Opinion
No. 110624.
02-20-2015
STATE of Kansas, Appellee, v. Patrick Dean PALMER, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Linda E. DeWitt, counsel on behalf of assistant county attorney, of Independence, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Linda E. DeWitt, counsel on behalf of assistant county attorney, of Independence, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Patrick Dean Palmer was convicted by a jury of possession of methamphetamine with intent to distribute, felony possession of drug paraphernalia, failure to affix a drug tax stamp, and misdemeanor possession of drug paraphernalia. In this appeal, Palmer claims the district court erroneously instructed the jury in several respects. He also argues the cumulative effect of the alleged instructional errors deprived him of a fair trial and, therefore, constitutes reversible error. But Palmer did not object to any of these instructions at trial; thus, our standard of review is one of clear error. Because Palmer cannot establish clear error with respect to the district court's instructions, his arguments on appeal necessarily fail.
Facts
In 2012, Danny TeeHee agreed to act as a confidential informant for the Montgomery County Sheriff's Office by participating in controlled drug buys. TeeHee named Palmer, a former resident of Coffeyville, Kansas, as an individual from whom he had previously purchased drugs and with whom he had used drugs over the course of several years. In September 2012, TeeHee advised Detective Chris Williams that Palmer wanted to purchase methamphetamine in Arizona and bring the drug to Coffeyville for distribution. Thereafter, TeeHee agreed to provide Palmer a bus ticket from Arizona to Tulsa, Oklahoma, where TeeHee would meet Palmer and drive Palmer to Coffeyville. Law enforcement placed a tracking device on TeeHee's car and instructed TeeHee to drive above the speed limit when he arrived in Coffeyville so that law enforcement officers could stop the car without casting suspicion on TeeHee.
On September 19, 2012, TeeHee picked Palmer up at the bus station in Tulsa. According to TeeHee, they loaded Palmer's luggage into the car and went to a “pipe shop” to purchase “baggies, pipes, and something to weigh the meth with.” Then, TeeHee and Palmer went to a house where they weighed the methamphetamine and smoked some of it in a pipe. Palmer placed a small amount of methamphetamine into a baggie and gave it to TeeHee in exchange for the bus ticket; TeeHee placed the baggie in his shoe. Palmer then placed the remaining amount of methamphetamine in his shoe before they left for Coffeyville.
As planned, law enforcement pulled TeeHee over for speeding just after the car entered Coffeyville. Detective Williams approached the car with a K9 unit, and the dog reacted (“indicated”) as trained to do upon detecting the presence of narcotics. Williams then asked TeeHee to step out of the car. As Williams patted TeeHee down, TeeHee advised Williams that he had drugs in his shoe and that Palmer also had drugs in his shoe. Williams located a plastic baggie containing less than a gram of methamphetamine in TeeHee's shoe. Williams then searched Palmer and located a plastic baggie containing other plastic baggies and 10.26 grams of methamphetamine. Law enforcement searched TeeHee's car and discovered two glass pipes that were consistent with pipes used to smoke methamphetamine.
Palmer was arrested. After being informed of his Miranda rights, he agreed to speak with Williams. Palmer advised Williams that he rode a bus from Arizona to Tulsa and that he came to Coffeyville to visit his daughter. He admitted that the substance found in his shoe was methamphetamine and that he was a “heavy” user of methamphetamine. Palmer also admitted that he had sold methamphetamine in the past but claimed that the drugs in his shoe were for his personal use. Palmer consented to a search of his luggage, which contained an unopened box of syringes. Palmer claimed he made money by selling empty syringes to people. A subsequent search of Palmer's cell phones revealed photographs of what appeared to be drugs and drug paraphernalia, as well as text messages relating to the sale of drugs.
Palmer was charged with possession with intent to distribute more than 3.5 grams of methamphetamine, felony possession of drug paraphernalia, failure to affix a drug tax stamp, and misdemeanor possession of drug paraphernalia. A jury convicted Palmer as charged. Based on Palmer's criminal history score of E, the district court sentenced him to a controlling 111–month term of imprisonment.
Analysis
On appeal, Palmer alleges the district court erred by (1) instructing the jury on the crime of possession with intent to distribute methamphetamine, (2) instructing the jury regarding the culpable mental state for the crime of possession with intent to distribute methamphetamine, (3) failing to issue instructions on the lesser included offenses of possession with intent to distribute amounts less than 3.5 grams of methamphetamine, (4) including a definition of the term “dealer” in the drug tax stamp instruction, (5) failing to issue an informant cautionary instruction, (6) failing to provide a limiting instruction on K.S.A.2014 Supp. 60–455 evidence, and (7) instructing the jury that certain items constituted drug paraphernalia as a matter of law. We address each of these allegations in turn.
Palmer did not object to any of the instructions provided and did not request the district court provide any of the instructions he now claims should have been given. Accordingly, the proper standard of review requires the appellate court to decide whether the instructions as given are clearly erroneous. See K.S.A.2014 Supp. 22–3414(3). This inquiry includes two steps. First, the reviewing court must determine whether there was error at all. To make this determination, the court must “consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). If such error is found, the second step requires the reviewing court to determine whether it is “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” If convinced, the court must reverse the conviction. 295 Kan. 506, Syl. ¶ 5. The party claiming error in the instructions has the burden to prove the prejudice necessary for reversal. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013).
1. Amount defendant possessed or amount defendant intended to distribute
Palmer argues the district court's jury instruction listing the elements of possession with intent to distribute methamphetamine was erroneous because it did not require the jury to make a finding regarding the specific amount of methamphetamine he intended to distribute. As a result, Palmer claims the court violated his constitutional right to have the jury find him guilty of each element of the charged crime.
Instruction No. 7 stated:
“The defendant is charged with unlawfully possessing with the intent to distribute a controlled substance. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. The defendant possessed with the intent to distribute methamphetamine.
“2. The amount of methamphetamine defendant possessed was greater than 3.5 grams and less than 100 grams.
“3. This act occurred on or about the 19th day of September, 2012, in Montgomery County, Kansas.”
Under K.S.A.2014 Supp. 21–5705(d)(3), the severity level of the crime of unlawful distribution of methamphetamine is determined by the quantity of the methamphetamine possessed by a defendant. PIK Crim. 4th 57.020 recognizes the need for the jury to make this determination by recommending that the instruction specifically identify the quantity of drugs in the possession of the defendant.
Palmer argues that, consistent with PIK Crim. 4th 57.020, the second element of the crime listed in the instruction should have instead read: “The amount of methamphetamine defendant possessed with intent to distribute was greater than 3.5 grams and less than 100 grams.” He contends that K.S.A.2014 Supp. 21–5705 requires proof of the quantity of the controlled substance intended to be distributed and that by leaving out the “with intent to distribute” language, the instruction given to the jury allowed it to convict based solely on the gross amount of methamphetamine he possessed and not the smaller portion of that gross amount of methamphetamine he claims he actually intended to distribute.
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent. State v. Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009).
According to the plain language of K.S.A.2014 Supp. 21–5705, the amount of the controlled substance possessed is the relevant inquiry for conviction and sentencing purposes. Contrary to Palmer's argument, the statute does not create a distinction between the amount possessed and the amount intended to be distributed. Rather, the severity level of the crime is based solely on the “quantity of the material,” the “number of dosage units,” or the “number of plants cultivated.” K.S.A.2014 Supp. 21–5705(d). The statute makes no mention of the quantity of the material intended to be distributed.
In fact, the statute sets forth a rebuttable presumption of intent to distribute when a defendant possesses 3.5 grams or more of methamphetamine. K.S.A.2014 Supp. 21–5705(e)(2). And the statute prohibits the defendant from arguing that he or she did not know the quantity of the controlled substance in his or her possession. K.S.A.2014 Supp. 21–5705(f)(2). It logically follows, then, that the legislature also did not intend to allow a defendant to present a defense that he or she only intended to distribute a portion of the controlled substance found in his or her possession.
In this case, there is no dispute that Palmer possessed 10.26 grams of methamphetamine. Because Palmer possessed more than 3.5 grams of methamphetamine, K.S.A.2014 Supp. 21–5705(e)(2) permits us to presume Palmer intended to distribute the methamphetamine in his possession. Based on this presumption, the State had no burden to prove, as an additional element of the crime, any specific amount Palmer intended to distribute. Rather, Palmer bore the burden of rebutting this presumption at trial. Accepting Palmer's argument would undermine the legislature's clear intent that the quantity of a controlled substance intended to be distributed is based on the amount found in the defendant's possession.
Although the language in the jury instruction used here was not identical to the language found in PIK Crim. 4th 57.020, the instruction when read as a whole made clear that the State was required to prove that Palmer possessed with intent to distribute the more than 3.5 grams of methamphetamine found in his possession. Because the instruction was legally and factually appropriate, we find it unnecessary to address the issue of prejudice. See Williams, 295 Kan. 506, Syl. ¶ 4.
2. Culpable mental state
Palmer next argues the district court's jury instruction unlawfully diminished the State's burden of proof by improperly listing the required mental state for the crime of possession with intent to distribute methamphetamine.
In order to sustain a conviction for possession with intent to distribute a controlled substance under K.S.A.2014 Supp. 21–5705(a)(1), there must be sufficient proof that the defendant knowingly possessed the controlled substance and that the defendant intended to distribute or sell it. State v. Gibson, 30 Kan.App.2d 937, 953, 52 P.3d 339 (“[P]ossession with the intent to distribute is a crime which requires an act coupled with a specific intent.”), rev. denied 274 Kan. 1115 (2002). Thus, the act of possession is an element of the crime of possession with intent to distribute methamphetamine.
Instruction No. 7 listed the elements required to convict a defendant of possession with intent to distribute methamphetamine and defined the terms “ ‘[d]istribute’ “ and “ ‘[p]ossession.’ “ The instruction defined “ ‘[p]ossession’ “ as “having joint or exclusive control over an item with knowledge of and the 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.” Palmer does not dispute that instruction No. 7 properly required the State to prove both that Palmer knowingly possessed methamphetamine and that he intended to distribute it or sell it to others. Nevertheless, Palmer argues that the language in instruction No. 15 effectively undermined the propriety of instruction No. 7 by suggesting to the jury that it could find him guilty even if the State failed to prove the requisite culpable mental state: specific intent to sell the methamphetamine.
Instruction No. 15 was based on PIK Crim. 4th 52.010, the pattern instruction on culpable mental state, which provides in relevant part:
“The State must prove that the defendant (committed the crime) (insert defendant's act that is the element of the crime which requires a particular culpable mental state) insert one of the following:
• intentionally.
or
• knowingly.
or
• recklessly.
....
“[A defendant acts knowingly when the defendant is aware insert one or more of the following as appropriate for the crime charged:
• of the nature of (his)(her) conduct that the State complains about....]”
In the Notes on Use section of PIK Crim. 4th 52.010, the PIK Committee advises that this instruction be given in every case unless the statute defining the crime clearly indicates the legislature did not intend to require a mental element. See K.S.A.2014 Supp. 21–5202(a). If a culpable mental state is applicable only to one particular element of a charge, the PIK Committee advises that the trial judge use the second parenthetical option in the first paragraph.
Unfortunately, the district court in this case did not strictly adhere to the language developed by the PIK Committee and set forth in PIK Crim. 4th 52.010. Specifically, instruction No. 15 stated:
“The State must prove that the defendant committed 1) possession of methamphetamine with intent to distribute; or possession of methamphetamine (the lesser included offense); and felony possession of drug paraphernalia with the intent to distribute and possession of drug paraphernalia for personal use and no tax stamp knowingly.
“A defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains about.”
Palmer claims this language suggests to the jury that it could find him guilty based on the fact that he knowingly possessed over 3 .5 grams of methamphetamine instead of requiring the State to prove that he knowingly possessed the methamphetamine and intended to distribute or sell it. The State disagrees, arguing that when the language is parsed out, instruction No. 15 clearly sets forth the requisite mental state to be proved for that charge. Upon review of the record, we agree with the State that instruction No. 15 was legally and factually appropriate for purposes of instructing the jury on the proper culpable mental state for the crime of possession with intent to distribute methamphetamine. See Williams, 295 Kan. 506, Syl. ¶ 4 (the court must “consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record”).
Although the instruction may not be grammatically correct, the language used by the court sufficiently provided the proper culpable mental state for each crime charged. Instruction No. 15 begins by stating what the State must prove for the first crime charged: “1) possession of methamphetamine with intent to distribute; or possession of methamphetamine (the lesser included offense).” (Emphasis added.) This language instructs the jury that the State was required to prove Palmer not only possessed the methamphetamine, but that Palmer also specifically intended to distribute it. Although the language setting forth the first crime ends in a semicolon and the rest of the crimes charged are connected by a conjunction, we remain persuaded that the applicable mental state for each of these three charges is properly identified. The instruction sets forth the second charge as “felony possession of drug paraphernalia with the intent to distribute,” which again reflects the State's burden to prove specific intent. (Emphasis added.) The third and fourth charges are listed as “possession of drug paraphernalia for personal use and no tax stamp knowingly.” This language instructs the jury that the State was required to prove Palmer knowingly possessed the methamphetamine and knowingly failed to affix a label showing that the proper tax had been paid.
In addition to the language of the challenged instruction, our conclusion that the jury was adequately instructed on the proper culpable mental state for the crime of possession with intent to distribute methamphetamine is also supported by language in the jury instructions when considered in their entirety. This court is required to look at the jury instructions as a whole rather than considering a single instruction in isolation. State v. Ellmaker, 289 Kan. 1132, 1139–40, 221 P.3d 1105 (2009), cert. denied 560 U.S. 966 (2010). In this case, instruction No. 7 set forth the elements the State was required to prove for the crime of possession with intent to distribute methamphetamine. As noted above, there is no dispute that this instruction clearly required the jury to find that Palmer intended to distribute methamphetamine in order for the jury to convict. In fact, the word “knowingly” is not used in instruction No. 7 to describe the elements that are required to sustain a conviction on the charge of possession with intent to distribute methampheta-mine but instead is used in that instruction solely for the purposes of defining the word “possession.”
For the reasons stated above, we find instruction No. 15 was legally and factually appropriate for purposes of instructing the jury on the proper culpable mental state for the crime of possession with intent to distribute methamphetamine.
3. Lesser included offenses
Palmer contends the district court erred by failing to instruct the jury on the lesser included offenses of possession with intent to distribute amounts less than 3.5 grams of methamphetamine.
In determining whether the district court erred in failing to provide lesser included offense instructions, this court must first look at whether it was legally appropriate to give the instructions, applying an unlimited standard of review. Williams, 295 Kan. at 521 ; State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). We must then determine whether the instruction is factually appropriate, i.e., whether there is “some evidence which would reasonably justify a conviction of some lesser included crime.” K.S.A.2014 Supp. 22–3414(3) ; Plummer, 295 Kan. at 161.
As previously stated, the severity level of the crime of possession with intent to distribute methamphetamine is determined by the quantity of the methamphetamine possessed by a defendant. See K.S.A.2014 Supp. 21–5705(d)(3) (possession of at least 3.5 grams but less than 100 grams is a severity level 2 drug felony; possession of at least 1 gram but less than 3.5 grams is a severity level 3 drug felony; and possession of less than 1 gram is a severity level 4 drug felony). Palmer was convicted of possessing with intent to distribute at least 3.5 grams of methamphetamine, a severity level 2 drug felony. Possession with intent to distribute at least 1 gram but less than 3.5 grams of methamphetamine (a severity level 3 drug felony) and possession with intent to distribute less than 1 gram of methamphetamine (a severity level 4 drug felony) are both lesser degrees of the crime for which Palmer was convicted, making the instructions legally appropriate. See K.S .A.2014 Supp. 21–5109(b)(1) (a crime is a lesser included crime if it is a lesser degree of the same crime). Accordingly, we move on to whether providing the instructions would have been factually appropriate.
Palmer claims that providing the lesser included crime instructions would have been factually appropriate because there was some evidence that at least a portion of the methamphetamine found in his possession was for his personal use rather than for distribution. We disagree. There is no dispute here that law enforcement discovered 10.26 grams of methamphetamine in Palmer's shoe. As previously discussed, K.S.A.2014 Supp. 21–5705 only requires proof of the quantity of a controlled substance found in a defendant's possession, not the quantity that the defendant may have intended to distribute. Because Palmer did not possess less than 3.5 grams of methamphetamine, lesser included instructions corresponding to severity levels 3 and 4 possession with intent to distribute methamphetamine were not factually appropriate. Thus, the district court did not err in failing to issue these instructions. See Plummer, 295 Kan. at 161 (“a district court does not err in refusing to give a lesser included offense instruction on a crime which is unsupported by the evidence in that particular case”).
4. Defining the word “dealer”
Palmer argues the district court erred by including a definition of the term “dealer” in the drug tax stamp jury instruction because it was superfluous and unnecessary.
Instruction No. 14 provided that in order to find Palmer guilty of the drug tax stamp violation, the State was required to prove:
“1. The defendant possessed more than 1 gram of methamphetamine without affixing official Kansas tax stamps or other labels showing that the tax has been paid.
“2. This act occurred on or about the 19th day of September, 2012, in Montgomery County, Kansas.”
The instruction further provided, in relevant part: “'Dealer' means any person who, in violation of Kansas law, ships, transports or imports into Kansas or in any manner acquires or possesses more than one gram of any controlled substance. ”
Palmer argues that the district court erred in defining the term “dealer” for the jury. In support of this argument, Palmer claims the definition was irrelevant to the jury's determination of whether he possessed more than 1 gram of methamphetamine. In addition to a lack of relevancy, Palmer claims the court's failure to advise the jury that it could only use this definition in deciding the drug tax stamp charge prejudiced him because the jury may very well have used it in deciding other charges as well, including the contested issue of whether he intended to distribute the methamphetamine found in his possession.
Instruction No. 14 is based on PIK Crim. 4th 57.230. Although the pattern instruction does not define the term “dealer,” the Notes on Use for the instruction state: “Pursuant to K.S.A. 79–5208, a dealer distributing or possessing marijuana or controlled substances without affixing the appropriate stamps, label or other indicia is guilty of a severity level 10 felony.” The district court is required to instruct the jury on the law that applies to the case, and a jury instruction must always fairly and accurately state the applicable law. K.S.A.2014 Supp. 22–3414(3) ; Plummer, 295 Kan. at 161. The definition of “dealer” set forth in instruction No. 14 is virtually identical to the definition in K.S.A.2014 Supp. 79–5201(c). By defining the term “dealer” in instruction No. 14, the district court informed the jury of the source of the “more than 1 gram of methamphetamine” language contained in the first paragraph of the instruction. Because the definition was a correct statement of the law and helped to clarify for the jury the elements required to be proved by the State, it was not error for the district court to include the definition.
As for Palmer's concern that the jury could have applied the “dealer” definition to the other charged crimes, the definition appeared only on the page listing the drug tax stamp instruction, directly after the elements for that crime. Significantly, the drug tax stamp instruction also defined the term “possession,” but this term also was defined in other instructions where necessary to help the jury in deciding whether the elements of the crime as alleged had been proved by the State. Thus, when read as a whole, it is reasonable to conclude that the “dealer” definition was applicable only to the drug tax stamp instruction. To accept Palmer's argument would require this court to assume the jury did not follow the instructions in reaching its verdict. Cf. In re Habeas Corpus Petition of Minnis, 29 Kan.App.2d 644, 648, 29 P.3d 462 (2001) (our courts assume it is within a jury's capacity to follow instructions and assess a defendant's guilt solely on the evidence), rev. denied 272 Kan. 1035 (2002). Because we assume that the jury followed the instructions here by applying them independently to each separate crime, Palmer's argument lacks merit.
5. Confidential informant
Palmer alleges the district court erred in failing to issue an instruction cautioning the jury about the reliability of TeeHee's testimony based on the fact that he was a confidential informant. To that end, Palmer asserts TeeHee's testimony was largely uncorroborated with respect to the issue of Palmer's intent to distribute the methamphetamine found in his possession.
The jury instruction regarding confidential informants reads: “You should consider with caution the testimony of an informant who, in exchange for benefits from the State, acts as an agent for the State in obtaining evidence against a defendant, if that testimony is not supported by other evidence.” PIK Crim. 4th 51.100.
There is no dispute that TeeHee qualified as an informant because he was acting as an agent of the State at the time he supplied information to law enforcement about Palmer. TeeHee testified on direct examination that he had a history of criminal activity and most recently had been arrested in June 2012 for criminal trespass, driving while suspended, possession of stolen property, and forgery. TeeHee stated that shortly after his arrest, he contacted law enforcement to discuss making a deal. TeeHee ultimately agreed to work as a confidential informant at the direction of Detective Williams and agreed to remain drug-free and to not commit any new crimes. TeeHee claimed that he was not promised anything in exchange but that his participation in controlled drug buys and testimony at court proceedings would be worth “consideration” by the State with respect to his pending charges.
Although TeeHee was clearly an informant, a cautionary instruction on the testimony of an informant is only required when the informant's testimony is substantially uncorroborated and provides the sole basis for the defendant's conviction. State v. Waldrup, 46 Kan.App.2d 656, 683, 263 P.3d 867 (2011), rev. denied 296 Kan. 1135 (2013). Palmer contends that the instruction was warranted here because TeeHee's testimony regarding Palmer's alleged intent to distribute the methamphetamine was largely uncorroborated.
Despite Palmer's claim, however, TeeHee's testimony was neither uncorroborated nor the sole basis for Palmer's convictions. Palmer was discovered with 10.26 grams of methamphetamine in his shoe. As previously discussed, K.S.A.2014 Supp. 21–5705(e)(2) sets forth a rebuttable presumption of intent to distribute when a defendant possesses 3.5 grams or more of methamphetamine. Palmer fails to cite to any portion of the record to rebut this presumption. In fact, the record reflects substantial corroborative evidence of TeeHee's testimony that Palmer intended to distribute the methamphetamine found in his possession. The methamphetamine found in Palmer's shoe was inside a plastic baggie that contained other plastic baggies. Williams, an experienced narcotics detective, testified that it was common for Ziploc baggies to be used to package, distribute, and sell methamphetamine. A September 19, 2012, text message on Palmer's phone from an individual named Niki stated: “ ‘Hit me up when u make it back if ur wantin to throw summa those chunks around. Got a lil cash.’ “ Tim Leakey, a senior special agent with the Kansas Bureau of Investigation, testified that the term “chunks” is a slang term commonly used to refer to crystal meth. An outgoing text message from Palmer to TeeHee stated: “ ‘Just picked up another half zip to bring.’ “ Leakey testified that a “zip” is slang for a measurement of an ounce of an illegal drug. Palmer sent a text message to an individual named Debra of a picture of a Ziploc baggie containing a crystalline substance that appeared to be methamphetamine. Finally, Palmer admitted to Williams that he had previously sold methamphetamine in the past.
Because TeeHee's testimony with respect to Palmer's intent to distribute methamphetamine was corroborated and did not provide the sole basis for Palmer's convictions, the district court was not required to issue the informant cautionary instruction. Moreover, the jury was informed of TeeHee's extensive criminal history and his obvious self-interest in arranging the controlled drug buy with Palmer. And the district court instructed the jury on the general credibility of witnesses: “It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.” For all these reasons, the district court did not err in failing to give the informant cautionary jury instruction.
6. Limiting instruction on K.S.A. 60–455 evidence
Next, Palmer argues the district court erred by failing to give a limiting instruction to the jury regarding evidence indicating that he had committed crimes other than the ones at issue at trial. Specifically, Palmer contends that the evidence relating to his prior history of selling drugs and drug use constituted K.S.A.2014 Supp. 60–455 evidence; thus, the district court should have given a limiting instruction regarding the evidence pursuant to State v.,Gunby, 282 Kan. 39, 56–57, 144 P.3d 647 (2006).
Palmer acknowledges that he did not request a limiting instruction at trial. Furthermore, he did not object to the evidence at issue being admitted at trial. Nonetheless, a defendant can challenge the lack of K.S.A.2014 Supp. 60–455 limiting instruction as clearly erroneous even if that defendant did not object to the admission of other crimes evidence at trial. State v. Breeden, 297 Kan. 567, 579–80, 304 P.3d 660 (2013).
K.S.A.2014 Supp. 60–455(b) provides that the jury may consider evidence of other crimes or civil wrongs to prove one or more of the enumerated material facts identified in the statute (motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) or some other material, nonpropensity fact. See Gunby, 282 Kan. at 56–57. Where such evidence is admitted, the district court “must give a limiting instruction informing the jury of the specific purpose for admission .” 282 Kan. 39, Syl. ¶ 3.
During the State's case-in-chief, TeeHee testified that over the course of several years, he had purchased methamphetamine from Palmer and had used the drug with him. TeeHee also claimed he and Palmer smoked methamphetamine together shortly before Palmer's arrest. Detective Williams testified that he was familiar with Palmer because law enforcement often received information about “people who deal narcotics” in Coffeyville. Williams further testified that he had heard Palmer left Coffeyville after getting beaten up for money owed in exchange for “dope.” The State also admitted into evidence pictures found on Palmer's cell phones of loaded syringes and a glass pipe that appeared to have been used to smoke methamphetamine. Despite the fact that Palmer's chief defense against the possession with intent to distribute methamphetamine charge was that the drugs were for his personal use and not for distribution, there was no discussion regarding whether this evidence constituted 60–455 evidence in the district court.
Although conceding on appeal that this evidence “might have been relevant to evince intent to distribute,” Palmer argues a limiting instruction was still warranted because the evidence could have given rise to an inference that he was a long-term user and dealer. We agree. The jury heard evidence that Palmer previously had used and sold drugs, but these crimes were not being tried to the jury. The introduction of prior crimes into evidence is governed by K.S.A.2014 Supp. 60–455, and, if admitted, the district court's failure to give a limiting instruction constitutes error.
Based on our finding that the district court erred, we move on to conduct a de novo review of the entire record to determine if the error is reversible. To reverse under the clearly erroneous standard we must be firmly convinced the jury would have reached a different verdict had a limiting instruction been given. See Williams, 295 Kan. 506, Syl. ¶ 5. Applying this standard to the facts here, we simply are not persuaded by Palmer's argument that the jury would have reached a different verdict had the instruction error not occurred. Notably, during his police interview, Palmer admitted to selling methamphetamine in the past and that he was a “heavy” user of methamphetamine. And as previously discussed, there was substantial evidence presented at trial of Palmer's guilt, including TeeHee's testimony regarding Palmer's distribution plans, the large quantity of methamphetamine found in his possession, the drug paraphernalia found in his possession, and the messages and photographs found on his cell phones. Based on our review of the record, we are not firmly convinced the jury would have reached a different verdict had a limiting instruction been given. As a result, the district court's failure to give the limiting instruction does not constitute reversible error.
7. Instruction on drug paraphernalia
Palmer next argues that the jury instruction regarding drug paraphernalia impermissibly provided the jury with the legal conclusion that the items listed in the instruction constituted drug paraphernalia.
The district court issued several instructions related to the two drug paraphernalia charges. In instruction No. 10, the jury was instructed that the State was required to prove that Palmer “possessed with the intent to use zip lock baggies; and/or syringes as drug paraphernalia to distribute methamphetamine.” Instruction No. 11 provided that the State was required to prove that Palmer “possessed with the intent to use pipes as drug paraphernalia to Store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body methamphetamine.” Instruction No. 12—the instruction at issue here—provided:
“ ‘Drug paraphernalia’ means all equipment, and materials of any kind which are used or primarily intended or designed for use in packaging, repackaging, storing, containing, concealing, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.
“ ‘Drug paraphernalia’ includes:
(1) Zip lock baggies;
(2) Syringes;
(3) Glass smoking devices.”
Notably, the challenged instruction was followed by an instruction that provided factors to consider in determining whether an object is drug paraphernalia. Instruction No. 13 stated:
“In determining whether an object is drug paraphernalia, you shall consider, in addition to all other logically relevant factors, the following:
“Statements by an owner or a person in control of the object concerning its use.
“The proximity of the object, in time and space, to a direct commission of a drug crime.
“The proximity of the object to controlled substances.
“The existence of any residue of controlled substances on the object.
“Direct and/or circumstantial evidence of the intent of an owner or a person in control of the object, to deliver it to a person the owner or the person in control of the object knows, or should reasonably know, intends to use the object to facilitate the commission of a drug crime. A finding that the owner or the person in control of the object is innocent of directly committing a drug crime does not prevent a finding that the object is intended for use as drug paraphernalia.
“The existence and scope of legitimate uses for the object in the community.
“Expert testimony concerning the object's use.
“Any evidence that alleged paraphernalia can be or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia.”
Palmer argues that by stating drug paraphernalia “includes” ziplock baggies, syringes, and glass smoking devices, instruction No. 12 removed an element of the charged crime from jury consideration in that it effectively told the jury that these items constitute drug paraphernalia. In support of this argument, Palmer cites State v. Brice, 276 Kan. 758, 762, 80 P.3d 1113 (2003), a case in which our Supreme Court reversed a conviction for aggravated battery because the jury was instructed that the term “ ‘great bodily harm’ “—an essential element of the crime-meant “a ‘through and through bullet wound,’ “ like the wound the victim received in Brice.
But Brice is readily distinguishable from the present facts. Notably, the statutory definition of drug paraphernalia applicable to the statute prohibiting possession of drug paraphernalia is virtually identical to the definition of drug paraphernalia provided to the jury in instruction No. 12. See K.S.A.2014 Supp. 21–5701(f) (“ ‘Drug paraphernalia’ shall include....”). Moreover, the pattern instruction upon which instruction No. 12 was based recommends that the instruction identify those specific items of paraphernalia supported by the evidence. See PIK Crim. 4th 57.180 (“ ‘Drug paraphernalia’ includes: [insert specific item of paraphernalia].”). The Notes on Use accompanying PIK Crim. 4th 57.180 specifically instruct the court that “[t]he specific items of paraphernalia listed in [K.S.A.2014 Supp. 21–5701(f) ] and that are applicable to the case should be inserted into the instruction.” Included in the statutory list of drug paraphernalia are “bags and other containers used or intended for use in packaging small quantities of controlled substances,” “hypodermic syringes,” and “[m]etal, wooden, acrylic, glass, stone, plastic or ceramic pipes.” K.S.A.2014 Supp. 21–5701(f)(9), (f)(11), (f)(12)(A). All of the items listed in instruction No. 12 fit at least one of these descriptions.
Despite Palmer's claims to the contrary, instruction No. 12 neither improperly relieved the State of its burden to prove a necessary element of the crime nor invaded the province of the jury to determine guilt beyond a reasonable doubt. Unlike the instruction in Brice, the instruction here did not literally and expressly state that the objects found in Palmer's possession were drug paraphernalia. Rather, the instruction merely listed specific objects that could constitute drug paraphernalia.
Additionally, we reiterate our duty to look at the jury instructions as a whole rather than considering a single instruction in isolation. See State v. Ellmaker, 289 Kan. 1132, 1139–40, 221 P.3d 1105 (2009), cert. denied 560 U.S. 966 (2010). When considered in conjunction with instruction No. 13, the jury was properly instructed to determine whether the baggies, syringes, and glass pipes were, in fact, drug paraphernalia. Instruction No. 12 defined drug paraphernalia, and by itself, might suggest that ziplock baggies, syringes, and glass smoking devices constitute drug paraphernalia. But instruction No. 13 provided the jury with factors to consider when determining whether an object constitutes drug paraphernalia under the law. Read together, it is clear that the instructions were given to both explain to the jury how to determine whether an item was drug paraphernalia and to list those items the State alleged to be drug paraphernalia.
Multiple panels of this court have rejected the same argument set forth by Palmer based on the analysis set forth above. See State v. Clayter, No. 109,590, 2014 WL 4916403, at *19–20 (Kan.App.2014) (unpublished opinion), petition for rev. filed October 24, 2014; State v. Bowser, No. 107,692, 2013 WL 1010579, at *3–4 (Kan.App.2013) (unpublished opinion), petition for rev. placed on hold January 23, 2014; State v. Sisson, No. 106,580, 2013 WL 1688933, at *9 (Kan.App.2013) (unpublished opinion), rev. granted 298 Kan. –––– (October 1, 2013); State v. Keel, No. 106,096, 2012 WL 4373012, at *4–5 (Kan.App.2012) (unpublished opinion), rev. granted 298 Kan. –––– (October 1, 2013); State v. Sophaphone, No. 102,472, 2010 WL 3324403, at *1–3 (Kan.App.) (unpublished opinion), rev. denied 291 Kan. 917 (2010). Although the Supreme Court has granted review of Sisson and Keel, the reasoning set forth in these opinions is sound and readily applicable to the present case. Following this line of reasoning, we find no error in instruction No. 12.
Cumulative error
Finally, Palmer argues cumulative error prevented him from receiving a fair trial. Cumulative trial errors, when considered collectively, may require reversal of the defendant's convictions when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). Cumulative error, however, “will not be found when the record fails to support the errors raised on appeal by the defendant.” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Nor will the doctrine apply “if no error or only one error supports reversal.” State v. Dixon, 289 Kan. 46, Syl. ¶ 15, 209 P.3d 675 (2009).
Because we have found only a single error based on the district court's failure to issue a limiting instruction related to K.S.A.2014 Supp. 60–455 evidence, the cumulative error analysis provides no relief for Palmer.
Affirmed.