Opinion
No. 101,052.
2013-07-5
STATE of Kansas, Appellee, v. Robert DENNIS, Appellant.
Appeal from Butler District Court; David A. Ricke, Judge. Michele Davis, of Kansas Appellate Defender Office, for appellant.
Appeal from Butler District Court; David A. Ricke, Judge. Michele Davis, of Kansas Appellate Defender Office, for appellant.
Joseph M. Penney and James R. Watts, county attorney, Steve Six, former attorney general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Robert Dennis was convicted by a jury of manufacture of methamphetamine, possession of ephedrine with intent to manufacture, possession of methamphetamine, and possession of drug paraphernalia with intent to use for manufacturing. On appeal, he argued that the trial court erred when it denied his motion to suppress evidence. He also argued that the trial court erred in admitting laboratory reports without testimony by the analyst, in admitting evidence of his previous criminal acts in violation of K.S.A. 60–455, and in instructing the jury with a confusing definition of “manufacture.” This court concluded that the trial court erred in not granting Dennis' motion to suppress evidence. As a result, this court reversed Dennis' convictions and remanded the case to the trial court for further proceedings. State v. Dennis, No. 101052, 2011 WL 425987 ( Dennis I ). Although this court briefly considered Dennis' other contentions of error, it determined that no extended discussion was necessary concerning them because of this court's decision to reverse Dennis' convictions based on the trial court's failure to suppress evidence.
The State filed a petition for review from the court's decision to our Supreme Court. The court granted the State's petition for review. 292 Kan. 967 (2011). On May 3, 2013, our Supreme Court in State v. Dennis, 297 Kan. –––, 300 P.3d 81 (2013), reversed and remanded the case to this court for resolution of the remaining issues unaddressed by our court's earlier decision.
The issues remanded to this court to address are: (1) whether Dennis' right of confrontation was violated when laboratory reports were admitted without testimony by the analyst; (2) whether the trial court erred in admitting evidence of Dennis' previous criminal acts under K.S.A. 60–455; and (3) whether the trial court erred in instructing the jury with a confusing definition of “manufacture.” Of these three issues, we find only the third to be meritorious. As a result, we reverse all of Dennis' convictions and remand for a new trial.
Facts
The following is a summary of facts taken from Dennis I.
One fall afternoon in November 2007, Officer Matthew Meckel of the Augusta Police Department was on his regular patrol outside an apartment complex that he claimed was known to be associated with the use of illegal drugs. When a vehicle owned and driven by Dennis left the complex and failed to signal properly at a nearby intersection, Meckel stopped the vehicle for an illegal turn.
As he pulled over, Meckel saw Dennis making some gestures toward the center console. When Dennis exited the car, he locked the door and shut it behind him before facing Meckel in an “aggressive stance.” The officer noticed an open beer bottle between the two front seats. Meckel placed Dennis under arrest for transporting an open container, placed him on the curb in handcuffs, and proceeded to search the vehicle incident to this arrest.
As Meckel retrieved the beer bottle, he “looked and ... saw ... a Taco Tico or Taco Bell bag with some suspicious items hanging out the top” on the floorboard behind the driver's seat. Meckel reentered the car and found a discolored or stained rubber glove; when Meckel looked inside the bag, he saw a peeled lithium battery, which he knew was associated with manufacture of methamphetamine.
Meckel then looked through the back window of the vehicle and saw a camp stove and a white microwave oven sitting in the back seat, as well as a funnel, tubing, a glass jar with powder residue, and a number of plastic bags tied in knots. Believing he had found a methamphetamine lab, Meckel contacted Sergeant Michael Stueven to continue the search. A more extensive search then yielded a host of drug paraphernalia, including manufacturing equipment and components. Some of these items tested positive for methamphetamine.
A search of Dennis' person yielded a receipt from Wal–Mart for, among other items, two bottles of HEET and two cans of starter fluid, both potentially used in manufacture of methamphetamine.
Stueven interviewed Dennis after the search, and Dennis admitted the possession of the open container and that he used methamphetamine. He said a camera bag belonged to “Tommy Osborne” and that Osborne had used the vehicle the previous night. Dennis said the microwave oven was his and that he had purchased the cold medicine found in the vehicle, but he either denied or refused to speak as to any involvement in manufacturing methamphetamine.
The State charged Dennis with one count of manufacture of methamphetamine in violation of K.S.A.2007 Supp. 65–4159; one count of possession of ephedrine with intent to use as a precursor in violation of K.S.A.2007 Supp. 65–7006(a); one count of possession of methamphetamine in violation of K.S.A.2007 Supp. 65–4160; and one count of possession of drug paraphernalia with intent to manufacture in violation of K.S.A.2007 Supp. 65–4152(a)(3).
Later, the State moved to admit, under K.S.A. 60–455, evidence of prior crimes committed by Dennis. The prior crimes consisted of two previous convictions for possession of ephedrine with intent to manufacture methamphetamine. Shortly thereafter, Dennis moved to suppress all evidence seized as a result of Meckel's stop of his vehicle, arguing he was improperly stopped and the search of his person and vehicle exceeded the permissible scope. Following a hearing, the trial court decided the State could properly introduce evidence of one of Dennis' prior crimes under K.S.A. 60–455 but denied the use of the other. The trial court also denied Dennis' motion to suppress on the grounds that the search of Dennis' person was justified on officer safety grounds and the search of his vehicle was justified as a search incident to a lawful arrest.
A jury trial was held in April 2008. Among the State's witnesses were Detective Justin Phillips with the El Dorado Police Department. He testified about one of Dennis' previous convictions for unlawful possession of ephedrine. Dennis called only one witness: Officer Stueven. Dennis asked him about statements he had made to him about Osborne's residence and about Osborne's use of his vehicle the night before the arrest. The jury found Dennis guilty on all four counts.
After trial, it came to light the jury had consulted a dictionary regarding the terms “directly” and “indirectly” used in the jury instruction defining “manufacture.” Dennis moved for a new trial based on the jury's use of the dictionary and on the trial court's use of the word “indirectly” in the jury instruction. Dennis contended that the use of the term “indirectly” could have caused the jury to convict him on an aiding and abetting theory. The trial court denied the motion following a hearing.
The trial court sentenced Dennis to a controlling term of 154 months' incarceration for the conviction of manufacture of methamphetamine, with lesser concurrent sentences for the remaining counts.
Whether Dennis' confrontation rights were violated when laboratory reports were admitted without testimony by the analyst.
Dennis contends that the trial court erred in allowing the State to introduce into evidence the laboratory report identifying methamphetamine, ephedrine, and other substances present on the items taken from his vehicle, without requiring testimony from the laboratory analyst who performed the analysis. Dennis asserts that this violated his right to confrontation under the United States Constitution and Kansas Constitution.
On the other hand, the State argues that Dennis did not properly preserve this issue for appeal by making a timely objection to the admission of the laboratory report. The State further contends that the State provided proper notice of its intent to use the laboratory report under the “notice and demand” provisions of K.S.A. 22–3437 and that Dennis failed to raise any objection to the introduction of the reports upon receiving this notice.
Dennis concedes that he did not object to the admission of the reports before the trial court. He, however, asserts that his objection should be addressed for the first time on appeal because “it involved the fundamental constitutional right of confrontation.”
In the past, our appellate courts would indeed consider a constitutional confrontation issue raised for the first time on appeal because confrontation is considered a fundamental constitutional right. See, e.g., State v. Brown, 285 Kan. 261, 280–81, 173 P.3d 612 (2007). Nevertheless, our Supreme Court has recently “accentuated the procedural bar established by K.S.A. 60–404, which prevents appellate review of evidentiary issues unless there was a timely and specific objection at trial.” State v. Dukes, 290 Kan. 485, 487–88, 231 P.3d 558 (2010). The Dukes court noted that “[i]n recent years ... we have consistently been refusing to review an evidentiary issue without a timely and specific objection even if the issue involves a fundamental right.” 290 Kan. 488.
The Dukes court accordingly declined to consider a defendant's Confrontation Clause challenge to the admission of a breathalyzer packet because the defendant did not preserve the issue by raising a specific and timely objection to the admission of the evidence before the trial court. 290 Kan. at 489. In light of Dukes and the similar challenge offered by Dennis here, we hold that he failed to properly preserve this issue for appeal because he did not offer a timely and specific objection to the introduction of the laboratory report as evidence at trial.
Even if Dennis had objected at trial, he still would have waived his objection to the admission of the laboratory report because he did not comply with the notice-and-demand provision of K.S.A. 22–3437(3). The State served notice on February 22, 2008, of its intent to proffer the laboratory report in lieu of live testimony. In State v. Laturner, 289 Kan. 727, 752–53, 218 P.3d 23 (2009), our Supreme Court severed the third and fourth sentence of K.S.A. 22–3437(3) and held that a defendant was required to give notice of any objection to the admission of the report within 10 days of receiving the State's notice. Moreover, the court held that a failure to comply with this requirement constitutes a waiver of any objections to the admission of the report. See K.S.A. 22–3437(3); 289 Kan. at 752–53.
Because the record indicates that Dennis never gave notice of any objection to the admission of the laboratory report, we conclude that he waived any objection to the admission of the report.
Whether the trial court erred in admitting evidence of Dennis' prior criminal acts under K.S.A, 60–455.
Next, Dennis argues that the trial court erred in admitting evidence of a prior criminal act under K.S.A. 60–455. He contends that the evidence was not relevant to prove a material fact in dispute and was only material to prove propensity.
In contrast, the State contends that the evidence was properly admitted and was relevant to show intent, plan, knowledge, and absence of mistake or accident.
In deciding whether to admit evidence under K.S.A. 60–455, the trial court must make several determinations. Since the statute allows evidence of prior crimes to be admitted to prove “some other material fact” besides propensity, the court must determine whether the fact to be proven is material: that is, whether it “ ‘ “has a legitimate and effective bearing on the decision in the case.” ‘ “ State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009). The fact must also be in dispute. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). The standard of review for materiality is de novo. Wells, 289 Kan. at 1226.
The court must also determine whether the evidence is relevant to prove the disputed material fact, that is, whether it has “any tendency in reason to prove” that fact. K.S.A. 60–401(b); Wells, 289 Kan. at 1227. Relevance is reviewed under an abuse of discretion standard, with the burden of proof on the party alleging that discretion was abused. 289 Kan. at 1227.
The trial court must then determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. An appellate court also reviews this determination for an abuse of discretion. 289 Kan. at 1227.
Finally, if the evidence satisfies all these requirements for admission, the trial court must give a limiting instruction informing the jury of the specific purpose for the evidence's admission. These safeguards are intended to eliminate the possibility that the evidence will be considered to prove the defendant's mere propensity to commit the charged crime. 289 Kan. at 1227.
Here, the State sought to introduce evidence of two prior cases in which Dennis was convicted of possession of ephedrine with intent to manufacture. In a 2003 Butler County case, Dennis' vehicle contained ephedrine, lithium batteries (opened and unopened), a few pairs of pliers, tubing, drain cleaner, and starter fluid. In a 2002 Rice County case, Dennis fled a scene where he and others were attempting to steal anhydrous ammonia. Because Dennis denied knowledge of the items in his vehicle concerning the current charges, attributing their presence to Osborne's use of the vehicle, the State asserted that Dennis' knowledge and intent were at issue and the prior convictions were relevant to these issues.
At the hearing on the motion, the State also asserted that the admission of this evidence was supported because Dennis “is essentially asserting nonexclusive possession” with regard to Osborne. But see State v. Boggs, 287 Kan. 298, 317–18, 197 P.3d 441 (2008) (discussing and disapproving jury instructions and previous decisions allowing automatic admission of prior crimes evidence in nonexclusive possession cases). Dennis argued that the evidence should not be admitted because it would be used by the jury for propensity purposes and its prejudice would outweigh its probative value.
The trial court, however, determined that the trial evidence would probably include statements by Dennis denying knowledge of the contraband in his vehicle, thus placing his knowledge, intent, and plan for the materials at issue. Because of the “striking similarity” in items found in Dennis' vehicle in the present case and the Butler County case, the trial court determined that the evidence of that case would be “very probative” of the factors of knowledge, plan, intent, and absence of mistake or accident and would outweigh the potential prejudicial effect.
The trial court, however, determined that the evidence of the Rice County case would not be allowed because the facts of that case were not very similar to the facts of the present case and the prejudicial effect of the evidence would outweigh the probative value.
At trial, the State entered the journal entry of the Butler County case into evidence and presented the testimony of the investigating officer in the case. The officer testified that the manufacture-related items found in Dennis' vehicle were the same or similar to items found in this case. In the Butler County case, Dennis was convicted under K.S.A. 65–7006, which prohibits possession of ephedrine, among other products, with intent to use the product to manufacture a controlled substance. The trial court gave the jury a limiting instruction stating that the evidence “may be considered solely for the purpose of proving the defendant's intent, plan, knowledge, and absence of mistake or accident.”
Dennis relies on our Supreme Court's decision in Boggs to support his argument.
In Boggs, the defendant was the passenger in a pickup truck which the police stopped on suspicion of DUI. The police discovered a marijuana pipe, which contained residue, in the truck. The truck's driver stated that the pipe belonged to the defendant. The defendant also smelled of burnt marijuana and his pupils were dilated.
Under interrogation, the defendant told the police that he had smoked marijuana about a month before the arrest. Before trial, the defendant attempted to suppress this evidence on the grounds it was evidence of prior criminal acts under K.S.A. 60–455 and would only show he had a propensity toward using drugs. The defendant's principal defense at trial was that he was not in possession of the pipe and its residue under Kansas law. The trial court allowed the evidence of defendant's prior marijuana use to be admitted as a factor to be considered by the jury in nonexclusive possession cases. The trial court gave a jury instruction on nonexclusive possession as well as a K.S.A. 60–455 limiting instruction.
Following the defendant's conviction of possession of marijuana and possession of drug paraphernalia, this court reversed, holding that the evidence in question was inadmissible under K.S.A. 60–455. Our Supreme Court granted the State's petition for review.
Our Supreme Court concluded that the evidence of the defendant's prior marijuana use was improperly admitted under K.S.A. 60–455 because the defendant's only defense was that he denied any possession of the pipe and residue whatsoever. 287 Kan. at 304–17. Thus, the element of intent, and the related elements of knowledge and absence of mistake or accident, were not at issue in the case. 287 Kan. at 315. These elements come into play only where the defendant attempts to offer an innocent explanation for his or her possession. When the defense is a complete denial of possession, these elements are not material to the resolution of the case. 287 Kan. at 315–16. As a result, our Supreme Court concluded that the only use of the evidence at issue was to show the defendant's propensity to use marijuana, which is the use K.S.A. 60–455 is designed to prevent. 287 Kan. at 317.
Dennis likens his situation to Boggs. He asserts that his defense was that he did not possess any of the contraband but contends that Osborne had used the car recently and was involved in manufacture. He argues that he did not maintain an innocent explanation or that he possessed the items by mistake. Thus, Dennis contends that the Boggs analysis should apply here to make the admission of the evidence of his prior conviction improper under K.S .A. 60–455.
The problem with Dennis' argument is that unlike Boggs, his case is not a nonexclusive possession case. Although the trial court gave a nonexclusive possession instruction to the jury, the facts show that Dennis was alone in the vehicle with the contraband when he was stopped by the police.
“Possession” of a controlled substance means having control over the substance with knowledge of, and intent to have, such control. State v. Marion, 29 Kan.App.2d 287, 290, 27 P.3d 924,rev. denied 212 Kan. 1422 (2001). To “have control” over a substance, a person must exercise a restraining or directing influence over the substance. State v. Sherry, 233 Kan. 920, 934–45, 667 P.2d 367 (1983).
Here, Dennis owned and was alone in the vehicle in which the contraband was found. He had control over the substance because he was directing its transportation in the vehicle. Thus, this was not a case involving nonexclusive possession. As a result, Dennis' statements regarding Osborne were in reality an attempt to offer an innocent explanation for his possession of the contraband. As the trial court properly determined, these statements placed at issue Dennis' knowledge, intent, plan, and the possibility of mistake or accident.
This conclusion is supported by State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989), a case discussed in Boggs, 287 Kan. at 314–15. In Graham, a police officer stopped a vehicle driven by the defendant and arrested him for failure to appear for a court date. During a search of the defendant, the officer found cocaine and cocaine residue in the defendant's jeans pocket and jacket pocket, as well as methamphetamine and marijuana in the vehicle.
At trial, the defendant claimed that the jacket, jeans, and vehicle were borrowed from friends and he had no knowledge of the presence of the drugs. The State presented evidence under K.S.A. 60–455 of the defendant's two prior narcotic convictions. The defendant was convicted of possession of marijuana, possession of methamphetamine, and possession of cocaine.
On appeal, the defendant argued that the evidence of the prior narcotics convictions was improperly admitted and constituted propensity evidence. Our Supreme Court disagreed, concluding that the defendant's possession of the drugs was “susceptible to two interpretations, one innocent and the other criminal” and therefore the defendant's intent and knowledge and the absence of mistake were relevant and critical to the determination of whether the defendant's possession was criminal. 244 Kan. at 196–97. Thus, the previous convictions were properly admitted to address these factors. 244 Kan. at 197–98.
The Boggs court distinguished Graham from Boggs because it did not “involve a situation where the defendant's princip[al] defense involved disputing possession of the drugs in question; instead, the defense provided ... was that although drugs were found in the defendant's possession, the defendant did not intend to possess those substances.” 287 Kan. at 315.
The facts here are closer to Graham than in Boggs. Although Dennis characterizes his defense as he “did not possess” the items in the vehicle, in reality, his defense was actually “that the contraband items were not his,” even though they were in his possession based on the fact that he was the sole occupant of the vehicle in which they were found. Dennis denied that he was in criminal possession of the items which were found in his actual possession. Thus, under Graham, Dennis' intent and knowledge and the absence of mistake were at issue here. The evidence was therefore properly admitted under K.S.A. 60–455 as to these factors.
The trial court also instructed the jury it could consider the evidence as to Dennis' plan. Our Supreme Court has held that evidence of prior crimes to prove plan under K.S.A. 60–455 must be “so ‘strikingly similar’ in pattern or so distinct in method of operation as to be a ‘signature.’ “ State v. Prine, 287 Kan. 713, 735, 200 P.3d 1 (2009). Dennis does not argue that the evidence here did not meet this standard. The evidence was arguably sufficiently similar because in both cases lithium batteries, ephedrine, starter fluid, and possible drug manufacturing implements were found in Dennis' vehicle, all of which speaks to his plan to manufacture methamphetamine.
Even if the evidence were improperly admitted for the purpose of showing Dennis' plan, such error was harmless in light of the proper admission of the evidence as to the other purposes. It seems highly unlikely the additional consideration of the evidence as to Dennis' plan would have made any difference in the jury's verdict after it had already considered the evidence as to his intent, knowledge, and absence of mistake. Thus, substantial justice does not require reversal based on any error in admitting the evidence as to defendant's plan. See State v. Ventris, 289 Kan. 314, 317–18, 212 P.3d 162 (2009) (applying K.S.A. 60–261 harmless error test to evidence erroneously admitted under K.S.A. 60–455).
Whether the trial court erred in instructing the jury with a confusing definition of “manufacture.”
Finally, Dennis argues that the trial court erred in instructing the jury with a definition of “manufacture” that was confusing. Specifically, Dennis asserts that the inclusion of the phrase “either directly or indirectly” in the definition could have led the jury to convict him on an aiding and abetting theory, even though no aiding and abetting instruction was given or even considered.
On the other hand, the State contends that there is “no danger” the jury convicted on an aiding and abetting theory because there was no evidence of aiding and abetting offered to the jury. The State maintains that its case against Dennis consistently portrayed him as a principal. Moreover, the State contends that the “directly or indirectly” language is appropriate and applicable in a case involving methamphetamine manufacture, as there are a number of steps required to convert the initial source material into the end product.
Dennis objected to the inclusion of the “directly or indirectly” language during the instructions conference, but he made no contention that such language could be read to infer “aiding and abetting” until his motion for new trial. We, however, note that the trial court asked the prosecutor about the terms “directly or indirectly” and whether “indirectly” would apply in this case. The prosecutor replied that the evidence supported that Dennis was involved directly or indirectly. Moreover, the prosecutor stated that he believed that others were involved and pointed out that Dennis contended that Osborne did [the manufacturing]. As a result, the prosecutor requested that the terms “directly or indirectly” be retained. The trial court refused to strike the “directly or indirectly” language from the instruction, stating that the evidence suggested “direct or potentially indirect involvement of the defendant in the manufacturing process.”
Both parties agree that the applicable standard of review is the following: When a proper objection has been made, an appellate court examines the instruction 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, the court must consider the instructions as a whole and not isolate any one instruction. State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
The jury was instructed as to the statutory definition of manufacturing contained in K.S.A.2007 Supp. 65–4101(n). The trial court instructed the jury as follows: “Manufacture means the production, preparation, compounding, conversion or processing of a controlled substance either directly or indirectly, by means of chemical synthesis or by a combination of extraction and chemical synthesis.”
The trial court's instruction defining the term “manufacture” was an incomplete statement of the law. See K.S.A.2007 Supp. 65–4101(n). K.S.A.2007 Supp. 65–4101(n) defines the term “manufacture,” in relevant part, as follows:
“ ‘Manufacture’ means the production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly or by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container....”
The trial court's instruction defining the term “manufacture” omitted the coordinating conjunction “or” between the correlative conjunction “either directly or indirectly” and the next alternative way to manufacture (“or by extraction from substances of natural origin”). The trial court violated a statutory rule of construction when it omitted the word “or” and replaced it with a comma as part of its definition of manufacture. Indeed, “ ‘[a] statute should not be read to add that which is not contained in the language of the statute or to read out what, as a matter of ordinary language, is included in the statute.’ “ Unruh v. Purina Mills, 289 Kan. 1185, 1194, 221 P.3d 1130 (2009). Moreover, when the trial court removed the word “or” from the definition of manufacture and replaced it with a comma, the court drastically changed the statutory definition of manufacture under K.S.A.2007 Supp. 65–4101(n).
For example, the trial court, in placing the comma immediately before the restrictive phrase by means of chemical synthesis or by a combination of extraction and chemical synthesis, under its definition of manufacture, would allow the restrictive phrase to refer to several antecedents. Indeed, as an adjective phrase, it could refer to the nouns production, preparation, compounding, conversion, or processing contained in the definition. See Hughes v. Samedan Oil Corporation, 166 F.2d 871, 873 (10th Cir.1948). (As a grammatical rule, a restrictive clause or phrase must be set off by a comma only when it refers to several antecedents which are themselves separated by a comma.). We note that under the trial court's instruction, the five antecedent nouns are separated by a comma. Under this grammatical construction, the trial court's instruction is ambiguous and confusing because the instruction as a whole does not direct the jury to view the instruction as defining alternative ways to manufacture. Here, the trial court clearly failed to set out the phrase by means of chemical synthesis or by a combination of extraction and chemical synthesis as alternative ways to manufacture.
For example, K.S.A.2007 Supp. 65–4101(n) sets out several different ways to manufacture:
“ ‘Manufacture’ means the production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly or by extraction from substances of natural origin[,] or independently by means of chemical synthesis[,] or by a combination of extraction and chemical synthesis[,] and includes any packaging or repackaging of the substance or labeling or relabeling of its container....”
This definition of manufacture is not ambiguous as drafted with the comma omitted.
Under the last antecedent rule, restrictive words normally apply to the nearest antecedent. Hughes, 166 F.2d at 873. The restrictive words here are by (1) extraction from substances of natural origin, (2) or independently by means of chemical synthesis, and (3) or by a combination of extraction and chemical synthesis. They define other ways to manufacture for controlled substance purposes. The nearest antecedent is a controlled substance. The earlier mentioned restrictive words therefore apply to this phrase.
For example, the noun substance, which is the object of the prepositional phrase of a controlled substance, is modified or qualified by the adjective phrases (1) by extraction from substances of natural origin, (2) or independently by means of chemical synthesis, and (3) or by a combination of extraction and chemical synthesis. The rule is that no comma must be placed between restrictive clauses and that which they restrict. Hughes, 166 F.2d at 873. Because the trial court's jury instruction did not direct the jury to view the manufacture instruction as defining alternative ways to manufacture, the trial court erred in giving the instruction. Thus, the instruction did not state properly and fairly the law as applied to the facts of this case and could have reasonably misled the jury.
Moreover, the trial court's ambiguous phrasing of the manufacture definition may have led the jury to ask for “clarification of definition of manufacturing directly or indirectly.” With the approval of the parties, the trial court told the jury no clarification could be made of the terms and referred it to the existing instructions. Nevertheless, during its deliberations, the jury consulted a dictionary regarding the terms “directly” and indirectly.” Dennis moved for a new trial, stating: “The definition found in dictionaries would allow the jury to consider Defendant to have manufactured on what amounts to an aiding and abetting theory even though the case would not have qualified for one in which the Court would have given an aiding and abetting instruction.”
The trial court denied the motion, stating that “directly and indirectly” were common and ordinary words and not legal terms, so there was no prejudice to Dennis that the jury put some meaning to those words that differed from the legal definition. The trial court, however, did not address Dennis' contention that the jury could have used the term “indirectly” to convict him on an aiding and abetting theory. Nevertheless, the State argues that because it did not rely on an accomplice liability theory, the jury's consideration of the word “indirectly” was of no consequence. We disagree.
Under the definition of manufacture contained in the trial court's instruction, a defendant who knowingly plays even a limited role in the steps to manufacture methamphetamine could be found guilty, even if someone else completes the process. As a result, a defendant need not be involved in a significant way to engage “indirectly” in the production, preparation, propagation, compounding, conversion, or processing of a controlled substance either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. Here, a reasonable juror could conclude beyond a reasonable doubt that Dennis participated indirectly in methamphetamine production without ever meeting the aiding and abetting standard. See State v. Schriner, 215 Kan. 86, 92, 523 P.2d 703 (1974) (“[T]o be guilty of aiding and abetting in the commission of a crime the defendant must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.”).
Thus, the use of the term “indirectly” in K.S.A.2007 Supp. 65–4101(n) and in the trial court's instruction is confusing when the State is not relying on an accomplice liability theory. Indeed, the State of Iowa, which defines “manufacture” similar to Kansas, omits the term “indirectly” from its definition of manufacture. See Iowa Code § 124.101(18) (2007).
As a result, we reverse Dennis' convictions of manufacturing methamphetamine, possession of ephedrine with intent to manufacture, possession of drug paraphernalia with intent to use for manufacturing, and possession of methamphetamine, and the case is remanded for a new trial.
Reversed and remanded.