Opinion
No. 107,980.
2013-08-30
STATE of Kansas, Appellee, v. Derrick Deron DIXON, Appellant.
Appeal from Kearny District Court; Philip C. Vieux, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Lori L. Jensen, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Kearny District Court; Philip C. Vieux, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Lori L. Jensen, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., SCHROEDER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Derrick Deron Dixon was convicted by a jury of criminal possession of a firearm. He challenges the validity of the consent the owner of the mobile home to search the property for the gun. Dixon submits the district court used an improper jury instruction and challenges the sufficiency of the evidence to convict him. We have reviewed the record before us and find no error. We affirm.
Facts
Criminal History and Charging Documents
Dixon was convicted in 2008 of sale or distribution of cocaine in Finney County. On April 1, 2011, Dixon was charged with criminal possession of a firearm following conviction or release from imprisonment for a felony within the past 5 years, in violation of K .S.A.2010 Supp. 21–4204(a)(3).
Motion to Suppress
In early 2011, Dixon was staying in a mobile home belonging to Jeffrey Sanchez. Police received a tip Dixon had a gun on the property and asked Sanchez, who was arrested on March 17, 2011, and in custody at the time, for permission to search the yard. Sanchez gave Detective Darrell L. Walters permission to search the area outside the mobile home and executed a consent reflecting his permission. Police found the gun, and Dixon was arrested.
Dixon filed a motion to suppress the evidence seized as the result of Jeffrey Sanchez' consent for the mobile home's yard to be searched for a gun.
At the suppression hearing, Walters testified he obtained information that Dixon had a handgun at Sanchez' mobile home in Lakin. Walters was familiar with Sanchez, who was an inmate at the Kearney County jail, and obtained Sanchez' consent to search his shed and yard at his mobile home.
Walters and two deputies searched the yard next to the mobile home. Inside a barbecue grill in the yard, Walters found a gun. The gun was hidden in the grill inside of a bed sheet, wrapped in a couple of grocery store bags. Inside those items was a gun carrying case, containing a gun with the clip missing.
Dixon called Sanchez' mother, who testified she allowed Dixon to stay at Sanchez' trailer for a couple of days while Sanchez was in a local jail. Dixon paid no money to do so.
Dixon extensively argued Sanchez could not consent to the search of the mobile home and the land it set on because Sanchez was in prison.
The district court noted there was no claim by Dixon of any right, title, or interest in the trailer, the lot, the shed, or even the grill. Therefore, the district court said Dixon had no standing to claim privacy and stated: “[T]here was some testimony that he stayed there about a week. And I have no idea what that meant, whether he was-by consent of the actual renter of the property or whether he was simply a squatter or holdover that people forgot about. I don't know. But, still, the State doesn't have to prove the defendant's standing.... [T]he defendant has to show some type of standing.” Even if Dixon had some right in the property, a cotenant (Sanchez) may consent to the search of his mobile home and surrounding lot.
The district court also pointed out there was no case to show Dixon had a reasonable expectation of privacy in a grill or a shed that did not belong to him. Therefore, the district court denied the motion to suppress.
Jury Trial
At his jury trial, Dixon stipulated to having been convicted of a felony or having been released from prison after conviction of a felony within the past 5 years from the date of the conviction alleged in the complaint. Dixon renewed his objection to the testimony concerning the gun challenging the validity of the consent to search by Sanchez. Dixon's objection was overruled.
During the trial, the State called a number of witnesses, including law enforcement officers and friends of Dixon. We deem it unnecessary to set out each of their respective testimonies, as the facts are well known to the parties. The evidence at trial reflects:
• Dixon stipulated to a prior felony conviction within 5 years;
• Dixon had been in Kevin Craig's house;
• A gun was taken from Craig's house without permission;
• Craig identified the gun as not having a clip
• Craig identified the gun found as the one he owned;
• The gun was found in Sanchez' yard and was missing a clip;
• Dixon told Brandi Ward he had a gun;
• Dixon asked Ward to keep the gun at her house;
• Ward saw him hide the bundle Dixon said was a gun by the shed in Sanchez' yard;
At the close of the State's case, Dixon moved for a judgment of acquittal, claiming the State had failed to meet its burden of establishing a prima facie case. Dixon argued there was no direct evidence he was in possession of the firearm, and only Ward linked Dixon to the firearm. The district court denied the motion, stating that the State had met its burden for the matter to proceed to the jury.
Dixon called two witnesses to testify in his defense about their relationships with him, but they said nothing about the gun. Dixon rested and renewed his motion for acquittal. The court denied the motion and stated the facts created a jury question.
The district court discussed the jury instructions with Dixon and both counsel present. Neither party objected to any of the jury instructions presented to the jury. The jury found Dixon guilty.
Posttrial Motions
Dixon raised three posttrial motions. First, Dixon raised a motion to arrest judgment, claiming the statute, K.S.A.2010 Supp. 21–4204, is vague and uncertain. Dixon argued there was no testimony that showed he actually had a gun in his possession, only that he had a bundle. The firearm was never seen until it was picked up by law enforcement.
Second, Dixon argued for a judgment of acquittal, claiming the State failed to present sufficient evidence he was in possession of the gun. Dixon also argued the court erred in not suppressing the evidence from the search.
Third, Dixon asked for a new trial, asserting the verdict was contrary to the evidence and for the reasons included in his first and second motions, all resulting in the denial of his due process rights.
The district court denied Dixon's motions, and Dixon timely appeals.
Analysis
Was the Evidence at Trial Insufficient to Convict Dixon of Criminal Possession of a Firearm?
Standard of Review
Dixon claims the State failed to produce evidence that he was convicted of a crime other than one listed in K.S.A.2010 Supp. 21–4204(a)(4)(A). Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
K.S.A.2010 Supp. 21–4204
Dixon claims the State failed to produce evidence that Dixon was convicted for a crime other than one listed in K.S.A.2010 Supp. 21–4204(a)(4)(A). Dixon's prior felony was alleged in the complaint to be distribution of cocaine under K.S.A. 65–4161(a), which is an offense listed under K.S.A.2010 Supp. 21–4204(a)(4)(A). Because K.S.A.2010 Supp. 21–4204(a)(3) prevents a defendant from being prosecuted for a crime under K.S.A.2010 Supp. 21–4204(a)(4)(A), Dixon argues the State failed to meet its burden in proving a prior felony conviction, a necessary element of criminal possession of a firearm.
However, Dixon ignores the fact he stipulated to the evidence of his prior felony conviction. As the State points out, a district court in a criminal possession of a firearm case “must approve a stipulation whereby the parties acknowledge that the defendant is, without further elaboration, a prior convicted felon.” State v. Lee, 266 Kan. 804, 815, 977 P.3d 263 (1999). The State may also place the actual judgment(s) and sentence(s) of the prior felony conviction(s) into the record, even though the nature and number of the conviction(s) will not be disclosed at trial. Lee, 266 Kan. at 815–16.
Dixon himself admits that this issue has already been decided, although he cites to a different court case, State v. Johnson, 25 Kan.App.2d 105, 959 P.2d 476,rev. denied 265 Kan. 888 (1998). In Johnson, a panel of this court ruled the State had no obligation to prove a negative. The panel also stated: “[T]he subsections of 21–4204(a) ... all carry the same severity level. K.S.A. 21–4204(c). Thus, a defendant who was convicted of a felony within the preceding 5 years will not be prejudiced by the State's decision to pursue a charge under 21–4204(a)(3) rather than 21–4204(a)(2) or 21–4204(a)(4).” Johnson, 25 Kan.App.2d at 108.
Dixon argues Johnson was wrongly decided. Dixon claims there is no reason why the State should not be forced to prove a negative. If the legislature did not want possession or nonpossession of a firearm during a prior felony to matter, it would not have distinguished between the two in the statute. According to Dixon, the legislature had a chance to take this language out of the statute when it was recodified, but chose not to do so. We choose to follow the sound reasoning of Johnson.
Moreover, the Kansas Supreme Court has rejected Dixon's argument. In State v. Mitchell, 285 Kan. 1070, 1079, 179 P.3d 394 (2008), the court affirmed the principles of Lee, so long as the record supports a stipulation of every element of the crime. In this case, Dixon stipulated to being convicted of a felony or released from prison within the past 5 years from the date of the conviction alleged in the complaint, under K.S.A.2010 Supp. 21–4204(a)(3).
Because a defendant convicted of a felony within the preceding 5 years is not prejudiced by a State's decision to pursue a charge under K.S.A.2010 Supp. 21–4204(a)(3) rather than K.S.A.2010 Supp. 21–4204(a)(4), Dixon's stipulation was clearly substantial competent evidence. The only other element of his crime, possession of the firearm, was the fact question for the jury. The jury determined beyond a reasonable doubt he was in possession of the firearm and found him guilty. If one considers the evidence in the light most favorable to the prosecution, there was sufficient evidence for the jury to have found Dixon guilty beyond a reasonable doubt. See State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). The facts reveal the gun was taken from Craig's house without permission. It was described by Craig as a gun without a clip, and that is the way the gun was found. Dixon told Ward he had a gun and he wanted her to keep it at her house for him, and she was with him when he hid it by the shed. A consent to search was executed, and the gun without a clip was found in Sanchez' yard, where Dixon was staying. Substantial evidence reflects Dixon was exercising control and dominion over the gun and thus was in possession of it. Did the District Court Err in the Structure of Its Jury Instructions? Standard of Review
“An appellate court reviewing a district court's giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); see also K.S.A.2012 Supp. 22–3414(3).
To determine whether it was clearly erroneous to give or fail to give an instruction, the reviewing court must necessarily first determine whether an error occurred. Thus, the court must review the merits of the claim of error; this presents a legal question subject to unlimited review. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012).
Jury Instructions
Dixon argues the district court erred in giving the older version of PIK Crim.3d 52.02in instructing the jury on reasonable doubt. The more recent version of PIK Crim.3d 52.02 and the new PIK Crim. 4th 51.010 require the jury to be instructed as follows: If the jury has “reasonable doubt as to the truth of any of the claims required to be proved by the State,” it must find the defendant not guilty, but if the jury has “no reasonable doubt as to the truth of each of the claims required to be proved by the State,” it should find the defendant guilty. (Emphasis added.) However, when the district court instructed the jury in Dixon's case, it used the word any in both instances. Because the district court used an old form of the instruction, Dixon argues the district court denied him his constitutional right to have each element of his crime proved beyond a reasonable doubt.
However, since Dixon filed his appellate brief, the Kansas Supreme Court has resolved this issue. In State v. Herbel, 296 Kan. 1101, 1120, 299 P.3d 292 (2013), the district court also used the term “any” in both instances when instructing on reasonable doubt. The Kansas Supreme Court noted the United States Constitution does not require “ ‘any particular form of words be used in advising the jury of the government's burden of proof.’ “ Herbel, 296 Kan. at 1122–23 (quoting Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 [1994] ). Furthermore, the district court said any possible confusion was eliminated by the subsequent instructions, which stated each element of the crime needed to be proven. Herbel, 296 Kan. at 1123–24 (citing State v. Beck, 32 Kan.App.2d 784, 787–88, 88 P .3d 1233,rev. denied 278 Kan. 847 [2004] ). Thus, while the district court did not use the preferred instruction, it was still legally appropriate. Herbel, 296 Kan. at 1124; see also State v. Waggoner, 297 Kan. 94, 98–99, 298 P.3d 333 (2013) (without any other argument regarding the legal or factual appropriateness of the reasonable doubt instruction, there was no error); State v. Smyser, 297 Kan. 199, 205–06, 299 P.3d 309 (2013) (immediately subsequent instruction informing the jury that each element must be proven beyond a reasonable doubt eliminated any possible confusion); Herbel, 296 Kan. at 1194. (any/any language does not create error, but any/each language is preferable).
The facts here are identical to those in Herbel The district court used the term “any” in the jury's reasonable doubt instructions. However, the district court also provided Instruction No. 3 immediately after, which informed the jury that each element of the crime must be proven beyond a reasonable doubt. With the recent decision by our Supreme Court that this instruction is legally appropriate, it is clear the district court's jury instruction here did not constitute an error. We are duty bound to follow this precedent absent any indication the court is departing from its position. State v. Morton, 38 Kan.App.2d 967, 978–79, 174 P.3d 904,rev. denied 286 Kan. 1184 (2008). Did the District Court Err in Denying Dixon's Motion to Suppress Evidence? Standard of Review
The standard of review of a district court's decision on a motion to suppress uses a bifurcated standard. Without reweighing the evidence, the appellate court reviews the district court's findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion is reviewed using a de novo standard. State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012).
Consent and Standing
Dixon argues the district court erred in denying his motion to suppress evidence regarding the gun and other items seized with the gun. Dixon claims the consent obtained from Jeffrey Sanchez was insufficient because Sanchez was in prison, his mother was the person actually paying rent for the trailer, and Sanchez' mother gave Dixon permission to stay in the trailer.
Consent to search a container or a place is effective only when given by one with “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). “Common authority ... rests ... on mutual use of the property by persons generally having joint access or control for most purposes....” Matlock, 415 U.S. at 171 n. 7.
We recognize the district court held Dixon lacked standing to challenge the search or even an expectation of privacy with the gun hidden in a barbecue grill. We deem it unnecessary to address those findings. The mobile home was owned by Sanchez who was in jail, not prison, and was coming back to the mobile home upon his release. Sanchez continued to maintain control over the mobile home with the help of his mother. Sanchez gave written permission to search the shed and yard around the shed. Sanchez, as the owner of the mobile home, had the authority to grant the search, and Dixon has to suffer the consequences of where he chose to hide the gun. Dixon can only demonstrate, at best, common authority over the trailer lot and the curtilage, so Sanchez' consent was valid. See Matlock, 415 U.S. at 171 n. 7.
Conclusion
Dixon's challenge to the district court's denial of his motion to suppress fails, as the State had a valid written consent to search the property from Sanchez, the owner of the mobile home. The district court properly denied the motion to suppress. Dixon's argument the evidence was insufficient to convict him fails to acknowledge his stipulation to a prior felony conviction. Dixon also fails to consider the testimony presented to the jury validating his possession of and hiding a gun in Sanchez' yard. It is the duty of the jury to weigh the evidence, and in the light most favorable to the prosecution, there was more than sufficient evidence to convict Dixon of possession of a firearm. His challenge to the jury instructions brings him no relief with the recent decision in Herbel. The district court did not err and we affirm.
Affirmed.