Opinion
No. 106,313.
2012-10-19
STATE of Kansas, Appellee, v. Kenthia Andrea RHYNE, Appellant.
Appeal from Riley District Court; David L. Stutzman Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Bethany C. Fields, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Riley District Court; David L. Stutzman Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Bethany C. Fields, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kenthia Andrea Rhyne appeals her convictions of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and unlawful use of a communication facility to facilitate a felony. Rhyne claims: (1) The district court erred by failing to instruct the jury on lesser included offenses; (2) the district court erred by failing to instruct the jury on the definition of “use” in regards to unlawful use of a communication facility; (3) there was insufficient evidence to support a conviction of unlawful use of a communication facility; (4) the district court erred by failing to give a limiting jury instruction regarding certain evidence; (5) the district court violated her constitutional rights by conducting an off-the-record, in-chambers proceeding regarding a question from the deliberating jury; and (6) cumulative error denied her a fair trial. We agree with Rhyne that there was insufficient evidence to support a conviction of unlawful use of a communication facility. Thus, we reverse her conviction and vacate her sentence for that count. On all the remaining issues, we affirm the district court's judgment.
Late in the evening of June 24, 2010, Officers Adam Peterson and Brandon Tapp of the Riley County Police Department were on duty and patrolling in an unmarked vehicle. It was the weekend of the Country Stampede, so when Peterson saw a car with a Geary County license plate pull out of a motel parking lot, he thought it odd that someone from neighboring Geary County would pay the highly inflated hotel prices instead of driving home for the night. Peterson observed that a female was driving the car and a male was in the passenger's seat. After running the registration through dispatch, Peterson learned that the car was registered to Rhyne.
Peterson and Tapp followed Rhyne's car as it took a circuitous route from the parking lot shared by America's Best Value Inn and the Regency Inn to the parking lot of a Super 8 motel. At the Super 8 Motel, the passenger went inside for a few moments, then returned to the car. After stopping briefly at a gas station, the car drove to another gas station, where the driver purchased gas. Believing that the vehicle's occupants knew they were being followed, Peterson and Tapp did not follow the car from the gas station. After losing sight of the car for approximately 5 to 7 minutes, Peterson and Tapp found the car parked in the shared parking lot where they had first seen it.
After relocating the car, Peterson and Tapp asked Officer Curt Steel, a K–9 officer, to come to the parking lot with Rocket, his certified drug-sniffing dog. Steel arrived around midnight and deployed Rocket around three cars, and Rocket alerted on Rhyne's car. Peterson and Tapp began checking the area for the people they had seen earlier in the car. A man, later identified as Charles Woods, who looked similar to the passenger in the car earlier, approached the car and opened the door. About the same time, the officers discovered that Rhyne was registered in room 160 and went to that room.
Rocket alerted outside of room 160, and when Peterson knocked on the door, Rhyne answered and consented to a search of the room. Steel and Rocket searched the room, and Rocket pulled Steel to the nightstand between the two beds, where Steel saw a plastic baggie containing 12 individually packed smaller bags of marijuana. In the nightstand, Steel also found a small bag of crack cocaine. On top of the nightstand, Steel found two cell phones, one belonging to Rhyne and the other presumably to Woods; a receipt for Rhyne renting the motel room; Rhyne's purse, which contained Woods' social security card; and a package of cigarettes.
Steel examined the cell phones and photographed some of the text messages. The messages received on Rhyne's phone included the following: “Im givin it back that's not 100 Worth [ sic ]” “Ask black he still got me I got a check from my sugar daddy today I got him monday,” “Do u wnt to buy 100 In stamps [ sic ],” and “Did u ask him [ sic ].” The messages were dated received on June 10 and June 12, 2010. The text messages on the other cell phone included a message that said, “This blac tring to blow this loud pack wit ya call bac im in the hatt [ sic ],” and received messages that said, “Got a deal fo u can I get 50 Dollars give u 100 On rues nd it bad [ sic ],” “Im going to Oklahoma city n a few can u sell me sumtig for da road? I'M NOT DRIVIN [ sic ],” “K im done how much longer u gonna b? And imma need some green too [sic],” “Need a 30,” and “Need a bag.”
As a result of these events, the State charged Rhyne with one count of possession of cocaine with intent to distribute, one count of possession of marijuana with intent to distribute, and one count of unlawful use of a communication facility to facilitate a felony. The jury trial commenced on November 9, 2010. Peterson and Steel testified for the State. The State also introduced into evidence the photographs of the text messages, and Steel testified extensively as to the content of the text messages and his belief that the text messages were related to drug transactions. Steel also testified that, in his opinion, both the marijuana and the crack cocaine were possessed with intent to distribute, based upon the way the marijuana was packaged and the fact that no paraphernalia was found in the room, thus undermining the belief that the drugs were for personal use.
Bradley Crow, the forensic scientist who tested the drugs, and Riley County Police Department Sergeant Daryl Lee Ascher also testified for the State. Ascher testified that based on his experience, which included time spent in an undercover narcotics unit, he believed that both the marijuana and the cocaine were possessed with the intent to distribute. Ascher testified about the text messages and stated that he interpreted them to be related to selling and buying drugs. Rhyne did not present any evidence, instead relying on the argument that she had been set up by Woods, who was the drug dealer.
The jury found Rhyne guilty as charged. The district court sentenced Rhyne to 30 months' imprisonment on the conviction of possession of cocaine with intent to distribute and 15 months' imprisonment on the conviction of possession of marijuana with intent to distribute, with the sentences on those counts to run concurrently. Finally, for the conviction of unlawful use of a communication facility, the district court sentenced Rhyne to 8 months' imprisonment, to run consecutively to the cocaine conviction. Rhyne timely appealed her convictions.
Failure to Instruct the Jury on Lesser Included Offenses
Rhyne argues that the district court erred by failing to instruct the jury on the lesser included offenses of simple possession of cocaine and marijuana, contending that the jury probably would have convicted her of the lesser included offenses had the jury been given the option. The State argues that this was invited error because Rhyne specifically denied the district court's inquiry about giving lesser included offense jury instructions. Moreover, the State asserts that there was no evidence to support the lesser included offenses; therefore, the failure to give the instructions was not error.
Rhyne admits that she did not request the lesser included offense instructions at trial. If a defendant does not object to the district court's failure to give an instruction on lesser included offenses, an appellate court applies a clearly erroneous standard of review. State v. Gatlin, 292 Kan. 372, 375–76, 253 P.3d 357 (2011). “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.’ [Citation omitted.]” State v. Magallanez, 290 Kan. 906, 918–19, 235 P.3d 460 (2010).
During the jury instruction conference, the following colloquy occurred:
“THE COURT: ... I did not include any lessers. It seems to me that the only potential lesser would be possession on those two counts. In the Court's view, the State's case has been exclusively directed toward excluding the possibility of possession as a lesser and it seems to me therefore—I don't know. I'll throw it out there. But that's been the focus of it and there's not a lesser stated, but I will hear from the parties if you think that that should or should not be there.
“MS. LEWISON [the prosecutor]: I've debated on the cocaine charge, whether a lesser should be given. I think I'm just not going to request it at this point.
“THE COURT: Ms. Seaton?
“MS. SEATON [defense counsel]: I'm not requesting lessers.”
As the above excerpt shows, the judge invited the parties to argue for lesser included jury instructions, and Rhyne's counsel stated, “I'm not requesting lessers.” Our Supreme Court has applied the invited error doctrine where a district court offered to instruct on a lesser included offense and the defendant successfully argued that the district court should not do so. See, i.e., State v. Angelo, 287 Kan. 262, 279–80, 197 P.3d 337 (2008). This court has also found the doctrine applicable when a defendant declined a lesser included offense instruction even without positive argument against the instruction. See State v. Hernandez, 44 Kan.App.2d 524, 527–28, 239 P.3d 103 (2010), rev. denied 294 Kan. –––– (June 13, 2012) (applying invited error doctrine where defendant declined such an instruction when asked by the district court); State v. Gage, No. 102,709, 2011 WL 767843, at *4 (Kan.App.2011) (unpublished opinion), petition for rev. filed March 21, 2011 (applying invited error doctrine where, when discussing lesser included offense instructions, defense counsel stated, ‘ “Your honor, if I was seeking a lesser, I would have asked for it.’ ”). We agree with the State that Rhyne invited any error that the district court may have committed by failing to instruct the jury on lesser offenses.
In any event, the district court's failure to give lesser included offense jury instructions was not clearly erroneous. The evidence was overwhelming that Rhyne possessed the drugs with intent to distribute them. This evidence included the text messages, the way the marijuana was packaged, and the fact that no paraphernalia indicating personal use was found in the room. Furthermore, Steel and Ascher testified that based on their extensive experience, the drugs were possessed with the intent to distribute. Rhyne presented no direct evidence to the contrary and, in fact, she argued that she had been set up by Woods, who was the drug dealer. We are not firmly convinced there is a real possibility that the jury would have rendered a different verdict if the lesser included offense jury instructions had been given by the district court.
Sufficiency of the Evidence to Support a Conviction of Unlawful Use of a Communication Facility
Rhyne also argues that there was insufficient evidence to support her conviction of unlawful use of a communication facility. Specifically, Rhyne argues that there was no evidence showing that she used a communication facility in Riley County on the date alleged by the State.
“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ “ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
The jury instruction on the crime of unlawful use of a communication facility stated:
“To establish this charge, each of the following claims must be proved:
“1. That the Defendant intentionally used a phone in facilitating the actual commission of Possession with Intent to Distribute Marijuana; and
“2. That this act occurred on or about the 10th day of June, 2010, in Riley County, Kansas.
“Facilitate means to aid, assist, or make easier fulfillment of a goal.
“The elements of Possession with Intent to Distribute Marijuana are set forth in Instruction No. 5.”
Rhyne contends that the State did not present sufficient evidence to show that she used a communication facility in Riley County on June 10, 2010. In support, Rhyne cites State v. Price, No. 92,012, 2005 WL 823912 (Kan.App.) (unpublished opinion), rev. denied 280 Kan. 989 (2005). In Price, Denise Mullins called the defendant's residence and solicited drugs. Approximately 10 to 15 minutes later, the defendant arrived at Mullins' apartment, located in Atchison County, and exchanged a bag of marijuana for money. An Atchison County jury convicted the defendant of multiple crimes, including use of a communication facility to arrange a sale of a controlled substance. 2005 WL 823912, at *1. On appeal, among other issues, the defendant argued that the evidence was insufficient to convict him of the charge of unlawful use of a communication facility to arrange a drug sale because there was no evidence to show that he used a telephone in Atchison County. This court pointed out that although the evidence showed that the defendant used a telephone in his residence to arrange a drug sale, there was no evidence that the defendant's residence was located in Atchison County. 2005 WL 823912, at *3. Moreover, the fact that the defendant arrived at Mullins' apartment in Atchison County within a short time of the phone call was insufficient to establish that the defendant's residence was in the same county as Mullins' apartment. 2005 WL 823912, at *3. Accordingly, this court reversed the conviction of unlawful use of a communication facility to arrange a drug sale.
Similarly, Rhyne argues that the State presented no evidence that she was in Riley County when any of the text messages upon which this charge rests were sent to her. The State argues the opposite, pointing to evidence that someone drove Rhyne's vehicle in Manhattan, Kansas, which is in Riley County; the vehicle was parked at a motel in Manhattan; and Rhyne was in the motel room. All of this evidence undeniably supports a contention that Rhyne was in Riley County in the late evening of June 24 and the early morning hours of June 25, 2010. However, the evidence does not support a finding that either Rhyne or her cell phone was in Riley County on or about June 10, 2010, as required by the jury instruction for this offense. Accordingly, we reverse Rhyne's conviction of unlawful use of a communication facility, and we vacate her sentence for that count. Because we are reversing the conviction based on insufficient evidence, it is unnecessary to address Rhyne's argument that the district court erred by failing to instruct the jury on the definition of “use” in regards to unlawful use of a communication facility.
Failure to Provide a Limiting Instruction
Next, Rhyne argues that the district court erred in failing to provide a limiting instruction regarding her prior bad acts as alleged in the text messages received on her phone. Rhyne contends that the State introduced the text messages as evidence of the prior bad act of drug dealing and that the jury was improperly prejudiced due to the district court's failure to give an instruction limiting consideration of the text messages to a proper purpose. In response, the State argues that the district court did not need to give a limiting instruction because the text messages were circumstantial evidence of the crimes with which Rhyne was charged.
Rhyne concedes that she did not object on K.S.A. 60–455 grounds to the admission of the evidence about the text messages; she argues only that the district court erred in failing to give a limiting instruction. Our Supreme Court has allowed this issue to be raised as an instructional error even when the defendant fails to object to the evidence at trial. See, i.e., State v. Holman, 295 Kan. ––––, Syl. ¶ 3, 284 P.3d 251 (August 24, 2012). Rhyne admits that because she did not request a limiting instruction at trial, this court applies a clearly erroneous standard of review. See State v.. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009).
We find no merit to Rhyne's claim that the district court erred by failing to give a limiting instruction concerning the admission of the evidence about the text messages. Our Supreme Court has ruled in State v. Adams, 294 Kan. 171, 184, 273 P.3d 718 (2012), that K.S.A. 60–455 applies to evidence that “ ‘the person committed another crime or civil wrong on another specified occasion.’ (Emphasis added.)” Hence, by its plain language, K.S.A. 60–455 does not apply to a circumstance involving the same occurrence. The evidence concerning the text messages was offered to prove an essential element of the crime of unlawful use of a communication facility. This evidence was not admitted to prove, nor did it show, that Rhyne had a propensity to commit the crime because she committed similar crimes on other occasions. We conclude that the district court's failure to give a limiting instruction was not clearly erroneous.
Question from the Jury
Next, Rhyne claims the district court violated her constitutional rights by conducting an off-the-record, in-chambers proceeding regarding a question from the deliberating jury. During deliberations, the jury sent out a note that asked the district court to define intent and also asked: “What is the time table of the intent of distribution[, s]uch as would the distribution need to occur that night[?]” The answer, written on the back of the same paper, stated: “I cannot give you a further definition of intent,” and “The State must prove that the possession with intent to distribute occurred on or about the date charged.” The transcript of the jury trial records this occurrence only through a notation that reads: “Question from the jury handled in chambers between counsel and the Court off the record.”
Rhyne argues that she was not present for the referenced discussion and that the district court violated her constitutional right to be present at every critical stage of the proceedings. Further, Rhyne argues that the procedure followed here violated her constitutional right to a public trial because the discussion took place in chambers.
Rhyne is raising this issue for the first time on appeal. “Generally, issues not raised before the trial court cannot be raised on appeal.” State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). However, appellate courts have addressed similar issues for the first time on appeal because the issue involves fundamental rights and is purely a question of law. See State v. Ulate, 42 Kan.App.2d 971, 982–83, 219 P.3d 841 (2009), rev. denied 291 Kan. 917 (2010) (recognizing right to public trial as a fundamental right and addressing it for the first time on appeal); State v. Bell, 266 Kan. 896, 918–20, 975 P.2d 239,cert. denied528 U.S. 905 (1999) (addressing for the first time on appeal the defendant's right to be present when the court is answering a question from a deliberating jury). The right to be present at every critical stage of the proceedings
Rhyne contends that she was denied her right under the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to be present at every critical stage of the proceedings. “A claim that a defendant was deprived of [her] statutory and constitutional right to be present during a portion of [her] trial raises legal questions that are subject to unlimited review on appeal. [Citation omitted.]” Martinez, 288 Kan. at 449.
K.S.A. 22–3405(1) states that a defendant in a felony case “shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” Further, our Supreme Court has stated:
“We have interpreted K.S.A. 22–3405(1) to mean that ‘a felony defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant's presence is essential to a fair and just determination of a substantial issue. The statutory command of K.S.A. 22–3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution that a criminal defendant be present at any critical stage of the proceedings against him or her.’ [Citation omitted.]” Martinez, 288 Kan. at 449–50.
The State first asserts that the record does not affirmatively state that Rhyne was not present; therefore, Rhyne has not shown that she was not present, and this court should decline to address the issue. We disagree. Here, although it is not explicitly recorded whether Rhyne was present for the discussion in chambers, we will proceed on the assumption that she was not present. See State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006) (“Where the record does not affirmatively reflect the presence of the defendant, this court will presume that the defendant's constitutional right to be present was violated....”).
The facts herein are similar to the facts in Bell where the jury sent a written question to the district court during deliberations and the court, after consulting with both the prosecuting and defense attorneys, sent the jury a supplemental written response. In Bell our Supreme Court determined that this procedure violated the defendant's right to be present at every critical stage of the proceedings. 266 Kan. at 918–20. The Bell court was not clear whether the right was violated merely because the district court delivered the written response to the jury's question outside the presence of the defendant or also because the decision about how to answer the question occurred without the defendant. In any event, the Supreme Court determined that the violation was subject to the harmless error rule. 266 Kan. at 920. The court noted that the trial court's written response accurately stated the law and placed no undue emphasis on the defendant's guilt or innocence. As a result, the court concluded beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. 266 Kan. at 920.
Here, there was no reasonable possibility that Rhyne's absence from the discussion regarding the jury question contributed to the verdict. Rhyne does not argue that the substance of the answer was incorrect in any way, and the answer does not misstate the law or the evidence. Also, the answer does not place any emphasis on Rhyne's guilt. If anything, the answer merely reiterated information already given in the jury instructions. Rhyne does not explain how her presence during the discussion between the district court and counsel would have changed the district court's answer to the jury question. We conclude beyond a reasonable doubt that the error complained of did not contribute to the verdict. See State v. Ward, 292 Kan. 541, 568–69, 256 P.3d 801 (2011), cert. denied 1325 S.Ct. 1594(2012). Right to public trial
Next, Rhyne argues summarily that the district court's procedure of conducting the conference on the jury question in chambers violated her Sixth Amendment right to a public trial. The determination of whether a defendant's Sixth Amendment right to a public trial was violated is a question of law over which an appellate court has unlimited review. State v. Dixon, 279 Kan. 563, 596, 112 P.3d 883 (2005), disapproved on other grounds by State v. Wright, 290 Kan. 194, 206, 224 P.3d 1159 (2010). Rhyne correctly states that a violation of the right to a public trial is generally considered a structural error and is thus not subject to harmless error review. See Waller v. Georgia, 467 U.S. 39, 49–50, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).
Rhyne compares her situation to that which occurred in Dixon, but the cases are easily distinguishable. Dixon addressed the propriety of closing a courtroom to the public for a reading of a verdict. In Dixon, the courtroom was closed to the public even while the jury, the defendant, the counsel, and the judge were present in the courtroom conducting trial proceedings. Here, the only portion of the proceedings arguably closed to the public was the discussion in chambers between the judge and counsel regarding how to answer the jury's question. The courtroom was never closed to the public during any time that Rhyne and the jury were present in the courtroom conducting trial proceedings. Furthermore, we find it significant that the jury's written question and the judge's written response were ultimately filed with the district court and included as part of the public record of Rhyne's trial proceedings.
Rhyne cites no direct authority to support her contention that an in-chambers discussion of a jury question between the district court and counsel violates the defendant's right to a public trial. To the contrary, courts in other jurisdictions have held that nonevidentiary hearings that do not involve factfinding that are conducted in chambers do not violate the defendant's right to a public trial. See, e.g., United States v. Norris, 780 F.2d 1207, 1209–11 (5th Cir.1986) (finding that a routine evidentiary hearing that dealt only with application of legal principles and not factfinding or determination of guilt did not implicate the right to a public trial); State v. Pullen, 266 A.2d 222, 227–28 (Me.1970), overruled on other grounds by State v. Brewer, 505 A.2d 774, 777–78 (Me.1985) (finding that although the better practice would be to conduct the proceedings in open court in the absence of the jury, defendant's right to public trial held not violated where motion for judgment of acquittal was heard in chambers, with defendant absent when issued involved was which was solely a question of law). We conclude that the in-chambers discussion of the jury question between the district court and counsel did not violate Rhyne's constitutional right to a public trial.
Cumulative Error
Finally, Rhyne argues that cumulative error denied her a fair trial. Even if an individual error is insufficient to support reversal, the cumulative effect of multiple errors may be so great as to require reversal. The test is “ ‘whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010). Further, “[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). A single error cannot constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).
Here, we are reversing Rhyne's conviction of unlawful use of a communication facility because of insufficient evidence. The only other error concerned the manner in which the district court responded to the jury question, and we have found that error to be harmless. Accordingly, because only one of Rhyne's claims was found to be harmless error, her claim of cumulative error fails.
Affirmed in part, reversed in part, and vacated in part.