Opinion
No. 103,263.
2012-11-16
STATE of Kansas, Appellee, v. Benjamin BURDICK, Appellant.
Appeal from Cherokee District Court; Oliver Kent Lynch, Judge. Nathan R. Coleman, of Coleman Law Office, LLC, of Galena, for appellant. Kristafer R. Ailslieger, deputy solicitor general, and Clay Britton, assistant solicitor general, for appellee.
Appeal from Cherokee District Court; Oliver Kent Lynch, Judge.
Nathan R. Coleman, of Coleman Law Office, LLC, of Galena, for appellant. Kristafer R. Ailslieger, deputy solicitor general, and Clay Britton, assistant solicitor general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Benjamin Burdick appeals after he was convicted of manufacture of a controlled substance; possession of ephedrine, pseudoephedrine, iodine, and red phosphorous; use of drug paraphernalia; possession of methamphetamine; and possession of drug paraphernalia. On appeal, Burdick raises multiple issues relating to his trial in the admission of evidence, the jury instructions, and the sufficiency of evidence. Burdick also contends that the district court abused its discretion in denying his motion for a new trial. Based on our review of the record, however, we find no reversible error. Thus, we affirm Burdick's convictions.
FACTS
On June 4, 2008, Officer Bethany Brooks and Detective Will Perryman were looking for Kyle Kirkland in reference to an unrelated criminal investigation. Kirkland's mother told the officers that that he might be at William Costner's house in Weir. When the officers arrived at Costner's house, he invited them inside. Upon entering the house, the officers detected an odor that they believed to be related to the manufacture of methamphetamine.
Detective Perryman thought he heard a noise coming from the south bedroom of the house. Costner said his daughter, Crystal Costner, and her boyfriend, Ben Burdick, had been staying in that bedroom for a couple of weeks. Detective Perryman then went into the bedroom to look for Kirkland. Although Kirkland was not there, Detective Perryman saw a mirror and a metal tin with white powder in it lying on the bedroom dresser.
Detective Perryman asked Costner about the white powder, and he said it was probably his daughter's makeup. Because Detective Perryman thought the powder was methamphetamine, he went out to his vehicle to get a field test kit. Upon completing a field test, Detective Perryman's suspicions that the white powder was methamphetamine were confirmed.
While in the kitchen with Costner, Officer Brooks noticed two large funnels and two large glass jars. She suspected that the tunnels and the jars might be related to the manufacture of methamphetamine. Officer Brooks also noticed a hose sticking out of a backpack that was sitting in the south bedroom. According to Officer Brooks, the hose was also something that is commonly used in the production of methamphetamine.
Detective Perryman told Costner he was securing the residence so he could apply for a search warrant. After reading Costner his Miranda rights, the officers agreed that they would not take him to jail if he showed them what was in his house. Costner told the officers that Burdick had left a “lye bed” at the house. He also pulled out two jars of chemicals and a beer can with cotton on top of it from behind the kitchen cabinets.
Costner opened the smoke alarm in his own bedroom and pulled out aluminum foil and powder that he said was methamphetamine. He then got smoking pipes from an air vent in a bedroom. Additionally, Costner pulled up the carpet near the living room under which there was a syringe.
Costner subsequently gave the officers a recorded statement, in which he stated that Burdick—with the assistance of Crystal Costner—manufactured methamphetamine twice in his house. Kansas Bureau of Investigation (KBI) Special Agent Christ Farris conducted a search of Costner's residence along with other officers. During the search, an envelope addressed to Burdick was found in the south bedroom. Agent Farris and the other officers also found various items related to the manufacture and use of methamphetamine, including a coffee filter with broken pills or tablets in it and a plastic bag containing a small piece of cotton, which were found in both the north and south bedrooms.
Later that day, Detective John Austin located Burdick in Pittsburg, where he was arrested. Burdick was ultimately charged in an amended complaint with one count each of manufacture of methamphetamine or, in the alternative, attempted manufacture of methamphetamine; possession of ephedrine, pseudoephedrine, iodine, and red phosphorous with intent to use the products to manufacture a controlled substance; use of drug paraphernalia; possession of methamphetamine; and possession of drug paraphernalia. Burdick entered a plea of not guilty.
Before trial, Burdick filed a motion in limine in which he requested that there be no mention of other crimes or civil wrongs he may have committed. The State, however, filed a motion requesting that the district court authorize the presentation of such evidence under K.S.A. 60–455. Specifically, the State argued that Burdick's prior manufacture of methamphetamine using the same method that was used in this case was admissible to prove plan, knowledge, intent, identity, absence of mistake and/or accident under K.S.A. 60–455(b). Nevertheless, the district court granted Burdick's motion in limine and found his prior convictions would be inadmissible at trial. Further, the district court denied the State's motion under K.S.A. 60–455 for admission of evidence of prior drug activities.
On March 4, 2009, following a 4–day trial, a jury convicted Burdick on all five charges. Burdick filed a motion for judgment of acquittal on March 18, 2009, arguing that the State had failed to prove that he manufactured methamphetamine on the date asserted in the amended complaint. Moreover, on April 17, 2009, Burdick filed a motion for a new trial, arguing that because Crystal Costner had entered a plea in her criminal case, she could now testify in his case. Following a hearing held on May 27, 2009, the district court denied both motions. Finally, on June 23, 2009, Burdick was sentenced to a total of 186 months in prison.
Analysis
Reasonable Doubt Instruction
On appeal, Burdick contends that he is entitled to a new trial because the reasonable doubt jury instruction given by the district court violated his constitutional rights. Recently, the Kansas Supreme Court clarified the “progression of analysis and corresponding standards of review on appeal” for instructional issues 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 [, 565,] 256 P.3d 801 (2011)cert. denied132 S.Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
As such, in reviewing a claim of erroneous jury instructions on appeal, this court must first determine the reviewability of the issue using an unlimited standard of review. See 295 Kan. 156, Syl. ¶ 1. Reviewability of jury instructions is defined in K.S.A. 22–3414(3). It states that a party cannot attempt to assign error to the giving or failure to give an instruction unless the party made the specific objection alleged on appeal before the jury retired to consider its verdict. However, even when a defendant failed to object to or request the instruction, this court can review the issue if the giving of or failure to give the instruction was clearly erroneous under K.S.A. 22–3414(3). See State v. Williams, 295 Kan. ––––, 286 P.3d 195, 202–03 (2012).
In the present case, Burdick not only failed to object to the reasonable doubt instruction, he actually requested the instruction that was given to the jury. Burdick attempts to frame this issue as one involving his constitutional rights in order to require this court to determine whether the giving of the instruction was clearly erroneous. But “characterizing the issue as a constitutional claim does not significantly advance” the procedural posture of Burdick's argument. “Even constitutional grounds for reversal are not properly before the appellate court for review if they are being asserted for the first time on appeal. [Citation omitted.]” Williams, 286 Kan. at 203.
“[A] defendant cannot challenge an instruction, even as clearly erroneous under K.S.A. 22–3414(3), when there has been on-the-record agreement to the wording of the instruction at trial.” State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012). Here, it is undisputed that the reasonable doubt instruction given by the district court was the one requested by Burdick. Furthermore, defense counsel did not object when asked specifically by the district court at the instructions conference whether Burdick objected to the instruction. Accordingly, we conclude that the instruction issue is not reviewable based on the invited error doctrine. See Peppers, 294 Kan. at 393.
Even if Burdick had not proposed the reasonable doubt instruction given to the jury in the present case, we do not find the language of the instruction to be erroneous. The reasonable doubt instruction requested by Burdick and given to the jury by the district court stated:
“The State has the burden to prove the defendant 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 any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Burdick argues that for the instruction to be proper, the italicized “any” should have been replaced with the word “each.” According to Burdick, a reasonable juror could have interpreted the instruction's use of the word “any” instead of “each” to mean that the jury could find Burdick guilty if it found evidence of only one of the elements of the crime beyond a reasonable doubt instead of having no reasonable doubt as to every single element. We disagree.
Burdick bases his argument on an unpublished opinion of a panel of this court, Miller v. State, No. 103,915, 2012 WL 401601 (Kan . App.2012) (unpublished opinion), petition for rev. and cross-petition for rev. filed February 22, 2012, and March 7, 2012. The Miller panel granted a defendant a new trial based on an erroneous reasonable doubt instruction. 2012 WL 401601, at *9. Unlike the present case, however, the reasonable doubt instruction in Miller transposed “each” and “any” in the version of PIK Crim.3d 52.02 in effect at that time. See PIK Crim.3d 52.02 (2004 Supp.). The result was that the “transposition turn[ed] proof beyond a reasonable doubt inside out and permit[ted] the State to convict with patently insufficient evidence.” 2012 WL 401601, at *2. The same is not true of the reasonable doubt instruction given in this case.
Here, the district court simply used “any” in both locations. This court has previously found in a published opinion that a reasonable doubt instruction identical to the one given in Burdick's case did not create reversible error. In State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233 rev. denied 278 Kan. 847 (2004), this court determined that use of the word “any” in both places was consistent and did not create ambiguity. In Beck, this court found that the instruction would not allow the jury to convict with only one element of the crime proven, especially considering the fact that the instruction on the elements of the crime stated that each of the elements had to be proved. 32 Kan.App.2d at 787–88.
The PIK Committee modified the reasonable doubt instruction in 2005, following this court's decision in Beck. See State v. Womelsdorf 47 Kan.App.2d 307, 334, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012. The modified version is the version Burdick argues on appeal should have been given at trial. Although the new version of PIK Crim.3d 52.02 clarifies reasonable doubt, it does not make the old version of the instruction bad law. In fact, the Kansas Supreme Court has held that the prior version of PIK Crim.3d 52.02—which is identical to the instruction given to the jury at Burdick's trial—accurately reflects the law of this state and properly advises the jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt. See State v. Clark, 261 Kan. 460, 475, 931 P.2d 664 (1997).
Additionally, in Womelsdorf this court considered a reasonable doubt instruction containing identical language to the one given in the present case and held that when considering the jury instructions as a whole—instead of isolating the language use in one instruction—the instructions were substantially correct. Although this court found that using the old version of the reasonable doubt instruction was not the best practice, the jury instructions properly advised the jury of the burden of proof and the presumption of innocence. 47 Kan.App.2d at 334.
Similarly, on the specific elements of each of the five individual counts in the present case, the jury was instructed that “[t]o establish this charge, each of the following claims must be proved.” (Emphasis added.) And the instructions properly advised the jury of each element required to be proven by the State beyond a reasonable doubt. Because the jurors were instructed that if they had a reasonable doubt as to the truth of any of the claims required to be proved by the State, they must find the defendant not guilty and because they were then instructed that they must find each of the elements of every crime, the reasonable doubt instruction as given properly advised the jury of the burden of proof and the presumption of innocence. We, therefore, conclude that it was not error for the district court to give the reasonable doubt instruction it gave to the jury in this case.
Evidence of Prior Crimes or Bad Acts
Burdick next contends that the district court erred in allowing the admission of evidence from a KBI agent who testified about interviewing inmate Robert Allen. The agent testified that Allen told him that Burdick admitted to having “a couple of meth labs around Cherokee County” and to being responsible for the evidence found at Costner's house. On appeal, Burdick argues that the agent's testimony was admitted in violation of the district court's order in limine excluding evidence of prior crimes.
When a district court grants an order in limine and the prohibited evidence is introduced at trial, the moving party must object at trial to the admission of the evidence to preserve the issue for appeal. State v. Fewell, 286 Kan. 370, 391, 184 P.3d 903 (2008). “[A] party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.” State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). Furthermore, “[a] verdict or finding shall not be set aside ... by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” K.S.A. 60–404.
During Burdick's trial, his attorney objected to the agent's testimony on hearsay grounds, and the district court allowed the agent to testify over defense counsel's continuing objection. But there was no other objection preserved. See State v. Carapezza, 286 Kan. 992, 1002, 191 P.3d 256 (2008) (finding defendant who objected to evidence only on hearsay grounds failed to preserve for appeal admissibility of the evidence under K.S.A. 60–455). Accordingly, we conclude that Burdick did not preserve this issue for appeal.
Sufficiency of Evidence
Burdick further contends that the State failed to prove he manufactured methamphetamine “on or about” June 4, 2008. When the sufficiency of evidence is challenged in a criminal case, we review all the evidence in a light most favorable to the prosecution in order to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–375, 277 P.3d 1091 (2012).
Here, the amended complaint charged Burdick with manufacturing methamphetamine “on or about the 4th day of June, 2008,” Likewise, the jury instruction on the charge of manufacturing methamphetamine required that the jury find that the act occurred “on or about the 4th day of June, 2008.” At trial, Costner testified that Burdick cooked methamphetamine a “couple” of times at his house—once about a month before June 4, 2008, and another time about a week or two weeks before June 4, 2008, date.
Burdick candidly acknowledges:
“In Kansas, it is not necessary for the State to prove the exact date upon which an offense was committed, but it is sufficient if the State establishes that the offense charged was committed on or about the date alleged in the information, and within the statutory period of limitations next preceding the commencement of the prosecution. [Citations omitted.]” State v. Smith, 232 Kan. 128, 134, 652 P.2d 703 (1982).
But Burdick argues that in Smith the Kansas Supreme Court only found that the State had proved the alleged offense occurred “on or about” the date alleged in the complaint because there was evidence that the crimes occurred 4 days before or 4 days after the dates alleged in the complaint. 232 Kan. at 134. Hence, Burdick contends that the evidence presented at his trial was insufficient because the testimony was that methamphetamine was manufactured more than 4 days before the date alleged in the complaint.
As the Kansas Supreme Court has also found:
“Generally, the exact date that an offense was allegedly committed is not an element of the crime. This court has held where a defendant is not misled or prejudiced in making his or her defense by the allegation of when the crime occurred, a conviction may properly follow upon sufficient proof that the crime was committed at any time within the period of the statute of limitations. [Citations omitted.]” State v. Colston, 290 Kan, 952, 963, 235 P.3d 1234 (2010).
Viewing the evidence presented at trial in the light most favorable to the State, Burdick manufactured methamphetamine a week before June 4, 2009. Further, when the officers arrived at Costner's residence on June 4, 2008, they smelled the odor of and found evidence of methamphetamine manufacture. Thus, we conclude that there was sufficient evidence to support Burdick's conviction of manufacturing methamphetamine on or about June 4, 2009.
Motion for New Trial
Finally, Burdick contends the district court abused its discretion in denying his motion for a new trial based on newly discovered evidence. Specifically, Burdick argues that he should have been granted a new trial because Crystal Costner had entered a plea in her case and was now in a position to testify at his trial.
We review a district court's decision on a motion for new trial for an abuse of discretion. See State v. Warrior, 294 Kan. 484, 510, 277 P.3d 1111 (2012). A judicial action constitutes an abuse of discretion if the action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
“The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice.” K.S.A.2011 Supp. 22–3501. To establish the right to a new trial based upon newly discovered evidence, a criminal defendant must establish; (1) the newly proffered evidence could not have been produced at trial with reasonable diligence and (2) the newly discovered evidence is of such materiality that a reasonable probability exists that it would produce a different result upon retrial. State v. Fulton, 292 Kan. 642, 649, 256 P.3d 838 (2011).
Here, the district court denied Burdick's motion because he failed to show that evidence was newly discovered or previously unavailable to him. The district court also found Burdick had failed to show that what Crystal Costner might testify to would be helpful to his defense. Although it may be true that once Costner entered a plea in her case she would no longer risk self-incrimination if she testified in Burdick's case, Burdick offered nothing in his motion for a new trial to show that there was newly discovered evidence or that it would likely produce a different result upon retrial. Rather, Burdick offers nothing but speculation. We, therefore, conclude that the district court did not abuse its discretion in denying Burdick's motion for a new trial.
Affirmed.