Opinion
No. 107,284.
2012-11-16
STATE of Kansas, Appellee, v. Douglas L. SNOWDEN, Appellant.
Appeal from Douglas District Court; Peggy C. Kittel, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Peggy C. Kittel, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Douglas Snowden appeals his conviction and sentence for manufacturing methamphetamine raising numerous errors. Finding no reversible error, we affirm.
On September 17, 2009, at approximately 4:30 p.m., Lawrence police executed a search warrant for room 18 at the Airport Hotel in Lawrence, Kansas. The warrant was for evidence regarding the manufacture of methamphetamine. A Lawrence police officer conducted a ruse to get Snowden to leave his hotel room, at which point he was arrested and searched. The officers found a key to room 18 in his pocket.
An officer then began pounding on the door to room 18 and when no one answered, he forced it open and found Harold Hale and Grasha Stone in the room. Four or five officers entered the room, conducted a search, and found numerous items of drug paraphernalia.
Brad Crow, a forensic scientist with the Kansas Bureau of Investigation (KBI), tested 28 items seized from the hotel room and found methamphetamine, iodine, medium petroleum distillate, ephedrine/pseudoephedrine, hydrochloric acid, 2–propanol, and phosphorus in the samples.
The State initially charged Snowden with unlawful manufacturing of any controlled substance, unlawful possession of certain drug precursors, and possession of methamphetamine. The State's first amended information added an additional count of possession of methamphetamine.
On the day of trial, the State again amended its complaint and only proceeded on the manufacture of methamphetamine charge and dismissed the other three counts against Snowden. Snowden pled not guilty to manufacture of methamphetamine, and the case proceeded to jury trial.
The jury found Snowden guilty. He filed a motion for new trial which was denied, and the court sentenced Snowden to 204 months' imprisonment, the aggravated number in the sentencing range based on Snowden's criminal history score of A. Snowden timely appeals.
Motion to Suppress
Snowden first argues that the district court erred in denying his motion to suppress. The State entered numerous exhibits into evidence displaying pictures of items seized from the hotel room, a DVD of the contents of the hotel room, and presented testimonial evidence during the trial regarding the items seized; however, Snowden did not contemporaneously object to the admission of any of these exhibits or the testimony. Snowden concedes he did not renew his objection to evidence seized at trial, but he argues that this issue is preserved for appellate review because the issue was raised in his motion to suppress. He argues that the plain language of K.S .A. 60–404 does not require an objection at trial in order for the issue to be preserved for appellate review.
K.S.A. 60–404 provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” (Emphasis added.)
In State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009), our Supreme Court emphasized “the importance of th[e] legislative mandate” contained in K.S.A. 60–404. Snowden argues that the K.S.A. 60–404 contemporaneous objection requirement does not require an objection at trial in order for the objection to be timely. This argument, however, would require this court to disregard our Supreme Court's decision in King, where the court stated: “K.S.A. 60–404 dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.” (Emphasis added.) 288 Kan. at 349. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). There is no indication our Supreme Court is departing from King. See State v. Rojas–Marceleno, 295 Kan. ––––, 285 P.3d 361, 372 (2012) (applying King ). Therefore, this court is not in a position to interpret K.S.A. 60–404 in contravention of our Supreme Court's interpretation of the statute in King.
Snowden next argues that even if he did not fulfill the requirements of K.S.A. 60–404, this court can review this issue because appellate courts can consider new issues on appeal in the following circumstances: (1) cases in which the newly asserted theory involves only a question of law arising on proved or admitted facts and that is finally determinative of the case; (2) cases raising questions for the first time on appeal if consideration of those questions is necessary to serve the ends of justice or to prevent a denial of fundamental rights; and (3) cases upholding the judgment of a trial court even though the trial court may have relied on the wrong ground or assigned the wrong reason for its decision, citing State v. Stevens, 278 Kan. 441, 454, 101 P.3d 1190 (2004). But Snowden's argument is contrary to King, which our Supreme Court has applied even where constitutional rights were at stake. King, 288 Kan. 333, Syl. ¶ 4; see State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009).
Snowden argues that this case is similar to State v. Poulton, 286 Kan. 1, 5–6, 179 P.3d 1145 (2008), where our Supreme Court found that at least one of the first two exceptions applied and allowed the court to review the issue of whether evidence seized during a search was the fruit of the poisonous tree. But Poulton was decided before King and therefore should not guide this court's decision. Further, this case is clearly distinguishable from Poulton because in Poulton the defendant and the State entered into a written stipulation of facts for the bench trial. Cf. State v. Kelly, 295 Kan. ––––, Syl., 285 P.3d 1026 (2012) (finding that a defendant satisfied K.S.A. 60–404 by filing a pretrial motion to suppress evidence despite his failure to reiterate the basis of his motion during a bench trial on stipulated facts); State v. Bogguess, 293 Kan. 743, 745–47, 268 P.3d 481 (2012) (same).
Therefore, under K.S.A. 60–404, as well as our Supreme Court's clarification regarding mandatory application of that statute under the facts presented here, Snowden failed to preserve the suppression issue for appeal because he did not lodge a contemporaneous objection when the evidence was introduced at trial.
Prior Bad Acts
Snowden argues that the district court erred in allowing the State to admit prior bad acts evidence at trial under K.S.A. 60–455. He argues that because his defense was a general denial defense and he never claimed he was unaware of a methamphetamine lab in room 18, he did not place his intent, knowledge, or absence of mistake at issue.
Prior to the trial, the State moved to admit evidence of prior bad acts that Snowden used methamphetamine, sold methamphetamine, asked others to buy ingredients needed to make methamphetamine, previously manufactured methamphetamine, and allowed others to manufacture methamphetamine in his hotel room. At the time of the motion, Snowden was charged with manufacture of methamphetamine as well as unlawful possession of certain drug precursors and two counts of possession of methamphetamine. The State argued the evidence was admissible under K.S.A. 60–455 for the purposes of proving intent, knowledge, and absence of mistake. The district court disagreed, finding that evidence of Snowden's prior bad acts was not material unless Snowden disputed the intentional element of the charges. The court reasoned:
“It is difficult to imagine an innocent explanation to the presence of a methamphetamine laboratory coupled with the possession of methamphetamine and methamphetamine precursors. On the other hand, it is more probable that the defendant will deny the methamphetamine laboratory and methamphetamine supplies were his.
....
“Here, Snowden has not yet provided an innocent explanation to the charges of unlawful possession of methamphetamine, unlawful possession of methamphetamine precursors, or the unlawful manufacture of methamphetamine. As a result, the defendant's intent, knowledge, or the absence of mistake is not a material issue at this time and evidence of his prior bad acts is inadmissible. However, this evidence can be admitted at a later point if the defense directly disputes intent.
Before the second day of the trial began, the State again asked the court to allow the State to admit evidence of prior bad acts. At this time, the only remaining charge against Snowden was manufacture of methamphetamine. The State argued that Snowden's admission at trial to methamphetamine use “put his intent in issue as it relates to the charge of whether he was there to do more than possess—to manufacture.” The State also argued that discussing whose name the hotel was leased under left the false impression that Snowden did not have control over the room and the items in it or did not cause the items to be brought to the room.
The district court found that defense counsel opened the door to bad acts evidence when he asked Detective Chris Thomas, “Did you find out who was on the lease?” during cross-examination. The court found that the State could bring in evidence regarding occupancy, possession, or control of the hotel room. The judge reasoned that in his earlier ruling he specifically said that if Snowden presented a defense that the hotel room was not his, that he had no knowledge of the methamphetamine lab, or that he was in the hotel room for an innocent reason, Snowden opens the door to the State to present evidence of the prior bad acts to prove his intent, knowledge, or lack of mistake. Further, the court ruled that the State could present evidence that other people were supplying Snowden with methamphetamine ingredients in exchange for the finished product in hotel rooms and that Cynthia Roubison could testify that she saw Snowden in the room pouring acetone over white powder and commenting that he uses the “R & B” method to make methamphetamine.
Snowden argues that the prior bad acts evidence was not material because he did not present an innocent explanation which put intent, knowledge, or lack of mistake at issue. He argues that the only fact he placed in dispute—whether he had rented the hotel room was consistent with a general denial of wrongdoing. He argues he did not open the door and allow the State to present prior bad acts testimony to prove his intent to manufacture methamphetamine, his knowledge of either how to manufacture methamphetamine, that a methamphetamine lab was present in the room, or that the manufacture of methamphetamine was a mistake.
The State argues that Snowden's prior bad acts were relevant because they showed that Snowden knew how to make methamphetamine, which proved that he set up a methamphetamine lab with the intent to manufacture and that he intentionally cooked methamphetamine in his hotel room or aided others in doing so. The State also argues that evidence regarding Snowden's acquisition of ephedrine and his knowledge of the methamphetamine cooking process proved he intentionally possessed the drug precursors and intentionally possessed methamphetamine. Further, the State argues that Snowden's prior use of methamphetamines shows that he knew the substance in his pocket was methamphetamine. Finally, the State argues that Roubison's referring to methamphetamine as “R & B” shows Snowden's intent, knowledge, and lack of mistake because the methamphetamine lab in Snowden's room used the R & B method. Standard of Review
“A district court applies a several-step analysis to determine whether and how evidence is admissible under K.S.A. 60–455. First, the court must determine that the fact to be proven is material, e .g., concerning intent, motive, knowledge, or identity. The court must also determine whether the material fact is disputed and whether the evidence is probative, i.e., has any tendency in reason to prove the fact. Materiality and probative value are the two components of relevance. If the evidence is probative of a disputed material fact, then the court determines whether the probative value of the evidence outweighs the potential for creating undue prejudice. Finally, if the court decides to admit the evidence, it must give a limiting instruction informing the jury of the specific purpose for the admission of the K.S.A. 60–455 evidence. State v. Hollingsworth, 289 Kan. 1250, 1258, 221 P.3d 1122 (2009); State v. Riojas, 288 Kan. 379, 383, 204 P.3d 578 (2009).
“Our standard of review differs depending upon which step of the above analysis we are considering. We review the materiality determination de novo, while we apply an abuse of discretion standard to the probativity determination. We also apply an abuse of discretion standard to the district court's balancing of probative value and the potential for producing undue prejudice. Hollingsworth, 289 Kan. at 1258, 221 P.3d 1122.” State v. Wilson, 295 Kan. ––––, ––– P.3d –––– (2012) (No. 102, 913, 2012 WL 4466163, at *9).
At the time of Snowden's offense, K.S.A.2009 Supp. 60–455 provided in relevant part:
“(a) Subject to K.S.A. 60–447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.
“(b) Subject to K.S.A. 60–445 and 60–448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
See Wilson, 2012 WL 4466163, at *8–9 (applying the version of 60–455 in effect at the time the defendant's offense was committed).
In State v. Boggs, 287 Kan. 298, 305, 197 P.3d 441 (2008), our Supreme Court stated that if evidence is not admissible as character evidence under K.S.A. 60–447, “evidence of other crimes or civil wrongs is inadmissible unless the evidence is relevant to proving a material fact in dispute.” Stated another way, “under K.S.A. 60–455, evidence a defendant committed a crime or civil wrong is inadmissible to prove the defendant's propensity to commit the crime charged, but it is admissible if relevant to prove some other material fact. State v. Inkelaar, 293 Kan. 414, 423, 264 P.3d 81 (2011) (quoting K.S.A. 60–455).” State v. Preston, 294 Kan. 27, 32, 272 P.3d 1275 (2012).
First, it should be noted that while both parties on appeal argue their respective positions regarding Snowden's methamphetamine use, defense counsel at trial did not object to evidence that Snowden smoked methamphetamine; Snowden did not contest this evidence at the district court but instead argued that he used methamphetamine but did not manufacture the drug. Therefore, because this prior bad acts evidence was not objected to at trial, evidence of use should not be considered by this court on appeal.
Snowden's remaining arguments, however, are properly preserved for appellate review. Therefore, this court must determine whether the district court erred in allowing prior bad acts evidence that Snowden had previously given methamphetamine away or traded methamphetamine, Snowden's practice of having Tonya Price buy him ingredients to make methamphetamine, Snowden's practice of renting hotel rooms in other people's names, and evidence that Snowden had manufactured methamphetamine on previous occasions.
This court reviews materiality de novo. Snowden was tried for manufacture of methamphetamine in violation of K.S.A.2009 Supp. 21–36a03, which states in subsection (a): “It shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.”
There are two components to this crime. State v. Snellings, 294 Kan. 149, 159, 273 P.3d 739 (2012). The first is “manufacture,” and the second is that the result of the manufacturing process be “any controlled substance,” which is defined in K.S.A.2009 Supp. 21–36a01(a) as “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.” See Snellings, 294 Kan. at 159.K.S.A. 65–4107 lists Schedule II substances, and methamphetamine is a Schedule II controlled substance. K.S.A. 65–4107(d).
The jury in this case was instructed:
“The defendant is charged with the crime of unlawfully manufacturing a controlled substance. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally manufactured methamphetamine; and
2. That this act occurred on or about the 17th day of September, 2009 in Douglas County, Kansas.
“ ‘Manufacture’ means the production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly, by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. ‘Manufacture’ includes any packaging or repackaging of the substance or labeling or relabeling of its container.
“ ‘Manufacture’ includes not only the completed manufacture of a controlled substance, but also facts showing that the manufacturing could have been successfully completed.”
The instruction is modeled after PIK Crim.3d 67.31; see also K.S .A.2009 Supp. 21–36a01(i) (defining manufacture). However, the instruction includes a statement not included in the PIK instruction that derives from our Supreme Court's decision in State v. Martens, 274 Kan. 459, 466, 54 P.3d 960 (2002), where the court said: “In other words, to prove the crime of manufacture of methamphetamine, the State must show that the defendant (1) intentionally (2) completed the manufacture of methamphetamine or (3) could have successfully manufactured methamphetamine.”(Emphasis added.)
Snowden argues that the prior bad acts evidence was not material because intent, knowledge, and absence of mistake were not in issue, citing Boggs. In Boggs, our Supreme Court found that admission of K.S.A. 60–455 evidence violated K.S.A. 60–455 in a case involving the nonexclusive possession of marijuana and drug paraphernalia. 287 Kan. at 300. The court recognized that while intent was an element of both possession of marijuana and possession of drug paraphernalia, intent was not material in the case before the court because the defendant's intent was not a disputed material fact. 287 Kan. at 311. The court found that “ ‘ “[t]he crucial distinction in admitting other crimes evidence under K.S.A. 60–455 on the issue of intent is not whether the crime is a specific intent or general intent crime but whether the defendant has claimed that his or her acts are innocent.’ “ [Citations omitted.]” 287 Kan. at 314.Boggs further explained what it meant by innocent explanation:
“None of these cases involve a situation where the defendant's principle defense involved disputing possession of the drugs in question; instead, the defense provided in each was that although drugs were found in the defendant's possession, the defendant did not intend to possess those substances.” 287 Kan. at 315.
Here, Snowden's defense was not an innocent explanation, rather, Snowden's defense at trial was that he was not in possession of the hotel room and that one of the two other room occupants there at the time of his arrest was the person manufacturing methamphetamine. In his opening statement, defense counsel said, “My client denies the State's allegations in this matter. He denies the allegations. What does he admit to? He admits to being a user. There were two other people in that room that were using as well.” During cross-examination of Sergeant Tony Squire, defense counsel asked Squire: “Now, did you ever ask if that—to this proprietor if, in fact, Mr. Snowden was actually in the hotel room or if the hotel room belonged to him?” He also asked Squire “if there was anybody else in that hotel room besides Mr. Snowden?” Squire noted that two other people were in the room. Further, defense counsel asked what gave Detective Thomas the belief that the hotel room was Snowden's home.
Snowden argues that he did not present an innocent explanation under Boggs through his admission to being a user and his defense that the hotel room was not his; therefore, the State was not allowed to admit prior bad acts evidence. Snowden argues that contesting occupancy or control of the room only placed possession of the room in issue and was not an innocent explanation to the manufacturing charges; rather, this defense was consistent with a general denial of wrongdoing.
The only issue was whether Snowden manufactured methamphetamine or aided and abetted others in doing so in the hotel room. Snowden never asserted a defense that he did not know what a methamphetamine lab consisted of or that there was a methamphetamine lab in the hotel room; he only disputed possession or occupancy of the hotel room.
On direct examination, the prosecution asked what Thomas seized from the hotel room, and Thomas noted that seven ID cards were found in the hotel room. Defense cross-examined and learned that none of the IDs found in the room belonged to Snowden. Defense counsel also asked Thomas how he knew the hotel room was Snowden's home. A portion of the prior bad acts evidence admitted involved Snowden's past acts of having others rent hotel rooms for him; however, possession or occupancy of the hotel room was easily established by the State without bringing in this bad acts evidence as discussed in detail below.
The only potential connection, therefore, between the bad acts evidence allowed in this case and the manufacturing methamphetamine conviction the State sought to prove is an assumption that because Snowden had manufactured and gave away or sold methamphetamine in the past, it was probable that he would manufacture methamphetamine again in the future, and thus did so on September 17, 2009. As our Supreme Court stated in Boggs, “[t]his is propensity evidence and is precisely what K.S.A. 60–455 was designed to prevent.” 287 Kan. at 317.
Here, Snowden was charged with manufacture of methamphetamine and the defendant in Boggs was charged with possession of illegal drugs, but despite this factual distinction, like the defendant in Boggs, Snowden never placed his intent in issue before the jury. See State v. Diaz, No. 100,735, 2010 WL 481258, at *2–3 (Kan.App.2010) (unpublished opinion), rev. granted January 20, 2012.
Further, as Snowden points out, the State could have presented evidence of disputed occupancy or possession without the prior bad acts evidence. Even before the State made its motion to allow bad acts, the State had Roubison testify that she considered the hotel Snowden's “place.” And after the district court granted the State's motion, the State submitted evidence on this point without delving into prior bad acts. Price testified that she helped Snowden move into the hotel room 6 or 7 months before the events in question. Price also testified that before Snowden resided at the Airport hotel, he had previously lived in four or five hotel rooms and Price never knew him to have another residence. Hale also testified that for 5 or 6 months prior to these events, he had been going to the hotel room to visit Snowden and as far as he knew, the room was Snowden's. Hale further testified that he never stayed at the hotel room but only went there to visit. Stone also testified that she had visited Snowden at the hotel twice before September 17, 2009. And Detective Ohman removed a room key with the number “18” on it from Snowden's pocket when he arrested Snowden.
Therefore in this case, Snowden presented a general denial defense rather than presenting an innocent explanation defense. Because Snowden's defense was that he did not have possession of the hotel room and he was not the person manufacturing, “the element of intent—and the related elements of knowledge and absence of mistake or accident—were not at issue in this case.” See Boggs, 287 Kan. at 315. The State was able to prove that the hotel room was possessed or occupied by Snowden without prior bad acts evidence. Despite this evidence establishing possession or occupancy, the State proceeded to ask prior bad acts questions that were not material to Snowden's general denial. Pursuant to Boggs, evidence of Snowden's prior bad acts was not relevant to prove a material fact in dispute and therefore the district court erred in the admission of this evidence.
The next question, therefore, is whether the admission of this evidence was harmless under K.S.A. 60–261. See Boggs, 287 Kan. at 318–19. The State, as the party bearing the burden on this issue, argues that any error in admitting the evidence was harmless due to the overwhelming evidence against Snowden. Snowden argues that the error was not harmless because no one testified to seeing Snowden manufacture methamphetamine on the day of his arrest.
Our Supreme Court recently addressed harmless error when evidence is erroneously admitted under K.S.A. 60–455:
“Even if evidence has been wrongly admitted under K.S.A. 60–455, that doesn't automatically require setting aside a jury's verdict: the error still may be harmless. [Citation omitted.] So we must also determine whether the wrongful admission of this evidence was harmless error. In accordance with K.S.A. 60–261, before we can declare an error harmless, we must determine that it didn't affect a party's substantial rights—meaning that it didn't affect the trial's outcome. [Citation omitted.] Because the wrongful admission of evidence here doesn't implicate any of the defendant's constitutional rights, to declare this error harmless we must be persuaded by the State (as the party benefitting here from the wrongly admitted evidence) that there is no reasonable probability that the error affected the trial's outcome. [Citations omitted].” State v. Torres, 294 Kan. 135, 143–44, 273 P.3d 729 (2012).
In this case, the court erroneously allowed the State to present evidence of multiple prior bad acts. During Price's direct examination, Price testified that she “would buy pills for him and he would make meth.” Defense counsel objected, and the district court overruled the objection. Price later elaborated that she would buy the precursors to make methamphetamine for Snowden daily in exchange for methamphetamine. Further, the State brought in the testimony that Price was paying for the room at the Airport Hotel to “help him out and get drugs.” Price also testified that she saw Snowden engage in processes relating to the manufacture of methamphetamine at the Airport Hotel on four to five prior occasions.
During the State's direct examination of Roubison, she testified that on a prior date, she and a friend visited Snowden's hotel room and Snowden was “cooking.” She testified, “He had a hot stove and he was in the process of cooking a batch of the R & B.” She testified that Snowden explained the process to her and that she saw him using acetone. Roubison could not remember the actual date these events occurred. Defense counsel objected that this evidence was inadmissible under K.S.A. 60–455, but the court overruled the objection.
The State is correct, however, that the evidence in this case was overwhelming. “ ‘Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless.’ [Citation omitted.]” State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004). First, as previously stated, although Snowden disputed possession or occupancy of the hotel room, multiple witnesses testified that the room was in Snowden's control.
Further, with regard to the manufacture of methamphetamine, multiple witnesses for the State testified that the hotel room was being used to manufacture. Officer Shannon Riggs testified that the hotel room was being used to manufacture methamphetamine using the red phosphorus, black iodine method. She testified that there is more than one way to manufacture methamphetamine and on the streets, the red phosphorus, black iodine method is commonly referred to as red and black or “R & B.” Riggs explained that at the end of the manufacturing process, often the person cooking the methamphetamine will place the product in a dish and pour acetone over the product to make a more pure form of methamphetamine. Riggs testified that the room contained evidence of each stage of the R & B manufacturing process, that multiple stages of the process could have been going on at once, and that this was an active methamphetamine lab. Based on the materials in room 18, she opined that an ongoing manufacturing process was in place and multiple small batches of methamphetamine had been manufactured over time. She testified that this was one of the largest R & B labs she had ever worked.
Sergeant Bronson Star also testified regarding the evidence police seized from the search of the hotel room. Based on Star's training and experience, he reached the conclusion that what was taken out of room 18 was consistent with manufacturing methamphetamine, and he stated that this was the biggest methamphetamine lab he had ever worked.
KBI forensic scientist Crow's report found that samples taken from the room contained methamphetamine, iodine, medium petroleum distillate, ephedrine/ pseudoephedrine, hydrochloric acid, 2–propanol, and phosphorus on the samples. The report concluded:
“A mixture of Red Phosphorus, Iodine, Ephedrine/Pseudoephedrine, and water will produce Methamphetamine. Medium petroleum distillates and 2–propanol are extraction solvents that are commonly utilized in clandestine Methamphetamine manufacturing laboratories. Hydrochloric acid is a strong acid that is commonly utilized in clandestine Methamphetamine manufacturing laboratories.”
Crow testified that the items he tested were consistent with the manufacture of methamphetamine. He pointed out that in some of the samples, he found both methamphetamine and medium petroleum distillate, which is the “end stage” of the manufacturing process used to extract the methamphetamine away from all the unwanted chemicals that are involved in the manufacturing process.
Finally, the State presented both photos of the hotel room and a DVD of the hotel room that was played for the jury on the date the warrant was executed. This evidence was substantial in proving the manufacture of methamphetamine as it illustrated the witnesses' testimony about the amount of evidence supporting manufacture of methamphetamine found in the hotel room.
Snowden's argument that the error was not harmless because no one testified to seeing Snowden manufacture methamphetamine on the day of his arrest overlooks Riggs' testimony that the room contained evidence of each stage of the R & B manufacturing process and that multiple stages of the process could have been going on at once. The argument also overlooks the jury instruction on aiding and abetting, which read:
“ “A person who, either before or during its commission, intentionally aid or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
Therefore, under the aiding and abetting theory, the State was not required to prove that Snowden manufactured methamphetamine on the day of his arrest.
Based on a review of the entire record, there is no reasonable probability that the inappropriate K.S.A. 60–455 evidence affected this trial's outcome. The error in admitting the evidence was harmless.
Reasonable Doubt Instruction
Snowden next argues that the district court committed reversible error by improperly instructing the jury on reasonable doubt. Snowden did not object to the instruction before the district court. In State v. Williams, 295 Kan. ––––, 286 P.3d 195, 202 (2012), our Supreme Court clarified the standard of review and clearly erroneous standard when an instruction issue is being raised for the first time on appeal. The court found that in order to determine whether it was clearly erroneous to give or fail to give an instruction under K.S.A. 22–3413(3), the reviewing court must first determine whether the instruction was erroneous, and this is a legal question subject to unlimited review. 286 P.3d at 202. Then, if the reviewing court determines that the district court erred in giving or failing to give a particular instruction, the court engages in the reversibility inquiry. To determine whether an instruction requires reversal, the court determines if it is clearly erroneous, i.e., “whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 286 P.3d at 202. This determination requires a review of the entire record and a de novo determination. 286 P.3d at 202. The burden to show clear error under K.S.A. 22–3413(3) remains on the defendant. 286 P.3d at 202.
Snowden argues that Kansas clear error review cannot be applied in this case, however, because the instruction given mischaracterizes the burden of proof and directly conflicts with Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). In Sullivan, the United States Supreme Court found that a constitutionally deficient reasonable-doubt instruction cannot be harmless error. See 508 U.S. at 280–82;508 U .S. at 284–85 (Rehnquist, C.J., concurring). But here, the jury instruction given did not mischaracterize the burden of proof and was not constitutionally deficient. See State v. Womelsdorf, 47 Kan.App.2d 307, 334, 274 P.3d 662 (2012), petition for review filed May 10,2012.
The jury instruction of which Snowden now complains states:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
This instruction is identical to the approved PIK Crim.3d 52.02 jury instruction except for one word. PIK Crim.3d 52.02 reads:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
In State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233,rev. denied 278 Kan. 874 (2004), this court found that the “word ‘any,’ as used in this context,” does not create an ambiguity or result in the defendant being convicted if only one element of the crime is proven. As the State points out, the rationale of Beck was recently reiterated by this court in Womelsdorf, 47 Kan.App.2d at 332–33. Further, in Womelsdorf, the court found in its conclusion that “the instructions were substantially correct and the jury could not have reasonably been misled by them.” 47 Kan.App.2d at 334. Snowden's jury instruction is identical to the instruction at issue in Beck and Womelsdorf and is therefore subject to clearly erroneous review. See K.S.A. 22–3414(3).
Turning to the clearly erroneous test laid out by our Supreme Court in Williams, this court must first consider whether the giving of the instruction was error. “In reviewing jury instructions for error, we examine the instructions as a whole, rather than isolate any one instruction, and determine if the instructions properly and fairly state the law as applied to the facts of the case. [Citations omitted.]” State v. Ellmaker, 289 Kan. 1132, 1139–40, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010).
Snowden asserts that his challenge to the jury instruction on reasonable doubt is supported by Miller v. State, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), petition and cross-petition for review filed February 22 and March 7, 2012, supports reversal of his conviction. In Miller, the movant appealed the denial of a K.S.A. 60–1507 motion claiming ineffective assistance of counsel. Among other issues, Miller claimed the lawyer who handled his direct appeal was constitutionally deficient in failing to raise an issue based on the reasonable doubt jury instruction given at his trial. The jury instruction read:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.' “ 2012 WL 401601, at *2.
The instruction in Miller followed the Kansas pattern jury instruction, PIK Crim.3d 52.02, except that it transposed the words “each” and “any.” 2012 WL 401601, at *2. As the Miller court stated, the switch substantially changed the meaning of the jury instruction so that it “tells jurors they should acquit Miller only if they have reasonable doubt about each claim or element the State must prove. And it tells them they should convict Miller if they hold no reasonable doubt as to any of those claims.” 2012 WL 401601, at *2. The Miller court found that this was a clear misstatement of the law and directly affected a fundamental constitutional right. 2012 WL 401601, at *5. Ultimately, the Miller court reversed the denial of the K.S.A. 60–1507 motion and remanded with directions to give the movant a new trial. 2012 WL 401601, at *9.
Snowden argues that the same rationale applies here and his conviction must be reversed based on the reasonable doubt instruction given to the jury at his trial. However, Snowden's reasonable doubt jury instruction was not identical to the jury instruction given by the district court in Miller. While the instruction in Miller transposed the words “any” and “each,” Snowden's instruction used the word “any” in both places, giving the test as follows:
“If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty; if you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.”
The instruction argument Snowden now makes was made in Beck, where the defendant challenged a reasonable doubt jury instruction identical to the one given by the district court here in which the word “any” was used in the final sentence of the instruction. The defendant argued that “the use of the word ‘any’ in this context allows for a conviction even if there are insufficient facts to support each element of the crime.” 32 Kan.App.2d at 787. The Beck court rejected this argument and stated:
“Again, Beck is focusing on one word of the instruction in isolation from its context. The word ‘any’ is used consistently in the instruction. The sentence immediately preceding the language Beck finds objectionable states: ‘If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty.’ (Emphasis added.) We reject Beck's argument that the word ‘any,’ as used in this context, could somehow create ambiguity or result in Beck being convicted if only one element of the crime is proven. Furthermore, Instruction No. 11, listing the elements of the crime of aggravated escape from custody, contains the language: To establish this charge, each of the following claims must be proved.... (Emphasis added.) This language negates any potential confusion that may have been caused by the use of the word ‘any’ in Instruction No. 6.” Beck, 32 Kan.App.2d at 787–88.
Similarly, here, the jury instruction on manufacturing methamphetamine stated: “To establish this charge each of the following claims must be proved,” and listed the elements of the crime. (Emphasis added.) As in Beck, this language negates any potential confusion that may have been caused by the use of the word “any” in the final sentence of the instruction.
Snowden acknowledges this court's decision in Beck, but he argues that the Miller rationale is a persuasive argument for disapproving its holding. Two panels of this court, however, recently considered a reasonable doubt instruction with the same challenged language as the instruction given in this case and found that Miller is not controlling. Womelsdorf 47 Kan.App.2d at 333–34;State v. Kling, No. 106,361, 2012 WL 2045375, at *2–3 (Kan.App.2012) (unpublished opinion), petition for review filed July 2, 2012. In reaching this conclusion, the panels found that the instruction, while not the best practice, was not clear error.
Because the panels in Womelsdorf and Kling found that the instruction was not the best practice, it is arguable that under the clarified standard of review set out in Williams, there was no error and we need not proceed to conduct a reversibility inquiry. See 286 P.3d at 202. (“Only after determining that the district court erred in giving or failing to give a particular instruction would the reviewing court engage in the reversibility inquiry.”). However, even if we find that the instruction is erroneous and engage in the reversibility inquiry, the instruction given here does not require reversal.
In Womelsdorf the panel found: “The current approved version of PIK Crim.3d 52.02 provides the most accurate test for reasonable doubt, and the current instruction is an improvement on the jury instruction given at Womelsdorf's trial.” 47 Kan.App.2d at 334. But even though this instruction on its own was arguably erroneous, the language in the jury instruction was not clearly erroneous. As the court in Womelsdorf found:
“Nonetheless, the language of the jury instruction on reasonable doubt given at Womelsdorf's trial was identical to the instruction recommended in PIK Crim.3d 52.02 prior to 2005. In fact, the Kansas Supreme Court had previously held that this version of PIK Crim.3d 52.02 accurately reflected the law of this state and properly advised the jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt. See State v. Clark, 261 Kan. 460, 474–75, 931 P.2d 664 (1997).
“Applying the reasoning in Beck and considering the jury instructions given at Womelsdorf's trial as a whole, rather than isolating any one instruction, we find that the instructions were substantially correct and the jury could not reasonably have been misled by them. The reasonable doubt instruction given by the district court at Womelsdorf's trial was not a clear misstatement of the law, as was the situation in Miller. We conclude that the reasonable doubt instruction provided in Womelsdorf's case, while not the best practice, was not clear error. Accordingly, Womelsdorf is not entitled to a new trial based on the jury instructions.” 47 Kan.App.2d at 334.
We reach the same result in this case. Under the reasoning in Beck and considering the instructions as a whole, the instructions on the individual elements of manufacture of metharnphetamine, which instructed the jury that it must find each claim proved in order to convict on the charge, cured any confusion caused by the use of the word “any” in both sentences of the reasonable doubt jury instruction. Although better practice would be to conform to the current PIK Crim.3d 52.02 instruction, which uses the word “each” in the second sentence of the instruction, the reasonable doubt instruction was not clear error. There is not a real possibility that the jury would have rendered a different verdict if the correct instruction had been given. Therefore, we need not reverse.
Cumulative Error
Snowden argues that even if the issues above do not individually rise to the level of requiring reversal, his conviction should be reversed because the cumulative effect of the errors substantially prejudiced him and deprived him of his right to receive a fair trial. “Under the cumulative error doctrine, this court determines whether the totality of the circumstances caused substantial prejudice to the defendant and denied him or her a fair trial.” State v. Breedlove, 295 Kan. ––––, ––– P.3d –––– (No. 103,350, 2012 WL 4039276, at*12)(2012).
Here, the district court erred in allowing in evidence under K.S.A. 60–455; however, that error was harmless. Further, the district court arguably erred in giving an outdated reasonable doubt jury instruction, however, the jury instructions were substantially correct and the jury could not reasonably have been misled by them.
Finally, the evidence in this case was overwhelming and our Supreme Court has found that “[n]o prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against a defendant. [Citation omitted.]' “ State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007). Here, as the district court correctly found that there was no cumulative error in this case because “the evidence in this case was overwhelming that Mr. Snowden was part of the operation, if not the leader, of the operation in running this meth lab out of that motel room as charged .”
Snowden received a fundamentally fair trial, and his conviction is affirmed.
Snowden's 1969 Burglary Conviction
Snowden argues that the district court erred in basing his criminal history in part on a 1969 conviction for burglary without proving to a jury that the burglary was of a dwelling. Snowden, however, did not object to the presentence investigation report. He argues that under K.S.A. 21–4721(e)(3), appellate courts may review a claim that the district court erred in determining the appropriate classification for a prior conviction.
K.S.A. 21–4721(e)(3) states: “In any appeal, the appellate court may review a claim that ... “(3) the sentencing court erred in ... determining the appropriate classification of a prior conviction.”
This statute grants an appellate court jurisdiction to hear the challenge. State v. Goeller, 276 Kan. 578, 584–85, 77 P.3d 1272 (2003); see State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012). In Goeller, however, our Supreme Court recognized that
“Generally, under K.S.A. 21–4721(e), we have jurisdiction to consider whether the district court erred in determining the appropriate classification of Goeller's prior convictions. State v. Vandervort, 276 Kan. 164, Syl. ¶ 5, 72 P.3d 925 (2003). However, “ ‘[a] defendant who invites error by stipulating to his or her criminal history cannot request a correction of sentence under 22–3504 after pronouncement of sentence.’ “ Vandervort, 276 Kan. at 175–76 (quoting State v. McBride, 23 Kan.App.2d 302, Syl. ¶ 3, 930 P.2d 618 [1996] ). We therefore do not reach the merits of Goeller's argument.”
Similarly, here, Snowden invited error by stipulating to his criminal history and therefore should not be able to argue on appeal that a jury was required to make findings that the 1969 burglary was of a dwelling.
In State v. Vandervort, 276 Kan. 164, 177, 72 P.3d 925 (2003), our Supreme Court recognized that pursuant to K.S.A. 21–4721(e), appellate review of criminal history errors may be granted despite a stipulation or lack of objection below “under limited circumstances.” In Vandervort, the court proceeded to hear the merits of the defendant's challenge because the defendant did not personally give an oral stipulation in open court, as the authority to admit to prior criminal history belongs to the defendant; and the defendant and/or his counsel had no opportunity prior to sentencing to review the criminal history worksheet. 276 Kan. at 177.
Additionally, in State v. Donaldson, 35 Kan.App.2d 540, 544, 133 P.3d 154 (2006), a panel of this court recognized another exception to the general rule when it found that “no party can properly stipulate to an incorrect application of the law.” The panel explained that the “invited error rationale is not applicable when the erroneous information at the heart of a stipulation is within the knowledge of the court, the prosecutor, and defense counsel, but not the defendant.” 35 Kan.App.2d at 543; see State v. Wilson, No. 103,749, 2012 WL 718916, at *15 (Kan.App.2012) (unpublished opinion), petition for review filed April 2, 2012.
Snowden does not mention the applicability of any exception in his brief, and typically, an issue not briefed on appeal is deemed waived and abandoned. State v. Martin, 285 Kan. 994, Syl. ¶ 2, 179 P.3d 457,cert. denied555 U.S. 880 (2008). Moreover, neither of the Vandervort exceptions applies as Snowden's counsel specifically testified that he had reviewed Snowden's criminal history and Snowden and his counsel orally stipulated to the accuracy of these documents. And, the exception recognized in Donaldson does not apply because Snowden's argument is based on the State's failure to prove a fact.
Snowden has waived his right to challenge his criminal history on appeal. See State v. Shulka, No. 102,398, 2011 WL 1196904, at *7 (Kan.App.2011) (unpublished opinion) rev. denied 293 Kan. –––– (October 3, 2011). He stipulated that his criminal history score was correct. In general, a defendant who invites error by stipulating to his or her criminal history cannot later argue that the district court erred in classifying his or her prior convictions. While there are exceptions to this rule, the exceptions are not applicable here and we will not reach the merits of Snowden's argument.
Prior Convictions
Snowden next claims that the prior convictions used to increase his sentence were not submitted to a jury or proven beyond a reasonable doubt as he contends is necessary under the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Snowden concedes this issue has been decided contrary to his position in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), but raises the issue to preserve it for federal review. Ivory controls and this court is bound to follow it.
Sentence
Finally, Snowden argues the sentencing court's imposition of a sentence in the aggravated grid box violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as interpreted by Apprendi and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). This court, however, is without jurisdiction to review Snowden's presumptive sentence, therefore this portion of his appeal must be dismissed. See State v. Johnson, 286 Kan. 824, 840–52, 190 P.3d 207 (2008).
Affirmed.