Opinion
No. 110,126.
2014-09-26
STATE of Kansas, Appellee, v. Damien J. ZAPATA, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge.Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Police approached Damien J. Zapata after he pulled his vehicle into his driveway. Officers determined that he had a suspended license and subsequently found marijuana and hydrocodone pills inside the vehicle. Zapata raises a new issue on appeal concerning the lawfulness of the search of his vehicle, but because he raises this argument for the first time on appeal and fails to explain why it should be considered despite being raised for the first time on appeal, we decline to address it. He also raises two instructional errors that he did not raise before the district court. We find that the trial court did not err in failing to instruct the jury that the possession of the hydrocodone pills must be “unlawful” because such an instruction was neither factually nor legally appropriate here. But we find that the court did err in failing to instruct the jury that Zapata possessed less than 25 grams of marijuana. However, based upon the evidence presented, we find that the proper instruction would not have resulted in the jury reaching a different verdict. Accordingly, we affirm.
Factual and Procedural History
On July 3, 2012, police were dispatched to investigate a person possibly involved in drug activity. The vehicle the person was driving was described as a green Buick LeSabre. When police arrived, they saw a green Pontiac Bonneville pull into a driveway. As the person exited the vehicle, the police approached and asked if they could speak with him. The police asked to see his license, and the person was identified as Zapata. Zapata was immediately arrested for driving while his license was suspended. While he was being arrested, the police officers saw a plastic bag containing a leafy green substance on the floor of Zapata's vehicle. The bag was visible from outside of the vehicle. Zapata and his vehicle were both searched, and two additional bags containing a leafy green substance were found in the vehicle along with a prescription bottle with approximately 12 hydrocodone pills.
Zapata was charged with possession of marijuana with the intent to distribute, possession of hydrocodone, and driving while on a suspended license.
Zapata filed a motion to suppress, arguing that because his vehicle did not match the description given, the police had no reasonable belief that he was engaged in criminal behavior. In addition, he argued that the plain view exception did not apply because Zapata believed that the police officer had to put his head through the open window of the vehicle in order to see the bag of marijuana on the floorboard. During the motion hearing, the officers involved testified that they did not lean into the car to see the contraband. Although the pictures taken of the contraband were taken leaning into the vehicle, the State presented photographs of a similar vehicle to demonstrate that the items could have been seen through a closed window.
The district court denied Zapata's motion to suppress, finding that the encounter between Zapata and the police was voluntary and that the police officer did not break the plane of the vehicle's window when he observed the bag of marijuana on the floorboard of the vehicle.
After his jury trial, the jury found Zapata guilty of possession of marijuana with the intent to distribute, possession of hydrocodone, and driving while suspended. Zapata was given a controlling sentence of 44 months' imprisonment.
Zapata filed a timely notice of appeal.
Analysis
We decline to consider the issue of the search of Zapata's vehicle within the curtilage of his home because it was not raised before the district court.
Zapata contends that the district court should have suppressed the bags of marijuana and the prescription bottle containing hydrocodone pills found in his vehicle because the police officers unlawfully searched his vehicle while the vehicle was within the curtilage of Zapata's home. Zapata raises this issue for the first time on appeal. In fact, counsel indicated at the suppression hearing that he was not challenging the initial encounter. Moreover, counsel stated that if the court found that the officer was standing above the car when he looked in the window—as the officer testified—“then my motion does not have a factual basis to stand upon.”
Generally, issues not raised before the trial court cannot be raised on appeal. See State v. Cheffen, 297 Kan. 689, 698, 303 P.3d 1261 (2013). Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012).
Zapata failed to present this new legal theory to the district court and has failed to indicate why this issue should be considered even though it was not raised below. There are several exceptions to the rule that a new legal theory may not be asserted for the first time on appeal. See State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert denied 133 S.Ct. 529 (2012). Nevertheless, Zapata failed to make any argument that his newly raised issue fits within one of these exceptions. Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with rule). Because Zapata raises this legal theory for the first time on appeal and has failed to explain why it should be considered despite being raised for the first time on appeal, we decline to address it. The district court did not err when it failed to instruct the jury that the possession of hydrocodone must be “unlawful.”
Zapata argues that the district court erred when it neglected to indicate in the jury instruction for the possession of hydrocodone that the possession had to be unlawful. Zapata concedes that he did not object to the jury instruction at the time of trial.
A party cannot claim error for the district court's giving or failing to give a jury instruction unless (1) the party objects before the jury retires, stating distinctly the matter to which the party objects and the grounds for the objection; or (2) the instruction or the failure to give the instruction is clearly erroneous. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). The appellate court uses a two-step process in determining whether the challenged instruction was clearly erroneous: (1) The court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record; (2) if the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict without the error. Reversibility is subject to unlimited review and is based on the entire record. The party claiming error in the instructions has the burden to prove the degree of prejudice necessary for reversal. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).
The “clearly erroneous” principle is not a standard of review, i.e., a framework for determining whether error occurred. Instead, it supplies a basis for determining if an error requires reversal of a conviction. State v. Lewis, 299 Kan. ____, Syl. ¶ 11, 326 P.3d 387 (2014); State v. Williams, 295 Kan. 506, 510–16, 286 P.3d 195 (2012).
The district court gave the following instruction on the possession of hydrocodone:
“The defendant is charged in Count 2 with unlawfully possessing Hydrocodone. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. The defendant possessed Hydrocodone.
“2. This act occurred on or about the 3rd day of July, 2012, in Lyon County, Kansas.
“ ‘Possession’ means having joint or exclusive control over an item with knowledge of and the intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.”
The instruction conforms to PIK Crim. 4th 57.040. But under K.S.A.2012 Supp. 65–4116(c)(3), an “ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner” may “lawfully possess” that controlled substance. An “ultimate user” is defined as “a person who lawfully possesses a controlled substance for such person's own use or for the use of a member of such person's household.” K.S.A.2012 Supp. 65–4101b(pp). Zapata argues that his theory of defense was that the pills belonged to his mother-in-law, who had a valid prescription; therefore, the jury should have been instructed that “unlawful” possession was an additional element of the crime.
Zapata relies on State v. Jaushlin, No. 104,195, 2011 WL 5833291 (Kan.App.2011) (unpublished opinion), to argue that the district court should have further informed the jury that the possession of hydrocodone had to be unlawful. In Jaushlin, this court reversed the defendant's conviction for possession of hydrocodone, finding that the district court should have given a further instruction to the jury that the possession of the hydrocodone had to be unlawful. In that case, the defendant was found with a bag of hydrocodone in his pocket. The defendant indicated that the pills were his mother's and that she had a valid prescription for them. The defendant argued that he had lawful possession of the hydrocodone pills because they belonged to his mother, a member of his household, who possessed a prescription for the pills. 2011 WL 5833291, at *3. This court agreed and found there was a sufficient basis to give a special instruction regarding lawful possession. 2011 WL 5833291, at *6.
Jaushlin is distinguishable from Zapata's case. At his trial, Zapata presented evidence that the bottle of hydrocodone found in his vehicle was his mother-in-law's and she had a valid prescription for the pills. However, Zapata presented no evidence indicating that his mother-in-law was a member of his household. Likewise, he makes no such claim on appeal. In fact, the evidence was that she lived at a different location, left the pills at Zapata's home, and had asked her daughter, Zapata's wife, to return the pills to her. Because Zapata's mother-in-law was not a member of his household, his reliance on Jaushlin is misplaced, and an instruction regarding lawful possession was not supported by the facts of this case.
Moreover, even though there was no dispute that the capped pill bottle found in the vehicle belonged to the defendant's mother-in-law, Helen Powell, the 12 hydrocodone pills inside were in a plastic baggie knotted at the top. In addition, phone messages were found on Zapata's phone. One message, sent a few days before Zapata's arrest, was from someone named Helen asking, “Did u sell any of da pills?” On the day of Zapata's arrest, he received a text from “V” asking, “U still have the pills?” Zapata responds, “Yea.” He advises “V” that he has “42 pills.” The evidence showed that even though only 12 pills were found in the baggie at the time of his arrest, the prescription was for 45 pills. Helen Powell testified that to her “knowledge” she did not send the text to Zapata, but admitted it could have been sent from her phone.
Accordingly, we find that the district court did not err when it failed to further instruct the jury that the possession of the hydrocodone had to be unlawful because the instruction given was both factually and legally appropriate. The district court did err when it failed to require the jury to find that the amount of marijuana found in Zapata's vehicle weighed less than 25 grams, but the error would not have resulted in a different verdict.
Zapata asserts that the district court should have given an instruction that would have required the jury to determine that the amount of marijuana found in Zapata's vehicle weighed less than 25 grams. Zapata argues that the amount of marijuana was a material fact that needed to be determined by the jury. Zapata again concedes that he did not object to the instruction at the time of trial. Thus, the standard of review is the same as above in the second issue.
The State concedes that the jury instruction was erroneous and the jury should have been required to make a finding on the amount of marijuana. However, the State asserts that the jury would not have reached a different verdict without the error.
The jury instruction given by the district court is as follows:
“The defendant is charged in Count 1 with unlawfully possessing with the intent to distribute a controlled substance. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. The defendant possessed with the intent to distribute marijuana.
“2. This act occurred on or about the 3rd day of July, 2012, in Lyon County, Kansas.”
Zapata is correct that the district court should have required the jury to make a factual finding as to the amount of marijuana found in Zapata's vehicle. Under K.S.A.2012 Supp. 21–5705(d)(2), the severity level of the crime is determined by the quantity of marijuana possessed by a defendant. Moreover, PIK Crim. 4th 57.020 recognizes the need for the jury to make this determination by requiring it in the recommended jury instruction for possessing with intent to distribute a controlled substance.
Thus, it was error when the district court neglected to require the jury to find that the amount of marijuana found in Zapata's vehicle was less than 25 grams. However, Zapata has failed to argue that the absence of the error should convince this court that the jury would have reached a different verdict. The party claiming error in the instructions has the burden to prove the degree of prejudice necessary for reversal. Betancourt, 299 Kan. at 135. Zapata only states that his various constitutional rights have been violated by the error without much explanation. He entirely omits to argue that the verdict would have been different if the error had not occurred.
The State likens this case to that in State v. Carter, 35 Kan.App.2d 327, 130 P.3d 135, rev. denied 282 Kan. 792 (2006), where the defendant argued there was insufficient evidence to support his conviction for misdemeanor criminal damage to property because the State failed to show the monetary value of the damage done to the victim's door. This court found that the lack of evidence pertaining to the monetary value of the damage was not an essential element of the crime and was irrelevant because the defendant was charged with misdemeanor rather than felony criminal damage to property. 35 Kan.App.2d at 331–32.
While Carter is clearly distinguishable from Zapata's case, it is helpful. In Carter, the amount of the damage to the property is what distinguishes the crime between a misdemeanor and a felony, i.e., the severity level. In Zapata's case, the weight and amount of marijuana is what distinguishes among the severity levels of the crime of possession with intent to distribute a controlled substance.
With that in mind, if the district court had given the jury the instruction to determine the weight and amount of the marijuana found in Zapata's vehicle, the verdict would not have been different because there was evidence presented that the marijuana was less than 25 grams and no contrary evidence was presented.
Affirmed.