unpersuasive. While Taylor objected to Exhibit 27 based
on a lack of foundation, he also told the district court, "I know there's an original out
there, and that's not the original." Although Taylor mainly objected to Exhibit 27 based
on a lack of foundation, he also objected based on the best evidence rule. Thus, the issue
was preserved for review. We will address the merits of Taylor's argument.

The best evidence rule applies only when the challenged evidence is introduced to
prove the content of a writing. State v. Dale, 293 Kan. 660, 663, 267 P.3d 743 (2011). At
first glance, it does not appear the best evidence rule applies here as the still picture taken
from the video of the store robbery is not a writing. "Writing" includes "handwriting,
typewriting, printing, photostating, photographing and every other means of recording
upon any tangible thing any form or communication or representation, including letters,
words, pictures, sounds, or symbols, or combinations thereof." K.S.A. 60-401(m).
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However, we must follow our Supreme Court and it has expanded writing to include a
video. See Dale, 293 Kan. at 662-63.

In Dale, the defendant challenged the admission of a slow motion version of the
patrol-car video. The Kansas Supreme Court affirmed, concluding "that because the best
evidence, i.e., the original video, already had been admitted at trial and the modified
video was not introduced to prove or disprove the content of the video, the video's
admission did not violate the best evidence rule." 293 Kan. at 661.

The parties agree Dale controls, but they disagree on what constitutes the
"original." The State contends the original is the security camera video admitted into
evidence. While Taylor acknowledges the security camera video was admitted into
evidence, he contends the original is the unaltered still frame. It does not appear Kansas
courts have addressed whether the video or unaltered still frame is the original.

However, in Hurst v. State, No. 10-13-000113-CR, 2013 WL 5526226 (Tx. App.
2013) (unpublished opinion), the Texas Court of Appeals implicitly addressed this issue.
In Hurst, the defendant was charged with tampering with physical evidence after he tried
to drop evidence of drugs during a traffic stop. The district court admitted an officer's
dash-cam video without objection. The State also attempted to admit still photographs
taken from the dash-cam video. The photographs had boxes on portions of the
photographs showing the offense which were intended to help the jury focus on the acts
constituting the offense. Hurst objected based on the best evidence rule, the district court
overruled the objection, and the photographs were admitted into evidence. The jury found
Hurst guilty and he appealed. On appeal, the Texas Court of Appeals found Hurst's
argument was unpersuasive because the best evidence was the dash-cam video. 2013 WL
5526226, at *2.

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Here, Strathman testified Exhibit 27 was a still image taken from the security
video already admitted at trial. Although Strathman modified the image to adjust the
brighness, the sharpness, or contrast, the best evidence rule did not apply because the
original—the security camera video—had already been admitted. The admission of
Exhibit 27 did not violate the best evidence rule. Exhibit 27 was properly admitted by the
district court over Taylor's objection.

The prosecutor did not commit error.

Taylor contends the State committed reversible prosecutorial error in both voir
dire and in closing arguments. First, he argues the prosecutor misstated the law on jury
nullification during voir dire. Second, he asserts the prosecutor both misstated Miller's
testimony and vouched for his credibility. In State v. Sherman, 305 Kan. 88, 378 P.3d
1060 (2016), the Kansas Supreme Court revamped the concept of and standard of review
for "prosecutorial misconduct." Under the modified Sherman standard, the appellate court
uses 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.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). We continue
to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but
when 'analyzing both constitutional and nonconstitutional error, an appellate court need
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only address the higher standard of constitutional error.' [Citation omitted.]" Sherman,
305 Kan. at 109.

A claim of prosecutorial error based on comments made during voir dire, opening
statements, or closing argument (that are not evidence) will be reviewed on appeal even
when a contemporaneous objection was not made at the trial level. State v. Anderson, 294
Kan. 450, 461, 276 P.3d 200 (2012).

Jury nullification

Taylor first argues the prosecutor committed error by misstating the law on jury
nullification during voir dire. Jury nullification is:

"'A jury's knowing and deliberate rejection of the evidence or refusal to apply the
law either because the jury wants to send a message about some social issue that is larger
than the case itself or because the result dictated by law is contrary to the jury's sense of
justice, morality, or fairness.' [Citation omitted.]" Silvers v. State, 38 Kan. App. 2d 886,
888, 173 P.3d 1167 (2008).

Although jurors have a duty to accept the rules of law given them in the
instructions, apply those rules in determining what facts are proven, and render a verdict
based on the law, jurors have "the raw physical power to disregard both the rules of law
and the evidence in order to acquit a defendant." State v. McClanahan, 212 Kan. 208,
Syl. ¶ 3, 510 P.2d 153 (1973). In State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485
(2014), the Kansas Supreme Court held jury instructions cannot forbid a jury from
exercising its power of nullification. "A judge cannot compel a jury to convict, even if it
finds all elements proved beyond a reasonable doubt." 301 Kan. at 164.

During voir dire, the prosecutor told the potential jurors:

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"But in the event you read some instruction and you think, you know what, I don't like
that for whatever reason, I didn't know that that was the law, and I don't like it and I don't
want to apply it, well, you don't have that right. The law that the Judge gives you, you're
going to take an oath that you're going to apply the law, all right? The facts as you find
them will be up to you, but the law that is given to you, you have to follow as instructed
by the Judge." (Emphasis added.)

The State contends there is no law that permits jury nullification and, as a result,
the prosecutor did not misstate the law. This argument is persuasive. Although the jury
has the power of nullification, it has no right to jury nullification. See United States v.
Davis, 724 F.3d 949, 954 (7th Cir. 2013); State v. Trotter, No. 114,743, 2017 WL
3668908, at *3 (Kan. App. 2017) (unpublished opinion) (while "jurors have the
unchecked power to acquit a defendant in defiance of clear-cut law and overwhelming
evidence of guilt . . . they have no legal right to exercise it"), rev. denied 307 Kan. 993
(2018). Since juries have only the power of nullification and not the right to nullification,
the prosecutor did not misstate the law when he told the jury it did not have the right to
disregard the law.

Misstating officer's testimony.

Taylor contends the prosecutor's closing arguments also fell outside the wide
latitude afforded prosecutors. He asserts the prosecutor erred when he misstated the
evidence. "A prosecutor commits error by misstating the evidence, even when the
misstatement is accidental or inadvertent." State v. Sturgis, 307 Kan. 565, 570, 412 P.3d
997 (2018). Taylor complains the prosecutor misstated the evidence when he told the
jury:

"And, remember, it was in the radio traffic or one of the 911 calls where they
said they saw someone jump in a car, this gold or tan Camry, on Humboldt, and take off.
Jump in a car. That is consistent with what Officer Miller and Rio were able to determine
when they were tracking on Humboldt, that that change of disturbance into the street is
11

consistent with somebody jumping in a car. Again, Officer Miller didn't know any of that
information when Rio was doing what Rio does, he's just following what Rio does."
(Emphasis added.)

Taylor contends Miller's testimony cannot support the prosecutor's assertion.
However, the prosecutor did not misstate the facts; he made a reasonable inference based
on the evidence. This is permissible. See Sturgis, 307 Kan. at 569. Miller testified Rio's
track "changed" on Humboldt. He indicated the change meant the tracked individual "had
gotten into some other means of transportation" and specifically identified both cars and
bicycles as possibilities. While Miller testified Rio did not often track cars, he clarified
Rio was trained to track ground disturbance. Miller testified Rio could be tracking ground
disturbance—whether left by a person, bicycle, or car, Miller could not say.

The prosecutor did not misstate Miller's testimony. As a result, the prosecutor did
not commit error. Taylor is entitled to no relief on this claim.

Vouching for officer.

Taylor also contends the prosecutor erred by vouching for law enforcement
officers' credibility when he told the jury:

"And you saw on his video that police are already there. Well, how did they
know to go there? They weren't necessarily looking for the robber, because remember,
the calls that came in and radio traffic, there was a report at that time of an erratic or
reckless driver, possibly in a gold Camry, that had gone on Girard and went behind a
house there. So you have a different group of officers kind of responding to that situation,
which matches up where the K-9 ends up. It starts making some sense that these two
things may be linked. They didn't make this stuff up." (Emphasis added.)

We agree with the rule prosecutors may not offer juries their personal opinions
about the credibility of witnesses. However, prosecutors have wide latitude to craft
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arguments that include reasonable inferences to be drawn from the evidence, including
explaining to juries what they should look for in assessing witness credibility. State v.
Sean, 306 Kan. 963, 979, 399 P.3d 168 (2017). This court does not view a prosecutor's
comments in isolation but in context. State v. Duong, 292 Kan. 824, 831, 257 P.3d 309
(2011).

Taylor argues the prosecutor erred because he vouched for the credibility of the
witnesses by stating, "They didn't make this stuff up." The State contends Taylor ignores
the statement's context to argue the prosecutor improperly bolstered the witnesses'
credibility. It asserts the argument was a proper comment on the evidence.

Though the argument is not entirely clear, the prosecutor seems to be referencing
Miller and Rio when he says, "They didn't make this stuff up." In context, the prosecutor
is simply suggesting Rio's track led him to the Girard address and Taylor's vehicle instead
of Rio losing the track and leading Miller to a random location. This was a reasonable
inference based on the evidence; Rio followed a track from the Kwik Shop to Taylor's
grandmother's house and his car. Even if, however, this was not fair comment on the
evidence, the error was harmless.

Prosecutorial error is harmless if the State can show "'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.'" Sherman, 305 Kan. at 109. Here, there was overwhelming evidence to
suggest Taylor committed the crime. First, the security camera footage clearly shows the
robber was a black male with a tattoo; Taylor's tattoo appears to match. Second, police
officers recovered the till near Taylor's car, behind his grandmother's house. Third,
Taylor admitted to selling marijuana and the KBI lab technician, Beth Royel, confirmed
the vegetation contained THC. There is no reasonable possibility the prosecutor's brief,
somewhat confusing statement during his closing argument, contributed to the verdict.
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No abuse of discretion to allow the State to amend the complaint two weeks before trial.

Taylor's final argument claims the district court erred when it allowed the State to
amend the complaint two weeks before trial to add more charges. This court reviews a
district court's decision to allow an amendment to a complaint for an abuse of discretion.
State v. Bischoff, 281 Kan. 195, 205, 131 P.3d 531 (2006). A judicial action constitutes an
abuse of discretion if (1) no reasonable person would take the view adopted by the trial
court; (2) it is based on an error of law; or (3) it is based on an error of fact. Marshall,
303 Kan. at 445. The party asserting the trial court abused its discretion bears the burden
of showing the abuse of discretion. State v. Robinson, 303 Kan. 11, 90, 363 P.3d 875
(2015), cert. denied 137 S. Ct. 164 (2016).

K.S.A. 22-3201(e) allows for a complaint "to be amended at any time before
verdict or finding if no additional or different crime is charged and if substantial rights of
the defendant are not prejudiced." In Bischoff, the Kansas Supreme Court held "the
charging of a different crime may be allowed by an amendment to the complaint before
trial provided the substantial rights of the defendant are not prejudiced." 281 Kan. at 205.

Taylor asserts his substantial rights were prejudiced for two reasons. First, he
argues the State violated his right to trial without undue delay because it knew at the
beginning of the case Taylor possessed marijuana with the intent to distribute. He
contends "no reasonable person would have allowed the State to sit on the evidence
through one continuance" and amend the charges less than two weeks before trial. Taylor
also argues the State deprived him of his right to present a complete defense because he
did not have sufficient time to investigate the new charges against him.

Taylor's first argument is unpersuasive. His preliminary hearing and arraignment
occurred on November 3, 2016. His trial began April 17, 2017—only 165 days later. The
amendment did not deny Taylor his right to a trial without delay. Further, the motion to
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amend the complaint indicates the State received the results indicating the presence of
THC on March 31, 2017, and the motion was filed four days later. A reasonable person
could agree to allow the State to amend the complaint four days after receiving the test
results.

Taylor's second argument is also unpersuasive. While Taylor argued he would
have done independent testing of the sample, he also admitted the vegetation was
marijuana. THC is a chemical compound in marijuana. The KBI lab technician, Royel,
testified she could not identify the vegetation as marijuana. But in the sample provided,
she was able to find THC. Since marijuana contains THC, and Taylor admitted the
vegetation was marijuana, it is unclear from his brief what he hoped to obtain through
additional testing.

Taylor also conducted a 32-page voir dire before the district court admitted the
laboratory report. During voir dire, he questioned Royel about the accuracy of the
instruments and the policy of how marijuana is examined.

The State did not deny Taylor the right to a trial without undue delay; his trial
began 165 days after the preliminary hearing and his arraignment on the same day.
Similarly, Taylor did not explain what he hoped to accomplish with additional testing and
he conducted an extensive voir dire before the laboratory report was admitted. Taylor has
not shown the district court abused its discretion when it granted the motion to amend the
complaint because he has not shown he was prejudiced by the State's request to amend
two weeks before trial to add the THC and drug paraphernalia-related charges.

Affirmed.