Opinion
No. 110,091.
2015-03-27
STATE of Kansas, Appellee, v. Aaron SCOTT, Appellant.
Appeal from Sedgwick District Court; Eric A. Commer, Judge.Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric A. Commer, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
POWELL, J.
A jury of Aaron Scott's peers convicted him of possession of cocaine, possession of methamphetamine, possession of marijuana, and possession of paraphernalia. He now appeals from the jury's verdict, arguing we should reverse because: (1) the district court failed to issue a unanimity instruction after the State presented evidence of multiple acts; (2) the district court improperly instructed the jury on the concept of reasonable doubt; (3) the prosecutor misstated the law twice during closing arguments which prejudiced the jury and denied Scott a fair trial; (4) the “any quantity” rule of possession of narcotics under K.S.A.2014 Supp. 21–5706 is statutorily impermissible; and (5) cumulative error deprived Scott of a fair trial. While we agree with Scott that, strictly speaking, the district court's statements to the jury regarding reasonable doubt were incorrect, we are not firmly convinced the court's statements affected the outcome of the trial and, therefore, affirm Scott's convictions and the district court in all other respects.
Factual and Procedural Background
An unidentified source informed the Wichita Police Department that drugs and guns were being sold at Scott's residence in Wichita, and another unnamed source confirmed the sale of drugs at that location to police. Based on this information and a trash pull, Officer Aaron Chaffee applied for and received a no-knock search warrant of Scott's home, which was executed by the police on October 17, 2010.
Scott and his 7–year–old son were the only people in the residence when the police entered, and Scott was quickly detained and removed from the house. Chaffee found the following items in Scott's house: (1) a digital scale with a powdery residue on a table in the living room; (2) marijuana and a glass pipe that appeared to contain burnt marijuana in Scott's bedroom; (3) an additional pipe in Scott's bedroom; and (4) a baggie containing three smaller baggies of marijuana in Scott's bedroom dresser.
After being removed from his house, Scott was placed in the back of a patrol car that had been used earlier that day to execute at least one methamphetamine-related search warrant. Officers had searched the backseat of the patrol car before executing the search warrant at Scott's residence and found nothing.
After handcuffing and placing Scott in the backseat of the patrol car, the officers moved Scott to the front passenger seat of the car and advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Scott voluntarily agreed to waive his rights and freely admitted to possessing the marijuana and pipes found in his bedroom. With respect to the scale, Scott acknowledged that he knew it was in his house but claimed it belonged to a friend.
Next, although Scott had been searched before being placed in the patrol car, he laughingly said to Officer David Inkelaar, “They didn't even search me.” Inkelaar then removed Scott from the front of the patrol car and searched him, finding nothing incriminating. Meanwhile, Officer Joshua Hutchins checked the backseat of the patrol car and found a baggie of methamphetamine. When asked about the methamphetamine, Scott said it was not his.
Scott was charged with possession of marijuana, possession of methamphetamine, possession of paraphernalia, and possession of cocaine. A jury convicted him as charged, and the district court imposed a controlling 37–month prison sentence.
Scott timely appeals.
Did the District Court Commit Clear Error When it Did Not Provide a Unanimity Instruction?
“A defendant has a right to a unanimous jury verdict. See K.S.A. 22–3421; K.S.A. 22–3423(1)(d); Foster, 290 Kan. at 712. When a violation of this right is asserted, an appellate court must determine first whether it is presented with a multiple acts case. This is a question of law over which the appellate court exercises unlimited review. Voyles, 284 Kan. at 244. If the case is a multiple acts case, the appellate court must then determine whether error was committed because either the State must have informed the jury which act to rely upon for each charge during its deliberations or the district court must have instructed the jury to agree on the specific criminal act for each charge in order to convict. The failure to elect or instruct is error. See 284 Kan. at 244–45. When there is error, the final question is whether the error warrants reversal or was harmless. The test for harmlessness when a unanimity instruction was not requested or its absence not objected to is the clearly erroneous standard articulated in K.S.A. 22–3414(3). 284 Kan. at 252–53. In other words, an appellate court must be firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given. See State v. King, 297 Kan. 955, 979–80, 305 P.3d 641 (2013); see also State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013) (noting court's decision to omit the ‘real possibility’ language from Voyles test to avoid confusion with the constitutional harmless error test).” State v. Santos–Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014). A. This is a multiple acts case.
First, we must determine whether we have a multiple acts case before us. 299 Kan. at 18.
“In a multiple-acts case, several acts are alleged and any one of them could constitute the crime charged. In such a case, either the State must inform the jury which act it contends constitutes the crime or the court must instruct the jury that its members must all agree on the specific criminal act.” State v. Torres, 294 Kan. 135, Syl. ¶ 3, 273 P.3d 729 (2012).
Scott and the State agree that the prosecution presented multiple sources of evidence for both the cocaine and methamphetamine possession charges. Specifically, with respect to the cocaine charge, the State presented evidence of the scale with cocaine residue and cocaine on a pipe. With respect to the methamphetamine charge, the State presented evidence of the scale with methamphetamine residue and the baggie of methamphetamine found in the back of the patrol car. B. Given the State's election, the district court did not err in failing to provide the jury with a unanimity instruction.
Because we have determined this is a multiple acts case, we must next decide whether the district court erred when it did not give a unanimity instruction. See Santos–Vega, 299 Kan. at 18. The State contends there was no error because if the prosecutor has informed the jury which act to rely upon for each charge during its deliberations, then the district court is not required to issue a unanimity instruction. 299 Kan. at 18.
Scott concedes the State initially directed the jury to rely on the cocaine residue on the scale and the methamphetamine found in the backseat of the patrol car but contends this election was “unmade” during the prosecutor's rebuttal closing when she explicitly referenced and argued multiple acts. Specifically, Scott cites the following passage from the prosecutor's rebuttal closing:
“When I reviewed the evidence and testimony that had been admitted in this case, I did find something interesting. It seems like each of these items was separate, even though the marijuana and the paraphernalia were in the defendant's bedroom, the cocaine was in the defendant's residence in the living room, the methamphetamine was in the car. So you would think, well, it is possible that none of these have a connection? Interesting thing I noted was when we heard Jennifer Miller testify that the pipes, themselves, tested positive for cocaine and THC. The pipe that was in the defendant's bedroom has cocaine in it. The pipe that [defense counsel] has just stood up here and said he admits it. ‘Don't worry about it; he did it.’ It has cocaine in it.
“ The scale that has the cocaine on it in the living room also tested for meth—methamphetamine, which is also found in the patrol car. Ladies and gentlemen, there is a connection based upon the laboratory testing-independent testing.
“Maybe you don't think that the defendant, again, picked up the scale that was used for cocaine, anything like that. The State only has to prove that he knowingly kept the item in a place where the person has some measure of access and right of control. This is his living room and on the table right next to his couch—one of the two couches that are actually in this living room—right by the lamp that was turned on when officers entered the house. Did he have a right of access? Did he have a measure of control? And, again, this was cocaine, which was also found in the pipe in his bedroom.”
According to Scott, the prosecutor's comments encouraged the jury to convict based on multiple possible acts of possession of methamphetamine and cocaine and is the precise reason why the district court should have issued a unanimity instruction.
The State counters that a unanimity instruction was not required because the prosecutor only discussed evidence of multiple acts when responding to Scott's argument that there was nothing linking Scott to the methamphetamine and cocaine. Scott argued that the scale containing the cocaine residue was not his; the prosecution responded by reminding the jury that a pipe containing cocaine was also found in Scott's home, thereby making it more likely that Scott would possess a scale with cocaine residue. Similarly, Scott asserted that the baggie of methamphetamine found in the back of the patrol car did not belong to him; the prosecutor rebutted this argument by reminding the jury of testimony that the scale found in Scott's living room contained methamphetamine residue in addition to cocaine residue. In essence, the State asserts that the prosecutor presented the evidence of the cocaine on the pipe and the methamphetamine residue on the scale not to suggest that the jury should convict based on that evidence but, instead, to suggest that Scott's theory of defense was not credible. We agree with the State that the prosecutor's reliance on the alternative evidence to tie Scott to the crimes charged in rebuttal to defense counsel's argument did not amount to an unelection. C. Even assuming a multiple acts error, there was no clear error by the district court.
Even assuming the prosecutor's rebuttal statements to the jury effectively negated the State's election of what evidence the jury should rely upon to convict Scott, we are not firmly convinced the jury would have reached a different verdict had a unanimity instruction been given.
Because Scott neither requested nor objected to the failure to give a unanimity instruction, and assuming the district court erred in its failure to give a unanimity instruction, the third step of our analysis requires us to determine whether the district court's error represents clear error pursuant to K.S.A. 22–3414(3). Santos–Vega, 299 Kan. at 18. Under this standard, “ ‘the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.’ “ State v. Friday, 297 Kan. 1023, 1040, 306 P.3d 265 (2013) (quoting State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 [2012] ). The party asserting clear error carries the burden of meeting this standard. 297 Kan. at 1040.
Scott contends the lack of a unanimity instruction was clearly erroneous because “ ‘some jurors may have relied on one act or incident and some another, resulting in a lack of unanimity on all of the elements necessary for a valid conviction.’ “ State v. Voyles, 284 Kan. 239, 248, 160 P.3d 794 (2007) (quoting State v. Kitchen, 110 Wash.2d 403, 411, 756 P.2d 105 [1988] ). Scott cites Voyles, which states: “[W]hen no unanimity instruction has been requested, cases not containing a unified defense are reversed because the reviewing court is firmly convinced that there is a real possibility the jury would have returned a different verdict if the instruction had been given.” 284 Kan. at 253. Scott elaborates that his defenses to each claim were quite different. With respect to the scale containing the residue, Scott presented evidence that the scale belonged to another person who also lived in the house. With respect to the baggie of methamphetamine, Scott presented evidence in the form of his own statements denying possession and questioning the credibility of the officers who searched him.
The State counters that we should not reverse pursuant to Voyles because Scott presented a unified defense. Specifically, the State contends that Scott's defense to the cocaine and methamphetamine possession charges was simply a general denial that he possessed either substance. Although the State is correct that Scott's defense to each charge was in the form of a denial, Scott denied each charge differently. Thus, Scott did not present a unified defense.
While it is important for us to determine whether Scott presented a unified defense, it is no longer dispositive because our Supreme Court clarified the clear error standard with respect to unanimity instructional issues in State v. Trujillo, 296 Kan. 625, 294 P.3d 281 (2013). Prior to Trujillo, Voyles appeared to stand for the proposition that an erroneous lack of a unanimity instruction in cases without a unified defense was clear error per se. Voyles, 284 Kan. at 252–53. In Trujillo, our Supreme Court stated that it did not intend the circumstances in Voyles to create structural error but “[r]ather, the defendant's defense strategy is merely an important and compelling factor in firmly convincing the reviewing court that the jury would have reached a different verdict had the instruction error not occurred.” Trujillo, 296 Kan. at 631.
Therefore, even assuming the district court had given a unanimity jury instruction, we are not firmly convinced the jury would have reached a different verdict because the evidence against Scott was overwhelming. Thus, the omission of the unanimity jury instruction does not warrant reversal under the clear error standard.
Did the District Court Properly Instruct the Jury on the Concept of Reasonable Doubt?
For the first time on appeal, Scott asserts the district court erred when it verbally instructed the jury on the concept of reasonable doubt. We review a challenge to a jury instruction raised for the first time on appeal for clear error. K.S.A. 22–3414(3); Williams, 295 Kan. at 511–12.
At the outset of jury selection, the judge informed the prospective jurors:
“Mr. Scott, as he sits here right now, is presumed innocent of all charges. The burden of proof in this case is on the State of Kansas. The State must present enough evidence to overcome the presumption of innocence beyond a reasonable doubt. There is no definition of reasonable doubt. I will say that again. There is no definition given for reasonable doubt. You are presumed or considered to be reasonable people, and can define that term for yourselves.”
Scott did not object to this statement, and the district court repeated it without objection when new prospective jurors were added to the panel. At the conclusion of the evidence, the district court issued written instructions to the jury defining reasonable doubt consistent with PIK Crim.3d 52.02:
“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 each of the claims required to be proved by the State, you should find the defendant guilty.”
This court has previously stated: “[A] trial judge treads on thin ice when he or she attempts comment to a jury on the term ‘reasonable doubt’ and it is best to refrain from doing so.” State v. Jefferson, No. 108,656, 2014 WL 642047, at *5 (Kan.App.2014) (unpublished opinion), rev. denied February 19, 2015. Our Supreme Court has explained that instructions defining reasonable doubt are unnecessary because “[t]he words are ordinary ones meant to be used in their popular or conventional sense and are understandable by a person of ordinary intelligence.” State v. Larkin, 209 Kan. 660, 662, 498 P.2d 37 (1972).
While the district court was wise not to attempt to give a definition of reasonable doubt, we must agree with Scott that the phrase “reasonable doubt” is not objectively meaningless. Strictly speaking, it is not correct to say there is no definition of reasonable doubt and that the jury could decide the definition for itself. We recognize that the statement made by the trial judge concerning reasonable doubt has been made many times by district courts without consequence, but we suggest district judges refrain from making the statement the judge made here, or at the very least, it would be more accurate to instruct jurors that there is no definition of reasonable doubt beyond the words themselves.
Our normal approach would be to examine whether the trial court's error affected the outcome of the trial, and Scott concedes that instructional issues are typically analyzed under the clearly erroneous standard when a defendant fails to object at the trial court level. However, relying on Sullivan v. Louisiana, 508 U.S. 275, 280–82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), Scott claims the asserted error in the preliminary instruction diluted the State's burden of proof, which resulted in structural error requiring reversal of his conviction:
“[T]he essential connection to a ‘beyond and reasonable doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings. A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judge [s] the defendant guilty.’ [Citation omitted.]”
The State cites Jefferson, 2014 WL 642047, at *4, in which another panel of this court rejected the same structural argument presented by Scott and where the district court provided the following preliminary instruction to the jury:
“ “ ‘Now, Mr. Jefferson, the defendant, as he sits here right now is presumed innocent of all charges. The law requires that the State must prove Mr. Jefferson guilty beyond a reasonable doubt. There is no definition of reasonable doubt. You are considered to be reasonable people and can define reasonable doubt for yourselves.’ “ “
In its analysis, the Jefferson panel recognized:
“The Comment to PIK Crim.3d 52.04 states: ‘The Committee believes that the words “reasonable doubt” are so clear in their meaning that no explanation is necessary.’ However, while the trial judge here made comments about the term [reasonable doubt], he did not give any definition for the term. Had the judge not made the preliminary comment and merely given PIK Crim.3d 52.04 (without any definition of the term) at the conclusion of the evidence, the jurors would have been left with the same message that the judge orally transmitted to them in that preliminary comment, namely, that it was up to them to define the term reasonable doubt.
“It would be pure speculation to find the jury was influenced to dilute the State's burden of proof particularly when it was properly instructed in the final instructions. We conclude the preliminary comments did not dilute the State's burden of proof and did not amount to structural error that requires reversal.” 2014 WL 642047, at *5–6.
Given the almost identical factual situation here, we agree there was no structural error committed by the district court here necessitating reversal.
Alternatively, Scott argues the district court's instructional error affected the outcome. We disagree; the district court's statement regarding reasonable doubt was harmless error because Scott cannot support his burden of establishing clear error. At the conclusion of evidence the jury was properly instructed on the concept of reasonable doubt, which cured any prejudice that may have been caused by the giving of a legally inaccurate preliminary instruction. See State v. Rivera, 48 Kan.App.2d 417, 444, 291 P.3d 512 (2012).
Did the Prosecutor's Comments During Closing Arguments Constitute Prosecutorial Misconduct?
A claim of prosecutorial misconduct based on comments made during closing arguments that are not evidence will be reviewed on appeal even when a contemporaneous objection was not made at the trial level. State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014). Our review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, we determine whether the prosecutor's comments were outside the wide latitude the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, we determine whether the improper comments compel reversal, that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. 299 Kan. at 416.
In the second step of the two-step analysis, we consider three factors: (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. Williams, 299 Kan. at 540. None of these three factors is individually controlling. State v. McCaslin, 291 Kan. 697, 715, 245 P.3d 1030 (2011). “Before the third factor can ever override the first two factors, an appellate court must be able to say that the State can meet the harmlessness tests of both K .S.A. 60–261 and Chapman v. California, 386 U.S. 18, [22–23,] 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).” Williams, 299 Kan. at 540–41. A. The prosecutor's comments during closing argument were not outside the wide latitude afforded prosecutors.
Scott contends the prosecutor made two separate arguments in conflict with the jury instructions during closing arguments that constituted misstatements of law. Jury instruction 12 required the State to prove Scott intentionally possessed cocaine. Jury instruction 8 required the jury to consider all of the charges independent of each other. According to Scott, the prosecutor misstated the law by inferring that possession of the scale was the same as possessing the cocaine residue on it and by stating that all the charges were connected.
First, Scott cites the following passage to support his assertion that the prosecutor's comments regarding possession of cocaine consistently blurred the distinction between possessing a scale and possessing cocaine:
“Finally, we have unlawfully possessing cocaine. That was on a scale in the living room. And you can see by the photographs in the living room there's not a lot in this house. There's not a lot in the living room, but the scale was just openly sitting right on the end table where the lamp is on. It's open. It's got white powder on it. And, in order to prove that the defendant possessed this, we don't have tc show that he had it and was walking around with it flashing it to the neighbors or that he was licking it to get the cocaine off. What I have to prove is that he had joint or exclusive control over the item with the knowledge of an intent to have such control.” (Emphasis added.)
Scott argues that “it” and “this” are pronouns that contextually refer to the scale instead of the cocaine. Additionally, Scott asserts the word “item” also refers to the scale instead of the cocaine. Scott contends the prosecutor engaged in an improper argument outside the prosecutor's wide latitude by misstating the law.
The State persuasively counters that, taken in context, the prosecutor's comments involving the scale did not misstate the law because the State explicitly elected to prosecute the cocaine charge based on the residue found on the scale, thereby directly linking the cocaine and the scale. Just prior to the passage that Scott challenged, the prosecutor began her discussion of the cocaine evidence by stating: “That was on the scale in the living room.” Moreover the State points out that Scott's theory of defense was that he did not own the scale. Scott did not dispute the results of the laboratory testing that established the scale contained cocaine residue, meaning the only pertinent question with respect to the cocaine charge was whether Scott owned the scale. In this context, the prosecutor's comments regarding the cocaine and the scale were appropriate and were not outside the wide latitude afforded prosecutors.
Second, Scott cites the following passage to support his contention the prosecutor improperly stated all of the charges were connected:
“When I reviewed the evidence and testimony that had been admitted in this case, I did find something interesting. It seems like each of these items was separate, even though the marijuana and the paraphernalia were in the defendant's bedroom, the cocaine was in the defendant's residence in the living room, the methamphetamine was in the car. So you would think, well, it is possible that none of these have a connection? ...
“... Ladies and gentlemen, there is a connection based upon the laboratory testing—independent testing.”
Scott contends the prosecution inappropriately capitalized on Scott's concession to the marijuana and paraphernalia charges in order to argue it was more likely Scott was guilty of the cocaine and methamphetamine possession charges. The State responds the prosecutor's argument reflected the reality that certain pieces of evidence were relevant with respect to more than one charge. Scott admitted he owned the pipe found in his home, and the laboratory testing of that pipe revealed it contained cocaine residue, thereby increasing the likelihood that Scott possessed the scale containing the cocaine residue. Similarly, laboratory testing of the scale revealed it contained methamphetamine residue in addition to cocaine reside, increasing the likelihood that the methamphetamine found in the back of the patrol car belonged to Scott. The State argues the prosecutor pointed to this evidence to directly rebut Scott's defense that nothing linked him to the cocaine or methamphetamine. Therefore, it was not a misstatement of law to remind the jury of these commonalities in the evidence. B. Assuming the prosecutor's comments were improper, such statements do not mandate reversal.
Scott argues that the prosecutor's misstatements of the law were prejudicial to his right to a fair trial. First, Scott argues the prosecutor's comments were gross and flagrant pursuant to the first factor in Williams, 299 Kan. at 540, because the prosecutor reasonably knew what the standards of proof were and how the jury was to be instructed. This argument is not persuasive because it implies that any instance of prosecutorial misconduct was gross and flagrant per se.
Scott does not submit any arguments with respect to the second factor that considers whether the prosecutor possessed ill will. Under the third factor, Scott contends the misconduct carried significant weight in the minds of the jurors because the jury could have reasonably believed that Scott had no connection to the cocaine and methamphetamine.
The State responds first by pointing out that Scott did not object during trial to any error that we may identify. Although the failure to object to alleged misconduct does not bar the issue from consideration on direct appeal, the lack of such a timely and specific objection is nevertheless still relevant to our inquiry. See State v. Bunyard, 281 Kan. 392, 419, 133 P.3d 14 (2006) (McFarland, C.J., dissenting), disapproved on other grounds by State v. Flynn, 299 Kan. 1052, 329 P.3d 429 (2014). Moreover, the State contends that in assessing whether a prosecutor's improper comment was prejudicial, we should consider whether the comment was made under the stress of rebutting arguments made by defense counsel. See State v. Marshall, 294 Kan. 850, 861, 281 P.3d 1112 (2012). As has been previously discussed, the State was responding to Scott's arguments that no other evidence linked him to the cocaine and methamphetamine charges.
Finally, the State argues under the third factor that Scott cannot show he was prejudiced due to the overwhelming evidence against him. The State persuasively summarizes the evidence against Scott: “The methamphetamine was found in the back of the patrol car shortly after [Scott] was placed in the vehicle; it was not present when the backseat was searched multiple times before the warrant was executed. Meanwhile, the cocaine residue was found on a digital scale in [Scott's] living room.”
Even assuming the prosecutor misstated the law, we agree with the State that such a mistake would not require reversal of Scott's convictions because none of the factors weigh in favor of reversal.
Did the State Present Sufficient Evidence to Support a Conviction for Possession of Cocaine?
When the sufficiency of evidence is challenged in a criminal case, we review all the evidence in the light most favorable to the prosecution and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Williams, 299 Kan. at 525. In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence. 299 Kan. at 525.
Specifically, Scott argues that the “any quantity” rule of possession of narcotics is impermissible as the term “any” in K.S.A.2014 Supp. 21–5706 refers to the types of drugs and not their quantity. He also asserts that a conviction of possession based upon microscopic residue or upon an unweighable and unusable quantity of narcotics cannot stand.
K.S.A.2014 Supp. 21–5706(a) provides: “It shall be unlawful for any person to possess any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65–4107, and amendments thereto, or a controlled substance analog thereof.” When interpreting this language, our Supreme Court has noted that Kansas appellate courts have adopted the majority view that “ ‘proof of the possession of any amount of a controlled substance is sufficient to sustain a conviction even though such amount may not be measurable or usable.’ [Citations omitted.]” State v. Brown, 245 Kan. 604, 613–14, 783 P.2d 1278 (1989).
Scott acknowledges Brown but argues that it can no longer support this interpretation of K.S.A.2014 Supp. 21–5706 in light of the 2011 amendments to the possession statutes. See K.S.A.2010 Supp. 21–36a06(a); K.S.A.2011 Supp. 21–5706. However, Scott does not explain why the 2011 amendments should prevent us from following Brown, as Scott committed and was convicted of his offenses in 2010. Moreover, the 2011 amendments did not change the substantive statutory language that was analyzed in Brown—both versions of the statute declare possession of “ any opiates, opium or narcotic drugs” unlawful. (Emphasis added.) See K.S.A.2010 Supp. 21–36a06(a); K.S.A.2011 Supp. 21–5706; 245 Kan. at 613–14. There was sufficient evidence to convict Scott of possession of cocaine.
Was Scott Denied a Fair Trial Due to Cumulative Error?
Finally, Scott argues the combination of errors substantially prejudiced him and denied him a fair trial. See State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992) (cumulative trial errors may require reversal if under totality of circumstances defendant denied a fair trial). However, we do not find Scott was denied a fair trial because a single error cannot constitute cumulative error. See Williams, 299 Kan. at 566.
Affirmed.