Opinion
No. 106,942.
2013-03-22
STATE of Kansas, Appellee, v. Barbara SMITH, Appellant.
Appeal from Geary District Court; David R. Platt, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; David R. Platt, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Barbara Smith asks us to overturn her two-count conviction for the sale of morphine pills. Primarily, she claims the court erred when it failed to give the jury an instruction limiting the admission of certain prior crimes evidence to one of the nine topics listed in K.S.A.2010 Supp. 60–455(b). This prior crimes objection arises for the first time on appeal. Because no K.S.A. 60–404 contemporaneous objection to the admission of this evidence was lodged at trial, we hold we have no appellate jurisdiction over the admission of such evidence. Therefore, we view this as a matter of determining whether it was clear error for the court to fail to give this instruction. After reading the record on appeal, we hold it was not.
Next, we hold as a matter of law that possession of morphine is not a lesser included crime of selling morphine; therefore, the district court did not err when it failed to give a lesser included instruction of that type. Finally, because the district court failed to take into account Smith's financial resources regarding the burden that a fine would impose upon her, as required by law, we vacate the district court's imposition of a $1,000 fine on each count and remand the matter for resentencing.
On July 7, 2010, the Junction City Police Department arranged for a controlled drug buy between a confidential informant and Barbara Smith. During the controlled buy, the informant was equipped with an audio and video recording device. Based on the recording, Officer Alvin Babcock was able to identify Smith as the person who sold the informant two pills of morphine.
At trial, the State moved to admit a recording of the controlled drug buy. Smith did not object to the admission of this evidence. In the recording, Smith advised the informant she had made “five or six sales” and now had “bill money.”
Smith was ultimately convicted of two counts of sale, delivery, or distribution of morphine in violation of K.S.A.2010 Supp. 21–36a05(a)(l). Smith was sentenced to a total of 40 months' imprisonment and 24 months' postrelease supervision. The district court also ordered Smith to pay a total of $2,000 in fines—$1,000 for each conviction.
Smith appeals her convictions and sentence, raising three issues.
Prior crimes limiting instruction not given.
Smith first argues the district court erred when it failed to give the jury a limiting instruction regarding the proper use of K.S .A.2010 Supp. 60–455 evidence. Smith admits she failed to request such an instruction, nor did she object to the absence of a limiting instruction in the district court. If a defendant does not request the district court to give a particular jury instruction and does not object to its omission, the defendant's claim that the court erred in failing to give the challenged instruction is reviewed for clear error. See K.S.A. 22–3414(3). Instructions are clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instructional error not occurred. State v. Holman, 295 Kan. 116, 128, 284 P.3d 251 (2012).
In this case, Smith has not shown there was a real possibility the jury would have rendered a different verdict had a limiting instruction been given. Smith does not argue the evidence of guilt was less than substantial. Instead, she simply argues that no other evidence of the prior drug sales was introduced at trial. But Smith is not correct on this point. At trial, the confidential informant testified that when she spoke with Smith during the controlled drug buy, Smith told her she was “making a bunch of money off of the fact that there were no other pills and people were coming to her to purchase those.” Contrary to Smith's contention, there was other evidence suggesting Smith had made prior drug sales, and Smith does not complain about that evidence on appeal. She complains only about the lack of a limiting instruction concerning the videotaped evidence.
Smith has failed to convince us that there was a real possibility the jury would have rendered a different verdict had it been instructed about the evidence contained in the video recording. Smith has not shown the district court's failure to give a limiting instruction was clear error under these facts.
Possession of morphine is not a lesser included crime of the sale of morphine.
In her next claim, Smith contends the district court erred when it failed to instruct the jury on the crime of possession of morphine. We note that Smith was convicted of two counts of sale in violation of K.S.A.2010 Supp. 21–36a05(a)(l). Smith admits she did not request such an instruction, and she concedes a clearly erroneous standard of review applies.
Smith contends that the jury should have been instructed on the crime of possession of morphine in addition to the crime of sale of morphine as Smith believes the crime of possession is a lesser included offense. Smith acknowledges a similar argument was rejected by our Supreme Court in State v. Woods, 214 Kan. 739, 522 P.2d 967 (1974), disapproved on other grounds by Wilbank v. State, 224 Kan. 66, 579 P.2d 132 (1978), but says subsequent courts have simply quoted Woods without engaging in any new analysis and the issue should be “revisited.”
In Woods, our Supreme Court rejected the argument that possession of marijuana is a lesser included offense in a prosecution for unlawful sale of marijuana. 214 Kan. at 746. The court reasoned that to prove the unlawful sale of a drug, the State need not show the defendant had physical possession of the drug; but to prove the unlawful possession, the State must prove the defendant had some physical control over the drug. 214 Kan. at 745. Because the elements necessary to prove the lesser crime ( i.e., possession) were not required to prove the greater crime ( i.e., sale), the lesser crime could not be a lesser included offense of the greater crime. See 214 Kan. at 744–46. That same logic appears valid today as it did then. See State v. Collins, 217 Kan. 418, 420, 536 P.2d 1382 (1975), where the court acknowledged that simple possession of marijuana is not a lesser included offense of the sale of that drug.
Since Woods, this court most recently visited the sale/possession issue in State v. Josenberger, 17 Kan.App.2d 167, Syl. ¶ 6, 836 P.2d 11, rev. denied 251 Kan. 941 (1992). In that case, this court rejected the defendant's claim that the district court was required to instruct the jury on possession of marijuana as a lesser included offense of sale of marijuana. In reaching this conclusion, the court noted: “It has long been settled in Kansas that possession of marijuana is not a lesser included offense of the sale of marijuana.” 17 Kan.App.2d at 174.
Smith cites no authority for her proposition that possession of morphine is a lesser included offense of sale of morphine. Instead, she simply says the rationale behind Woods should be reconsidered for various reasons.
To the contrary, this court is duty bound to follow Kansas Supreme Court precedent in the absence of some indication the court is departing from that precedent. Gruhin v. City of Overland Park, 17 Kan.App.2d 388, 391, 836 P.2d 1222 (1992). There is no indication the Kansas Supreme Court has decided to depart from the logic of Woods. Thus, we are duty bound to follow its rationale. Therefore, we hold that possession of morphine is not a lesser included offense of the sale of morphine, and the district court was not required to give a lesser included instruction.
The court failed to make proper findings when imposing a fine.
For Smith's final argument, she points out that when the court imposed a $2,000 fine at sentencing, it failed to make specific findings on the record in compliance with K.S.A. 21–4607(3). Smith concedes she did not object to the court's failure to make the proper findings, but says the issue can be raised on appeal because it involves only a question of law arising on proved or admitted facts and is finally determinative of the issue. We agree.
The imposition of fines may be addressed on appeal despite a failure to object in the court below. See State v. Bastian, 37 Kan, App.2d 156, 163–64, 150 P.3d 912 (2007), where the court reviewed the imposition of fines when the court failed to make proper findings despite Bastian's failure to object at sentencing. K.S.A. 21–4607 states:
“(2) The court shall not sentence a defendant to pay a fine in addition to a sentence of imprisonment, probation or assignment to a community correctional services program unless:
(a) The defendant has derived a pecuniary gain from the crime; or
(b) the court is of the opinion that a fine is adapted to deterrence of the crime involved or to the correction of the offender.
“(3) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.”
When the district court ordered Smith to pay $2,000 in fines, the court simply stated, “Court would note sales are, obviously, for the purpose of making money, and would order fines in—on each count, of $1,000....”
While the court properly found in compliance with K.S.A. 21–4607(2)(a) that a fine was appropriate because Smith derived a pecuniary gain from her crimes, the court specifically noted that Smith's sales were for the purpose of making money. But it failed to comply with the requirement that it take into account Smith's financial resources and the nature of the burden that payment would impose. See K.S.A. 21–4607(3).
The district court's imposition of the fines without making the proper findings is therefore error and the fines must be vacated pursuant to Bastian, 37 Kan.App.2d at 163–64.
In response to this argument, the State concedes the district court erred in failing to make the proper findings but says the error was harmless given the fact that Smith posted a $20,000 surety bond within hours of being sentenced. We find this argument unpersuasive. The district court was required by law to make specific findings when ordering Smith to pay those fines. The district court's failure to do so cannot be excused based on evidence outside the record suggesting Smith may have been able to afford the fines.
The district court erred by failing to make the proper findings when imposing the fines at Smith's sentencing. We must vacate those fines and remand to the district court to comply with the mandate of K.S.A. 21–4607(3).
Smith's convictions are affirmed. The fines of $1,000 for each conviction are vacated, and the case is remanded to the district court to make the proper considerations under K.S.A. 21–4607(3).