Opinion
No. 109,624.
2015-01-16
STATE of Kansas, Appellee, v. Ricky Eugene ROLAND, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.Heather Cessna, of Kansas Appellate Defender Office, for appellant.Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
LEBEN, J.
After a bright yellow truck crossed the median on a divided highway and struck Dana Webber's minivan head on, the yellow truck left the scene of the accident and drove into a mobile-home park. Police later found Ricky Eugene Roland in the mobile-home park, passed out behind the wheel of a yellow truck, and a jury convicted him of possession of methamphetamine, possession of drug paraphernalia, driving under the influence of alcohol (DUI), failure to report an accident, and leaving the scene of an accident. We will briefly summarize Roland's arguments and our rulings before we address each issue in detail.
On appeal, Roland argues that the admission of a lab report at his trial violated his right to confront witnesses because the witness available for cross-examination about the report had not performed the testing—she had only supervised a trainee who performed the testing and wrote up the lab report. See Bullcoming v. New Mexico, 564 U.S. ––––, 131 S.Ct. 2705, 2709, 2713–15, 180 L.Ed.2d 610 (2011) (holding that the surrogate testimony of a lab analyst who was familiar with the laboratory procedures but had not completed the testing on the defendant's sample violated the defendant's rights under the Confrontation Clause). But the supervisor's testimony here was sufficient: she had personally observed the readouts on the testing equipment and signed and certified the lab report based on her own observations and conclusions.
Roland also contends that the jury did not have sufficient evidence to support his conviction for failure to report an accident because the State had to prove both that Webber was injured and that her vehicle sustained at least $1,000 in damage while the evidence showed only that Webber was injured. But the jury instruction on failure to report an accident merely told the jury that either injury or damage creates an accident serious enough to warrant notifying the police; it did not create alternative means of failing to report an accident, which would have required the State to prove each means. Even if this case presented an alternative-means choice, the jury had sufficient evidence of both means—Webber was injured and Webber's 2007 Sienna XLE minivan was totaled. The jury could reasonably conclude that the van was worth at least $1,000.
Roland also claims that the prosecutor committed misconduct when he told the jury that Weber's vehicle had been “totaled” and that it was “apparent” that the damage to her vehicle was valued at $1,000 or more. But the prosecutor's comments were squarely based on the evidence; Webber testified about the make of the vehicle and that it was totaled. Based on this evidence, the prosecutor reasonably asked the jury to infer that it sustained $1,000 in damage.
Roland raises two issues regarding the district court's communications with the jury. First, he claims that the district court wrongly told the jury that drug paraphernalia “includes” glass pipes, giving it no choice but to convict him of possession of drug paraphernalia for a glass pipe the police found in his pocket. But the court also gave the jury a series of factors to use in deciding whether any object is drug paraphernalia, so the instruction as a whole fairly told the jury what it had to decide. His second argument is that the district court violated his constitutional and statutory rights when it provided a written response to a jury question instead of reading its response in open court. The Kansas Supreme Court has held that questions from the jury concerning the law or evidence pertaining to the case must be answered in open court (unless the defendant is voluntarily absent) based on the defendant's right to be present under the Sixth Amendment to the United States Constitution, K.S.A. 22–3420(3), and K.S.A. 22–3405(1). State v. Verser, 299 Kan. 776, 788, 326 P.3d 1046 (2014). In this case, however, the district court's written response was harmless error because the response was not substantive, Roland failed to object to it at trial or pursue any posttrial remedies regarding it, and the State presented substantial evidence against him.
Roland's final argument is that the district court should have considered community service as a payment option for the $1,000 fine it imposed for his DUI conviction. Sentencing courts are required to consider community service as a payment option for DUI fines under State v. Copes, 290 Kan. 209, 223, 224 P.3d 571 (2010). The State concedes that the district court did not do so here. Accordingly, we affirm Roland's convictions but remand the case so that the district court can consider Roland's financial resources and the nature of the burden that monetary payment will impose.
Factual and Procedural Background
After a car accident on June 18, 2011, the State charged Ricky Eugene Roland with possession of methamphetamine, possession of drug paraphernalia, DUI, failure to report an accident, and leaving the scene of an accident. At Roland's jury trial, Dana Webber described the accident. She told the jury that she had been driving south in her 2007 Toyota Sienna XLE minivan on a divided roadway with a median separating the northbound and southbound lanes. She said she had noticed a “really bright” yellow pickup truck going north and then looked away at the speed-limit sign because she knew the speed limit was changing. When she looked back at the road, she saw the yellow truck right in front of her. Webber braked, but the front end of her minivan hit the passenger side of the yellow truck as it turned west in front of her. Her airbag deployed, and her seatbelt locked, which hurt her chest at the time. Webber called 911 and was taken to the hospital by ambulance. Her van was “totaled completely.”
The yellow truck did not stop after the accident, and two cars followed it from the scene. The passenger in one of the cars had seen the accident, and the people in the other car had heard it. None of the people in the cars were able to get the truck's license-plate number, but they called 911 and reported the truck's whereabouts to the emergency dispatchers until it turned into a mobile-home park on Ridgeview Drive.
Corporal Scott Wanamaker began looking for a yellow truck at the mobile-home park, and while he was searching, he received notice that Janet Roland, who lived in the park, had called the police and asked them to remove her estranged husband—who was sitting outside her home in his yellow truck—from her property. When Corporal Wanamaker arrived at Janet's house, he found Ricky Roland “passed out behind the wheel” of a yellow Chevy truck that was damaged on the passenger side. Roland's keys were in his lap, and Corporal Wanamaker was unable to wake him.
Deputy Nick Custenborder arrived next, and he asked Roland to get out of the truck at least 10 times. Custenborder said that Roland smelled of alcohol, had droopy, bloodshot eyes, and needed assistance to keep from falling when he finally got out of the truck. Custenborder asked Roland to complete field-sobriety tests, but Roland made no response about the tests and did not perform any. The officers arrested Roland and found a glass pipe in a pants pocket during a pat-down. Officers at the jail found a metal pill container in his pocket; it contained a white, crystal-like substance that the KBI later identified as methamphetamine
At Roland's trial, the State offered a lab report indicating that the substance from the pill container was methamphetamine. A KBI forensic scientist, Kamala Hinnergardt, testified that she had supervised a lab-technician trainee who tested the substance and wrote the report. Roland objected to the admission of the lab report, arguing that the person who performed the test must be present to testify under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Hinnergardt said she observed the trainee the entire time the substance was being tested, personally observed the readouts on the machines and test results, and relied on her own observations when reviewing and signing the trainee's lab report. Hinnergardt also signed a certificate of analysis stating that she had “analyzed the test results” and that the conclusions on the report were accurate. The court admitted the lab report over Roland's objection.
While the jury was deliberating, it asked the court a question: “Concerning Count 3[DUI], define circumstantial evidence, and can or how can we use it to determine guilt or innocence?” The court and the attorneys discussed the question in Roland's presence. Roland's attorney suggested that the court refer the jury to an instruction it had received earlier that told the jury to consider and weigh all evidence: “In your fact finding you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, admissions or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence.” The court then delivered a written answer to the jury: “The Court can only instruct that you consider each of the instructions already given in answering this question.”
The jury found Roland guilty of all five charges. He was sentenced to 11 months in prison for possession of methamphetamine and a consecutive 6 months in jail for the remaining four convictions, but the court only required that he serve 45 days in jail and gave him a chance to avoid the remainder of his sentence by successfully completing 18 months of probation with drug treatment. The court also imposed a $1,000 fine for the DUI conviction but did not inquire as to whether Roland could pay the fine or consider community service as a payment option.
Roland has appealed to this court.
Analysis
I. The Lab Report Did Not Violate Roland's Sixth Amendment Right to Confront Witnesses.
The Sixth Amendment to the United States Constitution provides defendants with the right to confront their accusers. U.S. Const. amend. 6 (“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”). As a practical matter, that right depends upon a defendant's ability—usually through an attorney—to cross-examine the witnesses who testify against him or her. State v. Jackson, 39 Kan.App.2d 89, 90, 177 P.3d 419 (2008). Here Roland argues that the admission of the lab report indicating the substance found in his pocket was methamphetamine violated his confrontation rights. The lab report was the only evidence indicating that the substance in his pocket was methamphetamine, and the lab-technician trainee who tested the substance was not available for cross-examination. Whether his confrontation rights have been violated is a question of law that we review independently, without any required deference to the district court. State v. Johnson, 297 Kan. 210, 224, 301 P.3d 287 (2013).
In Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that out-of-court testimonial statements cannot be introduced against a criminal defendant unless the person who made the statement is unavailable and the defendant has had a previous opportunity to cross-examine that person. See State v. Carr, 300 Kan. ––––, 331 P.3d 544, 643 (2014). Lab reports identifying substances as illegal drugs are testimonial and subject to Crawford 's cross-examination requirements when they are created to be used for a criminal prosecution. See Melendez–Diaz v. Massachusetts, 557 U.S. 305, 310–11, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); State v. Jones, 295 Kan. 1050, 1055, 288 P.3d 140 (2012); State v. Leshay, 289 Kan. 546, 549, 213 P.3d 1071 (2009). As a result, the State may not introduce lab reports without offering a live witness who can to testify to the truth of the statements in the report. See Bullcoming v. New Mexico, 564 U.S .––––, 131 S.Ct. 2705, 2714–15, 180 L.Ed.2d 610 (2011).
In Roland's case, a lab-technician trainee performed tests on the substance from Roland's pocket, and Hinnergardt—who observed the testing, relied on her own observations when reviewing the trainee's lab report, and signed and certified the lab report—testified at trial. Hinnergardt stated that she didn't rely on any information from the trainee during testing or when she verified the lab report:
“[Prosecutor:] [T]he trainee didn't do any of the testing in this case without you being there, is that correct?
“[Hinnergardt:] That is correct.
“[Prosecutor:] And, again, your report, State's Exhibit 22, that's based on your own personal observations?
“[Hinnergardt:] Yes.
“[Prosecutor:] You didn't rely on any information from the trainee in verifying that report?
“[Hinnergardt:] No.
“[Prosecutor:] And by that, I mean it wasn't an instance where for example the trainee was measuring the weight and she turned around and told you this is what the weight is, you wrote a note regarding that? Did something like that happen?
“[Hinnergardt:] No. I actually physically watched her and looked at the read out.”
Roland argues that under Bullcoming, 131 S.Ct. at 2715–16, Hinnergardt's testimony did not satisfy the Sixth Amendment confrontational requirements. In Bullcoming, the principal evidence against the defendant was a lab report certifying that his blood-alcohol level was above New Mexico's threshold for aggravated driving while intoxicated. For confrontation purposes, the prosecution called as a witness an analyst who was familiar with the laboratory's testing procedures but had not participated in or observed the test on the defendant's blood sample. The Court found that such “surrogate testimony” did not meet the confrontation requirements of the Sixth Amendment because it did not describe the particular testing process used on the defendant's blood sample or “expose any lapses or lies on the certifying analyst's part.” 131 S.Ct. at 2713, 2715.
Roland's case is distinguishable from Bullcoming because Hinnergardt had directly participated in the testing. See State v.. Harris, 729 S.E.2d 99, 105 (N.C.App.2012) (finding no Confrontation Clause violation when a trainee conducted forensic testing under the direct supervision of a supervisor and only the supervisor was available at trial), appeal dismissed, rev. denied 366 N.C. 409 (2012). Hinnergardt personally observed the readouts on the equipment and signed and certified the lab report, relying on her own observations when reviewing its conclusions. See Robertson v. Com., 61 Va.App. 554, 565, 738 S.E.2d 531 (2013) (finding no Confrontation Clause violation where one of two people “intimately involved” in the preparation of an exhibit was subject to cross-examination). She did not simply parrot someone else's results. Because Roland could cross-examine Hinnergardt about the particular testing process and “expose any lapses or lies” associated with the testing, his confrontation rights were not violated. Bullcoming, 131 S.Ct. at 2713, 2715.
Justice Sonia Sotomayor's concurring opinion in Bullcoming supports our conclusion. She emphasized the limited reach of the case, finding that the court had not decided whether testimony from a supervisor, reviewer, or someone with a connection to the scientific test would satisfy the confrontation requirement. 131 S.Ct. at 2722 (Sotomayor, J., concurring).
II. The State Presented Sufficient Evidence to Convict Roland of Failing to Report an Accident Because the Statute Defining the Offense and the Jury Instruction That Incorporates It Did Not Define Alternative Means of Committing the Offense.
K.S.A.2010 Supp. 8–1606(a) defines the crime of failure to report an accident and provides that a driver involved in an accident so serious that it causes either injuries or $1,000 in damage to property must report the accident to the police as quickly as possible:
“The driver of a vehicle involved in an accident resulting in injury to, great bodily harm to or death of any person or total damage to all property to an apparent extent of $1,000 or more shall give notice immediately of such accident, by the quickest means of communication, to the nearest office of a duly authorized police authority.”
Roland argues that the jury instruction on failing to report an accident in his case included alternative means of committing the offense—failing to report either an accident that resulted in injury or an accident that caused $1,000 or more in damage:
“The defendant is charged in Count 4 with failing to report an accident. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant drove a motor vehicle;
“2. That the defendant was involved in a motor vehicle accident;
“3. That the accident resulted in injury to another person, or total damage to all property to an apparent extent of $1,000 or more;
“4. That the defendant failed to immediately, by the quickest means of communication, notify the nearest office of police authority of the accident; and
“5. That this act occurred on or about the 18th day of June, 2011, in Shawnee County, Kansas.” (Emphasis added.)
Roland contends that the jury was instructed on alternative means of failure to report an accident but that the State failed to provide evidence that the accident caused damage of $1,000 or more. He notes that Webber only testified that her vehicle was “totaled” and that the State did not present the specific value of the damage to her vehicle. Thus, he contends that there was no evidence to support one of two alternative means of committing the offense and that his failure-to-report conviction must be reversed.
We find no error here for two reasons. First, in our understanding of the evolving caselaw on what constitutes alternative means, this is not an alternative-means case. Second, even if it were an alternative-means case, the jury does not have to agree on the way the crime was committed as long as sufficient evidence supports both of the alternative means. State v. Brooks, 298 Kan. 672, 677, 317 P.3d 54 (2014). That was the case here.
We begin with whether it was an alternative-means case at all. The term “alternative means” is a legal term of art. The legislature creates an alternative-means crime when it defines a crime with two or more alternative and distinct causation elements. State v. Brown, 295 Kan. 181, 199–200, 284 P.3d 977 (2012). But if the legislature merely lists alternatives that describe a material element or factual circumstances that would prove a crime, it has only listed options within a means, not created alternative means for committing the crime. Brooks, 298 Kan. at 678–79.
For example, in State v. Ahrens, 296 Kan. 151, 160–61, 290 P.3d 629 (2012), the Kansas Supreme Court considered the DUI statute, which provides that it is illegal to “operate or attempt to operate” a vehicle while under the influence of alcohol or drugs. The court noted that the crime of DUI has two primary elements—driving and simultaneously being under the influence. 296 Kan. at 160. It held that the phrase “operate or attempt to operate” merely described the factual circumstances that could establish the driving element and did not create alternative means of committing the crime. 296 Kan. at 160.
Additionally, in State v. De La Torre, 300 Kan. ––––, 331 P.3d 815, 826–27 (2014), the Kansas Supreme Court analyzed the child-abuse statute, K.S.A.2013 Supp. 21–5602, which provided that “[a]buse of a child is knowingly: (1)[t]orturing or cruelly beating any child ... (2) shaking any child ... which results in great bodily harm to the child; or (3) inflicting cruel and inhuman corporal punishment upon any child.” The court found that under the statute, the two elements of the crime were abuse and a child. It held that subsections (a)(1), (a)(2), and (a)(3)-torturing, shaking, and inflicting cruel and inhuman corporal punishment—were factual scenarios that could satisfy the abuse element. The subsections did not state additional and distinct ways of committing child abuse, and as a result, the child-abuse statute did not define an alternative-means crime.
Here the failure-to-report-an-accident statute similarly lists various factual scenarios that sufficiently prove one of the elements of the crime. Applying Ahrens and De La Torre, the elements of failure to report an accident are (1) being a driver, (2) being involved in an accident serious enough to trigger the reporting duty, and (3) failing to give notice of the accident to the police as quickly as possible. The phrase “injury ... or ... damage ... of [at least] $1,000” describes the factual circumstances that are serious enough to establish the required reporting element. Thus, K.S.A.2010 Supp. 8–1606(a) defines options within a means, not an alternative-means crime. Since Roland does not argue that the State lacked sufficient evidence that Webber was injured, that evidence is sufficient to support his conviction.
Even if this were a true alternative-means case—where a single offense may be committed in more than one way—the jury does not need to agree on the way the crime was committed as long as there is substantial evidence supporting each way (here, evidence of injury and of damage of at least $1,000). Brooks, 298 Kan. at 677. To determine whether the evidence is sufficient to support a conviction, we must view the evidence in a light most favorable to the State since the jury ruled in its favor. We then determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014).
The evidence showed that Webber owned a 2007 Siena XLE minivan and that the vehicle was totaled in June 2011. In addition, of course, we know that the van was in working condition when it was struck. Viewing that evidence in the light most favorable to the State, a rational factfinder could conclude beyond a reasonable doubt that the damage to the vehicle was at least $1,000. Thus, even if this were an alternative-means case, the evidence was sufficient to support the jury's verdict.
III. The Prosecutor's Comments About Damage to Webber's Car Were Not Outside the Wide Latitude Afforded Prosecutors When Discussing Evidence.
Roland also argues that that the prosecutor committed misconduct during closing argument. She says the prosecutor improperly commented on facts not in evidence when he said it was apparent that the accident resulted in a loss of property valued at $1,000 or more:
“As far as leaving the scene of an accident, we have a nice new Chevy Colorado with the damage on the side of the vehicle that you'll see in the photographs. We have the Sienna Toyota driven by Dana Webber that was totaled because of this accident. So it is apparent the property loss [was] of a thousand dollars or more. That's one of the elements. The other element is that the defendant was driving the vehicle here in Shawnee County, that the defendant left the scene of the accident which all the evidence tells you, and that the he didn't report the accident to the law enforcement; and there was no evidence ... that any other calls were made to the 911 center in reference to an accident on South Topeka Boulevard.” (Emphasis added.)
When reviewing allegations of prosecutorial misconduct involving improper statements to the jury, this court completes a two-step analysis. State v. Brown, 300 Kan. ––––, 331 P.3d 781, 792 (2014). First, it decides whether the statements were outside the wide latitude allowed the prosecutor in discussing evidence. Second, if misconduct has occurred, this court determines whether the improper comments constitute plain error—whether they prejudiced the jury against the defendant and denied the defendant a fair trial. 331 P.3d at 792.
Under the first step, prosecutors are not permitted to argue facts not in evidence. State v. Hall, 292 Kan. 841, 848, 257 P.3d 272 (2011). But prosecutors are permitted to draw reasonable inferences from the evidence: “ ‘A prosecutor “is given wide latitude in language and in manner [of] presentation of closing argument as long as the argument is consistent with the evidence.” ‘ “ Hall, 292 Kan. at 848 (quoting State v. Warledo, 286 Kan. 927, 947, 190 P.3d 937 [2008] ). Thus, it is not improper for prosecutors to suggest that the jury make reasonable inferences based on the evidence in the case. See, e.g., State v. Stano, 284 Kan. 126, 151–52, 159 P.3d 931 (2007) (prosecutor argued that a witness who stated she had seen someone try to open a car door really saw someone wiping down the car for fingerprints).
In Roland's case, the prosecutor asked the jury to make a reasonable inference based on the evidence in the case. He did not explicitly tell the jury that Webber's vehicle sustained $1,000 in damage. Instead, he reminded the jury that the 2007 van had been totaled and then asked the jury to infer that a totaled car sustains at least $1,000 in damage: “[I]t is apparent the property loss [totaled] a thousand dollars or more.” (Emphasis added.) See American Heritage Dictionary 85 (5th ed.2011) (stating that the word “apparent” means “[r]eadily understood; clear or obvious”). While it may not be true that every totaled vehicle sustains at least $1,000 in damage, the prosecutor was asking the jury to make an inference that was reasonable and consistent with the evidence in the case. Accordingly, his comment was not improper.
IV. The Drug–Paraphernalia Jury Instruction Fairly and Accurately Stated the Law.
Roland claims that the district court's jury instruction on drug paraphernalia misstated the law. He contends that the district court essentially directed the jury to conclude that the glass pipe found in his pocket was drug paraphernalia by stating in the instructions that drug paraphernalia includes glass pipes:
INSTRUCTION NO. 11
“The defendant is charged in Count 2 with the crime of unlawfully possessing with intent to use drug paraphernalia. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally possessed with intent to use a glass pipe as drug paraphernalia to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body methamphetamine; and
“2. That this act occurred on or about the 18th day of June, 2011, in Shawnee County, Kansas.
“INSTRUCTION NO. 12
“In determining whether an object is drug paraphernalia, you shall consider, in addition to all other logically relevant factors, the following:
“Statements by a person in control of the object concerning its use.
“The proximity of the object, in time and space, to a direct commission of a drug crime.
“The proximity of the object to controlled substances.
“The existence of any residue of controlled substances on the object.
“Any evidence that alleged paraphernalia can be or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia.
“INSTRUCTION NO. 13
“ ‘Drug Paraphernalia’ means all equipment, and materials of any kind which are used or primarily intended or designed for use in containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.
“ Drug paraphernalia includes glass pipes.” (Emphasis added.)
Roland argues that the language indicating that “[d]rug paraphernalia includes glass pipes” wrongly indicated that the jury didn't have to find beyond a reasonable doubt that the glass pipe was drug paraphernalia.
The district court's instruction was based on a pattern jury instruction recommended for use by the district courts. Recognizing that many items are listed by statute as possible items of drug paraphernalia, PIK Crim.3d 67.40 directed the district court to indicate to the jury which particular objects the State claimed in a given case to be drug paraphernalia: “ ‘Drug paraphernalia’ includes: (1) [insert specific item of paraphernalia].”
That language essentially mirrors part of the statute that tells us what items are deemed illegal drug paraphernalia. Many items are listed, including glass pipes: “ ‘Drug paraphernalia’ shall include, but is not limited to: ... objects used or primarily intended or designed for use in ingesting, inhaling or otherwise introducing ... methamphetamine ... into the human body, such as ... glass ... pipes.” K.S.A.2010 Supp. 21–36a01(f)(12)(A).
Roland contends that the instruction effectively told the jury that glass pipes constitute drug paraphernalia and kept it from deciding that question on its own. Roland cites State v. Brice, 276 Kan. 758, 771–75, 80 P.3d 1113 (2003), to support his argument. In Brice, our Supreme Court reversed a conviction because the jury was instructed that the term “great bodily harm”—which is an essential element of aggravated battery—meant a through-and-through bullet wound, like the wound the victim had received. 276 Kan. at 762, 773–75.
The State argues that instruction 12 eliminated any confusion by telling the jury that it must consider several factors, including whether there was any residue of controlled substances on the pipe.
Roland objected to the instructions at trial, so this court must determine whether the instruction fairly and accurately states the law, a question we consider independently, without any required deference to the district court. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012); State v. Acevedo, 49 Kan.App.2d 655, 664, 315 P.3d 261 (2013), rev. denied October 31, 2014. If the district court did err in giving the instruction, we must determine whether the error was harmless. Plummer, 295 Kan. at 162–63. We must look at the jury instructions as a whole rather than considering a single instruction in isolation. See State v. Ellmaker, 289 Kan. 1132, 1139–40, 221 P.3d 1105 (2009). Although instruction 13, by itself, would suggest that glass pipes are always considered drug paraphernalia, instruction 12 told the jury to consider specific factors—such as the proximity of the object to controlled substances—in deciding whether the glass pipe was drug paraphernalia.
The instruction would have been better had the court told the jury that drug paraphernalia “may include” glass pipes rather than that it “includes” them. When taken as a whole, however, the instructions told the jury that it must consider several factors in deciding whether any item constituted drug paraphernalia. We also note that our court previously held that pattern instructions saying drug paraphernalia “includes” or “shall include” certain items were not clearly erroneous. See State v. White, No. 109,953, 2014 WL 5312873, at *4–6 (Kan.App.2014) (unpublished opinion), petition for rev. filed November 10, 2014; State v. Bowser, No. 107,692, 2013 WL 1010579, at *1, 4 (Kan.App.2013) (unpublished opinion), petition for rev. placed on hold January 23, 2014; State v. Sisson, No. 106,580, 2013 WL 1688933, at *9 (Kan.App.) (unpublished opinion), rev. granted October 1, 2013; State v. Keel, No. 106,096, 2012 WL 4373012, at *4–5 (Kan.App.2012) (unpublished opinion), rev. granted 289 Kan. (2013); State v. Sophaphone, No. 102,472, 2010 WL 3324403, at *l–3 (Kan.App.) (unpublished opinion), rev. denied 291 Kan. 917 (2010). We conclude that the instructions fairly and accurately stated the law and did not keep the jury from deciding whether the glass pipe was drug paraphernalia.
Even if it had been an error for the district court to tell the jury that drug paraphernalia includes glass pipes, however, it would not have been a reversible error. To consider whether an error is reversible, an appellate court applies the harmless-error test set out in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594 (2012). Under that test, we must determine whether the error affected a party's substantial rights, i.e., whether there is a reasonable possibility that the error contributed to the jury's verdict. Ward, 292 Kan. at 565.
There is no reasonable possibility here that the phrase “drug paraphernalia includes glass pipes” contributed to the jury's verdict. (Emphasis added.) The jury heard evidence that the police found both the glass pipe and methamphetamine in Roland's pocket. Although glass pipes may have uses other than as drug paraphernalia, under the facts of this case—where the pipe was found in close proximity to a controlled substance—there is no reasonable possibility that the jury would have found that the glass pipe was used for anything but “to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body methamphetamine.” Thus, even if the court erred in giving the pattern instruction, the error was harmless.
V. The District Court's Written Answer to the Jury's Question Was Harmless Error.
Roland next takes issue with the procedure the district court used to answer the jury's question about circumstantial evidence. He contends that the court should have read its answer to the jury in his presence in open court and that the written answer violated several of his constitutional and statutory rights. His arguments raise an issue of law that we review independently, without any required deference to the district court. State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014).
Roland asserts that the court's written answer violated his constitutional and statutory rights to be present at every critical stage of his trial. He does not take issue with the court's answer to the jury's question but argues that he should have been present when the court actually communicated the answer to the jury under the Sixth Amendment to the United States Constitution and K.S.A. 22–3420(3).
Roland's argument that the district court violated the statutory requirements of K.S.A. 22–3420(3) is undercut by an amendment made to that statute in 2014. See L.2014, ch. 102, sec. 7. Even though the amendment came after Roland's trial, the legislature specifically provided that the amendments “establish a procedural rule, and as such shall be construed and applied retroactively.” L.2014, ch. 102, sec. 7. Under the amendments to K.S.A. 22–3420, a new subsection (d) was added, and it provides that the court may respond to jury questions either “in open court or in writing.” (Emphasis added.) L.2014, ch. 102, sec. 7. Thus, we find no statutory violation. See State v. Alvarez, No. 110,710, unpublished opinion filed December 19, 2014 (Kan.App.), slip op. at 13–14. But even if there were a statutory violation, it was harmless—a conclusion we also reach below for the constitutional violation.
The Kansas Supreme Court recently considered a court's written answer to a jury question in Verser, 299 Kan. at 787–90. The court first noted that a defendant can argue for the first time on appeal that a written response to a jury question violated his or her right to be present because the right to be present is personal to the defendant and cannot be waived by counsel's failure to object at trial. 299 Kan. at 788. The court then held that jury questions about the law or evidence in a case must be answered in open court (unless the defendant is voluntarily absent) and that a written answer violates the defendant's right to be present under the Sixth Amendment, K.S.A. 22–3420(3), and K.S.A. 22–3405(1). 299 Kan. at 787–88. Thus, under Verser, the way the court's answer was delivered to the jury in Roland's case violated his constitutional and statutory rights to be present at every critical stage of his trial even though he was present when the court discussed the jury's question with the attorneys and decided on an answer.
The State contends, however, that the district court's error was harmless and does not require reversal of Roland's conviction. The federal constitutional harmless-error standard applies to violations of statutory and federal constitutional rights. Verser, 299 Kan. at 789. Under this standard, the written answer is harmless error if the State proves beyond a reasonable doubt that it did not affect the outcome of the trial in light of the entire record—that there is “ ‘no reasonable possibility that [it] contributed to the verdict.’ “ 299 Kan. at 789 (quoting Ward, 292 Kan. 541, Syl. ¶ 6). This court applies four factors to determine whether the judge's written answer is harmless under the constitutional standard:
“ ‘(1) the overall strength of the prosecution's case; (2) whether an objection was lodged; (3) whether the ex parte communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.’ “ Verser, 299 Kan. at 789–90; State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998) (setting out the four factors for considering whether a court's communication with the jury outside the presence of the defendant is harmless error).
The factors support a conclusion that the error here was harmless. Under the first factor, the State's evidence against Roland was substantial. See State v. Gleason, 299 Kan. 1127, 1182–83, 329 P.3d 1102 (2014). Webber testified that she hit a bright yellow truck head on after it crossed the median and entered her lane. An eyewitness in a nearby car testified that she saw a yellow truck leave the scene of the accident, and the police officers told the jury that they found Roland sitting in a bright yellow truck, smelling of alcohol, with droopy, bloodshot eyes, and unable to stand by himself when he finally got out of the truck. In addition, the State presented evidence that the police found a glass pipe and methamphetamine in Roland's pocket.
Under the second factor, Roland did not object to the written answer at trial. See Gleason, 329 P.3d at 1140 (stating that a defendant's failure to object to the written answer suggests that it is harmless error).
Under the third factor, the answer the court gave the jury was innocuous and insignificant. See Verser, 299 Kan. at 789–90 (providing that a nonsubstantive answer to a jury question—that material the jury had asked to review had not been admitted into evidence—favored a harmless-error finding); State v. Carter, No. 109,966, 2014 WL 3907095, at *4 (Kan.App.2014) (providing that a written answer that rephrased a jury instruction favored a harmless-error finding), petition for rev. filed September 8, 2014. The court did not provide the jury with a substantive answer but merely directed the jury to follow the instructions it had already provided.
Under the fourth factor, Roland and his attorney were aware of the court's procedural error, but the record on appeal does not indicate that Roland pursued any posttrial remedies to correct it. See State v. Bowen, 299 Kan. 339, 358, 323 P.3d 853 (2014) (finding that the district court's failure to answer a jury question in defendant's presence was harmless error in part because the defendant pursued no posttrial remedies).
Based on our consideration of the four factors, we conclude that there is no reasonable possibility that the district court's failure to read the response to the jury's question in front of Roland in open court impacted the jury's verdict.
Roland separately argues that the court's written response to the jury's question was also structural error (not subject to the harmless-error analysis) because it violated his rights to an impartial judge and a public trial, which are guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. See Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (violation of a defendant's right to an impartial judge is never harmless error); Waller v. Georgia, 467 U.S. 39, 46–50, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of the right to a public trial is structural error); Boldridge v. State, 289 Kan. 618, 627, 215 P.3d 585 (2009). He contends that neither the judge nor the public were present at a critical stage of his trial—when the jury received an answer to its question.
Our court addressed structural error in State v. Womelsdorf, 47 Kan.App.2d 307, 323–25, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013). The Womelsdorf court determined that the district court's written response to a jury question did not violate the defendant's right to an impartial judge like reading back testimony might because the response to the jury question was short and did not provide the jury with any new substantive information:
“The [court in State v. Brown, 362 N.J. Super 180, 827 A.2d 346 (2003) ] determined that the readback was a critical stage of the proceeding because it furnished the jurors with information they needed to decide the case. Here, the written answer to the jury denied it additional information it was seeking and reminded the jury to consider only the evidence admitted during trial. As the State points out, there is a distinct difference between the lengthy process of a readback, which also necessarily involves the court reporter, and the process of delivering a short written answer to a jury question which does not provide additional information. Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorfs constitutional right to an impartial judge.” 47 Kan.App.2d at 324.
The Womelsdorf panel also analyzed the right to a public trial and found that the court's written response was not a violation because it was available to the public:
“As stated above, the judge read the jury questions on the record, in the courtroom, and the judge and both counsel discussed how to respond to the questions. Womelsdorf does not contend that she was not present in the courtroom for that discussion or that the courtroom was not open to the public when the discussion took place. Nothing about the district court's written response to the jury question, which is now available to the public as part of the court file, was hidden from public view. Obviously, the public was not present when the bailiff delivered the written response to the jury room, but jury deliberations are never open to the public. Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorfs constitutional right to a public trial.” 47 Kan.App.2d at 325.
Like in Womelsdorf, the court's written response in Roland's case was short and did not provide the jury with any new substantive information outside the presence of an impartial judge. It merely told the jury to refer to the jury instructions the court had already provided. Furthermore, the court read the jury question in open court, Roland's counsel had the opportunity to suggest a possible response, and the court's written response became available to the public as part of the court file. Accordingly, we join the other panels of this court that have adopted the Womelsdorf analysis and rejected alleged violations of the defendant's right to an impartial judge and a public trial. See, e.g., State v. Ramirez, ––– Kan.App.2d ––––, 334 P.3d 324, 332–33 (2014), petition for rev. filed October 27, 2014; State v. Maberry, No. 110,088, 2014 WL 2871370, at *5 (Kan.App.2014) (unpublished opinion), petition for rev. filed July 21, 2014; State v. Owens, No. 109,369, 2014 WL 1612457, at *4–5 (Kan.App.2014) (unpublished opinion), petition for rev. filed May 19, 2014; State v. Armstead, No. 108,533, 2014 WL 349561, at *11–12 (Kan.App.2014) (unpublished opinion), petition for rev. filed February 28, 2014; State v. Wells, No. 108,165, 2013 WL 3455798, at *9–10 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. –––– (2014); State v. Bolze–Sann, No. 105,297, 2012 WL 3135701, at *6–7 (Kan.App.2012) (unpublished opinion), rev. granted 298 Kan. –––– (2013).
Roland makes one final argument as part of this issue. He contends we should reverse his convictions based on the cumulative effect of the statutory and constitutional violations in his case. Here, we found only one error with respect to Roland not being present when the court's response was given to the jury, an error we concluded was harmless. There are not multiple errors to consider. See Ramirez, 334 P.3d at 333.
VI. The District Court Erred in Failing to Consider Community Service as a Method of Payment for Roland's $1,000 Fine.
Roland's final argument is that the district court failed to consider community service as an option for him to pay the $1,000 fine for his DUI conviction. K.S.A.2010 Supp. 8–1567(d). The State concedes that we must remand Roland's case under State v. Copes, 290 Kan. 209, 223, 224 P.3d 571 (2010), where the Kansas Supreme Court found that sentencing courts must consider community service as a payment option for all defendants: “[A] district court must take into account the defendant's financial resources and the burden of the fine when considering the method of payment of a fine for a ... DUI offense, i.e., whether the defendant must pay a monetary fine or provide community service.” Therefore, we must vacate the fine and remand for the district court to consider Roland's financial resources and the nature of the burden that payment of the fine will impose. See 290 Kan. at 222–23.
The district court's judgment is affirmed except for the imposition of a $1,000 fine; the imposition of that fine is vacated, and the case is remanded for further consideration of that issue.