Opinion
No. 105,659.
11-30-2012
STATE of Kansas, Appellee, v. Dale HARDEN, Jr., Appellant.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.
Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM. Dale Harden, Jr., appeals his convictions of possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. Harden challenges the jury instructions, the acceptance of the verdicts, and the trial court's use of his criminal history at sentencing. We affirm the convictions and sentences.
Factual and Procedural Background
In November 2009, Harden and his girlfriend, Ashley Johnson, were staying with Harden's father in Americus, Kansas. Chief of Police William West lived nearby and noticed Harden in the area. Chief West learned of an arrest warrant for Harden and contacted the Lyon County Sheriff's Department for assistance.
On the afternoon of November 20, 2009, Chief West and two sheriff's deputies approached the Harden residence. The chief described it as a small house with a living room, a master bedroom, and a “sitting room” or second bedroom.
Harden's father allowed Chief West into the house. Harden's stepmother, Rose Page, came from the master bedroom, and Johnson came from the sitting room. Deputy Cory Doudican went into the sitting room and observed a dishwasher used as a television stand, a small couch, and a dresser. On the dishwasher were two straws about 4–inches long with a residue of white powder.
Meanwhile, Chief West had located Harden who was hiding in the utility room. Harden was arrested, and Deputy Doudican questioned Harden's father about the drug paraphernalia. Harden's father denied possession of the items, as did Johnson.
Harden's father gave Deputy Doudican permission to search the sitting room. The deputy discovered a “beer koozie” on the couch containing “needles, [a] smoking pipe with a spoon, and a bottle with white powder inside of it.” Near the koozie was a cigarette case containing a bag of white powder. Under the couch was a bowl containing what appeared to be marijuana seeds and stems. On the dresser was a cup containing another straw with white powder residue in it. Somewhere in the sitting room was a “Bible box,” or packaging for a Bible, which contained a glass smoking pipe with residue and some seeds.
Deputy Doudican obtained permission from Harden's father to search the entire house. The deputy soon discovered a jar containing ether in the bathroom. Concluding that they were “dealing with a meth lab,” the officers cleared the house and obtained a search warrant. The search located more evidence of methamphetamine manufacture, and Harden, his father, Johnson, and Page were arrested.
While Harden was in jail he wrote a note which was directed to Travis Misher, a detective with the Lyon County Sheriff's Department. The note read:
“% 7FTo whom it concerns, Ashley Johnson is my girlfriend. She is in A Pod.' ... ‘She is not guilty of any of the charges. Any and all drugs and paraphernalia found in the middle bedroom belong to me, so please contact her arresting officer and have her released. Thank you, Dale Harden, Jr.’ “
Detective Misher interviewed Harden about the note. Harden maintained it was truthful, and he again claimed ownership of the drugs and paraphernalia in the room. When the detective told Harden he did not have the authority to release Johnson, however, Harden recanted his admissions.
The State charged Harden with eight counts, five related to possession of the drugs and drug paraphernalia found in the sitting room and three related to manufacturing methamphetamine. Following a jury trial, Harden was convicted of possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. Harden appeals.
Jury Instructions
For the first time on appeal, Harden objects to the jury instructions relating to the possession counts. He also contends the trial court mistakenly instructed the jury regarding the factors it may consider in the determination of whether Harden knowingly possessed the controlled substances. Because Harden did not object below, we apply a clearly erroneous standard. See K.S.A. 22–3414(3); State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” 288 Kan. at 451–52.
During trial, the State proposed PIK instructions for the possession counts based on statutes which had been repealed effective July 1, 2009. See L.2009, ch. 32, sec. 64; K.S.A.2009 Supp. 65–4152; K.S.A.2009 Supp. 65–4160; K.S.A.2009 Supp. 65–4162; PIK Crim.3d 67.13 (2009 Supp.), Notes on Use; PIK Crim.3d 67.16 (2009 Supp.), Notes on Use; PIK Crim.3d 67.17 (2009 Supp.), Notes on Use. (These statutes were recodified in K.S.A.2009 Supp. 21–36a01 et seq.) The State also proposed an instruction defining possession which was based on PIK Crim.3d 67.13–D (2009 Supp.). This proposed Instruction No. 22 modified the language of the actual PIK instruction.
The actual PIK instruction, PIK Crim.3d 67.13–D (2009 Supp.), states in relevant part:
“[ ... You may consider the following factors in determining whether the defendant knowingly possessed the controlled substance, if you find they are supported by the evidence:
1. whether the defendant previously participated in the sale of a controlled substance;
2. whether the defendant used controlled substances;
3. whether the defendant was near the area where the controlled substance was found;
4. whether the controlled substance was found in plain view;
5. whether the defendant made any incriminating statements;
6. whether the defendant's behavior was suspicious; and
7. whether the defendant's personal belongings were near the controlled substance.]”
The State's proposed instruction substituted the following language for the actual language used in PIK Crim.3d 67.13–D (2009 Supp.):
“Factors you may consider in determining whether the defendant knowingly possessed the controlled substance include:
1. defendant's use of controlled substances;
2. defendant's proximity to the area where the controlled substance was found;
3. the fact that the controlled substance was found in plain view;
4. incriminating statements of the defendant;
5. suspicious behavior of the defendant; and
6. proximity of defendant's possession(s) to the controlled substance.”
The trial court followed the State's proposed instructions with minor changes, and Harden's counsel did not object to any aspect of the trial court's instructions.
For the first time on appeal, Harden contends the trial court used “four out-dated jury instructions.” We agree with Harden, but the question is whether the instructions misstated the law. Harden's attack is limited to the possession element, specifically Instruction No. 22. Harden does not challenge the elements instructions aside from their omission of the statutory definition of possession enacted in 2009. See K.S.A.2009 Supp. 21–36a01(p); L.2009, ch. 32, sec. 1; PIK Crim.3d 67.34 (2009 Supp.) (incorporating possession definition into elements instruction used after July 1, 2009). We conclude any arguments on the elements instructions, apart from the definition of possession, are waived or abandoned on appeal. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030(2011).
With regard to the definition of possession, Harden challenges both the use of PIK Crim.3d 67.13–D (2009 Supp.) and the State's modifications to that pattern instruction. On the first challenge, we do not see clear error. While PIK recommends use of the language from K.S.A.2009 Supp. 21–36a01(p) for crimes committed after July 1, 2009, and generally trial courts should follow the PIK instructions, State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009), we agree with the State that PIK Crim.3d 67.13–D (2009 Supp .) contained all “definitional elements” of K.S.A.2009 Supp. 21–36a01(p).
The State's modifications to PIK Crim.3d 67.13–D (2009 Supp.) are a different matter. The issue is whether the jury would have rendered a different verdict without the State's modifications. While we acknowledge the district court's error in deleting the word “whether” preceding each of the six factors, we are not persuaded that it was clear error. Instruction No. 22 advised the jury it “may consider” certain factors and did not dictate the jury's verdict. Though the third factor of the instruction could be read, for example, that it was a “fact” the controlled substances were in plain view, that was neither controverted nor an element of the crimes themselves.
With regard to the first factor of Instruction No. 22, Harden incorrectly contends the State “never presented evidence at trial of [him] using controlled substances.” But Harden admitted to possession of the drugs and drug paraphernalia in the sitting room. Some of this paraphernalia was obviously used to personally ingest controlled substances. In short, given Harden's written and oral admissions, these items were of a character suggesting his personal use. See State v. Ralston, 43 Kan.App.2d 353, 367, 225 P.3d 741 (2010), rev. denied 291 Kan. 916 (2011) (residue on paraphernalia indicated personal use); State v. Dean, 42 Kan.App.2d 32, 40, 208 P.3d 343 (2009) (scales indicated possession with intent to sell, not for personal use); State v. Johnson, 33 Kan.App.2d 490, 493, 106 P.3d 65 (2004) (scales and absence of any paraphernalia for personal use indicated possession with intent to sell); State v. Brickhouse, 20 Kan.App.2d 495, 512, 890 P.2d 353 (distinguishing 1/4 pound of marijuana as evidence of possession with intent to sell from smaller “personal use amount” as evidence of simple possession), rev. denied 251 Kan. 1093 (1995). We are persuaded there was considerable circumstantial evidence of Harden's personal use. Finally, Harden does not contest the evidence on the remaining factors of the challenged instruction. Having considered the entire record, including the strong direct and circumstantial evidence incriminating Harden, we are not firmly convinced there is a real possibility the jury would have rendered a different verdict if the instructional errors had not occurred. Accordingly, Harden has not shown the instructions were clearly erroneous and that reversal of the convictions is required.
Trial Court's Acceptance of the Verdicts
When the jury returned from deliberations, the trial court asked if it had reached its verdicts. The presiding juror said it had. The trial court read the verdicts—guilty on the three possession counts and not guilty on the five manufacturing counts. The trial court asked counsel if either one wished the jury polled, but neither one requested polling.
For the first time on appeal, Harden contends the trial court failed to inquire of the jury whether the verdicts were the jury's verdicts. Harden contends this violated K.S.A. 22–3421, and he identifies our standard of review as de novo for statutory interpretation. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
As the State notes, our court has refused to consider similar issues related to the acceptance of jury verdicts for the first time on appeal. See State v. Womelsdorf, 47 Kan.App.2d 307, 328–30, 274 P.3d 662 (2012), petition for review filed May 10, 2012; State v. Dunlap, 46 Kan.App.2d 924, 934–35, 266 P.3d 1242 (2011), petition for review filed December 30, 2011. “Issues not raised before the trial court cannot be raised on appeal.” State v. Warledo, 286 Kan. 927, Syl. ¶ 3, 190 P.3d 937 (2008).
We think it is significant that, as in Womelsdorf, Harden declined his statutory right to have the jury polled. Womelsdorf discussed the effect of such a waiver:
“Polling the jury would have achieved the purpose of ensuring Womelsdorf's statutory right to a unanimous verdict. Likewise, polling the jury would have safeguarded the concept of finality with respect to the jury verdict. By polling the jury, each juror would have been given the opportunity to express disagreement with or dissent from the verdict in open court. Because Womelsdorf declined the district court's explicit request to have the jury polled, which would have accomplished the same purpose as having the district court inquire into the accuracy of the verdict, we conclude she is not allowed to challenge the procedure for accepting the verdict for the first time on appeal.” 47 Kan.App.2d at 329.
We agree with this analysis. Harden could have objected to the lack of inquiry below, and if he had done so, “the trial court certainly could have corrected its error.” See Dunlap, 46 Kan.App.2d at 933. But Harden did not do so, and in this circumstance—with no claim that the jury was not unanimous in its verdicts or that Harden was somehow prejudiced by the verdict acceptance procedure used—we decline to consider this new issue on appeal. We note, however, that the provisions of K.S.A. 22–3421 clearly set forth the correct procedure for a trial court to follow in accepting a jury's verdicts. That procedure provides that after the verdicts are read by the clerk, the trial court should address the jury as a whole to inquire if the verdicts, as read by the clerk are, in fact, the jury's verdicts. If the jury unanimously agrees with the verdicts, both parties should then be asked if the jurors should be individually polled. Compliance with this procedure will fulfill the statutory requirements of K.S.A. 22–3421 and its purpose—to insure accurate and unanimous verdicts.
Sentencing
Finally, Harden contends his jury trial rights were violated because his criminal history was used at sentencing. Harden acknowledges our Supreme Court's rejection of the argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We are duty bound to follow that precedent. See State v. Elkins, 44 Kan.App.2d 974, 984–85, 242 P.3d 1223 (2010), rev. denied 292 Kan. 974 (2011).
Affirmed.