Opinion
No. 109,722.
2015-01-23
STATE of Kansas, Appellee, v. Charles GARBER, Appellant.
Appeal from Neosho District Court; Daryl D. Ahlquist, Judge.Nathan L. Dickey, legal intern, Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Linus A. Thuston, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Neosho District Court; Daryl D. Ahlquist, Judge.
Nathan L. Dickey, legal intern, Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Linus A. Thuston, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Charles Garber of one count of sale of methamphetamine in a controlled buy. The trial court sentenced Garber to 30 months imprisonment. Garber timely appealed claiming the State committed reversible misconduct during closing arguments and the trial court committed reversible error in instructing the jury. However, the prosecutor did not stray from the wide latitude afforded the State in closing arguments. Additionally, Garber invited one of the instructional errors he now complains of on appeal. The second instruction that Garber argues was required was not supported by the evidence. Therefore, we affirm.
The State charged Garber with one count of the sale of methamphetamine in violation of K.S.A.2010 Supp. 21–36a05(a)(1) after selling to confidential informant (CI) Danny Fox in a controlled buy on November 22, 2010. The buy involved the Neosho County Sheriff's Office and the Kansas Bureau of Investigation (KBI). Travis Taylor worked as a lieutenant for the sheriff's office in November 2010. Special Agent Shawn Campiti worked for the KBI in November 2010.
Fox initially worked as a CI for the sheriff's office in an effort to work off a charge of possession of oxycodone. In order for the State to dismiss his possession charge, he was required to make two controlled buys that would result in the prosecution of the seller. The sheriff's office asked the KBI for assistance with controlled buys, so Fox worked as a CI for both departments. Fox made four controlled buys for law enforcement.
On November 22, 2010, Fox was working as a CI. Law enforcement officers targeted Garber that day. Officers from both the sheriff's office and the KBI met Fox at a predetermined location. Officers searched Fox and his vehicle for cash or contraband. None was found. Officers gave Fox $60 in buy money and a wireless transmitter. Fox called Garber to arrange the buy that day. Fox asked if Garber could sell him 1/2 gram of methamphetamine that day. Fox testified Garber told him he had to get the drugs from his source first, so they could meet at Garber's house in 30 minutes. The officers did not record this conversation or write down the number Fox dialed. However, Taylor listened as Fox made the call and recognized the voice on the phone as Garber's. Campiti accompanied Fox to Garber's house for the buy.
Once at Garber's house, Fox entered the home while Campiti remained in the car. Fox was in the house for approximately 2 minutes. When he came out, he immediately returned to Campiti in the car. He gave Campiti a bag of a substance later identified as methamphetamine. Fox identified Garber as the person who sold him the methamphetamine. Fox also indicated there was an unidentified woman inside Garber's home during the transaction. The following exchange was recorded on the wireless transmitter Fox wore:
“FOX: What's up [Garber]? Is she here?
“GARBER: The woman's in there.
“[Inaudible.]
“FOX: Well, I've got the money. Sorry it took so long. So, this is a half gram?
“GARBER: [Inaudible.] Ya.
“FOX: There's sixty dollars.
“GARBER: Whoops. That's yours.
“UNIDENTIFIED WOMAN: It's broke up because [inaudible] it's in my pocket
“[Inaudible.]
“FOX: It's okay. It looks okay. Uh. As long it weighs a half it's fine. It looks like it.
“UNIDENTIFIED WOMAN: There's some of the rocks that were in the bag with it. It burns nice. It's like a never ending [inaudible].
“FOX: Well I'm getting this for someone else right now. He's with me. So I'm gonna take care of him and [Garber] I'll call you here in a few minutes
“GARBER: ‘Cause if you want more, she said it burns really good .’ “
After Campiti and Fox returned to a prearranged meeting area, the officers searched Fox again for additional contraband. None was found. The officers debriefed Fox. Fox identified Garber as the individual who gave him the baggy in exchange for the buy money. Fox then provided a brief written statement of the interaction: “Called [Garber] to inquire about buying 1/2 gram of methamphetamine. He told me to be at his residence to meet him and buy the meth. I entered his house and was presented 1/2 gram of meth. Purchased 1/2 gram for $60.00”
Based on the above interaction, the State charged Garber with one count of sale of methamphetamine in violation of K.S.A.2010 Supp. 21–36a05(a)(1), which provides: “It shall be unlawful for any person to cultivate, distribute or possess with the intent to distribute” methamphetamine. However, within the complaint charging Garber, however, the State used the word “sell” instead of “distribute,” charging Garber with “sell[ing]” methamphetamines.
At Garber's jury trial, Taylor, Campiti, and Fox testified. The jury convicted Garber on the sole count. The trial court sentenced Garber to the standard 30–month sentence. Garber timely appealed.
Garber argues the prosecutor committed prosecutorial misconduct in closing argument, which deprived him of a fair trial. Although Garber did not object to all of the statements at trial, he now contends the statements constituted improper misstatements of the law, an improper shift of the burden to Garber, and an improper bolstering of a witness' credibility. Conversely, the State contends the prosecutor's statements did not amount to prosecutorial misconduct, but even if they did, the statements were not reversible error.
Standard of Review
A claim of prosecutorial misconduct based on comments made during closing arguments will be reviewed on appeal regardless of whether a contemporaneous objection was made at trial. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied 133 S.Ct. 529(2012).
Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must then determine whether the improper comments constituted plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
Prosecutors are given wide latitude to argue their cases “[b]ecause ‘[i]t is the duty of the prosecutor in a criminal matter to see that the State's case is properly presented with earnestness and vigor and to use every legitimate means to bring about a just conviction’ “ State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009) (quoting State v. Ruff, 252 Kan. 625, 634, 847 P.2d 1258 [1993] ). “Inherent in this wide latitude is the freedom to craft an argument that includes reasonable inferences based on the evidence.” 288 Kan. at 351 (quoting State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 [2000] ). However, this latitude is not limitless. 288 Kan. at 351. We will address Garber's three claims of misconduct individually to determine if the prosecutor exceeded the limit.
Did the Prosecutor Misstate the Law?
Garber's first alleges the prosecutor misstated the law of drug distribution. According to Garber, the following exchange, which occurred during rebuttal closing arguments, constituted a misstatement of the law:
“[PROSECUTOR]: ... So the specifics there still are that Mr. Garber, if he's not the individual sale's person, who I believe the evidence shows he is, but he's Wal–Mart. He's the one who's selling it. Because the arrangement
1”[DEFENSE COUNSEL]: I'm going to object.
“[PROSECUTOR]:—was made
“[DEFENSE COUNSEL]: That's beyond the instructions. That's not the ... elements of the case that [Garber is] Wal–Mart. I don't think that's appropriate argument, Judge.
“THE COURT: I'll sustain the objection.
“[PROSECUTOR]: He sold it. He sold it. Any way you want to look at it. He made the place available. He's the one who made the offer to sell. And it took place in his presence at his house, but he's the one who sold it.
Garber argues the prosecutor changed the elements to the crime when he told the jury all that was required to convict him for the sale of methamphetamine was merely that it be sold in his house while he was present. However, this framing of the prosecutor's statement is too narrow. The prosecutor never claimed the jury could convict Garber for the sale of methamphetamines if, in isolation, Garber was merely present when drugs were sold in his house. Instead, the prosecutor explained that Garber's was guilty regardless of the unidentified woman's involvement because Garber made the place available and he offered to sell methamphetamines to Fox and the sale took place in his presence at his house. Therefore, we must determine whether this was a proper statement of the law.
When a misstatement of controlling law is made deliberately, it is outside the considerable latitude given to prosecutors during their arguments. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006).
K.S.A.2010 Supp. 21–36a01(d), part of the Controlled Substances Act under which Garber was charged, includes the following definition of “distribute”: “[T]he actual, constructive or attempted transfer from one person to another of some item whether or not there is an agency relationship. ‘Distribute’ includes, but is not limited to, sale, offer for sale or any act that causes some item to be transferred from one person to another.”
The State argues the prosecutor merely listed methods in which one can distribute drugs within the meaning of the statute. However, because the State used the word “sale” instead of distribute in the complaint charging Garber, the State is required to prove Garber “sold” the methamphetamine, not that he distributed it.
Sale is one way a defendant can distribute methamphetamine within the meaning of K.S.A.2010 Supp. 21–36a01(d). However, K.S.A.2010 Supp. 21–36a01(d) does not define sale. Nonetheless, in State v. Evans, 219 Kan. 515, 518, 548 P.2d 772 (1976), our Supreme Court approved the use of the former statutory definition of “sale,” even though it was no longer part of a valid statute. See State v.. Griffin, 221 Kan. 83, 84, 558 P.2d 90 (1976) (approving the definition of “sale” based on prior caselaw). In the context of drugs, our courts have recognized the term “sale” has a broader meaning. This includes selling for money, barter, exchange, a gift, or an offer to do any of these things. See State v. Nix, 215 Kan. 880, 882, 529 P.2d 147 (1974); State v. Woods, 214 Kan. 739, 844, 522 P.2d 967, disapproved on other grounds by Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978). It is also not necessary that the prohibited substance be in the property of the defendant or in his or her physical possession. So, the definition of “sale” within the context of illegal drugs includes offering to sell for money.
The prosecutor did not misstate the law when he argued that even if the woman was also involved in the sale, Garber was still guilty because he offered to sell methamphetamine to Fox, he arranged the sale, the sale took place at his residence, and Fox went in with $60, handed it to Garber, and came out with methamphetamine. Fox testified he received the methamphetamine from Garber. This was not a misstatement of the law.
Further, the prosecutor's statement, “He sold it. He sold it” is an argument on the evidence, not a statement of the law. The record indicates the prosecutor was reciting facts in evidence, including Fox's testimony and the audio recording, which support the conclusion that Garber sold the drugs. The prosecutor was within his considerable latitude to argue the evidence before him. See King, 288 Kan. at 351.
Therefore, the prosecutor did not misstate the law and his comments were within the wide latitude for commenting on the evidence and making reasonable inferences. Garber's argument fails to pass the first step in the test for prosecutorial misconduct and we do not need to consider whether the comments were so gross and flagrant as to prejudice the jury against Garber and deny him a fair trial.
Did the Prosecutor Shift the Burden of Proof?
Garber next contends the prosecutor committed misconduct by impermissibly shifting the burden of proof to Garber. In closing, the prosecutor gave a summary of the evidence, which included the testimonies of Taylor, Campiti, and Fox, and the audio recording of the sale between Garber and Fox. The prosecutor then stated, “[T]he person who uniformly is accepted as [selling] the methamphetamine is Mr. Garber.” Garber singles out this statement without providing any context in which it was said. The State argues the statement referenced trial evidence showing that everyone who testified regarding the actual transaction testified they believed Garber was the person who sold the drugs.
The record does not support Garber's claim that the prosecutor's comment shifted the burden onto Garber. Instead, the challenged statements drew reasonable inferences from the admitted evidence. See King, 288 Kan. at 351. Testimony and audio recordings demonstrated that Taylor, Campiti, and Fox all believed Garber had sold Fox the drugs. Because no evidence was presented indicating anyone else sold the methamphetamine, this statement was within a prosecutor's discretion to comment on the evidence. See 288 Kan. at 351. Contrary to Garber's contention, this was not misconduct, nor did it shift the burden.
The prosecutor's comment was a proper summary of evidence. Thus, Garber's second claim of misconduct fails to pass the first step in the test for prosecutorial misconduct, and we do not need to proceed to the next step.
Did the Prosecutor Improperly Bolster a Witness' Credibility?
Garber's final contention of prosecutorial misconduct alleges the prosecutor improperly bolstered Fox's credibility. Here, Garber argues the following statements by the prosecutor in closing and rebuttal closing improperly bolstered a witness' testimony: “So there's no motivation for [Fox] to make something up”; “The risk of what could have happened for [Fox] testifying or still could happen to testify clearly would outweigh the fifty to a hundred dollars he might have gotten for that type of risk”; and “I'm sure most of you have heard statements before that snitches get stitches.” The defense failed to make contemporaneous objections to any of the above statements.
Although prosecutors are afforded wide latitude in crafting arguments, it is improper for a lawyer to express his or her personal opinion of a witness' credibility. See State v. Duong, 292 Kan. 824, 830, 257 P.3d 209 (2011). For example, it is improper to tell a jury, “ ‘We didn't lie to you,’ “ referring to the credibility of the State's witnesses. See Pabst, 268 Kan. at 505–06. State v. Mosley, 25 Kan.App.2d 519, 524–25, 525, 965 P.2d 848, rev. denied 266 Kan. 1113 (1998). It is also improper for a prosecutor to refer to the defendant and defense counsel as liars. State v. Lockhart, 24 Kan.App.2d 488, 492, 947 P.2d 461, rev. denied 263 Kan. 889 (1997). A prosecutor may, however, make statements based on reasonable inferences from the testimony and may assert that one of two conflicting stories should not be believed. Duong, 292 Kan. at 830. Prosecutors also may explain “ ‘to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses.’ “ State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010) (quoting State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 [2009] ); see also Pabst, 268 Kan. at 507 (When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable.).
Garber's argument is predicated upon an isolated comment the prosecutor made during closing. However, when analyzing any prosecutor's statement, we must look at the prosecutor's statements in context, not isolation. Stone, 291 Kan. at 19–20. Credibility was the key issue in this case. When viewing these comments in context, these statements were not improper bolstering by the State. Garber's trial counsel attempted to attack Fox's credibility and shift the blame to the unidentified woman present when the transaction took place. In closing, the prosecutor responded to the defense counsel questioning Fox's credibility. The prosecutor reminded the jury of evidence it should consider when weighing Fox's credibility, including the fact that Fox made more buys than he was required to by his agreement with law enforcement in order to have his oxycodone charge dismissed, which negated Garber's allegation that Fox had a motive to lie about this sale to work off his charge. Garber also argued Fox had a financial incentive to lie since he was paid for these buys, but the prosecutor reminded the jury to consider possible negative consequences of being a snitch, including the threat of physical harm, instead of merely focusing on the benefits Fox had received from working with law enforcement. The prosecutor never expressed his personal opinion of Fox's credibility and never bolstered Fox's credibility. This falls within the latitude afforded the State. See 291 Kan. at 20; see also State v. Campbell, 268 Kan. 529, 541, 997 P.2d 726, cert denied 531 U.S. 832 (2000) (prosecutor's comment that witness was not lying and had no motivation to lie was presented within the context of discussing evidence at trial and was within considerable latitude allowed to counsel during closing argument).
A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011). In Garber's analysis of his allegations of prosecutor bolstering the witness, he states: “A prosecutor may be able to comment on the credibility of a witness, but only to the extent supported by the evidence. At no time during the trial did anyone discuss the risk of physical harm to a snitch for testifying. The prosecutor only mentioned physical harm in the final rebuttal of the closing arguments.” However, Garber fails to argue this point or provide any legal support for it. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013) (Failure to support a point with pertinent authority is akin to failing to brief the issue.). Therefore, we deem this issue abandoned.
However, even if we were to consider this argument was properly raised, there was no reversible error. When a prosecutor argues facts that are not in evidence, misconduct occurs, and the first prong of the test for prosecutorial misconduct has been met. State v. Murray, 285 Kan. 503, 512, 174 P.3d 407 (2008) disapproved on other grounds by State v. Marshall, 294 Kan. 850, 281 P.3d 1112 (2012). Here, by telling the jury to consider that “snitches get stitches,” the prosecutor asked the jury to speculate on considerations that were not admitted into evidence at trial. This was improper. Therefore, the first prong of the prosecutorial misconduct test has been satisfied. See Burnett, 293 Kan. at 850. Next, we must consider whether the comment constituted plain error.
In the second step of the two-step prosecutorial conduct analysis, an appellate court should consider three factors: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the mind of the jurors. State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012). The State must establish, under the constitutional harmless error test, the error did not affect the outcome of the trial in light of the entire record. Under the statutory test, the court must determine “ ‘if there is a reasonable probability the misconduct affected the outcome of the trial.’ [Citations omitted.]” State v. McCullough, 293 Kan. 970, 990, 270 P.3d 1142 (2012).
We are satisfied that whatever error the prosecutor may have injected into the trial was harmless. Considering the facts of this crime, the prosecutor's comments were not gross and flagrant. The conduct did not show any ill will, and the evidence of Garber's guilt was of a direct and overwhelming nature. Therefore, the prosecutor's somewhat improper statement did not prejudice Garber's right to a fair trial.
Garber's arguments for finding reversible prosecutorial misconduct are unpersuasive. The prosecutor never stepped outside the wide latitude afforded the State in arguing the evidence.
Cumulative Error
Garber finally argues that even if the individual statements did not warrant a new trial, the cumulative effect of the statements was sufficient to warrant reversal of his conviction.
Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantial prejudiced the defendant and denied defendant a fair trial. If the evidence is overwhelming against the defendant, however, no prejudicial error may be found based upon this cumulative error rules. State v. Burns, 295 Kan. 951, 960, 287 P.3d 261 (2012), overruled on other grounds by State v. King, 297 Kan. 955, 305 P.3d 641 (2013).
However, “[c]umulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Additionally, the cumulative error doctrine “does not apply if no error or only one error supports reversal.” State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009). Consequently, Garber's claim of cumulative error is without merit.
Garber's next point of alleged error is in the jury instructions. Garber argues two errors in the instructions: (1) the failure to include a definitional instruction of the word “sale”; and (2) the failure to include a definition of the specific intent of aiding and abetting. Garber's analysis is slightly muddled, making it unclear where argument for one contention ends and the other begins. The State responded only to the first allegation of instructional error, arguing the invited error doctrine applied precluding appellate review.
Standard of Review
Generally, when analyzing an alleged error in jury instructions, the progression and corresponding standards of review on appeal are as follows:
“ ‘(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).’ [Citation omitted.]” State v. Smyser, 297 Kan. 199, 203–04, 299 P.3d 309 (2013).
Further,
“[n]o party may assign as error the giving or failure to give an instruction ... unless the parties objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the ... failure to give an instruction is clearly erroneous.” K.S.A. 22–3414(3).
Definition of “Sale” Instruction
Garber challenges the trial court's failure to instruct the jury regarding the definition of the term “sale.” The State argues Garber invited any error this may have caused because he requested that instruction be excluded from jury instructions.
Generally, an appellate court need not consider whether the giving of or failure to give a jury instruction was clearly erroneous when the challenge is precluded by the invited error rule. State v. Jones, 295 Kan. 804, 811–13, 286 P.3d 562 (2012).
The lack of this definitional instruction may be rooted in the fact that the statute under which Garber was charged underwent change. Prior to July 2009, K.S.A.2008 Supp. 65–4161 prohibited a person from “sell[ing], offer[ing] for sale or hav[ing] in such person's possession with intent to sell” methamphetamine. PIK Crim.3d 67.13–A, which defines sale, was often included with pre-July 2009 instructions when the statute used the term “sell” to articulate prohibited conduct. However, post-July 2009, the criminal statutes were revised, and the same conduct under K.S.A.2010 Supp. 21–36a05 was changed. After the amendment, K.S.A.2010 Supp. 21–36a05 prohibited the “cultiva[tion], distribut[ion] or possess[ion] with intent to distribute” of methamphetamine. Because the statute no longer used the term “sell,” PIK Crim.3d 67.13–A was no longer an accompanied instruction. However, in this case, the State used the pre-July 2009 language “sell” in the complaint charging Garber. So, although his conduct occurred after July 2009, making PIK Crim.3d 67.13–A generally irrelevant, because the State charged him with the sale of methamphetamines, he now argues the instruction was necessary.
The record reveals that during an instruction conference outside the presence of the jury, the parties discussed the instruction defining “sale.” The trial judge said, “I've also removed instruction PIK Crim.3d 67.13–A, which defines sale. Before we left yesterday, [defense counsel] indicated that the instruction is not to be given after, I think it was, July 1 of '09.” The court indicated it researched defense counsel's contention that the instruction was not proper after July 2009 based on changes to the Uniform Controlled Substances Act. Based on defense counsel's request to remove the instruction from the proposed instructions, the instruction defining sale was not given.
Under these circumstances, Garber invited the error of which he now complains. Therefore, we need not address this question because Garber's challenge is precluded by the rule of invited error. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
An Aiding and Abetting Instruction
Next, Garber argues that if the State wanted to pursue an aiding and abetting theory of the sale of methamphetamine, an instruction on an aiding and abetting theory was required. Garber alleges the State admitted he “may not have been a principal in the transaction” because the prosecutor said the sale “ ‘took place in his presence at his house, ... he's the one who sold it.’ “ Based on this framing of the State's argument, Garber contends the State pursued an aiding and abetting theory of the crime and therefore the jury should have received an aiding and abetting instruction.
We first must consider the reviewability of the issue from a preservation viewpoint. See Smyser, 297 Kan. at 203. The record reveals that during an instruction conference outside the presence of the jury, the parties reviewed the instructions. In the absence of a sufficiently specific objection, appellate courts will review the failure to give an instruction for clear error. See K.S.A. 22–3414(3) (party may not assign error to instruction unless party objects “stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction ... is clearly erroneous”); State v. Horton, 300 Kan. 477, 492, 331 P.3d 752 (2014). An aiding and abetting instruction was not included in the proposed instructions. Additionally, although Garber lodged objections to the State's closing arguments, Garber never distinctly objected to the State's closing arguments on the grounds that the State was pursuing a theory of aiding and abetting. Therefore, this court will review the lack of an aiding and abetting instruction for clear error.
“[T]he current definition of clearly erroneous sets up the test to determine whether the instruction error requires reversal, i.e., whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This assessment of whether there has been injustice would involve a review of the entire record and a de novo determination.” State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012).
Next, we must consider whether the instruction was legally appropriate. See Smyser, 297 Kan. at 203–04. K.S.A. 22–3414 provides guidance regarding the instructions to be given at the close of trial. The judge “may instruct the jury on such matters as in the judge's opinion will assist the jury in considering the evidence as it is presented.” K.S.A. 22–3414(3); see also United States v. Cecil, 96 F.3d 1344, 1347 (10th Cir.1996) (“The instructions must cover the issues presented by the evidence and accurately state the law.”). A defendant generally is entitled to instructions on the law applicable to his or her theory of defense if there is sufficient evidence for a rational factfinder to find for the defendant on the theory. State v. Hilt, 299 Kan. 176, 184, 322 P.3d 367 (2014). However, the “defendant is not entitled to an instruction which lacks a reasonable legal and factual basis.” United States v. Bryant, 892 F.2d 1466, 1468 (10th Cir .1989), cert. denied, 496 U.S. 939 (1990). When an instruction is both legally and factually appropriate, appellate courts must assess whether the failure to include the instruction was a harmless error. See State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Here, neither party pursued an aiding and abetting theory of Garber's guilt. In closing, defense counsel told the jury, “[I]t was the unidentified woman in the house that produced the methamphetamine that Mr. Fox purchased. Listen to the recording folks, and it becomes clear that it was the woman who brought this meth to the residence.” Defense counsel further told the jury that Fox identified Garber as the individual who sold him the drugs, not the unidentified woman, because it “[d]idn't do [Fox] any good to buy from someone he didn't know and he couldn't identify.”
Garber construes the State's argument during rebuttal closing as “the Prosecutor admit[ing] that Mr. Garber may not have made the actual sale, but that the sale may have only have occurred in Mr. Garber's presence and in his house.” However, Garber's version of the State's argument is inaccurate. In rebuttal closing, the prosecutor attempted to respond to defense counsel's argument that the woman sold the drugs to Fox. The prosecutor reminded the jury to consider the evidence supporting Garber's guilt. The prosecutor then argued for Garber's guilt, regardless of the unidentified woman's involvement.
Upon review of the record, Garber's argument that an aiding and abetting instruction was necessary fails. His perception of the State's theory is not supported by the record when viewed as a whole. When looking at the prosecutor's rebuttal close as a whole, the prosecutor was not admitting Garber did not make the actual sale. Instead, the prosecutor argued that, even if the jury thought the unidentified woman was a part of the sale, Garber was still independently guilty because he offered the drugs for sale to Fox, he arranged the meeting place, the sale took place in Garber's presence, and “the half a gram [was] presented by Mr. Garber, the money [was] then given to Mr. Garber.”
Clearly, the State presented its case on a theory that Garber sold the methamphetamine to Fox, not that he aided or abetted the unidentified woman. The State never wavered from that theory. Additionally, Garber's theory of the case was that the unidentified woman made the sale without any involvement from Garber. Garber never argued he merely aided or abetted the woman.
Neither party pursued an aiding and abetting theory in this case. Instead, the State's theory alleged Garber was independently guilty and Garber's theory was that he did not do it. An instruction on an aiding and abetting theory was therefore not legally appropriate and the failure to include it led to no error. See Smyser, 297 Kan. at 203–04. The trial court properly instructed the jury.
Affirmed.