Opinion
No. 109,351.
2014-01-31
STATE of Kansas, Appellee, v. Rondall W. MASSENGALE, Appellant.
Where, as here, the other crimes evidence wasn't discussed in the district court and the absence of a limiting instruction has come up for the first time on appeal, I agree that the failure to give an instruction should be reviewed under a clearly erroneous standard. There was no clear error infecting the jury's verdict on the habitual violator offense. The State offered unrebutted circumstantial evidence Massengale knew he had been declared a habitual violator and his driving privileges terminated. The records introduced at trial showed the Department of Revenue sent notice to the address Massengale had furnished the agency. And Massengale offered no evidence he failed to receive the notice. See State v. Lewis, 263 Kan. 843, 858–59, 953 P.2d 1016 (1998). Accordingly, we have no reason to surmise either that the jurors were considering an acquittal for lack of notice or that the bit of Mieries' testimony mentioning the other charges—about which Massengale now complains—would have been decisive in their verdict to convict.[