Opinion
111,544.
07-10-2015
STATE of Kansas, Appellee, v. Christopher KNEISEL, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Christopher Kneisel appeals from his conviction by a jury of possession of marijuana. He first argues that there was insufficient evidence that he knowingly possessed the marijuana found in his vehicle. He also argues that the district court violated his statutory and constitutional rights by submitting a written answer to a jury question. Finally, he argues that the State should have been required to prove his criminal history to the jury beyond a reasonable doubt. We find no reversible error and affirm the conviction and sentence.
On December 15, 2012, Officers Michael Malloy and Natalie Monas of the Kansas State University Police Department were on patrol in Manhattan. Around 5 p.m., Officer Malloy, who was driving, initiated a traffic stop when he noticed a Ford Crown Victoria with no visible license plate. After approaching the vehicle, Officer Malloy spoke with the driver, Kneisel, who was the only person in the vehicle. Kneisel was smoking a tobacco cigarette. Officer Malloy discovered that the vehicle's license plate had inadvertently fallen down in the back window, so he returned to the police car and verified that Kneisel was the vehicle's registered owner.
While Officer Malloy was preparing to issue him a warning for not correctly displaying the license plate, Kneisel opened his car door and placed a foot outside of the vehicle. Pursuant to his training, Officer Malloy immediately told Kneisel to get back in the vehicle. However, Kneisel turned towards Officer Malloy and began asking what he had done wrong. Both Officers Malloy and Monas began to approach the vehicle when Officer Monas—who was approaching the passenger side—alerted Officer Malloy that Kneisel was holding a knife. Officer Malloy drew his gun, and after Kneisel dropped the knife, they handcuffed and arrested him.
Shortly thereafter, an officer with the Riley County Police Department arrived with a dog trained to smell for drugs. When the dog indicated the presence of contraband, the officers searched the car and found forceps, rolling papers, clippers with a black, tarlike substance on the end, as well as used and unused syringes. In the car's ashtray, which was exposed, the officers also found a small bud of marijuana. Later, Officer Malloy tried to weigh the bud, but it was too light to register on the scale.
The State charged Kneisel with one count each of possession of marijuana and possession of drug paraphernalia. Since Kneisel had been previously convicted of possession of marijuana, the second possession of marijuana charge was a drug severity level 5 felony pursuant to K.S.A.2012 Supp. 21–5706. The district court conducted a jury trial on September 12, 2013, during which Officer Malloy testified for the State and Kneisel testified on his own behalf. Before the parties presented their evidence, the State moved to dismiss the possession of drug paraphernalia count, which the district court granted. Officer Malloy testified that smokers often use forceps to hold the remaining portion of a marijuana cigarette so that they can finish smoking it without burning their fingers. He also stated that rolling papers are often used to roll marijuana cigarettes. Officer Malloy stated that he noticed a loose substance in the vehicle, which he believed was marijuana shake. However, he agreed on cross-examination that he could not verify that it was marijuana since the officers did not test the substance.
Kneisel testified that he did not know that the marijuana bud was in his car. He also stated that he told police shortly after he was arrested that if he had known about the marijuana bud, he “would have smoked it already.”
About one hour after the jury began deliberations, the district court received a written note from a juror that asked, “When did [Kneisel] take possession of the vehicle?” After considering possible written responses with defense counsel, Britain Stites, and the prosecutor, Kendra Lewison, the district court summed up the discussion and agreement:
“THE COURT: Very well. So this is what the Court will write. And I'll let you look at this before I give it back to the jury. The Court then will respond, your verdict must be founded entirely upon the evidence admitted. Period. Please review ... Instruction Number 6.
“Very well. Counsel, if you would like to approach the bench and review my response before I have Ms. Oliver give this back to the jury.
“Mr. Stites?
“MS. LEWISON: Sounds good.
“THE COURT: So with the response written, is there any objection to the response, Mr. Stites?
“MR. STITES: No, there's not, Your Honor.
“THE COURT: Any objection, Ms. Lewison? Very well.
“MS. LEWISON: No, Your Honor.
“THE COURT: Very well. Thank you.
“Ms. Oliver, I'll let you take this back to the jury. Court's recessed.”
Ultimately, the jury found Kneisel guilty of possession of marijuana. Kneisel filed a motion for a new trial and judgment of acquittal, both of which the district court denied.
On January 6, 2014, the district court sentenced him to an underlying sentence of 20 months' imprisonment and granted a dispositional departure by ordering him to serve 12 months' probation. Kneisel filed a timely notice of appeal.
Sufficiency of the Evidence
Standard of Review
When reviewing the sufficiency of the evidence, this court reviews 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. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or determine a witness' credibility. 299 Kan. at 525, 324 P.3d 1078. Only in rare cases where the testimony is so incredible that no reasonable fact finder could find the defendant guilty beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983). Circumstantial evidence may support a verdict of even the gravest offense if the evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014).
The Evidence
Kneisel argues that there was insufficient evidence to find that he possessed the marijuana found in his vehicle. Possession of a controlled substance 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. State v. Tucker, 253 Kan. 38, 43, 853 P.2d 17 (1993) ; State v. Beaver, 41 Kan.App.2d 124, 129, 200 P.3d 490 (2009) ; PIK Crim. 4th 57.040. Control means to exercise restraining or directing influence over a certain object. State v. Flinchpaugh, 232 Kan. 831, 833–34, 659 P.2d 208 (1983). Possession may be immediate and exclusive, jointly held with another, or constructive, as when marijuana is kept by the accused in a place where he has some measure of access and right of control. State v. James, 48 Kan.App.2d 310, 330, 288 P.3d 504 (2012) (citing State v. Dean, 42 Kan.App.2d 32, 38, 208 P.3d 343 [2009] ), rev. granted 298 Kan. 1206 (2013). Both possession and intent can be shown by circumstantial evidence. State v. Gunn, 29 Kan.App.2d 337, 343, 26 P.3d 710, rev. denied 212 Kan. 1421 (2001).
Kneisel argues that the marijuana bud was so small, that it would not “have alerted him that he possessed it.” Although, he asserts that he may have at some point possessed the marijuana, he asserts that he did not on December 15, 2012. Kneisel presents no authority to suggest that this is the proper understanding of possession.
The evidence shows Kneisel was the registered owner of the Crown Victoria and he was the only person in the vehicle when Officer Malloy conducted the traffic stop. Kneisel did not testify, nor does the evidence suggest, that anyone else had access to the vehicle. The evidence also establishes that the ashtray which contained the marijuana bud was open and exposed to the driver. Thus, the evidence supports the conclusion that Kneisel was in exclusive possession of the vehicle and had exclusive access to the marijuana. See Dean, 42 Kan.App.2d at 38, 208 P.3d 343.
In addition, the officers found rolling papers, clippers with a black, tar-like substance on the end, as well as forceps, which Officer Malloy testified are often used to smoke the remaining portion of marijuana cigarettes. The only evidence suggesting that Kneisel was not aware of the presence of the marijuana was the small size of the bud and Kneisel's somewhat disingenuous and self-serving excuse, which the jury was free to consider and reject. Viewing the facts in a light most favorable to the prosecution, they support the finding that Kneisel knew of the marijuana's presence, providing sufficient evidence to find him guilty of possession.
The Written Answer to the Jury Question
Standard of Review
Kneisel's next claim—that the district court deprived him of his statutory and constitutional rights to be present during a critical portion of the trial—implicated legal questions that are subject to unlimited review on appeal. State v. Killings, 301 Kan. 214, 340 P.3d 1186 (2015).
Preservation of the Issue
Kneisel recognizes that he did not raise this issue below. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before this court. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). However, our Supreme Court has recently held that “[t]he personal nature of the defendant's statutory and constitutional rights to be present at all critical stages means that they cannot be waived by counsel's mere failure to object.” State v. Verser, 299 Kan. 776, 788, 326 P.3d 1046 (2014). Therefore, we will consider the issue.
Written Answer and the Right to Be Present
K.S.A. 22–3420 sets forth the procedures district courts must follow when answering questions from the jury. Before July 1, 2014, the statute was silent on whether a district court could provide a written response to a jury. In Verser, the Kansas Supreme Court interpreted the statute's silence to mean that it was error for a district court to provide a written answer to a jury question. 299 Kan. at 789, 326 P.3d 1046. Less than 1 month after the decision, the Kansas Legislature amended K.S.A. 22–3420 to permit district courts to provide written answers:
“The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff. The court shall notify the parties of the contents of the questions and provide them an opportunity to discuss an appropriate response. The defendant must be present during the discussion of such written questions, unless such presence is waived. The court shall respond to all questions from a deliberating jury in open court or in writing. In its discretion, the court may grant a jury's request to rehear testimony. The defendant must be present during any response if given in open court, unless such presence is waived. Written questions from the jury, the court's response and any objections thereto shall be made a part of the record.” (Emphasis added.) K.S .A.2014 Supp. 22–3420(d) ; L 2014, ch. 102, sec. 7.
In addition, the amended version of the statute provides that the amendments are procedural in nature and must be construed and applied retroactively. K.S.A.2014 Supp. 22–3420(f). Therefore, the district court did not violate the statute by providing a written response. See State v. Knighten, 51 Kan.App.2d 417, 428–29, 347 P.3d 1200 (2015) (finding that in light of July 1, 2014 amendments, the district court did not violate K.S.A. 22–3420 by providing jury with a written response to their questions).
In Verser, a case decided under the prior statute, the Supreme Court noted that even if the written answer violated a defendant's constitutional right to be present at every critical stage of the trial, the question remained whether any such error was harmless. 299 Kan. at 788–89, 326 P.3d 1046 ; see also Knighten, 51 Kan.App.2d at 429, 346 P.3d 1094. Our Supreme Court has held that structural analysis does not apply to consideration of error under these circumstances. Bowen, 299 Kan. at 357, 323 P.3d 853.
As in Knighten, we need not here resolve the question of whether a constitutional error occurred, because by any analysis, the perceived error is clearly harmless. When an error infringes upon a party's Sixth Amendment right to be present, Kansas courts will declare a constitutional error harmless only where the party benefitting from the error persuades the court “% 7F “beyond a reasonable doubt that the error ... did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility the error contributed to the verdict.” ‘ “ Bowen, 299 Kan. at 357, 323 P.3d 853 (quoting State v. King, 297 Kan. 955, 968, 305 P.3d 641 [2013] ). In making this determination, the court considers four factors set forth in State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 (2013) :
“(1) [T]he 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.”
With regard to the first factor, the prosecution's case is strong. As more fully discussed above, Kneisel was in exclusive possession of the vehicle and had exclusive access to the marijuana found in the ashtray. Officers found rolling papers, clippers with a black, tar-like substance on the end, as well as forceps, which Officer Malloy testified are often used to smoke the remaining portion of marijuana cigarettes. Therefore, this factor weighs in favor of finding harmless error.
Regarding the second factor, Kneisel and his counsel were present in the courtroom when the question was reviewed and the proposed answer discussed. Not only did Kneisel fail to object to the procedure, his counsel helped to formulate the written response. This factor also weighs in favor of finding harmless error.
Likewise, the third factor weighs in favor of finding harmless error. The record indicates that the jury inquired about when Kneisel took possession of the vehicle—a relatively insignificant matter since the evidence demonstrated that he was the registered owner of the vehicle and was in sole possession of the vehicle at the time of the stop. Moreover, the district court correctly directed the jury to formulate its verdict entirely upon the evidence admitted without further instruction or commentary.
Lastly, Kneisel was fully aware of his ability to remedy the matter through a posttrial motion. Although he did not raise a Sixth Amendment right to be present challenge, he filed a motion for a new trial asserting that the jury must have strayed from the evidence because it inquired about when Kneisel took possession of the car.
Because none of the Herbel factors of analysis weigh in Kneisel's favor, we are confident that there is no reasonable possibility that the district court's decision to provide a written answer to the jury, rather than read the same answer in open court, had any impact on the outcome of the trial. Therefore, any perceived error was harmless.
Right to Public Trial and Right to Have an Impartial Judge
Kneisel also argues that the district court violated his constitutional rights to a public trial and an impartial judge by submitting a written response to the jury. Previous panels of this court have considered the same argument and concluded that the right to a public trial is not implicated by a written response to a jury question. State v. Ramirez, 50 Kan.App.2d 922, 933–34, 334 P.3d 324 (2014) (“The requirement of a public trial assures that the judge and prosecutor act responsibly. It also discourages witnesses from committing perjury when testifying. These factors have no application in the procedure employed here.”); State v. Womelsdorf, 47 Kan.App.2d 307, 325, 274 P.3d 662 (2012) (“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.”), rev. denied 297 Kan. 1256; State v. Owens, No. 109,369, 2014 WL 1612457, at *4 (Kan.App.2014) (unpublished opinion) (same), petition for rev. filed May 19, 2014. Similarly, panels of this court have found this procedure does not raise questions of whether the defendant was provided an impartial judge. Ramirez, 50 Kan.App.2d at 934, 334 P.3d 324 ; Womelsdorf 47 Kan.App.2d at 324, 274 P.3d 662 ; State v. Hunter, No. 110,729, 2015 WL 1310133, at *2 (Kan.App.2015) (unpublished opinion), petition for rev. filed April 10, 2015. Since Kneisel offers no other argument than those asserted in prior cases, we similarly conclude that the district court violated neither right.
The Criminal History Issue
Lastly, Kneisel argues that the district court violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior convictions to increase his sentence without requiring the State to prove them beyond a reasonable doubt. He acknowledges that our Supreme Court previously resolved this issue in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Panels of this court are bound to follow precedent established by our Supreme Court unless there is an indication that it is departing from the precedent. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). Ivory 's progeny does not suggest any such departure. See State v. Benson, 295 Kan. 1061, 1068, 287 P.3d 927 (2012) ; State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011) ; State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009) ; State v. Fewell, 286 Kan. 370, 394–96, 184 P.3d 903 (2008). Kneisel's argument is without merit.
Affirmed.