Opinion
No. 105,977.
2012-05-18
STATE of Kansas, Appellee, v. Christopher GADD, Appellant.
Appeal from Harvey District Court; Carl B. Anderson Jr., Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Ronald D. Innes, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Harvey District Court; Carl B. Anderson Jr., Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Ronald D. Innes, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher Gadd appeals his conviction for driving under the influence (DUI), which was a fourth or subsequent conviction. Gadd argues the jury instructions violated his constitutional presumption of innocence. We affirm.
Gadd was arrested for DUI after failing to use the turn signal on his moped and then failing field sobriety tests. At the police station, Gadd blew a .184 breath-alcohol concentration in the Intoxilyzer 8000. The presumption for intoxication is .08. At the jury trial, the trial court gave the following jury instruction regarding the applicable burden of proof:
“The State has the burden of proof to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”
The district court also instructed the jury: “Your only concern in this case is determining if the defendant is guilty or not guilty. The disposition of the case thereafter is matter for determination by the Court.”
The jury convicted Gadd of DUI for having an alcohol concentration in his breath of .08 or more as measured within 2 hours of the time of operating his vehicle. The district court sentenced Gadd to 180 days in jail and then 12 months' postrelease supervision with a total fine and costs of $2,985.50. Gadd appeals.
Gadd did not object to the trial court's inclusion of the jury instructions he now challenges on appeal. “An appellate court reviewing a district court's giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). A jury instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. 288 Kan. at 451–52.
Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case and the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous. State v. Hunt, 257 Kan. 388, 392, 894 P.2d 178 (1995); see State v. Butler, 257 Kan. 1043, 1065, 897 P.2d 1007 (1995), modified on other grounds257 Kan. 1110, 916 P.2d 1 (1996). Errors that do not affirmatively prejudice the substantial rights of a complaining party do not require reversal if substantial justice has been done. State v. Holbrook, 261 Kan. 635, 636–37, 932 P.2d 958 (1997); State v. Johnson, 255 Kan. 140, 148, 871 P.2d 1246 (1994).
The jury instructions challenged by Gadd, No. 8 and No. 9, are unmodified versions of PIK Crim.3d. 51.10 and 52.02. On pattern instructions, the following is often repeated:
“ ‘ “The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.’ “ [Citations omitted.]” Holbrook, 261 Kan. at 637.
Gadd claims Instruction Nos. 8 and 9 presented contradictory directions to the jury and improperly shifted the burden of proof. He contends the two instructions told the jury that it had to “determine” whether he was guilty or not guilty, but that instruction No. 8 also told the jury that Gadd was “presumed” not guilty. Gadd argues that because the two instructions present contradictory messages regarding the fundamental point of law of his presumed innocence, there is a real possibility that the jury would have returned a different verdict but for the contradictory language in his case.
Our Supreme Court has addressed both of the jury instructions challenged by Gadd. Courts that have addressed PIK Crim.3d 52.02 have done so in the context of the use of the word “until” instead of the word “unless.” In the present case, jury instruction No. 8 uses the word “unless” in accordance with the current version of PIK Crim.3d 52.02. In State v. Wilkerson, 278 Kan. 147, 158, 91 P.3d 1181 (2004), our Supreme Court held that the word “unless” should be used in PIK Crim.3d 52.02 instead of the word “until” because “until” implies an expectation of a future event or occurrence which shall happen, as compared to “unless” which implies a future event or occurrence which may happen. Nevertheless, our Supreme Court on numerous occasions has stated that this error did not warrant reversal of a criminal conviction. See, e.g., State v. Anderson, 287 Kan. 325, 343, 197 P.3d 409 (2008); State v. Gallegos, 286 Kan. 869, 875–77, 190 P.3d 226 (2008); Wilkerson, 278 Kan. at 158.
Moreover, the Kansas Supreme Court has held that “the provisions of PIK Crim.3d 52.02 accurately reflect the law of this State and properly advise the jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt.” State v. Clark, 261 Kan. 460, 475, 931 P.2d 664 (1997). However, these decisions do not directly address the language of PIK Crim.3d 52.02 that Gadd is challenging.
In terms of PIK Crim.3d 51.01, in State v. Yardley, 267 Kan. 37, 42, 978 P.2d 886 (1999), and State v. Osburn, 211 Kan. 248, 254, 505 P.2d 742 (1973), the court approved of PIK Crim.3d 51.10's command to a jury that it should not be concerned with outside matters (such as the penalty the defendant may receive as a result of being found guilty of the charged crime[s] ) when determining whether the defendant is guilty or not guilty.
In State v. Raskie, 293 Kan. 906, 269 P.3d 1268 (2012), the Kansas Supreme Court recently rejected a nearly identical argument raised by Gadd. Raskie argued that PIK Crim.3d 51.10 impermissibly shifted the burden to the defense to prove he was not guilty. As occurred in Raskie, similar to the case at bar, Gadd cites no legal authority in support of this contention and raises this argument for the first time on appeal. The Raskie court stated:
“Despite Raskie's argument to the contrary (and assuming no lesser included offenses are involved), a jury must choose between two options (guilty or not guilty) in order to reach a verdict in a case. Stating this fact to the jury does not dilute or destroy the presumption that the defendant is not guilty (the first option) unless the State proves beyond a reasonable doubt that the defendant is guilty (the second option). The second option is discussed in other jury instructions that clearly inform the jury the State has the burden of proof to establish the defendant's guilt beyond a reasonable doubt.” 203 Kan. at 922.
We find no impermissible shifting of the burden of proof to Gadd in Jury Instruction Nos. 8 and 9.
When the instructions are read as a whole, they clearly indicated to the jury that it would have to find Gadd not guilty of the charged crime unless the State proved beyond a reasonable doubt all the elements of the crime. In the context of that determination, the jury is required to presume that Gadd is not guilty. There is no reasonable basis to believe that the jury would have rendered a different verdict in this case based on Gadd's arguments.
Affirmed.