Opinion
No. 110568.
2015-02-27
STATE of Kansas, Appellee, v. Wendell L. PARRISH, Appellant.
Appeal from Riley District Court; Meryl D. Wilson, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Riley District Court; Meryl D. Wilson, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Wendell L. Parrish appeals his convictions for distribution of hydromorphone within 1,000 feet of a school and conspiracy to distribute hydromorphone. In particular, Parrish claims his right to a speedy trial as required by K.S.A. 22–3402 was violated; his constitutional right to a jury trial was violated due to instructional error regarding the elements of the crimes charged; and there was insufficient evidence to support the convictions. For his final claim, Parrish asserts there was insufficient evidence to prove that he distributed hydromorphone within 1,000 feet of a school because there was no showing that Theodore Roosevelt School met the statutory definition of a school.
Having reviewed the record, the parties' briefs, and considered the oral arguments, we affirm Parrish's conviction for conspiracy to distribute hydromorphone. We reverse Parrish's conviction for distribution of hydromorphone within 1,000 feet of a school but find as a matter of law there was sufficient evidence to support a conviction of the lesser offense of distribution of hydromorphone. Accordingly, this matter is affirmed in part, reversed in part, and remanded to the district court for resentencing on the lesser offense of distribution of hydromorphone.
Factual and Procedural Background
Carey Martin Wright, Jr., was a confidential informant employed by the Riley County Police Department, who assisted law enforcement by participating in controlled purchases of illicit drugs. On October 10, 2011, Wright received a text message from Faith Morehead, which stated: “Hey it faith I can get ds.” Wright understood Morehead's message to mean that he could purchase dilaudid or hydromorphone from her.
Wright contacted Detective Boeckman who authorized Wright to make a controlled purchase of the drugs from Morehead. According to the plan, Wright arranged to purchase two 4–milligram dilaudids for $40. Detective Boeckman equipped Wright with a recording device and gave him $40. Before Wright and Detective Boeckman left for the scheduled meeting place, Morehead contacted Wright and said she needed him to pay her in advance because she had to acquire the pills from her dealer. Ultimately, Wright convinced Morehead to have her supplier meet at the location proposed for the drug sale.
Wright and Detective Boeckman (working undercover) arrived at the agreed-upon meeting place which was located within 1,000 feet of Theodore Roosevelt School, “a public elementary school” located in Riley County, Kansas. With Detective Boeckman conducting surveillance, Wright approached Morehead's truck and briefly conversed with her until Morehead's supplier, later identified as Parrish, arrived in a separate vehicle. Wright handed Morehead the buy money and returned to his vehicle while Morehead spoke with Parrish.
At trial, Morehead (who later pled guilty to distribution of hydromorphone with the agreement to testify against Parrish) testified that Parrish entered her truck. According to Morehead, Parrish supplied her with the dilaudid pills and, in return, she paid him $60. Morehead then left her truck and gave Wright two of the pills.
Detective Boeckman took custody of the drugs from Morehead. According to Brad Crow, a forensic scientist with the Kansas Bureau of Investigation, a pharmaceutical reference guide and gas chromatograph mass spectrometry testing confirmed that the pills Morehead gave Wright contained hydromorphone.
The State charged Parrish with distribution of hydromorphone within 1,000 feet of a school and conspiracy to distribute hydromorphone. On the first day of Parrish's jury trial held in May 2013, the district court heard and denied his motion to dismiss the charges alleging that the State had violated his statutory right to speedy trial by failing to bring him to trial within 180 days of his arraignment.
A jury convicted Parrish as charged. On July 15, 2013, the district court sentenced Parrish to a controlling prison term of 74 months. Parrish filed this timely appeal.
Speedy Trial
Parrish contends the trial court committed reversible error when it denied his motion to dismiss on statutory speedy trial grounds. According to Parrish, the State failed to bring him to trial within 180 days of his arraignment as required by K.S.A. 22–3402(2). With regard to the time period between the initial arraignment and trial, Parrish argues on appeal that “[a]t least 198 days” (or 18 days in excess of the statutory limit) are attributable to the State.
The State presents three counter arguments, two of which we conclude are dispositive of this issue. First, the State asserts the 44–day time period from September 10, 2012, to October 24, 2012, should be assessed against Parrish because his counsel requested this delay to present and argue a pretrial motion that was never filed. Second, the State contends the trial court invoked K.S.A. 22–3402(5)(d)—see K.S.A.2014 Supp. 22–3402(e)(4), the so-called crowded docket continuance, to extend the statutory speedy trial period an additional 30 days. As candidly conceded by Parrish: “[I]f the district court ordered a crowded docket continuance, Mr. Parrish's speedy trial claim would fail.” We will first summarize the standards of review and law to guide our analysis, set forth the pertinent facts, and then individually analyze the State's two counter arguments.
Appellate courts review claimed violations of a defendant's statutory right to a speedy trial de novo, as “ ‘[t]he primary issue in such appeals—the computation of days to be assessed against the so-called speedy trial clock—requires some level of statutory interpretation.’ [Citations omitted.]” State v. Edwards, 291 Kan. 532, 537, 243 P.3d 683 (2010). However, when the assessment of time under the speedy trial statute depends upon a factual finding made by the district court, “an appellate court must determine whether the facts as found by the district court are supported by substantial competent evidence. The court then determines de novo whether those facts as a matter of law support the legal conclusion of the district court.” State v. Vaughn, 288 Kan. 140, Syl. ¶ 1, 200 P.3d 446 (2009).
K.S.A. 22–3402(2) governs the statutory right to a speedy trial when, as in this case, the defendant has been arraigned and placed on an appearance bond. It provides in relevant part:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).”
Cf. K.S.A.2014 Supp. 22–3402(b).
In Kansas, a defendant's statutory right to a speedy trial attaches at arraignment. State v. Gill, 48 Kan.App.2d 102, 107–08, 283 P.3d 236 (2012), rev. denied 298 Kan. –––– (February 18, 2014). It is the State's responsibility to bring a criminal prosecution to trial within the parameters of the speedy trial statute. Vaughn, 288 Kan. at 144; see K.S.A. 22–3402; State v.. Thomas, 291 Kan. 676, 692, 246 P.3d 678 (2011). While “[a] defendant is not required to take any affirmative action to see that his or her right to a speedy trial is observed,” when a delay results from “the application or fault of the defendant” the speedy trial clock is tolled accordingly. Vaughn, 288 Kan. at 144; K.S.A. 22–3402(2). Finally, K.S.A. 22–3402(5)(d) authorizes a trial court to extend the requisite speedy trial period for up to 30 days due to a crowded docket. See K.S.A.2014 Supp. 22–3402(e)(4).
At his arraignment on September 10, 2012, Parrish pled not guilty to both charges. Defense counsel requested the trial court set the matter for jury trial “60 to 90 days out” and schedule a hearing for a motion to suppress evidence to be filed later. After an off-the-record discussion regarding calendaring issues, the trial judge scheduled a hearing on the suppression motion for October 24, 2012, and set a trial date of January 24, 2013. The motion hearing was later cancelled on October 24, 2012, however, because defense counsel never filed the suppression motion.
For reasons not dispositive to this appeal, Parrish had a second arraignment on March 18, 2013. At that time, Parrish's counsel addressed the district court at length, advising that Parrish “does want to make sure that his speedy trial rights are being observed.” After noting that the district court did not have a date available for Parrish's trial within the next 2 months, the district judge held an off-the record discussion with the parties to discuss a new trial date. On the record, the district judge announced Parrish's new trial date as May 15 and 16, 2013, and then stated, “Well, I will make a 30–day finding as well, if it's close to being within that time frame, because my calendar is a mess trying to find dates.”
On the eve of Parrish's jury trial, May 14, 2013, Parrish filed a motion to dismiss based on statutory speedy trial grounds. The next morning, prior to the beginning of trial, the district court heard arguments on Parrish's motion. Parrish claimed that, in violation of the K.S.A. 22–3402(2) requirement that he should have been brought to trial within 180 days, 204 days had elapsed since his first arraignment.
The trial court ruled from the bench and denied Parrish's motion. Of particular relevance to this appeal, the trial judge determined that Parrish
“was arraigned on September the 10th of 2012. On that date his counsel, Mr. Robinson, requested a motions hearing. That would be a motion to suppress. That motion was set for October the 24th. For reasons which I did not know at this time the motion was never filed, and the motion hearing was in fact cancelled on October the 24th of 2012. I believe that that time between September the 10th and October the 24th is charged to [Parrish].”
The trial judge also referenced Parrish's second arraignment on March 18, 2013, stating:
“This was a status hearing to take the plea and set it for a jury trial where probably conservatively perhaps 30 other people in court that day, and the Court did not—obviously on status days we don't have time to spend any length of time on these issues, and I instructed counsel to file a motion on the—on this issue. The actual motion, I didn't receive until May 14th.”
The trial court also indicated that if it had been advised of a speedy trial issue earlier, there were “several things the Court would have done that day or could have done, and first would have been to make a 30–day finding.” Is the 44–Day Time Period Attributable to Parrish for Speedy Trial Purposes?
The trial court found the 44 days between Parrish's arraignment on September 10, 2012, and the October 24, 2012, motion hearing which was scheduled but not held, was attributable to the application or fault of the defendant. If correct, Parish was tried within the statutory time period mandated by K.S.A. 22–3402(2).
Trial delays which occur “as a result of the application or fault of the defendant” are not counted for speedy trial purposes, and the actions of defense counsel are attributable to the defendant for speedy trial purposes. See K.S.A. 22–3402(2); Vaughn, 288 Kan. at 144; State v. Adams, 283 Kan. 365, 369, 153 P.3d 512 (2007). Actions which toll the speedy trial clock include a defendant's request for a continuance, the filing of a motion that causes delay, or the defendant's active acquiescence to a continuance requested by the State. Vaughn, 288 Kan. at 144–45. Of particular importance to this case, under a plain reading of K.S .A. 22–3402(2), any delay caused by the filing of a motion to suppress is “necessarily the result of the application of the defendant.” City of Dodge City v. Downing, 257 Kan. 561, 563, 894 P.2d 206 (1995). As a result, the time associated with the filing of the motion to suppress and the time set for submission of briefs is chargeable to the defendant as long as the period is reasonable. State v. Southard, 261 Kan. 744, 748–49, 933 P.2d 730 (1997).
Parrish argues the trial court erred when it assessed this 44–day time period against him because Robinson's request for a suppression hearing did not cause an actual delay of the trial. Parrish notes his trial date was never contingent upon the occurrence of the hearing and Robinson requested the hearing at the beginning of the speedy trial period. On the other hand, the State cites Southard for the proposition that although Parrish never filed a suppression motion, Robinson's request for a motion hearing resulted in charging Parrish with the time period which elapsed between his arraignment and the scheduled hearing.
In Southard, our Supreme Court determined, under similar factual circumstances, that when a district court accommodates a defendant's request for a motion hearing, the time passing before the motion is filed is chargeable to the defendant regardless of whether the defendant followed through with filing or arguing the motion. 261 Kan. at 748–50. Similar to Parrish, Southard argued the delay was not attributable to him, asserting that delay ascribed to a defendant from defense motions is “restricted to actual delay resulting from their pendency as distinguished from time elapsing while they are pending.” 261 Kan. at 749.
Our Supreme Court disagreed with Southard and explained:
“When defense counsel requested at the arraignment a 2–hour hearing for motions to suppress not yet filed, the time passing before the motions were filed is chargeable to the defendant. The court properly accommodated defense counsel's request, whether or not the defense ever followed through with filing or arguing the motion. The alternative would require a district court to refuse to accommodate a defendant by denying defense requests for hearing dates and set hearings only after a defense motion is on file. A non-accommodation policy does not support the interests of the defendant.” 261 Kan. at 749.
During oral argument, Parrish's counsel encouraged our court to reconsider Southard. However, we are duty bound to follow Kansas Supreme Court precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
Consistent with Southard, the trial court did not err in attributing the 44–day period to Parrish. See Southard, 261 Kan. at 749–50; State v. Shaffer, No. 92,126, 2006 WL 903101, at *2 (Kan.App.2006) (unpublished opinion) (“Based on our reading of Southard, ... [w]hen defense requests a hearing at some future date for motions not yet filed, the time period between those two dates is attributable to the defense. [Citation omitted.]”), rev. denied 282 Kan. 795 (2006). As a result of this 44 day attribution to Parrish, we conclude his statutory speedy trial rights as provided in K.S.A. 22–3402(2) were not violated. Is the 30–Day “Crowded Docket” Continuance Under K.S.A. 22–3402(5)(d) Applicable?
The State posits a second alternative basis upon which Parrish's statutory speedy trial rights were not violated. Specifically, the State argues that because Parrish's trial commenced within the 30–day extension ordered by the district court and authorized by K.S .A. 22–3402(5)(d), there was no violation.
Under K.S.A. 22–3402(5)(d), see K.S.A.2014 Supp. 22–3402(e)(4)—the crowded docket continuance—a district court may extend the requisite speedy trial period when “ ‘[b]ecause of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by [K .S.A. 22–3402].’ “ See Edwards, 291 Kan. at 542. The district court, however, may only order one continuance of not more than 30 days upon this ground. K.S.A. 22–3402(5)(d).
At Parrish's second arraignment on March 18, 2013, the parties discussed Parrish's speedy trial rights. In particular, Parrish's counsel indicated that he believed there were “about two months left” on the speedy trial clock. Prior to engaging in an off-the-record discussion with the parties, the district court noted it did not have a date available for Parrish's trial within the next 2 months. The district judge said, “All right. I know we don't have a time in the next two months.” When the district court went back on the record, the judge announced Parrish's trial date as May 15 and 16, 2013, and stated, “Well, I will make a 30–day finding as well, if it's close to being within that time frame, because my calendar is a mess trying to find dates.”
The State contends that “[t]he district court's comments about making the 30–day finding immediately prior to announcing a trial date that was outside the 180–day deadline (but within 210 days of the first arraignment) clearly points towards the district court's intention” to invoke the crowded docket continuance. Parrish counters that the district court's comments merely indicate that he was leaving open the possibility of invoking the crowded docket provision in the future.
The district court did not need to make an explicit finding invoking the crowded docket provision in order for K.S.A. 22–3402(5)(d) to be applicable. See Edwards, 291 Kan. at 542; State v. Rodriguez–Garcia, 27 Kan.App.2d 439, 441, 8 P.3d 3 (1999), rev. denied 269 Kan. 939 (2000). For this provision to apply, the record need only support an implicit determination that an earlier trial date was unavailable. See Edwards, 291 Kan. at 542.
In Rodriguez–Garcia, our court rejected Rodriguez–Garcia's assertion that the State violated his right to a speedy trial by failing to try him within the time limit provided by K.S.A. 22–3402. 27 Kan.App.2d at 441. When the district judge set Rodriguez–Garcia's case for trial 21 days outside the speedy trial statute, the judge noted, “ ‘I don't have anything open until November 17, 1997.’ “ 27 Kan.App.2d at 441. Although RodriguezGarcia argued that K.S.A. 22–3402(5)(d) did not apply because the district judge did not specifically invoke the crowded docket provision, our court found this case fit “squarely” within the provisions of K.S.A. 22–3402(5)(d). 27 Kan.App.2d at 441. In particular, our court determined the “clear and reasonable implications” of the district judge's comments demonstrated that the provision applied:
“In order to grant relief to the defendant, we would have to ignore the clear and reasonable implications from the trial court's statement in setting this trial for November 17, 1997. The trial court is in control of its own docket, and its statement that nothing was open for a 4–day trial until November 17 is sufficient without more to establish the court's docket would not accommodate the trial until November 17, 1997. The trial setting was within the 30–day period of time granted by [K.S.A. 22–3402(5)(d) ]. We conclude the defendant's statutory right to a speedy trial was not denied.” 27 Kan.App.2d at 441.
Parrish, however, attempts to distinguish his case from Rodriguez–Garcia by citing our Supreme Court's decision in Edwards. In Edwards, the district judge entertaining Edwards' speedy trial motion appeared to rely on K.S.A. 22–3402(5)(d) as justification for extending Edwards' trial beyond the statutory limitation period. In overruling Edwards' motion, the district judge cited Rodriguez–Garcia and “determined that another judge who set the ... trial date must have been thinking about invoking K.S.A. 22–3402(5)(d), because everyone knows that their judicial district is the busiest court in the state.” Edwards, 291 Kan. at 542.
On appeal, our Supreme Court determined that Edwards' case did not fit within the parameters of K.S.A. 22–3402(5)(d) because the record did not “support the motion judge's speculation that the judge setting the trial date intended to invoke the ‘crowded docket’ provisions of K.S.A. 22–3402(5)(d).” 291 Kan. at 542–43. The court explained that while in Rodriguez–Garcia the district court announced that it had a crowded docket, the record in Edwards' case did not “support even an implicit determination that an earlier trial date was unavailable.” Edwards, 291 Kan. at 542.
Similar to Edwards, Parrish argues the record does not support a finding that the district judge intended to invoke K.S.A. 22–3402(5)(d). Critical to Parrish's argument is the district court's ruling on the motion to dismiss, wherein the district judge said
“there [were] several things the Court would have done that day or could have done, and first would have been to make a 30–day finding [had it been apprised of speedy trial concerns], which would have allowed more time for new counsel to get ready, and I could have moved other trial settings, which I had to make sure that it was within the statutory time then.”
Parrish's arguments are not persuasive. The district judge's comments at Parrish's second arraignment proceeding (“Well, I will make a 30–day finding as well, if it's close to being within that time frame, because my calendar is a mess trying to find dates”) are similar to the judge's statements in Rodriguez–Garcia because they clearly establish the district court had a crowded docket and an earlier trial date was unavailable.
Moreover, Parrish has taken the district judge's comments regarding the rendering of a “30–day finding” out of context because the statements upon which Parrish relies were not made at the second arraignment proceeding on March 18, 2013; instead, the district judge was commenting on the January 24 and 28, 2013, hearings. As the State points out, because Parrish filed his motion to dismiss on the day before trial, the failure of the district judge and the State to recall and mention the 30–day finding made at the second arraignment proceeding some 2 months previously is understandable because both the State and district judge had limited time to refresh their “memories about earlier discussions.” In fact, at the motion to dismiss hearing, the district judge said he was “blind-sided” by Parrish's motion and the prosecutor explained that “the State received this motion at 5:20 p.m. And [defense counsel] had alerted me, too, [earlier in the day,] that the motion was coming, but due to needing to prepare for trial, quite honestly I didn't have time to do any research on it.”
We are persuaded the district court invoked the 30–day continuance as provided in K.S.A. 22–3402(5)(d) at the second arraignment on March 18, 2013. As a result, the jury trial commenced within the statutorily mandated time period and without violation of Parrish's speedy trial rights.
In conclusion, in addition to properly assessing the 44–day time period against Parrish for speedy trial purposes, the record shows the district court made a 30–day crowded docket finding at the second arraignment on March 18, 2013. Accordingly, we hold the State did not deprive Parrish of his statutory right to a speedy trial.
Sufficiency of Evidence
Parrish does not dispute the evidence that he distributed and conspired to distribute hydromorphone. Instead, for the first time on appeal, he contends the evidence was insufficient to prove hydromorphone is a controlled substance under K.S.A.2011 Supp. 21–5705(a)(l), applicable at the time of Parrishs' offense. Parrish asserts that because hydromorphone's “addictive qualities” are an element of the crimes, evidence of addictive qualities is necessary to support the convictions. The State, on the other hand, counters that whether hydromorphone is a controlled substance is a question of law and not a question of fact for the jury.
Although Parrish frames this issue as a challenge to the sufficiency of the evidence, he is actually challenging the elements of the two crimes. If the addictive qualities of hydromorphone are an element of the offenses, as Parrish asserts, then evidence would be required to prove that point. See State v. Hollister, 300 Kan. 458, 468, 329 P.3d 1220 (2014) (applying the sufficiency of the evidence standard “to determine whether there was sufficient evidence of each of the elements”). But if the addictive qualities of hydromorphone are not an element of the crimes, the absence of the sufficiency of such evidence is irrelevant.
In analyzing this issue and the next one dealing with jury instructions, we are guided by certain standards. Identifying the elements of a crime is a question of law subject to unlimited review. See State v. Friday, 297 Kan. 1023, 1036–37, 306 P.3d 265 (2013) (considering whether a jury instruction was legally appropriate with respect to its elements); State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012) (whether a jury instruction is legally appropriate is subject to unlimited review); State v. Richardson, 290 Kan. 176, 181, 224 P.3d 553 (2010) (trial court has duty to instruct jury on every element of the crime charged).
As noted earlier, the State charged Parrish with unlawful distribution of a controlled substance within 1000 feet of a school and conspiracy to commit unlawful distribution of a controlled substance. In the charging document, the State cited K.S.A.2011 Supp. 21–5705(a)(1), which bans the distribution of “controlled substances.” The State also cited K.S.A.2011 Supp. 65–4107(b)(1)(K), in the charges and specified the substance listed there, “Hydromorphone,” as the controlled substance in question.
K.S.A.2011 Supp. 21–5705(a)(1), which criminalizes the act of distributing a controlled substance, states:
“It shall be unlawful for any person to cultivate, distribute or possess with the intent to distribute any of the following controlled substances or controlled substance analogs thereof:
“(1) 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.”
Because hydromorphone is not listed as a stimulant in K.S.A.2011 Supp. 65–4107(d)(1), (d)(3), or (f)(1), Parrish argues the State was required to prove that hydromorphone is included within the statutory definition of “ ‘opiates, opium or narcotic drugs.’ “
K.S.A.2011 Supp. 21–5701(l)–(m) provides in relevant part, the following definitions for these terms:
“(1) “Narcotic drug' means any of the following ...:
(1) Opium and opiate and any salt, compound, derivative or preparation of opium or opiate;
“(m) ‘Opiate’ means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability.” (Emphasis added.)
As the State points out, however, the Uniform Controlled Substances Act (UCSA) designates hydromorphone as a schedule II controlled substance because it falls within the category “[o]pium and opiate and any salt, compound, derivative or preparation of opium or opiate.” K.S.A.2011 Supp. 65–4107. Specifically, K.S.A.2011 Supp. 65–4107 provides:
“(a) The controlled substances listed in this section are included in schedule II and the number set forth opposite each drug or substance is the DEA controlled substances code which has been assigned to it.
“(b) Any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin or independently by means of chemical synthesis or by combination of extraction and chemical synthesis:
(1) Opium and opiate and any salt, compound, derivative or preparation of opium or opiate, excluding apomorphine, dextrorphan, nalbuphine, nalmefene, naloxone and naltrexone and their respective salts, but including the following:
(K) Hydromorphone ......................... 9150.” (Emphasis added.)
Parrish attempts to avoid the implications of hydromorphone's classification as a schedule II drug by claiming that K.S.A.2011 Supp. 65–4107 does not apply because K.S.A.2011 Supp. 21–5705(a)(l) does not reference K.S.A.2011 Supp. 65–4107. According to Parrish, this omission is indicative of the legislature's intent to reply upon the definition of “ ‘opium,’ “ “ ‘opiate,’ “ and “ ‘narcotic drug’ “ set forth in K.S.A.2011 Supp. 21–5701, which expressly apply to section K.S.A.2011 Supp. 21–5701 through K.S.A.2011 Supp. 21–5717, and amendments thereto, rather than the drug schedules contained within the UCSA.
Parrish's argument, however, is not persuasive. When construing statutes to determine legislative intent, appellate courts must “consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony, if possible.” State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012). Reading K.S.A.2011 Supp. 21–5701, K.S.A.2011 Supp. 21–5705, and K.S.A.2011 Supp. 65–4107 in such a manner shows that Parrish's interpretation of K.S.A.2011 Supp. 21–5705(a)(1) is mistaken.
Importantly, K.S.A.2011 Supp. 21–5701(a) refers to the drug schedules for the definition of a “ ‘[c]ontrolled substance’ “: “ ‘Controlled substance’ means any drug, substance or immediate precursor included in any of the schedules designated in K.S.A. 65–4105, 65–4107, 65–4109, 65–4111 and 65–4113, and amendments thereto.” (Emphasis added.) If all of the drugs listed in the drug schedules are controlled substances, then K.S.A.2011 Supp. 21–5705(a) forbids the distribution of these substances, as the statute plainly states that “[i]t shall be unlawful for any person ... to distribute any of the following controlled substances or controlled substance analogs thereof.”
The fact that K.S.A.2011 Supp. 21–5705(a) separates the various controlled substances into specific categories does not eliminate or modify the definition of a “controlled substance.” Because courts must construe statutes to avoid unreasonable or absurd results and presume the legislature does not intend to enact meaningless legislation, this separation is more reasonably interpreted as an attempt to also criminalize substances that are not included within the drug schedules but which satisfy the definitions set forth in K.S.A.2011 Supp. 21–5701. See State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012). Moreover, common sense would dictate that a drug which our legislature has explicitly labeled as a controlled substance in the schedules would be considered as such for all purposes. For example, neither party argues that the chemical composition of the hydromorphone at issue in this case is somehow distinguishable from the hydromorphone listed in K.S.A.2011 Supp. 65–4107(b)(1)(K).
Hydromorphone's addictive qualities are not an element of the crimes. The State charged Parrish under K.S.A.2011 Supp. 21–5705(a)(l), which makes it unlawful to distribute “any of the following controlled substances or controlled substance analogs thereof,” including “[o]piates” and “opium.” The State further cited K.S.A.2011 Supp. 65–4107(b)(1)(K), which defines “controlled substances” to include “[o]pium and opiate and any salt, compound, derivative or preparation of opium or opiate ... including ... Hydromorphone.” By statutory definition, therefore, hydromorphone is a controlled substance, specifically an opiate or opium.
Crimes are statutory in the state of Kansas, and the legislature intended and has established that hydromorphone fits the description of a controlled substance. See State v. Christiansen, 258 Kan. 465, 466, 904 P.2d 968 (1995). The jury's sworn duty was to decide whether the State had proven distribution or conspiracy to distribute hydromorphone, not whether hydromorphone is a controlled substance in Kansas. See People v. Kyu H. Shin, 181 Misc.2d 751, 758, 692 N.Y.S.2d 894 (1999) (“A jury determines whether the factual elements of a crime have been established. It does not determine which factual elements are necessary to constitute the crime, nor does it determine the meaning of those statutory elements .”).
We conclude there was sufficient evidence to prove the elements relating to the distribution of hydromorphone and conspiracy to distribute hydromorphone as established by the legislature.
Jury Instructions
In accord with the legal contention set forth in the prior issue, Parrish also argues that the trial court committed structural error by omitting an element of the crimes in the jury instructions, specifically whether hydromorphone has an addiction-forming or addiction-sustaining liability similar to morphine. For its part, the State contends this issue is not properly before us.
At trial, Parrish requested that certain instructions be given to the jury. For the distribution count, Parrish asked the trial court to instruct the jury to find whether he “distributed hydromorphone.” For the conspiracy count, Parrish asked the trial court to instruct the jury to find whether he “agreed with another person to commit distribution of hydromorphone.” The trial court instructed the jury as Parrish had requested, with the minor exception of capitalizing “Hydromorphone” in both counts and adding to the conspiracy count that Parrish had “agreed with another person to commit or assist in the commission of distribution.” (Emphasis added.) Of note, Parrish did not object at the instructions conference to these minor changes made by the trial court to his proposed instructions.
Our review of the structural error question is unlimited. City of Wichita v. Bannon, 37 Kan.App.2d 522, Syl. ¶ 6, 154 P.3d 1170 (2007). Our review of jury instructions generally entails an “analytical progression and corresponding standards of review”:
“(a) First, the appellate court considers reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (b) next, the court uses an unlimited review to determine whether the instruction was legally appropriate; (c) then, the court determines whether there was sufficient evidence, viewed in the light most favorable to the party requesting the instruction, that would have supported it; and (d) finally, if the district court erred, the appellate court must determine whether the error was harmless, using the test, degree of certainty, and analysis set forth in State v. Ward, 292 Kan. 541, Syl. ¶ ¶ 5–6, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).” State v. Smyser, 297 Kan. 199, Syl. ¶ 4, 299 P.3d 309 (2013).
Moreover,
“[w]hen a party fails to object to or request a jury instruction at trial, an appellate court reviews any issue regarding the instruction under the clearly erroneous standard of K.S.A. 22–3414(3). In applying this standard, the reviewing court first determines whether there was error. This inquiry turns upon whether the instruction was legally and factually appropriate.” State v. Brown, 300 Kan. 542, Syl. ¶ 2, 331 P.3d 781 (2014).
At the outset, Parrish specifically asked the district court to give the jury instructions which omitted the language which he now claims was an element of the crimes. Our appellate courts have consistently held that a defendant may not invite error and then complain of the error on appeal. See State v. Jones, 295 Kan. 804, 812, 286 P.3d 562 (2012). “ ‘Where a party procures a court to proceed in a particular way and invites a particular ruling, he is precluded from assailing such proceeding and ruling on appellate review.’ “ State v. Schreiner, 46 Kan.App.2d 778, 788, 264 P .3d 1033 (2011), rev. denied 296 Kan. 1135 (2013). Since Parrish invited any claimed error here, he is not permitted to attack the trial court's instructions on appellate review.
Even if Parrish had not invited the alleged error, however, he clearly did not request the language he now claims was an element of the crimes, and he did not object to its omission. As a result, we would review this matter for clear error. See Smyser, 297 Kan. 199, Syl. ¶ 4. For the reasons discussed in the prior issue, the addictive qualities of hydromorphone are not an element of the crimes. The elements instructions were therefore legally and factually appropriate, and we have no reason to proceed to the second step of the clear error analysis.
Conviction for Distribution of Hydromorphone Within 1,000 Feet of School
Parrish contends the trial evidence was insufficient to prove his guilt, beyond a reasonable doubt, of distribution of hydromorphone within 1,000 feet of a school. Specifically, Parrish claims the State's evidence did not establish that Theodore Roosevelt School qualified as a school within the meaning of K.S.A.2011 Supp. 21–5701(r).
A defendant's conviction can only be sustained upon evidence which proves every element of the charged offense beyond a reasonable doubt. State v. Star, 27 Kan.App.2d 930, 934, 10 P.3d 37, rev. denied 270 Kan. 903 (2000). Circumstantial evidence and the logical inferences deducible therefrom may be sufficient to support a conviction of even the most serious crime. See State v. Witten, 45 Kan.App.2d 544, 550–51, 251 P.3d 74, rev. denied 293 Kan. 1114 (2011); Star, 27 Kan.App.2d at 934.
When the sufficiency of evidence is challenged in a criminal case, our court reviews the claim by looking at the evidence in a light most favorable to the prosecution in determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In this determination, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Although distribution of a controlled substance is typically a drug severity level 3 felony, K.S.A.2011 Supp. 21–5705(c)(1)(A) enhances the penalty to a severity level 2 felony if “the trier of fact makes a finding that the offender is 18 or more years of age and the substance was distributed ... to a minor or the violation occurs on or within 1,000 feet of any school property.” K.S.A.2011 Supp. 21–5701(r) defines “ ‘[s]chool property’ “ as “property upon which is located a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12.”
At Parrish's trial, Detective Boeckman testified the drug sale occurred within 1,000 feet of Theodore Roosevelt School, which he characterized as “a public elementary school” located in Riley County, Kansas.
On appeal, Parrish contends that merely identifying Theodore Roosevelt School as a public elementary school does not prove that a unified school district actually operated the property for one of the statutory purposes. We believe Parrish's claim has merit.
Both the Supreme Court and our court have repeatedly held that in order for the State to prove the school property element, the State must present evidence that the subject property is owned or leased by a school district or accredited nonpublic school and used for one or more of the statutory purposes. See State v. Wilt, 273 Kan. 273, 276–78, 44 P.3d 300 (2002); State v. Prosper, 260 Kan. 743, 746–47, 926 P.2d 231 (1996); Witten, 45 Kan.App.2d at 550–51; Star, 27 Kan.App.2d at 936.
Although Detective Boeckman did not specifically testify that a unified school district or accredited nonpublic school operates Theodore Roosevelt School for student instruction, attendance, or extracurricular activities of pupils enrolled in kindergarten or grades 1 through 12, the State contends his assertion that Theodore Roosevelt School “is a public elementary school” satisfied the statutory definition of school property. In particular, the State argues:
“The use of the term ‘public’ school is a shorthand term for a Unified School District School. The use of the word ‘school,’ not just in the proper name of Theodore Roosevelt School, but in [the detective's] description of what Theodore Roosevelt School is, indicates that the property is used for student instruction. The common meaning of the word ‘school’ is that it is a place where students are instructed. And finally, describing the school as an ‘elementary’ school established that students at the school fell within the span of kindergarten through 12th grade.”
Two opinions previously filed by our court help guide our resolution of this issue. In State v. West, No. 99,063, 2008 WL 4849472, at *2 (Kan.App.2008) (unpublished opinion), rev. denied 289 Kan. 1285 (2009), the defendant challenged the sufficiency of the evidence to support convictions for sale of cocaine within 1,000 feet of a school because the State merely presented evidence that the “school was called Garfield School[, and i]n addition, the school was attended by kindergartners through third graders.” Our court determined this evidence was insufficient to support the defendant's convictions because the State neglected to prove a unified school district or accredited nonpublic school operated Garfield School. 2008 WL 4849472, at *2–3.
In Witten, while the State proved the defendant sold methamphetamine within 1,000 feet of Liberty Middle School, a building “ ‘operated by a Unified School District’ known as ‘USD 382,’ “ the State did not offer any evidence as to “exactly what purposes or district functions were carried out at Liberty Middle School.” 45 Kan.App.2d at 549. Our court held the State failed to sustain its burden of proof because it “evade[d] its responsibility to present evidence that Liberty Middle School was being used ‘for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12.’ [Citations omitted.]” 45 Kan.App.2d at 551.
We are persuaded, given our reading of West and Witten, that Detective Boeckman's characterization of Theodore Roosevelt School did not sufficiently prove the “school property” element of the crime as defined in K.S.A.2011 Supp. 21–5701(r). Under these circumstances, “[w]hen a defendant has been convicted of the greater offense but as a matter of law only the lesser included offense can stand, the conviction for the greater offense should be reversed and the case remanded for defendant to be resentenced on the conviction of the lesser offense. [Citation omitted.]” Star, 27 Kan.App.2d at 936.
Accordingly, we affirm Parrish's conviction for conspiracy to distribute hydromorphone. We reverse Parrish's conviction for distribution of hydromorphone within 1,000 feet of a school, but we find sufficient evidence that he committed the lesser included offense of distribution of hydromorphone. Accordingly, this matter is remanded to the district court for resentencing on this lesser offense.
Affirmed in part, reversed in part, and remanded with directions.