Opinion
No. 107,367.
2013-05-17
STATE of Kansas, Appellee, v. Larry D. BRAUN, Appellant.
Appeal from Ellis District Court; Thomas L. Toepfer, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Thomas J, Drees, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ellis District Court; Thomas L. Toepfer, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Thomas J, Drees, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Larry Braun appeals his conviction on several drug-related charges stemming from his sale of cocaine to a confidential informant on three separate occasions. Braun first argues that an instruction that limited how the jury could consider evidence of his prior sales and use of drugs was clearly erroneous. He also argues that the evidence was insufficient to support his convictions on three counts of failure to affix a drug tax stamp because the state failed to prove that he possessed at least 1 gram of pure cocaine on each occasion. We conclude that the jury instructions were legally and factually correct and that the evidence was sufficient under K.S .A. 79–5202(b) to support the tax stamp convictions. Accordingly, we affirm.
Facts
During three separate controlled drug buys in late May and early June 2009, Larry Braun sold cocaine to a confidential informant, who we will refer to here as B.G. B.G. had identified Braun as her cocaine supplier and agreed to participate in these controlled buys after the police promised to recommend leniency on drug charges pending against her.
Based on those controlled buys, the State charged Braun with three counts each of the sale of cocaine and “no drug tax stamp.” The case proceeded to a 2–day jury trial.
The jury did not agree with Braun's entrapment defense and convicted him as charged. The trial court subsequently sentenced Braun to a controlling 64–month prison term. Braun raises two allegations of trial error in this timely direct appeal.
Analysis
The Limiting Instruction
First, Braun challenges the legal sufficiency of an instruction that limited how the jury could consider evidence of his prior drug usage or sales in relation to his entrapment defense.
From the beginning of the trial, the jury knew Braun did not deny selling drugs to B.G., but he wanted the jury to find that he did so only because he had been set up or entrapped by the police. In that regard, the trial court instructed the jury:
“Entrapment is a defense if the defendant is persuaded to commit a crime which the defendant had no previous intention to commit. It is not a defense if the defendant originated the plan to commit the crime or when he had shown an intention for committing the crime and was merely afforded the opportunity to complete his plan to commit the crime and was assisted by law enforcement officers.
“The defendant cannot rely on the defense of entrapment if you find that in the course of defendant's usual activities the sale of cocaine was likely to occur and the law enforcement officer or his agent did not mislead the defendant into believing his conduct to be lawful,
“ A person's previous disposition or intention to commit a crime may be shown by evidence of the circumstances at the time of the sale, setting of the price of the cocaine by the defendant, solicitation by defendant to make his sale, prior sales by defendant or ease of access to the cocaine by defendant.” (Emphasis added.)
See PIK Crim.3d 54.14 (pattern instruction for entrapment defense); State v. Carr, 23 Kan.App.2d 384, Syl., 931 P.2d 34 (1997) (approving PIK Crim.3d 54.14 as valid statement of entrapment defense); see also K.S.A. 21–3210 (codifying entrapment defense). The jury was further instructed: “The defendant raises Entrapment as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant.” See PIK Crim.3d 52.08 (2008 Supp.).
Prior to and during trial, Braun and his counsel both acknowledged their understanding that the State would introduce evidence of Braun's other drug crimes to counter his entrapment defense. In that regard, Braun stipulated to the State's admission of journal entries that reflected his convictions in 1999 for possession of marijuana with intent to sell and sale of marijuana. The jury also heard evidence of other crimes, either without objection or through introduction by Braun, including evidence that showed: Braun was being monitored by community corrections at the time of these drug sales; Braun possibly had a dirty urinalysis test; B.G. had sold cocaine to Braun in the past; B.G. and Braun were both using and addicted to cocaine and marijuana; and Braun sold cocaine to B.G. several times just prior to the controlled buys at issue.
Braun's complaint here involves how the jury was instructed it could consider the evidence of Braun's other crimes. Specifically, Braun argues the trial court clearly erred in giving the following instruction:
“Evidence has been admitted tending to prove that the defendant committed the crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the defendant's intent, plan or previous disposition to commit the crime .”
It appears that Braun's argument is based at least in part upon an erroneous perception that the limiting instruction given by the trial court had also included the terms “motive, opportunity, ... preparation, ... knowledge or identity.” This assertion is not supported by the record.
Standard of Review
The parties dispute this court's standard of review.
Braun suggests this court has unlimited review because he raises an issue requiring statutory construction. But the crux of Braun's argument does not require statutory interpretation. Rather, his argument concerns the legal and factual propriety of the limiting instruction.
The State properly notes that because Braun admittedly did not object to the limiting instruction below, he is limited here to challenging it for clear error. See K.S.A.2012 Supp. 22–3414(3). Our Supreme Court recently clarified the standard of review or framework for appellate review of clearly erroneous instructional error by breaking it down into two progressive steps. See State v. Williams, 295 Kan. 506, 510–16, 286 P.3d 195 (2012). Under the first step, an appellate court conducts unlimited review in light of the entire record to determine “whether the subject instruction was legally and factually appropriate.” 295 Kan. 506, Syl. ¶ 4. If not, then an appellate court moves on to the second step for a “reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5. “The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” 295 Kan. 506, Syl. ¶ 5.
The limiting instruction was not legally and factually erroneous in light of Braun's entrapment defense
The issue of the admissibility of the other-crimes evidence is not properly before this court. Although the State has thoroughly briefed that issue, Braun has not. His failure to brief an evidentiary challenge results in his waiver or abandonment of that issue. See State v. Martin, 285 Kan. 994, 998, 179 P.3d 457,cert. denied555 U.S. 880 (2008).
Braun's sole complaint in his first issue is that the above-quoted limiting instruction was clearly erroneous because it did not define the terms “intent,” “plan,” and “disposition” and did not explain to the jury “how those definitions applied to the facts in this case” or “what [those terms] meant as applied to Mr. Braun's crimes.” Turning to the prejudice prong of the analysis, Braun highlights the prejudice naturally associated with evidence of other crimes. He then summarily contends:
“Without explaining what is meant by these exceptions and linking it to the prior bad acts evidence, the jurors would not be able to make that leap. The jury was thus left in a situation where the only reasonable deduction from the prior bad acts evidence was that it should be used as propensity evidence.”
Apart from a passing reference to possible definitions of terms that appear in the online version of the MerriamWebster Dictionary, Braun has not offered any definitions of those terms or otherwise suggested how or why the jurors' understanding of the common usage of those terms might have differed. Nor does he suggest how any conflicting definitions of those terms obstructed the jurors' understanding of how to apply the law to the facts of this case as instructed.
The only other authority Braun cites in support of his argument that the limiting instruction was clearly erroneous is the general legal requirement that a limiting instruction “inform[ ] the jury of the specific purpose for admission whenever K.S.A. 60–455 evidence comes in.” State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 (2008). But that is precisely what the limiting instruction did here: It informed the jury that the evidence of other crimes committed by Braun could be considered only for the specific purpose of proving his “intent, plan, or previous disposition” to sell cocaine. These material facts came into play given Braun's entrapment defense.
Braun appears to be simply pressing a point without pertinent authority or without showing why it is sound despite a lack of supporting authority. In State v. Heronemus, 294 Kan. 933, 937, 281 P.3d 172 (2012), the Supreme Court recognized that such argument is akin to failing to brief such issue. Thus we could find that Braun has abandoned his challenge of the limiting instruction. However, Braun's contention that the limiting instruction was somehow legally or factually erroneous fails on the merits for at least two reasons.
First, the mere fact that a word is subject to more than one definition does not mandate that it be further defined in a jury instruction. If that were the case, jury instructions would be bogged down with definitions. And that would obscure the true purpose of instructing the jury of the law governing the critically important decisions a jury is tasked with making. For these reasons, “[i]t is only when the instructions as a whole would mislead the jury or cause it to speculate, that additional terms should be defined.” State v. Requena, 30 Kan.App.2d 200, 206, 41 P.3d 862 (2001), rev. denied 273 Kan. 1039 (2002).
PIK Crim.3d 53.00 (2005 Supp.) sets forth several legal terms that are generally defined in jury instructions. But those at issue here—intent, plan, and disposition—are not included. These terms all have a common usage and are readily comprehensible to the average person. And here, the jury was specifically instructed that its findings in that regard were critical to its consideration of Braun's entrapment defense. Where a widely-used term used in an instruction is readily comprehensible, further definition is unnecessary. Requena, 30 Kan.App.2d at 206; see also State v. Patton, 33 Kan.App.2d 391,397, 102 P.3d 1195 (2004), rev. denied 279 Kan. 1009 (2005) (determining whether term used in instruction should be defined for jury turns on whether commonly understood lay definition differs from or is inconsistent with legal definition).
Second, Braun's argument improperly isolates the limiting instruction. But appellate review of an allegation of instructional error requires an examination of the jury instructions as a whole rather than examination of a single instruction in isolation. State v. Raskie, 293 Kan. 906, 922, 269 P.3d 1268 (2012). When the limiting instruction is considered in conjunction with the preceding instruction on Braun's entrapment defense, this court concludes the jury was sufficiently instructed on how to limit its consideration of the evidence of other crimes.
Because Braun has not established that the limiting instruction was either legally or factually improper, this court does not reach the second step, the prejudice inquiry.
The Tax Stamp Evidence
In his second issue on appeal, Braun challenges the sufficiency of the evidence to support his convictions on the three counts of no drug tax stamp because the State failed to prove the purity of the cocaine in each of the three substances he sold to B.G. The State responds that the law under which it charged Braun does not require such proof. We agree with the State.
Standard of review
Both parties cite the well-known and oft-repeated standard for appellate review of the sufficiency of the evidence to support a conviction:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Furthermore, when making a sufficiency of the evidence determination, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility.” State v. Stafford, 296 Kan. 25, 53, 290 P.3d 562 (2012).
However, resolution of Braun's sufficiency challenge also calls upon this court to interpret the statutes under which his obligation to pay the drug tax arose. This court has unlimited review when interpreting statutes. As an interpreter of the law, this court's goal in doing so is to ascertain legislative intent. That task begins with consideration of the statutory language as enacted. If, when giving common words their ordinary meanings, a statute is plain and unambiguous, this court will give the statute effect as written. This court will not in such circumstances speculate as to some other legislative intent or read something into the statute that is not there. It is only when this court finds the statutory language is unclear or ambiguous that this court will go outside of the statutory language and attempt to discern legislative intent by consulting legislative history or by applying canons of statutory construction. See State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, Syl. ¶ 3, 241 P.3d 45 (2010).
The purity of the controlled substance need not be proved under Kansas' drug tax law
The State charged, and the jury found, that on each of the three charged occasions, Braun “[k]nowingly possessed more than 1.0 grams of cocaine without affixing official Kansas tax stamps or other labels showing that the tax has been paid.” Those charges arose under K.S.A. 79–5204 and K.S.A. 79–5208. Key to this issue is the following statutory provision:
“For the purpose of calculating the tax hereunder, an ounce [ sic ] of ... controlled substance is measured by the weight of the substance in the dealer's possession. The weight of the ... controlled substance includes all material, mixture or preparation that is added to the ... controlled substance.” (Emphasis added.) K.S.A. 79–5202(b).
Braun does not dispute that the substances he possessed and then sold to B.G. during the three controlled drug buys contained cocaine and weighed 6.53 grams, 13.09 grams, and 6.9 grams. His complaint centers around evidence he elicited on cross-examination of the chemist through whom the State admitted such evidence. Specifically, Braun focuses upon the chemist's admissions that cocaine is typically mixed with other products and that he never tested the substances Braun sold for purity. According to Braun, without evidence of “how much of the 6.53, 13.09, and 6.09 grams of substance was actually cocaine,” the State's evidence in support of these three charges was insufficient.
We disagree. Braun's argument is contrary to our legislature's obvious intent to require payment of taxes on controlled substances based on the gross weight of the controlled substance and any fillers, without regard to its purity.
Accordingly, we find the State presented sufficient evidence from which the jury could find Braun guilty of failing to affix the necessary drug tax stamp to at least 1 gram of cocaine in his possession on the three separate occasions.
Affirmed.