Opinion
Nos. 107,742 107,743.
2013-10-4
STATE of Kansas, Appellee, v. Gary D. RAMSEY, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge. Rachel Pickering, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Rachel Pickering, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., GREEN and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gary D. Ramsey appeals from his jury trial convictions for three counts of burglary, six counts of theft, and one count of identity theft. Ramsey contends (1) that the evidence was insufficient; (2) that the trial court erred in giving limiting instructions on how to use certain evidence; (3) that the trial court erred in refusing to give a limiting instruction on certain testimonial evidence; (4) that the trial court erred in allowing the term “procures” in the aiding and abetting instruction; (5) that the trial court erred in admitting certain DNA evidence; (6) that the trial court erred in denying Ramsey's motion for a new trial; (7) that the trial court erred in ruling that Ramsey's pro se motion for ineffective assistance of counsel was untimely; and (8) that cumulative trial errors denied Ramsey a fair trial. Finding no merit in these contentions, we affirm.
On July 28, 2009, the Smith family was on vacation when their home was burglarized. A neighbor noticed a man and a woman driving a truck up to the house and loading items from the house. The Smiths returned home shortly after the burglary was reported. When walking through their house to determine what was stolen, Betty Smith noticed a cigarette in the kitchen sink. This seemed odd to her because neither she nor her husband smoked. Betty threw the cigarette into the trash. Betty told her daughter about the cigarette, and her daughter told her that she should keep it as evidence. Betty's daughter retrieved the cigarette out of the trash can and placed it in a plastic bag before giving it to the police. The same day as the Smith burglary, Ramsey signed a contract for a storage unit under the name Carlos Ruiz.
A few days later, on July 31, 2009, Boyd Lauber returned home to find his garage vandalized and his house burglarized. Numerous items were taken, including Lauber's gun.
On the morning of August 1, 2009, police officers discovered a stolen truck at a Days Inn parking lot. The officers learned that the stolen truck was registered to a room at the motel. The room was reserved under the name Carlos Ruiz. The police contacted the occupants of the motel room. The names of the occupants were Kassandra Morris, Deborah Berard, and Ramsey. Once inside the room, officers noticed a black gun box on top of the TV. There was also a crate which had the name “Lauber” on the box. The officers ran the name “Lauber” in the system and discovered that Lauber had been a victim of a burglary a few days earlier. After giving officers false identification, Morris admitted to participating in several burglaries. Although Morris claimed ownership of all of the stolen items in the room, all three individuals were arrested.
Morris and Ramsey were released from jail shortly after their arrests.
On the morning of August 22, 2009, Tyler Brill reported that his 1990 blue Ford pickup truck had been stolen. Around September 2, 2009, Brill's truck license plate was found on Danny Squires' vehicle. Squires was unaware that someone had stolen his license plate and had put Brill's stolen plate on his car.
The next morning, the owner of Countryside Lawn Service reported that three of his work trucks had been stolen.
Also on September 3, 2009, police officers were dispatched to a storage unit after suspicious behavior was reported by Diana Cope. Cope told the officers that Ramsey was at the storage unit unloading stolen property from recent burglaries and that he had rented the storage unit under the name Carlos Ruiz. When officers arrived, they saw a blue pickup truck, a trailer, and a white pickup truck with the Countryside Lawn Services decal on the door. The officers also found Ramsey, Morris, and Stacy Dickson at the storage unit. When searching Ramsey, the officers found a Chevy key and a QuikTrip Fleet card registered to Countryside Lawn Services in Ramsey's wallet. The officers recovered other property that had been stolen in the recent burglaries.
Ramsey was arrested and charged with one count of burglary, four counts of theft, and one count of identity theft in case 09–CR–2814; and two counts of burglary and two counts of theft in case 09–CR–2896. These cases were consolidated for trial and on appeal.
A jury found Ramsey guilty on all counts. The trial court sentenced Ramsey to 80 months in prison for case 09–CR–2814 and 61 months in prison for case 09–CR–2896. The trial court ordered that the sentences be served consecutively for a controlling sentence of 141 months.
Does Kansas' Statutory Definition of “Obtaining or “Exerting Control” Create an Alternative Means for Committing the Crime of Theft?
First, Ramsey argues that K.S.A. 21–3701(a)(l) provides alternative means by which the crime of theft can occur. Specifically, Ramsey maintains that obtaining unauthorized control over property and exerting unauthorized control over property constitute more than one way to commit a single offense and thus constitute two alternative means of committing a crime. On the other hand, the State argues that obtaining and exerting are indistinguishable in proving unauthorized control.
Jury unanimity is statutorily required in Kansas. See K.S.A. 22–3421; State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159, 1164 (2010). In an alternative means case, the State is not required to elect one means or another when presenting its case to the jury or when requesting jury instructions. State v. Stevens, 285 Kan. 307, 309, 172 P.3d 570 (2007). Nevertheless, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Wright, 290 Kan. at 202. This safeguard prevents a jury, partially or wholly, from reaching a finding of guilt based on insufficient evidence. As a matter of law, when the State provides inadequate evidence for a reasonable factfinder to reach guilt through a certain means, a conviction must be reversed. See Wright, 290 Kan. at 203.
“Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.” Wright, 290 Kan. at 202 (quoting State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 [1994] ). “In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.” Wright, 290 Kan. at 202.
Accepting these alternative means concepts, this court must determine if this case truly presents an alternative means issue. The State maintains that it does not. If the statute that penalizes theft, K.S.A. 21–3701(a)(1), does not provide for more than one way to commit the crime, jury unanimity is not at issue and alternative means analysis is inapplicable. This issue involves statutory interpretation. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Alternative means essentially involves materially different ways of committing a crime based on the elements or statutory definition of the crime. If a criminal statute creates two or more distinct ways of committing the crime, those ways reflect alternative means. State v. Schreiner, 46 Kan.App.2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011), rev. denied 296 Kan. ––––(February 20, 2013). Other criminal statutes establish only one way to commit an offense. For example, when a criminal statute uses synonyms to describe the same conduct, the synonyms do not form an alternative means for committing a crime; 46 Kan.App.2d 778, Syl. ¶ 1; see State v. Rollins, 46 Kan.App.2d 17, 21–22, 257 P.3d 839 (2011), rev. denied 293 Kan. –––– (February 17, 2012); see also State v. Zowasky, No. 104,599, 2011 WL 6942932, at *5–6 (Kan.App.2011) (unpublished opinion) (aggravated burglary as defined in the jury instructions did not create alternative means because the terms fraud, deceit, and pretense were merely synonyms that described the same conduct).
When the alleged offense was committed, the crime of theft was provided under K.S.A. 21–3701(a)(1). K.S.A. 21–3701(a)(1) states that “[t]heft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property: (1) Obtaining or exerting unauthorized control over property.” K.S.A.2009 Supp. 21–3110(13) defines the phrase “obtaining or exerting” as follows: ‘ “Obtains or exerts control’ over property includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.” Here, the jury instructions conformed to the language of the theft statute because it stated that the jury had to prove that Ramsey obtained or exerted control over the stolen property.
Ramsey contends that one means to commit the crime of theft is through obtaining unauthorized control over property and the other means is exerting unauthorized control over property. Moreover, Ramsey argues that the State failed to present sufficient evidence for both alternative means so his convictions should be reversed. Ramsey's argument fails because K.S.A. 21–3701(a)(l) does not create an alternative means for committing the crime of theft.
To support his argument that “obtaining control” and “exerting unauthorized control” are not synonymous as used in the Kansas theft statute, Ramsey relies on State v. Kunellis, 276 Kan. 461, 78 P.3d 776 (2003). In Kunellis, the defendant and several others stole motorcycles from a dealership, drove against traffic on a multilane highway when pursued by police, and killed two people in a collision. The defendant was convicted of felony murder, with the underlying felony of theft, on the theory that the language in the statute prohibiting “exerting unauthorized control” over stolen property made theft “a continuing offense” and thus the deaths occurred during the course of the theft. 276 Kan. at 468. On appeal, the Kansas Supreme Court rejected this legal theory, finding that theft is not a continuing offense. The court explained that the use of the words “obtaining or exerting unauthorized control” was for the purpose of consolidating what were formerly the crimes of larceny and embezzlement into a single crime of theft. Thus, the court determined that “exerting unauthorized control” did not reflect legislative intent to make theft a continuing offense. 276 Kan. at 468–69.
In Rollins, 46 Kan.App.2d 17, the defendant was charged and convicted of theft by “obtaining or exerting unauthorized control over property” under K.S.A. 21–3701(a)(1). On appeal, the defendant argued that “obtaining” and “exerting unauthorized control” were alternative means of accomplishing theft and that the defendant was deprived of his right to a unanimous jury verdict when the State failed to sufficiently prove both means. In support of his argument, the defendant relied on Kunellis, contending that our Supreme Court treated the terms “obtaining” and “exerting” differently. This court rejected the defendant's argument, reasoning that K.S.A.2010 Supp. 21–3110(13) treats “[o]btains or exerts control over property” as one singular term. 46 Kan.App.2d at 21–22. This court concluded that “[t]here is no quantifiable difference between the actions that constitute obtaining or exerting; these words create a distinction without difference.” Rollins, 46 Kan.App.2d at 22.
The Rollins decision has been reaffirmed by our court numerous times. See State v. Snover, 48 Kan.App.2d 298, Syl. ¶ 2, 287 P.3d 943 (2012), petition for rev. filed December 10, 2012; State v. Holt, No. 106,711, 2013 WL 517657 (Kan.App.2013) (unpublished opinion) petition for rev. filed March 11, 2013; State v. Hampton, No. 105,586, 2012 WL 1919949 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. –––– (March 28, 2013); State v. Polk, No. 105,011, 2012 WL 1237880 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. –––– (April 1, 2013).
Ramsey incorrectly argues that we should apply State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), rather than Rollins. Brown does not apply to this case because it dealt with alternative means arguments regarding instructions on aggravated indecent liberties with a child and lewd and lascivious behavior. 295 Kan. at 188–89.Rollins and the other cases that reaffirm Rollins are more on point because they specifically deal with the theft instruction and the terms “obtain” and “exert.”
Based on the reasoning articulated in Rollins and subsequent cases, we determine that “obtaining control” and “exerting unauthorized control” over stolen property are essentially synonymous. The language found in Kunellis is inapplicable to this case because the facts of that case are distinguishable. Consequently, Ramsey's alternative means argument must fail because the terms “obtaining” or “exerting” do not present alternative means for committing the crime of theft.
Did the Trial Court Provide a Misleading Limiting Instruction?
Next, Ramsey challenges the legal sufficiency of an instruction that limited how the jury could consider evidence that he allegedly threatened Morris at a Wichita Days Inn Motel. Ramsey does not challenge the admission of the underlying evidence. He simply challenges the language used in the limiting instruction. Ramsey objected to the following instruction:
“Evidence has been admitted in this trial tending to prove that Kasandra Morris was afraid of the defendant because he had threatened Ms. Morris at the Days Inn Motel. This evidence may be considered solely for the purpose of determining the weight and credit to be given the testimony of Ms. Morris.”
Because Ramsey properly objected to the instruction below, the following standard of review applies:
“When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction.” [Citations omitted.] State v. Appleby, 289 Kan. 1017, 1059,221 P.3d 525 (2009).
From the beginning of the trial, the jury knew that Morris was claiming that she was the one who had stolen all of the property. Thus, Morris' creditability was at issue.
At trial, Ramsey objected to the limiting instruction because of its language of “tending to prove.” Ramsey repeats his argument on appeal that this “tending to prove” language is not supported by the evidence and is unfair and misleading.
At the instruction conference, the following exchange occurred:
“[THE COURT:] PIK does not have any instruction on this, but, first of all, just using a 60–455 framework, I just made the first sentence consistent with that evidence has been admitted tending to prove this, ... but I've told the jury that they can use this evidence if they want for the sole purpose of determining the weight and credit to be given Kasandra's [Morris] testimony, and you shall not consider it for any other purpose.
...
“[RAMSEY'S COUNSEL]: There are two we'll call them objections. First, it is a little misleading to say evidence has been admitted....
...
“And then the other little objection, ‘tending to prove.’ I don't like an emphasis on that proving. I think it—I think just a one-word—a better word is ‘suggesting,’ and I suggest—and that's the suggestion I make to the—the commentary upon the instruction.
...
...
“THE COURT: I'm gonna leave the instruction as is, and I'm gonna tell you why. First of all, this instruction that we're discussing right now, the language is consistent with the 60–455. That's number one. And also, point number two, this instruction doesn't say that Kasandra Morris testified to that. That would be, I think, overstepping my boundaries.... Number three, Mr. Robinson, since 1988 I've always thought the ‘tending to prove’ language is wrong. I don't agree with it philosophically.... I think ‘tending to prove’ is unfair language, but I'm gonna leave it as is because this is what the law is in Kansas, and I always like it if atrial judge gets reversed for following Kansas law.”
In his reply brief, Ramsey relies on State v. Fields, No. 105,543, 2012 WL 3171795 (Kan.App.2012) (unpublished opinion), rev. denied 291 Kan. –––– (June 14, 2013), to support his argument that the “tending to prove” language should not have been used. In Fields, the jury was instructed that ‘ “[e]vidence has been admitted tending to prove that the defendant committed a crime other than the present crime charged, to-wit: the incident at Howdy's Liquor Store. This evidence may be considered solely for the purpose of showing the defendant's identity regarding the crime charged.” ‘ 2012 WL 3171795, *5. The Fields court agreed that the “tending to prove” language should not have been used in that case because the testimony clearly showed that the police did not believe a crime had been committed at Howdy's. Nevertheless, the Fields court held that the instruction error was not clearly erroneous based on the overwhelming evidence against the defendant. 2012 WL 3171795, *5.
This case is distinguishable from Fields. Here, the record supports the jury instruction. Although Morris did not directly testify that Ramsey had threatened her, the State offered rebuttal testimony to show that Morris had told officers that Ramsey had threatened her. The Fields court took issue with the “tending to prove” language simply because the evidence did not support it; but in this case, it does.
Therefore, we are not persuaded that the instruction was erroneous. The instruction was consistent with Kansas law. It informed the jury that the evidence that Ramsey had threatened Morris was to be considered for a specific purpose. Although there was not a PIK instruction for the trial court to follow, it did track the language of the PIK instruction for K.S.A.2009 Supp. 60–455 evidence, see PIK Crim.3d 52.06, and it was factually and legally appropriate in light of the entire record. Moreover, there is no material difference between the terms “tending to prove” and “suggests.” The terms are interchangeable and were unlikely to mislead the jury. Consequently, Ramsey's instruction argument fails.
Did the Trial Court Err in Failing to Give a Limiting Instruction?
At trial, testimony was presented that Ramsey had broken into Cope's car and had stolen some paperwork that belonged to her deceased parents. Ramsey argues that this evidence prejudiced the jury and that the trial court should have given a limiting instruction advising the jury to disregard the evidence of his prior crimes.
In response, the State argues that Ramsey failed to preserve this issue for appeal because he failed to object to the admission of the evidence. See K.S.A. 60–404 (contemporaneous objection rule); State v. King, 288 Kan. 333, 341–42, 204 P.3d 585 (2009) (compliance with K.S.A. 60–404 is required to preserve evidentiary ruling for appellate review).
The State argues that the facts of this case are similar to the facts in State v. Rojas–Marceleno, 295 Kan. 525, 285 P.3d 361 (2012). In Rojas–Marceleno, the defendant argued that the trial court erred in failing to give a limiting instruction sua sponte. The Rojas–Marceleno court held that the defendant was merely disguising an evidentiary argument as an instructional issue when the defendant's argument was that the ‘ “jury should have been instructed to disregard’ “ the evidence. Concluding that the evidentiary issue should have been raised below, the Rojas–Marceleno court held the defendant failed to preserve the issue for appeal. 295 Kan. at 538–39.
In his reply brief, Ramsey contends that the facts of this case are more similar to the facts in State v. Breeden, 297 Kan. ––––, 304 P.3d 660 (2013). The Breeden court held that a contemporaneous objection to other crimes evidence was not required to preserve a jury instruction issue on appeal. See 304 P.3d at 669–71. The Breeden court found that the defendant did more than assert an evidentiary argument as an instructional issue as in Rojas–Marceleno. Breeden, 304 P.3d at 669–70. In Breeden, the defendant argued that the trial court ‘ “should have instructed the jury that evidence has been admitted tending to prove that the defendant committed crimes other than the crime charged, and that the jury was not to consider that evidence of Mr. Breeden's propensity to commit a criminal act.” ‘ 304 P.3d at 670.
The Breeden court then applied the clearly erroneous standard to find that the failure to give a limiting instruction was error but not reversible error. 304 P.3d at 671–72.
The rule in Breeden applies to cases where the defendant is making an argument distinct from an evidentiary issue regarding the admission of evidence. Here, Ramsey does not make an argument distinct from an evidentiary issue regarding the admission of evidence. For example, although Ramsey framed this issue as an instructional error, he does not suggest any specific purposes for which the jury should have considered his prior offense, nor does he suggest what would have been an appropriate limiting instruction. Instead, Ramsey argues the “district court was required to give a limiting instruction to the jury to disregard this evidence.” Therefore, the rule in Breeden does not apply to this case.
In his reply brief, Ramsey urges this court to apply Breeden; yet, he fails to argue how the failure to give the limiting instruction was clearly erroneous and he fails to suggest any specific purposes for which the jury should have considered his prior offense, except to say that the jury should disregard the evidence. These were two reasons why the Breeden court addressed the defendant's instruction issue rather than finding that it was actually an evidentiary issue like in Rojas–Marceleno. As a result, Ramsey's argument fails.
Did the Trial Court Err in Including the Term “Procures” in the Aiding and Abetting Jury Instruction?
Next, Ramsey contends that the trial court erred in modifying the PIK instruction to include the term “procures” in the aiding and abetting jury instruction. Ramsey argues that the altered PIK instruction misled the jury and that the evidence did not support adding the term “procures.”
The jury was instructed as follows:
“A defendant who, either before or during its commission, intentionally aids or abets or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
Upon the State's request, and over Ramsey's objection, the trial court added the term “procures” to the PIK Crim.3d 54.05 instruction, which includes the term “procures.” See K.S.A. 21–3205(1) (includes “procures”).
“When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction.” [Citations omitted.] State v. Appleby, 289 Kan. at 1059.
Ramsey is essentially arguing that by adding the term “procures” to the jury instruction, the trial court created alternative means. We determine this claim of error to be without merit based on the rationale set forth by this court in State v. Johnson, 46 Kan.App.2d 870, 885–86, 265 P.3d 585 (2011).
In Johnson, the defendant was convicted of aggravated battery. Among the contentions of error on appeal, the defendant argued that there was insufficient evidence to support her conviction by aiding and abetting, claiming the aiding and abetting statute set forth alternative means to commit the crime. The court concluded:
“Although there are minor differences in the meaning of the terms ‘aids,’ ‘abets,’ ‘advises,’ ‘hires,’ ‘counsels,’ and ‘procures,’ we find that these terms do not entail materially different or distinct ways of committing a particular crime. The thrust of K.S.A. 21–3205 is that a person who knowingly induces or assists another person to commit a crime is criminally responsible for the crime regardless of the extent the person participates in the actual commission ofthe crime. We conclude that K.S.A. 21–3205(1) does not set forth alternative means of committing a crime.” 46 Kan.App.2d at 885–86.
This reasoning conforms with our Supreme Court's decision in Brown, 295 Kan. at 199–200, to determine whether there are “two or more alternative distinct, material elements of a crime” versus merely a listing of “options within a means.” Therefore, we hold that the words “aids and abets” and “procures” as they appear in the aiding and abetting statute are not alternative means.
Moreover, Ramsey's argument that the jury was not properly instructed given the differences between aiding and abetting and procuring fails. Ramsey argues that because of the difference in the terms the jury would have been confused and misled. Based on the holding in Johnson, the terms are merely synonyms used to define the same prohibited conduct. See 46 Kan.App.2d at 884–86. Therefore, Ramsey's argument fails.
Did the Trial Court Err in Admitting Evidence?
Ramsey contends that because the chain of custody was incomplete, the cigarette butt recovered from the Smith residence and the DNA testing conducted on the cigarette butt should not have been admitted into evidence. The DNA testing showed that the cigarette butt contained Ramsey's DNA on it. Ramsey further maintains that the trial court erred when it denied his motion in limine to keep this evidence out.
The law on this point is well settled. A trial court's ruling on a motion in limine is reviewed under the abuse of discretion standard. State v. Oliver, 280 Kan. 681, 693, 124 P.3d 493 (2005), cert. denied547 U.S. 1183 (2006), disapproved on other grounds State v. Anderson, 287 Kan. 325, 197 P.3d 409 (2008). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Further, an order in limine should be granted if the trial court finds (1) the material or evidence at issue will be inadmissible at trial under the rules of evidence; and (2) the mere offer of evidence or statements made during trial concerning the material will likely prejudice the jury. State v. Horn, 278 Kan. 24, 37, 91 P.3d 517 (2004). Nevertheless, any deficiency in the chain of custody goes to the weight of the evidence rather than its admissibility. State v. Horton, 283 Kan. 44, 62, 151 P.3d 9 (2007). Also, we must point out that appellate courts do not reweigh evidence on appeal. Gant, 288 Kan. at 80.
Ramsey correctly cites Horton and acknowledges that deficiencies in the chain of custody go to the weight of the evidence rather than its admissibility; yet, he continues to argue that the evidence should not have been admitted based on the chain of custody issues.
The trial court held a hearing on Ramsey's motion in limine where Ramsey raised his chain of custody arguments. The State argued that the issues raised by Ramsey went to the weight of the evidence, not its admissibility.
After hearing arguments, the trial court denied Ramsey's motion. The court found that the State laid a proper foundation for the evidence and that the issues Ramsey raised went to the weight of the evidence. The trial court noted that the cigarette butt was found within the Smith's residence after it was burglarized and that it remained in the Smith's house until it was turned over to law enforcement. The trial court further noted that there was no indication that the evidence had left the residence or that it had been tampered with or altered in any way.
Here, the evidence was not discovered by law enforcement but was discovered by the owners of the residence that was burglarized. Betty Smith found the cigarette butt in the sink, threw it in the trash, and then her daughter took it out of the trash and placed it in a Ziploc bag. Smith then gave the cigarette butt—in the Ziploc bag—to law enforcement a few days later. Both Smith and her daughter, Alicia Illidge, testified to the chain of custody of the cigarette butt. Based on this evidence, we determine that there was no error in the trial court denying Ramsey's motion in limine and admitting the cigarette butt and later DNA testing.
Did the Trial Court Abuse Its Discretion when It Denied Ramsey's Motion for New Trial?
Next, Ramsey argues that the trial court erred in denying his motion for new trial based on newly discovered evidence. Ramsey contends that he could not, with reasonable diligence, have produced this evidence at trial. He further maintains that this evidence is so material that it is likely to result in a different outcome upon retrial.
Appellate courts review a trial court's decision on a motion for a new trial based on newly discovered evidence for an abuse of discretion. See State v. Backus, 295 Kan. 1003, 1011, 287 P.3d 894 (2012); Rojas–Marceleno, 295 Kan. 525, Syl. ¶ 3;Moncla v. State, 285 Kan. 826, 839–40, 176 P.3d 954 (2008) (reviewing order denying motion for new trial based on newly discovered evidence for abuse of discretion). Judicial discretion is abused only when no reasonable person would take the view of the trial court. The party who asserts abuse of discretion bears the burden of showing it. See State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006).
The test for determining whether a new trial is warranted on the ground of newly discovered evidence has two parts: (1) whether the defendant has met the burden of establishing that the newly proffered evidence could not, with reasonable diligence, have been produced at trial and (2) whether the evidence is of such materiality that it would be likely to produce a different result upon retrial. State v. Fulton, 292 Kan. 642, 649, 256 P.3d 838 (2011). New trials on grounds of newly discovered evidence are not favored and are to be viewed with caution. State v. Trammell, 278 Kan. 265, 283, 92 P.3d 1101 (2004). New trials are not to be granted on the basis of newly discovered evidence that merely tends to impeach or discredit the testimony of a witness. State v. Norton, 277 Kan. 432, 437–38, 85 P.3d 686 (2004).
In his motion for new trial, Ramsey proffered testimony from Morris who would testify that she lied on the stand during Ramsey's trial. The trial court denied the motion, concluding that Morris' recanted testimony was “untruthful and without credibility.” The trial court found that Ramsey had met the first requirement in showing that this was truly newly discovered evidence that could not have been produced at trial. Nevertheless, the trial court found that Ramsey failed to meet the second requirement because the evidence presented was not material and was unlikely to produce a different result upon retrial.
That State concedes that the evidence was newly discovered so the first requirement has been met. Therefore, we must determine whether the trial court abused its discretion when it held that the newly discovered evidence was not material and that a reasonable probability did not exist that it would produce a different result upon retrial.
We determine that the newly discovered evidence was not sufficiently material to find a reasonable probability that the jury would have reached a different result upon retrial. To support a motion for new trial, the newly discovered evidence must be sufficiently credible, substantial, and material to raise in the court's mind, in light of all the evidence introduced at the original trial, a reasonable probability of a different outcome upon retrial. State v. Thomas, 257 Kan. 228, 235, 891 P.2d 417 (1995). Here, the trial court found that Morris' testimony lacked credibility and that it was untruthful. The trial court further rejected the testimony of two other witnesses who corroborated Morris' testimony finding that Morris and the other two witnesses “conspired together to fabricate the assertion of KM [Morris] re [regarding] her purported perjured trial testimony.”
Moreover, Morris' credibility at trial was questionable, and her testimony at trial was that Ramsey helped her move some of the stolen items around but that he never participated in any of the burglaries or thefts. Although Morris' testimony placed Ramsey at the scene of the crimes, it was not the only evidence linking Ramsey to the crimes. For example, there was DNA evidence and fingerprint evidence linking Ramsey to two of the crime scenes; there was an eyewitness who identified Ramsey as the person at another crime scene; Ramsey was the one who purchased the storage unit and was arrested at the storage unit where stolen property was found. Moreoever, Ramsey had other evidence on him when he was arrested, which linked him to the crimes. Therefore, Morris' recanted testimony that she lied about Ramsey being involved in the burglaries was not very different from her trial testimony and was unlikely to change the result upon retrial.
Under these circumstances, we conclude that a reasonable person could agree with the trial court's conclusion that the newly discovered evidence was not of such materiality to support a reasonable probability that the evidence would produce a different outcome at trial. Therefore, we determine that the trial court properly denied Ramsey's motion for new trial based on newly discovered evidence.
Did the Trial Court Err in Dismissing Ramsey's Pro Se Motion for Ineffective Assistance of Counsel?
Next, Ramsey contends that the trial court erred in denying his motion for ineffective assistance of counsel as an untimely request for a new trial. Ramsey maintains that he is entitled to a hearing on his motion and requests that his case be remanded for an evidentiary hearing.
Following his convictions, Ramsey filed a pro se motion for ineffective assistance of counsel. Ramsey requested that the trial court throw out his conviction and “order a new trial.”
The trial court held a hearing on Ramsey's pro se motion, where the trial court allowed Ramsey's counsel to recuse himself and appointed new counsel to represent Ramsey. The trial court then set another hearing for July 8, 2011, to hear arguments on Ramsey's pro se motion for ineffective assistance of counsel.
At the hearing on July 8, 2011, the trial court informed the parties that it no longer wished to hear arguments on the motion and that it was denying the motion as an untimely motion for new trial. See K.S.A.2012 Supp. 22–350(1) (amended in 2010 from 10 to 14 days). The trial court held that Ramsey had to file his motion within 14 days of his conviction, and because he failed to do so, his motion was untimely.
On appeal, Ramsey argues that the trial court abused its discretion by failing to consider his allegations of ineffective assistance of counsel. Ramsey asks this court to vacate his sentence and remand to the trial court for an evidentiary hearing on his claims. We must first determine whether we have jurisdiction to review Ramsey's challenge to the court's ruling on his posttrial motion for ineffective assistance of counsel.
The right to appeal is entirely statutory, and subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statute. See State v. Ellmaker, 289 Kan. 1132, 1148, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010). Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. 289 Kan. at 1147. If the trial court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
The State argues that the trial court lacked jurisdiction to hear and rule upon Ramsey's ineffective assistance of counsel claims in his pro se motion for ineffective assistance of counsel because the motion was untimely filed under K.S.A. 22–3501(1). The State contends that the trial court was jurisdictionally barred from hearing issues of ineffective assistance of counsel in an untimely motion for new trial and to hear these untimely claims circumvents the time limitations under K.S.A. 22–3501(1). The State relies on State v. Myrick & Nelms, 228 Kan. 406, 422–23, 616 P.2d 1006 (1980), which held that this court lacks jurisdiction to hear allegations of ineffective assistance of counsel, inter alia, raised in untimely motions. Any untimely constitutional issues must be raised in a separate proceeding pursuant to K.S.A. 60–1507. Myrick & Nelms, 228 Kan. at 423; see also State v. Lee, 45 Kan.App.2d 1001, 1021–22, 257 P.3d 799 (2011), rev. denied 293 Kan. –––– (January 20, 2012) (trial court lacks jurisdiction to hear untimely motion without timely application for extension of time).
Here, the jury returned its verdict on January 20, 2011. Under K . S.A. 22–3501(1), as amended. Ramsey was required to file a motion for new trial within 14 days of his conviction. This time frame may be extended if a request is made within those 14 days. See K.S.A.2012 Supp. 22–3501(1). Ramsey made no requests that his time be extended. Thus, the trial court lacked the authority to consider Ramsey's untimely motion. Because the trial court lacked authority to enter an order, this court does not have subject matter jurisdiction over this issue. See McCoin, 278 Kan. at 468.
Was Ramsey's Right to a Fair Trial Denied by Cumulative Error?
Finally, Ramsey argues that cumulative trial errors deprived him of a fair trial. This contention has no merit. This court applies the following test to a claim of cumulative trial errors:
“Cumulative error, considered collectively, may be so great as to require reversal of a defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. [Citation omitted.]” State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).
“Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.] One error is insufficient to support reversal under the cumulative effect rule. [Citation omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Because we found no errors, Ramsey's cumulative error claim is without merit.
Affirmed.