Opinion
111,265.
05-15-2015
STATE of Kansas, Appellee, v. Laquitta F. BELL, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Kaitlin M. Dixon, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Kaitlin M. Dixon, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Laquitta F. Bell was found guilty at a jury trial of felony theft and was sentenced to an underlying 12 months' imprisonment and placed on probation for a term of 12 months. On appeal, Bell argues the district court erred when it denied her motion for a mistrial due to juror misconduct, that reversible error was committed when an expert witness testified to the ultimate issue, that the evidence at trial was insufficient to support her conviction, and finally that her constitutional and statutory rights to be present at all critical stages of her trial were violated when the evidence at trial was sent back to the jury room during deliberations. We affirm.
Factual and Procedural Background
On October 6, 2012, Ron Haury was an asset protection employee at the Newton Wal–Mart. When he returned from his lunch break, he observed three female individuals pushing two shopping carts full of merchandise—that was not contained in shopping bags—through the parking lot and loading it into a vehicle. Haury wrote down the description of the vehicle and the tag number before continuing into the store to review the security tapes.
Haury called 911 and Officer Jonathan Adkins with the Newton Police Department arrived at approximately 6 p.m. and reviewed the security tapes with Haury. The video showed the women pushing carts containing the items Haury observed in the parking lot down what Wal–Mart employees call the “action alley” which separates the grocery section from the general merchandise area. Within 45 seconds, the women went from the action alley to the doors leading outside to the parking lot. According to Haury's testimony, with the number of items in the carts it would have been impossible to remove the items from the carts, proceed to checkout, and pay for the items in 45 seconds. Haury identified Bell as one of the women.
Officer Brian Rousseau with the Newton Police Department was on duty when he received information from dispatch about three females placing numerous items into the back of a blue Chevy Impala at a Wal–Mart. Dispatch advised Officer Rousseau the vehicle was headed southbound on South Kansas from Wal–Mart. After receiving this information from dispatch, Officer Rousseau drove south on South Kansas and then turned back around and merged onto I–135 northbound heading back towards Newton. While traveling northbound, he observed a blue Chevy Impala heading southbound on I135. As the vehicle went by he could see three women inside and that there were a large number of items in the back seat area. He turned around and caught up with the vehicle heading south on I–135, just north of Park City. He confirmed that the tag on the vehicle was the same tag that matched the information he received from dispatch.
Because the vehicle was in Sedgwick County, a Sedgwick County deputy stopped the vehicle and Officer Rousseau assisted. Officer Rousseau made contact with Bell and the other occupants in the vehicle. Officer Rousseau asked the women where they were coming from and received no response. He then asked about the items in the vehicle and was told Bell bought the items from Wal–Mart. He spoke with Bell who informed him she bought the television found in the vehicle and her friends purchased the other items. All three women were placed under arrest for theft.
Officer Rousseau observed the items appeared new. The items included a large television, plates in a box, clothing, and bed linens. The items were removed from the vehicle, placed in a patrol car, and returned to Wal–Mart. Officer Rousseau did not find any receipts in the vehicle
The merchandise was returned to Wal–Mart by law enforcement where it was rung into the Wal–Mart system. Haury stated only Wal–Mart merchandise would ring up on their system. A receipt with 55 units of merchandise that were determined to belong to Wal–Mart was created. The total amount of the items before taxes was $1,054.62. Haury testified that he could see about a dozen or so of the large items returned to Wal–Mart on the security camera video. All the items returned to Wal–Mart had UPC codes or universal product codes. Haury stated that based upon the UPC code alone, he could not conclusively tell if most of those items came from the Newton Wal–Mart or another WalMart location. Haury also stated there were more than 55 items returned to the store, but only 55 items had a UPC code the Wal–Mart system recognized. The items that did not have a recognizable UPC code were set aside.
During its case-in-chief, the State admitted into evidence and published to the jury a security video of Wal–Mart that showed the defendant and the two others involved in the theft, mug shots of Bell and her codefendant for the trial, a bag of items allegedly taken from Bell's car, and a photograph of the items and a receipt. The jury returned a guilty verdict.
After the jury had rendered the verdict, a juror, C.B., approached the district court judge with concerns regarding a statement he had overheard another juror make during deliberations. C.B. stated that when the jury was debating why Bell would have been shopping at the Wal–Mart in Newton if she lived in Wichita, he heard another juror, R.A., say Bell had been banned from the Park City Wal–Mart. The district court sent a letter informing both parties of C.B.'s statements. A hearing was held on December 6, 2013, on Bell's motion to recall the entire jury and her motion for a mistrial. At the hearing, both jurors testified. R.A. testified he did not recall making such a statement. He also stated he did not know Bell personally and he did not personally know if she had been banned from Wal–Mart or any other business. He further stated that if he did make such a comment, it would have been in response to some speculation or interpretation of events he heard during the trial. The district court denied both the motion to recall the entire jury and the motion for a mistrial. The district court reasoned that R.A. did not have any other information about Bell being banned from Wal–Mart, and C.B. was simply trying to recall what someone said to him during deliberations. The district court found these acts did not constitute jury misconduct and Bell's rights were not prejudiced.
Analysis
Did the district court err when it denied Bells motion for a mistrial based upon alleged juror misconduct?
On appeal, Bell argues the district court erred when it denied her motion for a mistrial based on R.A.'s alleged juror misconduct because her right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution was violated by the prejudicial conduct inside the jury room. The State contends the district court did not err because the alleged statement in question involved a juror's mental process and was inadmissible to prove juror misconduct under K.S.A. 60–441. While Bell acknowledges K.S.A. 60–441 prohibits the production of evidence showing the effect of a statement on the mind of a juror, she argues this provision does not apply when the alleged juror misconduct violates a defendant's constitutional rights.
On appeal of a criminal case, a trial court's evaluation of the two-step process provided in K.S.A. 22–3423(1)(c) is reviewed under an abuse of discretion standard. Judicial discretion is abused if the judicial decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014). To determine whether an error makes it impossible to proceed with the trial without injustice and requires a mistrial, a court must assess whether the fundamental failure affected a party's substantial rights under the harmless error statutes, K.S.A.2014 Supp. 60–261 and K.S.A. 60–2105, if a right guaranteed by the United States Constitution is not implicated. If a constitutional right is implicated, the error must be assessed under the constitutional harmless error standard in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967). State v. Santos–Vega, 299 Kan. 11, 23–24, 321 P.3d 1 (2014).
“ ‘A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial. [Citations omitted.]” ’ State v. Mathis, 281 Kan. 99, 104, 130 P.3d 14 (2006).
See also Bell v. State, 46 Kan.App.2d 488, 491, 263 P.3d 840 (2011), rev. denied 295 Kan. 1129 (2012); K.S.A. 60–441 and K.S.A. 60–444 (limiting the admissibility of evidence in inquiries concerning the validity of a verdict).
In showing juror misconduct, the evidence the defendant is allowed to present is limited by K.S.A. 60–441 which states:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
“A verdict may not be impeached by questions concerning a juror's views or conclusions, the reasons for those views, the factors used in determining those conclusions, or what influenced those views or mental processes in reaching the juror's conclusions.” State v. Martinez, 288 Kan. 443, 449, 204 P.3d 601(2009).
However, K.S.A. 60–444(a) states:
“This article shall not be construed to (a) exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60–441.”
In State v. Cook, 281 Kan. 961, 977–78, 135 P.3d 1147 (2006), the Kansas Supreme Court clarified what evidence can be considered under K.S.A. 60–444(a) and what evidence is excluded under K.S.A. 60–441. The court held that a juror can testify to what he or she heard another juror state; however, any evidence of what effect the statement had on the juror's mental process in reaching a verdict was inadmissible.
Using the standard established in Cook, it would appear that C.B. was allowed to testify to what he heard R.A. say, but he was not allowed to testify to what effect the statement had on reaching a verdict. However, “not all statements made by other jurors are admissible under K.S.A. 60–444(a). Particularly, those statements that involve an opinion of the other jurors are inadmissible because they are evidence of mental processes.” State v. Johnson, 40 Kan.App.2d 1059, 1066, 198 P.3d 769 (2008).
In this case, R.A. testified he did not know personally Bell, had no specific knowledge regarding whether Bell was banned from another Wal–Mart, and his statement was a mere speculation and not a fact. C.B.'s statements regarding R.A.'s alleged statements should be excluded as evidence of mental processes because the statements expressed a mere opinion.
Even if this court decided to allow the comments and found that they rose to the level of misconduct, Bell is unable to show the alleged misconduct substantially prejudiced the jury. In deciding whether R.A.'s alleged statement constituted misconduct and whether the alleged misconduct substantially prejudiced Bell's right to a fair trial, it is helpful to look again to Johnson, 40 Kan.App.2d at 1068–71, in which a panel of this court found a juror's vague statement during deliberations that “ ‘this was not [defendant's first] time and he was about due for the charge’ “ did not substantially prejudice defendant's right to fair trial and, thus, did not warrant granting new trial in prosecution for felony driving under the influence of alcohol (DUI) when there was no evidence that any juror had specific knowledge of a prior DUI incident involving defendant or that a specific prior DUI incident was discussed in jury room, and comment the defendant made was mere opinion, not fact.
Like in Johnson, even if the evidence of what C.B. believed R .A. had said is considered admissible under K.S.A. 60–444(a), the alleged statement did not substantially prejudice Bell's right to a fair trial and, thus, did not warrant a mistrial. Bell is unable to cite to a single case where a comparable statement was found to have substantially prejudiced the defendant. “A party is denied the right to a fair trial when a juror introduces evidence on material issues of fact to the jury during its deliberations.” Saucedo v. Winger, 252 Kan. 718, 733, 850 P.2d 908 (1993). This is not what occurred. R.A. was merely speculating on why Bell was at the Newton Wal–Mart. He was not introducing evidence on a material issue of fact. The district court's decision to deny Bell's motion for a mistrial was not arbitrary, fanciful, or unreasonable, based on an error of law, or based on error of fact.
Even if this court considered the district court erred in not considering R.A.'s statement as grounds for a mistrial, the error was harmless.
When an error infringes upon a party's federal constitutional right, a court will declare a constitutional error harmless only where the party benefitting from the error persuades the court “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012) (citing Chapman, 386 U.S. 18 ).
The evidence of the theft was overwhelming. There was video of Bell leaving the store with a cart full of items that had not been purchased. Bell was pulled over within 15 minutes of leaving the store in a vehicle matching the description provided to the police by Haury. Bell admitted she had been at Wal–Mart but was unable to provide a receipt for any of the items found in the vehicle. There is no reasonable possibility a juror's vague statement Bell had been banned from another Wal–Mart during jury deliberations would have affected the verdict.
In her brief, Bell also argues that all of the jurors should have been recalled to investigate the allegation of misconduct. Recalling a jury to answer for misconduct is within the sound discretion of the district court. Saucedo, 252 Kan. at 729.
“Jurors may be recalled for post-trial hearings only by order of the court after a hearing on a request to recall the jury. A recall of the jury is not a routine matter. Jury service is a public duty of citizens and recall of jurors after their service has ended to testify as to events occurring in the jury room during deliberations is a serious step. That step is to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing party's hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order. Walters v. Hitchcock, 237 Kan. 31, 36, 697 P.2d 847 (1985).” State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842 (1987).
The district court did not abuse its discretion in denying Bell's request to recall the entire jury. The district court allowed the recall of C.B. who reported the alleged misconduct and R.A. who allegedly committed the misconduct. After hearing both jurors' testimony, the district court did not abuse its discretion when it determined misconduct had not occurred and Bell had not shown the necessity of recalling the entire jury to investigate whether it heard the alleged statements.
Was reversible error committed when during Officer Rousseau's testimony he stated he believed the items at issue were stolen from Wal–Martl
On appeal, Bell argues the district court erred when it allowed, over Bell's objection, Officer Rousseau to testify as to his opinion the items at issue were stolen from Wal–Mart. This issue was not preserved for appeal. At trial the following exchange occurred:
“[PROSECUTOR:] Tell the jury ... how many receipts did you find in and about the merchandise?
“[OFFICER ROUSSEAU:] Receipts?
“[PROSECUTOR:] Receipts.
“[OFFICER ROUSSEAU:] We didn't find any receipts.
“[PROSECUTOR:] Was this ... some indication to you as to maybe the source of
“MR. FISHER [defense counsel for Bell]: I'm going to object, Your Honor. Calls for speculation.
“MR. STUCKY [defense counsel for codefendant]: Same objection.
“THE COURT: I'll sustain the objection.
“[PROSECUTOR:] What if anything, did this indicate to you?
“[OFFICER ROUSSEAU:] That I believe the items that were in the back seat were from Wal–Mart.
“MR. FISHER: Objection, his opinion invades the province of the jury.
“[PROSCUTOR:] Excuse me, Your Honor.
“THE COURT: I think it goes to foundation. If he can give some foundation as to his belief, then it may be okay.
“[PROSECUTOR:] You are an experienced investigator, are you not?
“[OFFICER ROUSSEAU:] I believe so, yes.
“[PROSECUTOR:] And during your investigation you assimilate facts that you rely on in making judgments, do you not?
“[OFFICER ROUSSEAU:] Correct.
“[PROSECUTOR:] And did you during the process of processing the defendants after their arrest of during their arrest and—in processing the merchandise that you had found in front of you, did you make some judgment as to whether the defendant should be charged?
“[OFFICER ROUSSEAU:] Based on the conversations I had with the occupants of the vehicle, one person saying that this person has bought things, the other people they had bought things, and there not being any receipts, I felt the items in the vehicle had been stolen from Wal–Mart.”
“The contemporaneous objection rule requires each party to make a specific and timely objection at trial in order to preserve evidentiary issues for appeal. K.S.A. 60–404. The purpose of the rule is to avoid the use of tainted evidence and thereby avoid possible reversal and a new trial. [Citation omitted.]” State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
While Bell did initially object to this line of questioning, after the district court allowed the questioning as to foundation, Bell did not object after Officer Rousseau testified he felt the items in the vehicle had been stolen from Wal–Mart. Because Bell did not contemporaneously object to Officer Rousseau's statement at trial, this court will not consider this issue on appeal.
In all events, Bell would not prevail on this issue if it were to be considered by this court. This issue involves a question of statutory interpretation of K.S.A.2014 Supp. 60–456 which states in part:
“(a) If the witness is not testifying as an expert, the testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds: (1)
Are rationally based on the perception of the witness; (2) are helpful to a clearer understanding of the testimony of the witness; and (3) are not based on scientific, technical or other specialized knowledge within the scope of subsection (b).
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S.Ct. 91 (2014).
“An expert witness may give an opinion on an ultimate issue as provided in K.S.A. 60–456(d). However, such witness may do so only insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence. An expert's opinion is admissible up to the point where an expression of opinion would require him or her to pass upon the credibility of witnesses or the weight of disputed evidence. State v. Colwell, 246 Kan. 382, 389, 790 P.2d 430 (1990). An expert witness may not pass on the weight or credibility of evidence, for those matters are strictly within the province of the jury. State v. Struzik, 269 Kan. 95, 99, 5 P.3d 502 (2000).” State v. McIntosh, 30 Kan.App.2d 504, 519, 43 P.3d 837, aff'd 274 Kan. 939,
58 P.3d 716 (2002).
Bell argues Officer's Rousseau's testimony that he “felt the items in the vehicle had been stolen from Wal–Mart” violated the province of the jury because it went to the ultimate issue in the case. The ultimate issue in the case was whether Bell stole the items in the vehicle from Wal–Mart. There were three women in the vehicle, Officer Rousseau's statement did not pass on the weight or credibility of whether Bell stole the items in the vehicle, rather, as an expert witness he testified about what conclusions he drew from finding items in the vehicle without being able to find receipts for the items. This conclusion provides the basis why the officer took the three women and the property into custody and returned to Wal–Mart for further investigation.
Even if Officer Rousseau's testimony were to be considered erroneous, the failure to exclude the testimony was harmless error.
In Ward, the Kansas Supreme Court held that to find an error harmless under K.S.A. 60–261, K.S.A. 60–2105, and the United States Constitution, a Kansas court must be able to declare the error “did not affect a party's substantial rights, meaning it will not or did not affect the trial's outcome.” 292 Kan. at 564–65. The party benefitting from the error always bears the burden of proving it harmless under this standard. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013). The level of certainty by which a court must be convinced depends upon whether the error implicates a federal constitutional right. Ward, 292 Kan. at 565–66.
When an error infringes upon a party's federal constitutional right, a court will declare a constitutional error harmless only where the party benefitting from the error persuades the court “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” Ward, 292 Kan. at 569.
As previously discussed, the evidence in this case was overwhelming. There was a video showing Bell leaving Wal–Mart with a cart full of items, there was testimony from Haury and various police officers that Bell was pulled over in a vehicle matching the make and model reported leaving Wal–Mart with a trunk full of items seen on the video. Bell was unable to produce a receipt showing she had purchased the items. There is no reasonable possibility that Officer's Rousseau's testimony he felt the items had been stolen affected the verdict.
Was the evidence produced at trial insufficient to sustain Bell's conviction of felony theft?
When the sufficiency of evidence is challenged in a criminal case, this court reviews all the evidence in the light most favorable to the prosecution and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).
In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. Williams, 299 Kan. at 525. It is only in rare cases where the testimony is so incredible that no reasonable fact finder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983) ; see also State v. Naramore, 25 Kan.App.2d 302, 322, 965 P.2d 211, rev. denied 266 Kan. 1114 (1998).
A verdict may be supported by circumstantial evidence, if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. A conviction of even the gravest offense can be based entirely on circumstantial evidence. State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014).
On appeal, Bell argues the evidence was insufficient to support a conviction because the State did not prove all the merchandise taken from the vehicle was taken from the Newton Wal–Mart and that its value was equal to or greater than $1,000.
As previously discussed, the evidence in this case was overwhelming. There was a video showing Bell leaving Wal–Mart with a cart full of items, and there was testimony from Haury and various police officers that Bell was pulled over in a vehicle matching the make and model reported leaving Wal–Mart with a trunk full of items seen on the video. Bell was unable to produce a receipt showing she had purchased the items. The items were taken back to Wal–Mart, and all the items were scanned. The items with merchandise with UPC codes that were found in Wal–Mart's database added up to over $1,000. At trial Bell contended that the items could have come from other stores such as Target and that the State could not conclusively prove the items came from Wal–Mart. However, when evaluating the sufficiency of the evidence, even the gravest offense can be based entirely on circumstantial evidence. When the evidence is reviewed in the light most favorable to the prosecution, a rational factfinder could have found Bell guilty beyond a reasonable doubt.
Was Bell's constitutional right to be present at all critical stages of the trial and her right to have a trial judge present at her trial violated when the evidence at trial was exhibited to the jury in the jury room?
Bell contends the district court committed reversible error by allowing the trial exhibits to be sent back to the jury room. Specifically, Bell claims this practice violated her constitutional rights under the Fifth, Six, and Fourteenth Amendments to the United States Constitution. Bell did not object to the district court's procedure of sending the exhibits to the jury room during deliberations. Generally, a party may not raise constitutional issues for the first time on appeal. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). Bell has not argued that her case meets any of the exceptions to the general rule that issues should not be addressed for the first time on appeal. See State v.. McCullough, 293 Kan. 970, 998, 270 P.3d 1142 (2012). However, the Kansas Supreme Court recently has addressed similar claims for the first time on appeal. Bowen, 299 Kan. at 354.
A defendant in a criminal case has the right to be present at all critical stages of the trial. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). “That right emanates from the Sixth Amendment right to confront witnesses and from the right to due process guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution. [Citations omitted.]” State v. Davis, 284 Kan. 728, 731, 163 P.3d 1224 (2007).
In support of her argument that she was excluded from a critical stage of her trial, Bell cites to Herbel, however, another panel of this court recently addressed this same argument and found:
“Since Herbel was decided, the Kansas Legislature amended K .S.A. 22–3420. It now provides: ‘In the court's discretion, upon the jury's retiring for deliberation, the jury may take any admitted exhibits into the jury room, where they may review them without further permission from the court. If necessary, the court may provide equipment to facilitate review.’ K.S.A.2014 Supp. 22–3420(c). The legislature expressed its intention that the amended statute should be applied retroactively. K.S.A.2014 Supp. 22–3420(f) states: ‘The amendments to this section by this act established a procedural rule, and as such shall be construed and applied retroactively.’ Thus, with this amendment and the legislature's clear expression that the change should be applied retroactively, Kansas law provides that the admitted exhibits may be sent into the jury room for review.
“Herbel is clearly distinguishable from the present case. In Herbel, the focus was on the district court's communication with the jury in open court. In making its ruling, our Supreme Court cited State v. Perkins, 248 Kan. 760, 811 P.2d 1142 (1991), which pointed out that a critical period of the trial' “includes all times when the jury is present in the courtroom and whenever the trial court communicates with the jury. ' “ (Emphasis added.) Herbel, 296 Kan. at 1109. Here, the jury reviewed exhibits in the jury room without any additional communication from the district court. The jury was never brought back into the courtroom in order to review evidence presented during the trial.
Thus, Moore's constitutional right to be present at all critical stages of the trial was not violated when the district court allowed the exhibits to go to the jury room.” State v. Moore, No. 109,553, 2015 WL 1310046, at *8–10 (Kan.App.2015) (unpublished opinion).
Likewise, Bell's constitutional right to be present at all critical stages of the trial was not violated the when the district court allowed the exhibits to go to the jury room.
Affirmed.