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State v. Bowser

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1140 (Kan. Ct. App. 2013)

Opinion

No. 107,692.

2013-03-8

STATE of Kansas, Appellee, v. Aaron BOWSER, Appellant.

Appeal from Clay District Court; Meryl D. Wilson, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Clay District Court; Meryl D. Wilson, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.

MEMORANDUM OPINION


PER CURIAM.

Aaron Bowser was convicted by a jury of a number of drug crimes. In this appeal he claims the district court erred in instructing the jury in several respects. He did not object to any of these instructions at trial, so we examine the entire record for clear error. In doing so, we first examine each instruction for error. If we find error, we then must determine whether there was clear error; that is, whether we are firmly convinced that the erroneous instruction created a real possibility the jury would have rendered a different verdict if the error had not occurred. See State v. Williams, 295 Kan. 506,514, 286 P.3d 195 (2012).

Instruction No. 9

This instruction sets forth the elements of the crime of possessing a controlled substance with the intent to distribute and defines what constitutes distribution. Bowser contends that giving this instruction was error because he was not charged with possession with the intent to distribute; rather, he was charged with possession of methamphetamine “with the intent to sell or deliver.” He argues that “distribution” is defined broadly in the instruction to include a sale, “but the converse is not necessarily true. A person who sells probably also distributes, but a person can distribute without sale or offer to sell.”

But Bowser was charged with possession with the intent to sell or deliver. We can conceive of no scenario under the facts of this case in which a juror could conclude that Bowser possessed the drugs with the intent to distribute them, but not to deliver them. Nor does Bowser suggest one. In the context of this case, there is no difference between having the intent to distribute and having the intent to deliver.

Further, the evidence at trial was consistent with both the words “to sell” in the charging document and the words “to distribute” in this instruction. A police officer testified that the amount of methamphetamine found in Bowser's wallet was capable of being divided up and sold. He testified that the small plastic baggies and scales the police found are typically used to measure, divide, and store illegal drugs for sale. The evidence at trial only pointed to one possible act: that Bowser possessed the methamphetamine because he intended to sell it. We conclude that under the facts of this case “to distribute” was synonymous with “to sell” in the court's instructions. We are satisfied that there was no chance the use of the word “distribute” rather than the words “sell or deliver” affected the outcome of the case.

Instruction No. 11

In its charging document the State claimed that Bowser did “unlawfully, feloniously, intentionally, and willfully possess with intent to use drug paraphernalia, to-wit: multiple plastic baggies, and a set of scales, to pack, repack, sell, or distribute a controlled substance, to-wit: methamphetamine.” (Emphasis added.) But Instruction No. 11 stated that the charge against Bowser was that he “intentionally possessed with the intent to use multiple plastic baggies and set of scales as drug paraphernalia to test, analyze, or distribute methamphetamine.” (Emphasis added.) Based on the insertion of the words “test” and “analyze” in the jury instruction, Bowser claims the instruction impermissibly broadened the scope of the charges against him.

To pack, repack, sell, or distribute ” methamphetamine is certainly a different series of acts from testing or analyzing methamphetamine. The State does not argue that the concepts are synonymous. We conclude that this instruction was given in error. The question is whether Bowser has met his burden to show that he was prejudiced by the error. See Williams, 295 Kan. 506, Syl. ¶ 5.

Our review of the trial transcript discloses that the only evidence at trial relevant to the baggies and scales related to their use in the sale or distribution of drugs, not any testing or analyzing of drugs. A police officer testified about the specific use of each piece of drug paraphernalia found. He explained that the plastic baggies “are used after the product, illegal drugs have been divided up and given to the people that purchase them.” He said that the baggies appeared to be new, which indicated to him that they were going to be used to package illegal narcotics. He testified that scales are “used to measure out, weigh out the amounts of illegal drugs that would be put in the small baggies.” He also said that weighing the drugs is an important part of distribution “[b]ecause typically when they sell these, they sell these in measured quantities like a gram, half a gram, quarter.”

No evidence was presented to suggest Bowser intended to use the baggies and scales found in his car to test or analyze methamphetamine. The entirety of the evidence indicated Bowser intended to use the scales and baggies in the packaging, distribution, and sale of the drug. We find no real possibility that a juror could have voted to convict based on the determination that while Bowser did not use the baggies and scales to package, distribute, or sell methamphetamine, he did use them to test or analyze methamphetamine. This stands in marked contrast to the facts in State v. Trautloff, 289 Kan. 793, 801–03, 217 P.3d 15 (2009), where the weight of the evidence at the trial pointed to conduct listed in the jury instruction but not found in the charging document. Here, the erroneous inclusion of the words “test” and “analyze” in this instruction did not change the results of the trial. Bowser fails to show clear error.

Instruction No. 12

The State charged that Bowser did “unlawfully, intentionally, and knowingly possess with intent to use, drug paraphernalia, to-wit: marihuana [ sic ] smoking pipes, Zig Zag papers, used to store, contain, inject, ingest, inhale, or otherwise introduce into the human body, a controlled substance.” Instruction No. 12 informed the jury that with respect to this charge the State had to prove that Bowser “intentionally possessed with the intent to use rolling papers and smoking pipes as drug paraphernalia to store, contain, conceal, ingest, inhale or otherwise introduce into the human body methamphetamine.” (Emphasis added.)

Once again, the instruction erroneously varied from the charges against Bowser. The charging document did not accuse Bowser of possessing the rolling papers and smoking pipes to conceal methamphetamine. But once again, the issue is whether Bowser has shown prejudice from the erroneous instruction.

At trial, one of the police officers testified that rolling papers are “used for rolling marijuana joints.” On cross-examination, the officer acknowledged that the rolling papers also could be used to roll tobacco cigarettes. As to the pipes, an officer testified that they are “commonly used to smoke methamphetamine.” These statements were the only evidence presented regarding the uses for rolling papers or pipes. There was no evidence suggesting that rolling papers or pipes could be used to conceal illegal drugs.

Based upon the evidence at trial, we find no possibility that a juror could have voted to convict Bowser on this charge based upon the notion that he used the rolling papers or pipes to conceal the drugs, rather than using them to smoke the drugs. While the instruction was given in error, we find no real possibility that this erroneous instruction changed the outcome of the case. Once again, Bowser has failed to bear his burden of proving prejudice.

Instruction No. 15

This instruction reads, in its entirety:

“ ‘Drug paraphernalia’ means all equipment and materials of any kind which are used or primarily intended or designed for use in processing, preparing, analyzing, packaging, repackaging, storing, containing, concealing, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.

“ ‘Drug paraphernalia’ includes:

“(1) Plastic baggies

“(2) Pipes

“(3) Scales, or

“(4) Zig Zag rolling papers.”

Bowser argues that because the State never charged him with processing, preparing, analyzing, or concealing methamphetamine, the inclusion of these words in the instruction allowed the jury to convict him of an offense not charged. This argument fails for the reasons discussed earlier in this opinion.

Bowser also argues that this instruction “essentially directed the jury that the specified items are drug paraphernalia.” Bowser claims that the instruction infringed on his constitutional right to have the jury make its own determination whether these items were drug paraphernalia.

In considering this claim we must review the instruction in context. We are required to consider the instructions as a whole and not to isolate any one instruction. State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000). This instruction immediately follows Instruction No. 14, which states in its entirety:

“In determining whether an object is drug paraphernalia, you shall consider, in addition to all other logically relevant factors, the following:

“Statements by an owner or a person in control of the object concerning its use.

“The proximity of the object, in time and place, to a direct commission of a drug crime.

“The proximity of the object to controlled substances.

“The existence of any residue of controlled substances on the object.

“Expert testimony concerning the object's use.

“Any evidence that alleged paraphernalia can be or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia.”

Instruction No. 14 makes clear that it is up to the jury to determine whether the items claimed by the State to be drug paraphernalia really are drug paraphernalia under the facts of the case. Bowser had the opportunity to contradict the State's evidence that the items found in Bowser's car were drug paraphernalia. His attorney cross-examined one of the police officers on this very point when he established that rolling papers may be used for a perfectly legal activity such as for smoking tobacco.

Bowser relies on State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003). Brice was convicted of aggravated battery for shooting his lover's ex-boyfriend in the thigh. The doctor who treated the bullet wound described it as a “through and through injury,” entering the thigh and exiting out the buttock. 276 Kan. at 760. Brice appealed his conviction, arguing that the district court erred in instructing the jury that “great bodily harm” means a “through and through bullet wound.” 276 Kan. at 760. He claimed the instruction infringed on his right to have every element of the offense determined by the jury, including whether the victim's injury constituted great bodily harm. Our Supreme Court agreed, finding that the instruction told the jury that the State had proven the “great bodily harm” element of aggravated battery. 276 Kan. at 767–74.

The circumstances here are highly distinguishable from those in Brice. Instruction No. 15 follows the pattern instruction in Kansas, which specifically recommends that the district court identify items of paraphernalia supported by the evidence. See PIK Crim. 4th 57.180, Notes on Use. Our Supreme Court has stated that it is “strongly recommended” that the trial court follow the pattern instructions. State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). Unlike the instruction in Brice, the instruction here merely listed objects that could be considered drug paraphernalia. This language was necessary to inform the jury as to which objects the State claimed were drug paraphernalia. Instruction No. 15 did not instruct the jury that an element of felony or misdemeanor possession of drug paraphernalia had been met. We find no error in the giving of this instruction.

Affirmed.


Summaries of

State v. Bowser

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1140 (Kan. Ct. App. 2013)
Case details for

State v. Bowser

Case Details

Full title:STATE of Kansas, Appellee, v. Aaron BOWSER, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 8, 2013

Citations

296 P.3d 1140 (Kan. Ct. App. 2013)