Opinion
No. 107,079.
2013-02-22
STATE of Kansas, Appellee, v. Carlos E. BEASLEY, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Richard Ney, of Ney & Adams, of Wichita, for appellant. Boyd R. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Richard Ney, of Ney & Adams, of Wichita, for appellant. Boyd R. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury found Carlos E. Beasley guilty of possession of marijuana with the intent to sell, of possession of marijuana with no tax stamp, and of concealing or maintaining an interest in proceeds known to be used for drug distribution. Because we find that the district court did not commit reversible error, we affirm Beasley's convictions for possession of marijuana with intent to sell and possession of marijuana with no tax stamp. But we reverse his conviction for concealing or maintaining an interest in drug proceeds for lack of subject matter jurisdiction because this charge was not included in the complaint.
Facts
On the evening of March 25, 2010, officers from the special community action team (SCAT), which is a narcotics investigation unit, executed a search warrant at 3623 East Funston in Wichita. Upon entering the house, Officer Ryan Shomaker saw Beasley throw a plastic bag filled with green vegetation under the kitchen table. The SCAT team detained Beasley, as well as Erica Morris and Johnny Manns who were also in the house at the time of the raid.
The SCAT team searched the house and found marijuana, cocaine (both powdered and in crack form), cash, and drug paraphernalia. Two bags found on the kitchen table in front of where Beasley had been standing contained marijuana. Likewise, the bag Beasley threw under the table contained marijuana in brick form. Next to the brick of marijuana, there was a restaurant bag that contained eight smaller bags, each of which contained various amounts of marijuana. In total, officers found approximately 5 ounces of marijuana.
In the southeast bedroom of the house, the SCAT team found a white trash bag that contained powdered cocaine. Several size 6XL horizontally striped shirts hung in the bedroom closet next to recently dry-cleaned clothes, which had a receipt in Beasley's name. A black duffle bag sat on the bed with $20,000 of packaged cash in the side pocket, with additional large horizontally striped shirts located in the main compartment. In addition, Beasley's name was on several items found on the dresser.
Throughout the house, the SCAT team found latex gloves, baggies, utility knives, crack rocks, scales with drug residue, a crack pipe, and other drug-related items. In addition to the $20,000 in the duffle bag, officers found $226 on the shelf in the southeast bedroom's closet, $209 in a cash drawer underneath the bed, $2,000 in the basement room, $2,056 in a safe, $10 on a computer stand, $20 in Morris' pocket, $143 in Beasley's wallet, $2,205 in Beasley's front right pocket, and $3.70 in another of Beasley's pockets. All totaled, police seized $26,872.70 in cash from the residence.
The State charged Beasley with possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, no tax stamp for both marijuana and cocaine, and possession with intent to use drug paraphernalia. Beasley was also charged with intentionally receiving or acquiring proceeds, or engaging in transactions involving proceeds, known to be derived from drug crimes in violation of K.S.A.2009 Supp. 21–36a16(a), (e)(2). After Beasley filed a motion requesting the specifics of the drug proceeds charge, the State filed a bill of particulars.
The bill of particulars described a violation of a different statutory subsection than the one listed in the complaint—namely, that Beasley concealed or maintained an interest in proceeds intended to be used to further drug distribution in violation of K.S .A.2009 Supp. 21–36al6(b),(e)(2), But the State never attempted to amend the complaint and the case proceeded to a jury trial.
At trial, Beasley testified in his own defense. Specifically, he testified about various jobs he held that only paid cash. Beasley admitted the clothes in the bedroom closet were his, but he denied any knowledge of the clothes or the $20,000 found in the duffle bag. Although he admitted that the marijuana at the house belonged to him, Beasley claimed that it was for his personal use. In particular, he testified that he needed a large quantity of marijuana because he was a heavy user and it was cheaper to buy it in bulk. Beasley did admit that prior to the SCAT team arriving at the house on the evening of the raid, he had given Manns some of his marijuana to smoke.
Following presentation of rebuttal testimony by the State, the district court instructed the jury and closing arguments were presented by counsel. Throughout its closing, the defense painted a picture of a wholly inadequate investigation into who was the person responsible for selling drugs out of the house. In response, the State argued that “a real life standard” must be used in determining the adequacy of the investigation. After deliberations, the jury found Beasley not guilty on the charges of possession of cocaine with the intent to distribute, possession of cocaine with no tax stamp, and possession of drug paraphernalia with intent to use. The jury did, however, find Beasley guilty of possession of marijuana with the intent to distribute, possession of marijuana with no tax stamp, and concealing or maintaining an interest in proceeds to be used for drug distribution.
At sentencing, Beasley asked the court to exercise its discretion and grant him probation. The district court noted that this was a border box case involving a significant drug operation. Because there was not an acceptable treatment program available, the district court sentenced Beasley to a 33–month prison sentence. Thereafter, Beasley timely appealed his convictions and sentence.
Analysis
Violation of K.S.A.2009 Supp. 21–36a16(b),(e)(2)
On appeal, Beasley alleges the district court was deprived of subject matter jurisdiction because the complaint did not charge him with a violation of K.S.A.2009 Supp. 21–36al6(b),(e)(2). Because subject matter jurisdiction involves a question of law, our review is unlimited. See State v. Ellmaker, 289 Kan. 1132, 1147, 221 P .3d 1105 (2009). Moreover, the parties or the court may raise the issue of subject matter jurisdiction at any time. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010).
It is undisputed that the jury convicted Beasley of concealing or maintaining an interest in proceeds intended to be used to further drug distribution, which is a violation of K.S.A.2009 Supp. 21–36a16(b),(e)(2). It is also undisputed that the State did not charge him with this crime in the complaint. The complaint—which was never amended—charged Beasley with receiving or acquiring proceeds, or engaging in transactions involving proceeds “known to be derived from a violation” of the drug statutes. K.S.A.2009 Supp. 21–36a16(a),(e)(2). As this court has previously held, the crime of concealing or maintaining an interest in proceeds intended to be used to further drug distribution is substantially different than the crime of receiving or acquiring proceeds known to be derived from a drug violation. See State v. Romo–Uriarie, 33 Kan.App.2d 22, 32–35, 97 P.3d 1051,rev. denied 278 Kan. 851 (2004).
K.S.A. 22–3201(b) provides that a “complaint ... shall be a plain and concise written statement of the essential facts constituting the crime charged.” Furthermore, “[a] defendant cannot be charged in the [complaint] with one offense and be convicted of another and different offense....” State v. Hall, 246 Kan. 728, 753, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). Beasley alleges insufficient evidence and instructional error, but the determinative issue is whether the complaint charged him with the crime for which he was ultimately convicted. See State v. Tapia, 295 Kan. 978, 992–93, 287 P.3d 879 (2012); State v. McElroy, 281 Kan. 256, 261–62, 130 P.3d 100 (2006). We have a duty to address the issue because a defective complaint deprives the district court of subject matter jurisdiction. See City of Kansas City v. Carlock, 12 Kan.App.2d 41, Syl. ¶ 3, 733 P.2d 1273 (1987).
As indicated above, the complaint expressly charged Beasley with receiving or acquiring proceeds, or engaging in transactions involving drug proceeds, in violation of K.S.A.2009 Supp. 21–36al6(a),(e)(2). In direct response to this charge, Beasley filed a motion for a bill of particulars requesting the specifics of the alleged violation. The district court appropriately granted the motion, and the State filed a bill of particulars. Instead of clarifying the charge set forth in the complaint, the bill of particulars identified a completely different crime—concealing or maintaining an interest in money intended to be used to further the distribution of cocaine and or marijuana in violation of K.S.A.2009 Supp. 21–36a16(b),(e)(2). Although the State presented evidence at trial consistent with crime identified in the bill of particulars, and the court instructed the jury consistent with the bill of particulars, the complaint was never amended to charge Beasley with a violation of K.S.A.2009 Supp. 21–36al6(b),(e)(2).
In Hall, the Kansas Supreme Court established the analytical framework to determine whether a complaint is so defective that it deprives the court of subject matter jurisdiction. When a defendant challenges a complaint at the district court level, it is defective if it omits an essential element of the crime. See Hall, 246 Kan. 747, 762–65; accord State v. Gonzales, 289 Kan. 351, 366–68, 368, 212 P.3d 215 (2009). But when a defendant challenges a complaint for the first time on appeal, we are to liberally construe the allegations set forth in the complaint to determine whether the defendant has suffered prejudice. See Hall, 246 Kan. at 762–65. At the district court, a defendant generally has two procedural mechanisms available to challenge defects in a complaint-filing a motion for a bill of particulars or filing a motion for arrest of judgment. See Tapia, 295 Kan. at 984 (citing Hall, 246 Kan. at 758–60).
Although Beasley never filed a motion for arrest of judgment in this case, he did file a motion for a bill of particulars specifically relating to the charge brought by the State for an alleged violation of K.S.A.2009 Supp. 21–36al6(a), (e)(2). Under the circumstances presented, we find that the request for a bill of particulars was sufficient to challenge the alleged defect in the complaint. At any time prior to the verdict, the State could have amended the complaint to charge Beasley with a violation of K.S.A.2009 Supp. 21–36al6(b),(e)(2) as alleged in the bill of particulars but it chose not to do so. See K.S.A. 22–3201(e).
A review of the complaint reveals that it not only omitted an essential element of the crime for which the jury convicted Beasley, it alleged different factual circumstances for a fundamentally different crime. See Gonzales, 289 Kan. at 366–68;Hall, 246 Kan. at 762–65;Romo–Uriarie, 33 Kan.App.2d at 32–35. Specifically, Beasley was charged in the complaint with receiving or acquiring proceeds or engaging in transactions involving proceeds known to be derived from a violation of the drug statutes. Hence, the district court never had subject matter jurisdiction over the crime for which the jury convicted Beasley—concealing or maintaining an interest in proceeds known to be used to further drug distribution. Accordingly, we find the complaint was fatally defective and deprived the court of subject matter jurisdiction over the alleged violation of K.S.A.2009 Supp. 21–36a16(b),(e)(2).
That State argues that it presented evidence at trial consistent with the bill of particulars as required by K.S.A. 22–3201(f). Although this is true, a bill of particulars cannot save a fatally defective complaint:
“ ‘A bill of particulars ordinarily is not a part of [a complaint], or a substitute therefor or an amendment or supplement thereto....
“ ‘A bill of particulars usually is not designed to uphold an insufficient [complaint], but only to be used where the [complaint] is sufficient .... It neither strengt hens nor weakens [a complaint]. It cannot change the offense charged or in any way aid [a complaint] fundamentally bad.” (Emphasis added.) State v. Wright, 259 Kan. 117, 129, 911 P.2d 166 (1996) (quoting 42 C.J.S., Indictments and Informations § 140).
We, therefore, reverse Beasley's conviction for violating K.S.A.2009 Supp. 21–36a16(b),(e)(2) for lack of subject matter jurisdiction, without prejudice. See K.S.A. 21–3108(4)(a); State v. Weller, 30 Kan.App.2d 957, 958–59, 52 P.3d 368 (2002).
Sufficiency of Evidence—Possession of Marijuana with the Intent to Distribute
Beasley also contends that there was insufficient evidence presented to the jury to support his conviction for possession of marijuana with the intent to distribute. On review for sufficiency of the evidence, we must look at all the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty of the charge beyond a reasonable doubt. See State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In conducting this review, we do not reweigh evidence or the credibility of witnesses. See State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
A review of the record reveals that Beasley admitted that all the marijuana belonged to him and that he gave some to Manns to smoke. Moreover, the SCAT team found 131.08 grams (almost 5 ounces) of marijuana divided up in baggies of differing quantities during the raid. And the bag of marijuana that Beasley threw under the kitchen table contained marijuana in brick form. In addition, Beasley had over $2,000 on his person at the time of the raid. Thus, when viewed in the light most favorable to the State, we conclude that there was sufficient evidence presented at trial upon which a jury could find beyond a reasonable doubt that Beasley was guilty of possession of marijuana with the intent to distribute.
Prosecutorial Misconduct
Beasley contends that the prosecutor committed misconduct by mentioning a “real life standard” during the rebuttal portion of his closing argument. Our review for an allegation of prosecutorial misconduct requires a two-step analysis: (1) Were the prosecutor's comments outside the wide latitude that the prosecutor is allowed in discussing the evidence, and if so, (2) did the comment amount to plain error? See State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
A prosecutor commits misconduct when he or she dilutes the State's burden of proof to something less than that of beyond a reasonable doubt. See State v. Magallanez, 290 Kan. 906, 914–15, 235 P.3d 460 (2010); State v. Sappington, 285 Kan. 176, 186, 169 P.3d 1107 (2007). But “[n]o prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel.” State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009). Here, a review of the record shows that the prosecutor's statements during the rebuttal portion of his closing argument were not made regarding the burden of proof. Rather, they were directly responsive to defense counsel's arguments that the police did a bad job investigating this case.
Repeatedly, defense counsel argued during her closing argument that police investigators “did their job poorly, very, very poorly.” Although the record is full of examples, one stands out in particular:
“So you know, they just kinda did a haphazard job on how they're going to do this, but they want you to take a leap of faith, saying we don't have to do our job to the best of our abilities. And I'm not talkin' about some CSI, funky, weird thing that they find on TV, those weird tests that they do that just don't make any sense at all, I'm talking about a simple process of taking fingerprints or taking things into evidence and holding onto them. They didn't do that. And fingerprints are elemental, that's not goofy dust from CSI, that's an elementary thing the police know how to do. They did it in this case and were able to find one of Johnny Manns fingerprints on some of that marijuana, so it's not that they couldn't do it, they just chose not to.”
In rebuttal, the prosecutor directed his comments about a real life, practical standard to the investigative process, which was the very heart of defense counsel's arguments—that the police did a poor job investigating. As the prosecutor noted, Beasley was not only in the house, but officers actually saw him throw down a bag of marijuana. So investigators did not need to collect DNA samples or fingerprints. Accordingly, we do not find the “real life standard” comments were outside of the wide latitude afforded prosecutors nor do we find that such comments prejudiced Beasley. Finally, we do not find that the prosecutor misstated the law when he argued that Beasley could be convicted of possession of marijuana with the intent to distribute because he admittedly gave some of his marijuana to Manns.
Rebuttal Evidence Regarding Beasley's Income and Tax Records
Beasley argues that the rebuttal testimony presented by the State did not contradict anything presented in his defense and that testimony regarding his failure to file income tax returns was inadmissible propensity evidence under K.S.A. 60–455.
“ ‘A district judge has broad discretion in determining the use and extent of relevant evidence in rebuttal, and such a ruling will not be ground for reversal absent abuse of that discretion that unduly prejudices the defendant.’ “ State v. Sitlington, 291 Kan. 458, 464, 241 P.3d 1003 (2010) (citing State v. Blue, 221 Kan. 185, 188, 558 P.2d 136 [1976] ). The district court abuses its discretion when it takes an action that is (1) arbitrary, fanciful, or unreasonable, (2) based on an error of law, (3) or based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). Beasley bears the burden on appeal of proving that the district court abused its discretion. State v. McCullough, 293 Kan. 970, 996, 270 P.3d 1142 (2012).
Rebuttal evidence is admissible for a wide variety of reasons.
“ ‘Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts witnesses on the opposite side, but also corroborates previous testimony.’ “ Sitlington, 291 Kan. at 464 (quoting State v. Willis, 240 Kan. 580, 583, 731 P.2d 287 [1987] ).
During defense counsel's cross-examination of Officer Shomaker, she asked about a number of things that officers did not collect from the scene or present as evidence. Specifically, she asked, “Did you find any W–2 forms or tax return forms or any other documents belonging—that appeared to belong to Mr. Beasley in the home?” Officer Shomaker answered that he did not.
Later, Beasley testified in his defense and explained his various jobs that paid him only in cash. And he claimed that he always carried his money on him because he did not have a checking account. Although Beasley never definitively answered the State's inquiry into how much money he made, he did say that he made over $1,000 a month; but that he never made enough to file a tax return. The State continued with this line of questioning to counter the defense's earlier question about Beasley's tax records—investigators would not have found tax records anywhere because Beasley said he never filed taxes.
During the State's rebuttal, Officer Weidner testified about the employment history Beasley gave on the night of his arrest, which differed from Beasley's testimony at trial. Additionally, Officer Groh testified that Beasley told him that he would be able to present something at a later time to substantiate the $2,205 he possessed. Officer Groh then testified that he had discovered that any individual making over $9,350 a year would have to file a tax return.
“When a defendant opens an otherwise inadmissible area of evidence during examination of witnesses, the prosecution may then present evidence in that formerly forbidden sphere.” State v. Ulate, 42 Kan.App.2d 971, 988, 219 P.3d 841 (2009), rev. denied 291 Kan. 917 (2010). In an effort to portray the investigation as inadequate, it was Beasley's counsel that first asked if officers found a W–2 or tax documents linking Beasley to the address. Then, when Beasley testified, he attempted to explain the legitimate ways he earned the $2,205 in cash that officers found in his pockets; at the same time he claimed that he did not file a tax return. In rebuttal, the State presented testimony showing that Beasley testified at trial about two jobs he never before had mentioned. Moreover, the rebuttal suggested that if Beasley legitimately made as much money as he said he did, he would have been required to file a tax return, which he could have easily used to prove his income. This refuted, and attempted to disprove, Beasley's testimony about the legitimate ways he earned his money as well as the suggestion that officers would have found tax records if Beasley had lived at the address. See Sitlington, 291 Kan. at 464. Beasley fails to show the district court acted arbitrarily, fancifully, or unreasonably in allowing this testimony in rebuttal.
As to Beasley's second claim, K.S.A. 60–455(a) prohibits the State from putting on evidence of a past crime or civil wrong to show disposition to commit a crime on another occasion. Statements that might lead to the inference that one may have understated income for tax purposes does not suggest a disposition to sell drugs, as Beasley suggests on appeal.
Moreover, to preserve an evidentiary issue for appeal, there must have been a contemporaneous and timely objection. K.S.A. 60–404; see State v. King, 288 Kan. 333, 348–49, 204 P.3d 585 (2009). The State asked Beasley on cross-examination if he filed a tax return, Beasley said that he did not, and there was no timely objection. Accordingly, Beasley did not preserve his argument under K.S.A. 60–455(a) for appeal, even if it had merit.
Request for a Nonprison Sanction
Beasley's final argument is that the district court erred when it denied his motion for departure. The resolution of this issue requires us to interpret K.S.A.2009 Supp. 21–4705. Statutory interpretation is a question of law subject to unlimited review. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011); Ellmaker, 289 Kan. at 1147.
Based on the plain language of K.S.A.2009 Supp. 21–4705(d), which is the benchmark of legislative intent, we have no jurisdiction to review the district court's denial of Beasley's request for a nonprison sentence. See State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). But Beasley argues that in State v.. Koehn, 266 Kan. 10, 14, 966 P.2d 63 (1998), the Kansas Supreme Court recognized that a procedurally inadequate denial of a motion for departure may be appealable. Likewise, Beasley argues the district court's denial was procedurally inadequate because it was based only on the amount of money at issue, which is a factor the legislature already considered in setting the severity level of the offense.
The district court must find that there is a treatment program available that will be more effective than prison to impose a nonprison sentence. K.S.A.2009 Supp. 21–4705(d)(1). Here, a jury convicted Beasley of possession of marijuana with the intent to distribute. At sentencing, the district court expressly found there was no appropriate treatment program available that would end Beasley's “desire to supplement his income through [selling] drugs.” Thus, we do not find that the district court erred in sentencing Beasley to prison.
Affirmed in part and reversed in part.