Opinion
No. 111, 088.
03-27-2015
STATE of Kansas, Appellee, v. Lawrence YARBOROUGH, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Mark Menefee, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Mark Menefee, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Lawrence Yarborough was convicted and sentenced on four drug-related charges and now on appeal claims the charge in Count 3 for possession of heroin arises out of the same, or unitary, conduct as the charge of distribution of heroin in Count 4 and must be dismissed as multiplicitous. The charges are not multiplicitous. Counts 3 and 4 reflect two separate and distinct acts. Yarborough also claims the district court erred when it failed to give an accomplice instruction, asserting when he sold heroin to the buyer, he became an accomplice. We conclude a buyer is not an accomplice and there was no error when the district court declined to give an accomplice instruction. We deny Yarborough's challenge to his criminal history as its use is well settled under Kansas law. See State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). The issue Yarborough raised regarding the need for a nunc pro tunc journal entry has been resolved while this appeal was pending and is now moot. We affirm.
Facts
Officer Nathan Doleshal, of the Kansas City Police Department's Narcotics Unit, requested Brice Morlang, a known confidential informant, to help with his heroin investigation. Morlang told Doleshal an individual he knew as Calico was supplying black tar heroin from 1207 N. 14th Street, and that other unknown people were selling narcotics from this address. Morlang admitted to previously purchasing heroin from one of these men, whose telephone number was XXX–XXX–5253.
Based upon this information, Doleshal made arrangements for Morlang to conduct two controlled purchases of heroin from 1207 N. 14th Street. During the investigation, Doleshal met with Officer Matt Baker and showed him a video recording of one of the controlled buys as well as a still photo of the seller taken from the video. Doleshal asked Baker to assist him in identifying the seller; however, he instructed Baker not to make an arrest. Later that day, Baker notified Doleshal the suspected seller had been located loitering on the corner of 14th Street and Nebraska Avenue. Baker told Doleshal he made contact and the individual identified himself as Lawrence Yarborough. Yarborough told Baker he resided at 1207 N. 14th Street and advised him it was his primary residence.
Based on the two controlled drug buys and the information Doleshal had obtained from Baker, Doleshal sought a search warrant for the address at 1207 N. 14th Street. A judge of the Wyandotte County District Court granted the search warrant based on Doleschal's affidavit, and the Kansas City Police Department executed the warrant on July 2, 2010.
While preparing to execute the search warrant, Dcleshal and other members of the Kansas City Police Department were conducting surveillance of 1207 N. 14th Street and observed the sale of heroin by Yarborough to an unknown individual later identified as Charles Horning. At trial, Doleshal testified he observed Yarborough and an associate exit the house at 1207 N. 14th Street, enter a Cadillac, and drive to some apartments at 13th Street and Washington Avenue. Yarborough exited the Cadillac, entered Horning's vehicle, and sold Horning heroin. Police officers subsequently stopped and arrested Horning for an outstanding warrant. Shortly thereafter, Yarborough was also taken into custody.
Following Yarborough's arrest, officers executed the search warrant on 1207 N. 14th street. The officers found heroin powder; a coffee grinder containing heroin (powder) residue; drug paraphernalia; two bags containing an unknown white powdery substance; an electronic scale; a letter from the Kansas Gas Service addressed to Yarborough at 1207 N. 14th Street; and a receipt from the Unified Government Public Health Department listing Yarborough's name and the address 1975 Parallel Parkway, Kansas City, Kansas.
At Yarborough's preliminary hearing, the district court granted Yarborough's motion to suppress the evidence obtained during the search. The State appealed the district court's decision in State v. Yarborough, No. 106, 380, 2012 WL 1352869, at *5 (Kan.App.2012) (unpublished opinion), rev. denied, 296 Kan. 1136 (2013). A panel of this court reversed the suppression of the evidence and remanded for further proceedings. The panel agreed with the State that the affidavit for the search warrant did provide probable cause to support the issuance of the search warrant and, alternatively, that the good-faith exception to the exclusionary rule would preclude the suppression of the seized evidence. Yarborough, 2012 WL 1352869, at *1.
During the trial, the State filed a fourth amended complaint charging Yarborough with five counts: Count 1, distribution of heroin on June 18, 2010; Count 2, distribution of heroin on July 1, 2010; Count 3, distribution of heroin on July 2, 2010; Count 4, possession of heroin on July 2, 2010; and Count 5, possession with intent to use drug paraphernalia on July 2, 2010.
Horning testified he called Van Callahan to purchase some heroin and made arrangements to meet. When Horning arrived at the prearranged location, a Cadillac pulled up with Callahan and Yarborough inside, Yarborough exited his vehicle, and got into Horning's vehicle. Horning then gave Yarborough money, and Yarborough gave Horning heroin. Horning testified about identifying Yarborough out of a photo lineup as the man who sold him the heroin. Additionally, Horning testified about several phone numbers he had previously used to contact Callahan, including Yarborough's phone number, XXX–XXX–5253.
At trial, Yarborough requested the jury be given an accomplice instruction associated with Count 3, the charge of distribution of heroin to Horning. The State objected, arguing the instruction was not appropriate because, as Yarborough's buyer, Horning was not an accomplice to the distribution of heroin. Yarborough responded the accomplice instruction must be given because it takes two for a distribution to occur and Horning was the other party and offered PIK Crim. 4th 51.090 in support of his request. The district court denied Yarborough's requested accomplice instruction.
During jury deliberations, the jury asked the following question: “[What] does the possession of heroin in charge four pertain to?” The district court, after some debate with the State and defense counsel, answered the question as follows: “The answer we provide is you will have to recall the evidence presented during the trial.”
Yarborough was found guilty on Counts 1 through 4 and not guilty on Count 5. Yarborough timely appealed only his convictions under Counts 3 and 4.
Analysis
Multiplicity
Yarborough argues the convictions for distribution of heroin and possession of heroin in Counts 3 and 4 arose from the same conduct and the possession of heroin as a lesser included charge must be vacated as multiplicitous. Yarborough's argument Count 4 is a lesser included charge of Count 3 is based on the premise one must have possession of the heroin before it can be sold. He also claims that the jury's question during deliberations asking, “[What] does the possession of heroin in charge four pertain to?” gives the impression the jury was confused as to whether the possession charge referred to the heroin found in the house or the heroin Yarborough sold on July 2, 2010, to Horning.
Regarding the question presented by the jury, Yarborough is requesting us to speculate about the jury's decision making process; that is something we decline to do. At trial, in both its opening and closing statements, the State explained that the possession charge in Count 4 referred to the heroin found in Yarborough's residence. Throughout the trial, it was mentioned several times the possession charge referred to the heroin found in Yarborough's residence at 1207 N. 14 Street and the distribution of heroin in Count 3 referred to the sale of heroin to Horning at the apartments at 13th Street and Washington Avenue.
Defense counsel did not raise the multiplicity issue below. Nevertheless, this court and our Supreme Court have routinely addressed claims of multiplicity for the first time on appeal “to serve the ends of justice or prevent a denial of fundamental rights.” E.g., State v. Weber, 297 Kan. 805, 809, 304 P.3d 1262 (2013) (“Multiplicitous convictions violate a defendant's rights under the Double Jeopardy Clauses of both the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights because they constitute multiple punishments for a single offense.”); State v. Coleman, 47 Kan.App.2d 658, 669, 277 P.3d 435 (2012) (“[A]ppellate courts have addressed such an issue for the first time on appeal in order to serve the ends of justice and prevent the denial of a fundamental right.”), rev. denied, 296 Kan. 1131 (2013). Thus, we will proceed to answer Yarborough's multiplicity claim.
Appellate courts exercise unlimited review when determining whether convictions are multiplicitous. State v. Holman, 295 Kan. 116, 147, 284 P.3d 251 (2012). Multiplicity is defined in Kansas as charging a single offense in several counts of a complaint or information. Weber, 297 Kan. at 808. The test for multiplicity is set out in State v. Schoonover, 281 Kan. 453, 497, 133 P.3d 48 (2006), where the court said: “[S]ome factors to be considered in determining if conduct is unitary, in other words if it is the ‘same conduct,’ include: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.”
Here, the facts reflect the charges arise from two distinct acts on the part of Yarborough; the charge of possession comes from the heroin found in the house while searching the house pursuant to the search warrant and the distribution charge stems from Yarborough's sale to Horning at the corner of 13th Street and Washington Avenue. Therefore, under the first prong of the test, the acts did not occur at or near the same time. Under the second prong, we look to see whether the acts occurred at the same location, and under Count 3 we find the possession of heroin stems from the heroin found in Yarborough's house at 1207 N. 14th Street, and the distribution of heroin charge stems from the sale at 13th Street and Washington Avenue—clearly, not the same location.
Under the third prong of the test, we look to see if there is a causal relationship between the acts or if there was an intervening event. Here, we have the possession of heroin at Yarborough's house and then Yarborough leaving the items in his house as he left to sell Horning heroin at 13th Street and Washington Avenue. Thus the intervening event was leaving the house and making the affirmative decision to meet Horning to sell him heroin. Finally, we look to see if there was a fresh impulse motivating the conduct. Here, there are two separate events as shown by Yarborough leaving heroin in the house and taking heroin to sell to Horning.
Therefore, the multiplicity test outlined above reflects Yarborough's conviction under Counts 3 and 4 did not arise from the same, or unitary, conduct. The question by the jury about the possession of heroin charge in Count 4 does not reflect confusion by the jury; it was a question asking the district court to give it guidance. The district court provided guidance when it instructed the jury to “recall the evidence presented during the trial.” Counts 3 and 4 as charged do not arise from the same, or unitary, conduct. Yarborough's claim Count 4 is multiplicitous fails.
Accomplice Instruction
Prior to instructing the jury, Yarborough requested the jury be given an accomplice instruction based on Horning's testimony. The district court denied the request because Horning could only be charged with possession, not distribution-the rationale being Horning could not be an accomplice to a crime with which he could not be charged. Yarborough now argues the district court erred in denying his request and that the error was not harmless. Yarborough asks this court to reverse Count 3, distribution of heroin, based on its failure to give an accomplice instruction. In response, the State argues the district court was correct to deny Yarborough's accomplice instruction request because Horning was not an accomplice to the crime of distribution of heroin.
Clearly, Horning's involvement in this matter was being at the wrong place at the wrong time when, unbeknownst to him, Yarborough was under surveillance by the Kansas City Police Department for the sale of heroin. Homing did not help Yarborough sell the heroin. Horning called Callahan to buy some heroin, not Yarborough. Yarborough showed up on his own, as the seller, and Horning bought the heroin. Homing did not promote, solicit, request, or command Yarborough to commit the crime. Additionally, Horning did not aid Yarborough in planning or committing the crime. See State v. Llamas, 298 Kan. 246, 263, 311 P.3d 399 (2013) (citing State v. Simmons, 282 Kan. 728, 737, 148 P.3d 525 [2006] ). Horning had no knowledge of Yarborough's involvement until he sat in Homing's car. Horning was not an accomplice. In the light most favorable to Yarborough, there was no factual basis for an accomplice instruction and it was not legally appropriate. The district court did not err when it denied Yarborough's request for an accomplice instruction to the jury.
Apprendi
Yarborough argues the district court erred when it increased his sentence based on his prior criminal history in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Yarborough recognizes the Kansas Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002), but includes the issue to preserve it for federal review. Because there is no indication the Kansas Supreme Court is departing from this position, this court is duty bound to follow established precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied, 294 Kan. 946 (2012). The district court properly used Yarborough's criminal history to establish his sentence.
Nunc Pro Tunc Journal Entry
Our last issue is Yarborough's request to remand the matter for a nunc pro tunc journal entry to be prepared to correctly reflect his jury trial convictions. While this appeal was pending, the nunc pro tunc journal entry was filed and we have been provided a copy of it. Thus, the need to remand for a nunc pro tunc journal entry is moot.
Conclusion
The charges of possession of heroin on July 2, 2010, and distribution of heroin to Horning on July 2, 2010, are two separate distinct acts and, thus, fail the first step of the multiplicity analysis. Horning was Yarborough's buyer, not his accomplice. Thus, the district court was correct in denying an accomplice instruction to the jury. Yarborough's criminal history challenge is without merit. The use of Yarborough's criminal history by the district court is well settled in Kansas, and we are duty bound to follow Kansas Supreme Court precedent. Finally, the nunc pro tunc journal entry Yarborough requested has been prepared and filed, so that issue is now moot.
Affirmed.