State v. Crudo ( 2022 )

No. 123,559
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
FRANK RAYMOND CRUDO,
Appellant.
SYLLABUS BY THE COURT
1.
The exigent circumstances which allow warrantless searches of motor vehicles
also allow warrantless searches of a fifth-wheel camper attached to a vehicle that is
traveling on a public roadway and is so situated that an objective observer would
conclude it was not being used as a residence at the time of the search.
2.
If officers have probable cause to search a vehicle, they have probable cause to
search containers inside and attached to the outside of the vehicle which they have
probable cause to believe may contain contraband or evidence of a crime. This includes
searching a fifth-wheel camper attached to a vehicle when both are traveling on a public
roadway in the possession and control of the defendant.
Appeal from Geary District Court; BENJAMIN J. SEXTON, judge. Opinion filed September 2,
2022. Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
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Before CLINE, P.J., ISHERWOOD and HURST, JJ.
CLINE, J.: Frank Raymond Crudo appeals the district court's (1) denial of his
motion to suppress, (2) admission of alleged expert testimony by one officer which he
contends should have been disclosed under K.S.A. 60-456(b), (3) jury instruction stating
the jury could infer an intent to distribute based on the amount of drugs found in the
camper, and (4) denial of his motion to vacate based on double jeopardy violations. He
also seeks reversal of his possession of marijuana conviction on double jeopardy grounds.
After carefully reviewing the record, we find no error and affirm.
FACTS
In January 2014, Frank Raymond Crudo's pickup truck and attached fifth-wheel
camper were stopped for a traffic infraction. Officers searched the pickup after the officer
who approached it smelled a strong odor of raw marijuana when the window was rolled
down. They found a small piece of marijuana inside the pickup and then searched the
camper, where they found 19 vacuum-sealed bags of marijuana underneath the bathtub
and a small amount of marijuana (along with rolling paper and a grinder) under the stairs.
The State charged Crudo with: (1) possession of marijuana with intent to
distribute in violation of K.S.A. 2013 Supp. 21-5705(a)(4) and (a)(7), a drug severity
level 2, nonperson felony; (2) no drug tax stamp in violation of K.S.A. 79-5204(a) and
79-5208, a severity level 10, nonperson felony; (3) possession of marijuana in violation
of K.S.A. 2013 Supp. 21-5706(b)(3) and/or (b)(7), a class A nonperson misdemeanor;
and (4) conspiracy to possess marijuana with the intent to distribute in violation of K.S.A.
2013 Supp. 21-5302(a), a severity level 2, nonperson felony.
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Motion to Suppress
Crudo was initially successful in suppressing the marijuana discovered in the
camper. But after the State filed an interlocutory appeal, a panel of this court reversed
and remanded the case for a new hearing on Crudo's motion to suppress before a different
judge. State v. Crudo, No. 112,805, 2015 WL 7162274, at *13 (Kan. App. 2015)
(unpublished opinion).
The new judge scheduled a hearing on the motion in September 2016. Crudo never
appeared and was not before the court again until his arrest in 2019 for his failure to
appear in 2016.
The district court held a new evidentiary hearing in November 2019 but ultimately
denied Crudo's motion. The court clarified that its decision depended solely on the
evidence presented at the November 2019 hearing. The case then proceeded to jury trial.
First Trial
At trial, Lieutenant Christopher Ricard testified that he stopped the pickup after
noticing the tag lamp on the camper was not illuminated and, when he ran the camper's
registration through dispatch, the dispatcher told him there was no record of that
registration. It was later determined a mistake occurred in the officer's relaying of the tag
numbers and the dispatcher entering those numbers into the system, despite the officer's
clarifying questioning of the dispatcher. But this mistake does not impact the appeal.
Upon stopping the pickup, Lt. Ricard approached the passenger side. Although
Crudo was the registered owner of both the pickup and attached camper, he was in the
back seat and another individual was driving. Lt. Ricard smelled a strong odor of raw
marijuana coming from the pickup when the window was rolled down.
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After Lieutenant Justin Stopper arrived as backup, Lt. Ricard told Crudo they
planned to search the pickup. Crudo became combative to the point where the officers
had to handcuff and place him inside a patrol car.
During their search of the pickup, the officers discovered a small piece of
marijuana on the transmission hump between the passenger and driver's seats. They then
obtained keys to the camper and searched it. They discovered 19 vacuum-sealed bags of
marijuana beneath the bathtub in the camper. Some of these bags had writing which
appeared to reflect the strain of marijuana contained within. Lt. Ricard testified that based
on his training and experience, this quantity of marijuana would be consistent with
possession with the intent to distribute. He confirmed none of the bags had any sort of
drug tax stamp on them.
Lt. Ricard also testified a small amount of marijuana was found under the stairs
along with rolling paper and a grinder—items he explained were consistent with personal
use. But he clarified that finding rolling paper and a grinder in a different portion of the
camper did not change his opinion that possession of 19 bags of marijuana was consistent
with an intent to distribute.
The jury found Crudo guilty of possession of marijuana and possession of
marijuana with no drug tax stamp but hung on the possession of marijuana with intent to
distribute charge. At that point, the State told the district court it intended to retry Crudo
on the possession of marijuana with intent to distribute charge. The State asked the court
to declare a mistrial on that charge, which it did.
Motion to Vacate
After his first trial, Crudo moved to vacate, raising two double jeopardy
arguments. He argued his convictions for possession of marijuana and possession of
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marijuana with no drug tax stamp were multiplicitous. He also argued his conviction for
possession of marijuana was a lesser included crime of possession of marijuana with
intent to distribute and, as a result, the State could not retry him. The district court denied
Crudo's motion.
Second Trial
When the State retried Crudo for possession of marijuana with intent to distribute,
the jury returned a verdict of guilty.
Sentencing
The district court designated count one, possession of marijuana with the intent to
distribute, as the base sentence, with sentences for the other counts to run concurrently.
The court then granted Crudo's motion for a dispositional departure and sentenced him to
36 months' probation with an underlying 108-month prison term.
Crudo timely appealed.
ANALYSIS
The district court correctly denied Crudo's motion to suppress.
Crudo argues the warrantless search of his camper violated his rights under the
Fourth Amendment and section 15 of the Kansas Constitution Bill of Rights so the
district court should have suppressed the evidence found there. Crudo contends this
search was impermissible because: (1) the automobile exception should not extend to the
camper, and (2) the officers had no probable cause to believe the camper contained
contraband.
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Standard of Review
Usually, when reviewing a motion to suppress, an appellate court reviews the
district court's findings of fact to determine whether they are supported by substantial
competent evidence and reviews the ultimate legal conclusion de novo. State v. Cash, 313
Kan. 121, 125-26, 483 P.3d 1047 (2021). But when the material facts supporting the
court's decision are not in dispute, the question for this court—whether to suppress—is
one of law, and we exercise unlimited review. State v. Hanke, 307 Kan. 823, 827, 415
P.3d 966 (2018).
Applicable Law and Analysis
"'[A] warrantless search by a police officer is per se unreasonable under the Fourth
Amendment unless the State can fit the search within one of the recognized exceptions to
the warrant requirement.'" State v. Doelz, 309 Kan. 133, 140, 432 P.3d 669 (2019). One
recognized exception is probable cause plus exigent circumstances, and a subclass of this
exception is the "automobile exception." 309 Kan. at 140, 143. "The automobile
exception provides that a warrant is not required to search a vehicle as long as 'probable
cause exists to believe the vehicle contains contraband or evidence of a crime' and the
vehicle is 'readily mobile.'" 309 Kan. at 143.
The automobile exception applies to the camper.
Crudo first challenges the search of the camper by arguing the automobile
exception that allowed for a warrantless search of the pickup did not extend to the
camper. He argues the justifications which underly the automobile exception—(1) the
"'practical challenges of obtaining a warrant for a vehicle that could be "quickly moved"
out of the jurisdiction,'" and (2) the vehicle operator's reduced expectation of privacy in
the operation of a vehicle on a roadway—do not support the application of this exception
to the camper.
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While Crudo contends the camper is not a vehicle and "could not be rapidly
moved," he acknowledges courts have found trailers are mobile which brings them under
the automobile exception, citing United States v. Navas, 597 F.3d 492, 499-500 (2d Cir.
2010) (finding tractor trailer was inherently mobile because it could be towed away);
United States v. Smith, 456 Fed. Appx. 200, 209 (4th Cir. 2011) (unpublished opinion)
(finding that tractor trailer "clearly was inherently mobile"). But he argues these holdings
are too broad and should not apply to the camper since it could not move on its own.
Analogizing a camper to a residence, he argues expanding the exception to attached
campers and trailers "allows for a highly intrusive search into the private lives of
individuals and their personal possessions."
Crudo relies on Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663, 201 L. Ed. 2d 9(2018), to support his argument that the automobile exception should not be extended to
the camper. In Collins, officers claimed the automobile exception allowed a warrantless
search of a motorcycle covered with a tarp and parked in a driveway. But the United
States Supreme Court disagreed, holding: "[T]he automobile exception does not permit
an officer without a warrant to enter a home or its curtilage in order to search a vehicle
therein." 138 S. Ct. at 1675. We find Collins distinguishable since it involved officers
"physically intruding on the curtilage of Collins' home to search the motorcycle," which
invaded Collins' Fourth Amendment interest in both the motorcycle and the curtilage of
his home. 138 S. Ct. at 1671. Here, Crudo's camper was neither being used as a residence
nor was it parked within the curtilage of one when it was searched—it was attached to a
pickup traveling down a public roadway.
When extending the automobile exception to a motor home in California v.
Carney, 471 U.S. 386, 393, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985), the United States
Supreme Court refused to distinguish vehicles based on their capability of functioning as
a home, noting: "In our increasingly mobile society, many vehicles used for
transportation can be and are being used not only for transportation but for shelter, i.e., as
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a 'home' or 'residence.'" 471 U.S. at 393. Instead, the court noted the automobile
exception "has never turned on the other uses to which a vehicle might be put," but "has
historically turned on the ready mobility of the vehicle, and on the presence of the vehicle
in a setting that objectively indicates that the vehicle is being used for transportation."
471 U.S. at 394.
In United States v. Hill, 855 F.2d 664 (10th Cir. 1988), a defendant challenged the
warrantless search of his houseboat, claiming it was more like a home than a vehicle, so
the automobile exception did not apply. In upholding the search, the Tenth Circuit relied
on the fact that the houseboat was navigating the lake when officers boarded it, so it was
readily mobile and not being used as a residence at the time of the search. 855 F.2d at
667-68. Additionally, in United States v. Ervin, 907 F.2d 1534 (5th Cir. 1990), the Fifth
Circuit upheld the warrantless search of a fifth-wheel camper officers had followed to a
motel parking lot. That court applied the automobile exception to the camper after finding
it was readily mobile and so situated that an objective observer would conclude it was not
being used as a residence while parked at a motel parking lot and not a place regularly
used for residential purposes. 907 F.2d at 1537-39.
Had the camper been unhitched, parked at a campsite, and being used as a
residence, that situation would be more analogous to Collins. But here, as in Carney, Hill,
and Ervin, the camper was readily mobile (since it was attached to the pickup), and it was
being used for transportation rather than a residence (since it was traveling down a public
roadway).
As for the second justification for the automobile exception, the United States
Supreme Court discussed the rationale underlying vehicle operators' reduced privacy
right in the context of the automobile exception in Carney, 471 U.S. at 392:
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"'Automobiles, unlike homes, are subjected to pervasive and continuing
governmental regulation and controls, including periodic inspection and
licensing requirements. As an everyday occurrence, police stop and
examine vehicles when license plates or inspection stickers have expired,
or if other violations, such as exhaust fumes or excessive noise, are
noted, or if headlights or other safety equipment are not in proper
working order.'
"The public is fully aware that it is accorded less privacy in its automobiles
because of this compelling governmental need for regulation. Historically, 'individuals
always [have] been on notice that movable vessels may be stopped and searched on facts
giving rise to probable cause that the vehicle contains contraband, without the protection
afforded by a magistrate's prior evaluation of those facts. [Citations omitted.]"
Like vehicles, campers are subject to extensive regulation when traveling on a roadway.
See K.S.A. 8-1401 et seq. (defining terms in Kansas' Uniform Act Regulating Traffic);
K.S.A. 8-1501 et seq. (containing the "Rules of the Road"); K.S.A. 8-1701 et seq.
(containing regulation on the "Equipment of Vehicles"); K.S.A. 8-1901 et seq.
(containing regulations for the "Size, Weight and Load of Vehicles"). And these
regulations provide law enforcement with the legal authority to stop and examine
campers and trailers attached to vehicles traveling down the public roadway—just like Lt.
Ricard did here. See K.S.A. 8-1759a; K.S.A. 8-1910; Smith v. Kansas Dept. of Revenue,
291 Kan. 510, 511, 242 P.3d 1179 (2010) (officer initiated stop because tail lights on
trailer being pulled by pickup truck not working); Lewis v. Kansas Dept. of Revenue,
No. 110,721, 2014 WL 6777438, at *1 (Kan. App. 2014) (unpublished opinion) (trooper
initiated stop after observing driver hauling trailer without working tail lights on
highway); State v. Smith, No. 101,831, 2009 WL 5062492, at *1 (Kan. App. 2009)
(unpublished opinion) (trooper pulled over defendant, who was driving a pickup pulling a
trailer, because trailer did not have working tail lights).
Thus, we find both the mobility distinction and reduced privacy expectation which
justify the automobile exception similarly apply to attached campers traveling down a
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public roadway. Based on this analysis, we find the exigent circumstances which allow
warrantless searches of motor vehicles also allow warrantless searches of a fifth-wheel
camper attached to that vehicle when it is traveling on a public roadway and is so situated
that an objective observer would conclude it was not being used as a residence when it
was searched. The district court did not err in extending the automobile exception to
Crudo's camper.
Probable cause supported the camper search.
Crudo next challenges the camper search by claiming it was not supported by
probable cause. The automobile exception only satisfies the Fourth Amendment's warrant
requirement; probable cause to believe the camper contained contraband or evidence of a
crime is still required. Doelz, 309 Kan. at 143. "The probable cause analysis reviews the
totality of the circumstances to determine the probability that the vehicle contains
contraband or evidence." 309 Kan. at 143.
Neither party contests that the officers' detection of the odor of marijuana
emanating from the pickup provided probable cause to search the pickup—they simply
disagree as to the proper scope of that probable cause. The State argues detection of this
odor and the discovery of marijuana in the pickup provided probable cause to search both
the pickup and the camper. Crudo contends the officers had no probable cause to search
the camper since they did not smell marijuana coming from it and they only found a
small amount of marijuana after searching the pickup.
The district court relied on three cases in finding the officers' probable cause to
search the pickup extended to the camper. The first was State v. Specht, No. 106,272,
2012 WL 1970108 (Kan. App. 2012) (unpublished opinion), which involved the
warrantless search of an enclosed camper shell attached to the back of a pickup. As in
Crudo's case, officers searched Specht's pickup after smelling a strong odor of marijuana
10
emanating from the cab area. And, also like here, they searched the camper shell after
discovering marijuana in the pickup's cab. In Specht, the district court suppressed the
drug evidence discovered in the camper shell because there were no odors emanating
from the camper shell. But this court overturned that decision after finding the officers'
discovery of marijuana in Specht's pickup cab provided sufficient probable cause to
search the rest of the pickup, which included the enclosed camper shell. 2012 WL
1970108, at *7.
We agree with the district court that, while a camper shell is different from a fifth-
wheel camper, the premise set forth in Specht still applies. As in Specht, the camper
search was not based only on the odor of marijuana emanating from the truck—the
officers discovered corroborating evidence of contraband in the truck before searching
the camper. "[O]nce a police officer lawfully discovers contraband in the passenger
compartment of a vehicle, probable cause exists to search the remainder of the vehicle,
including a trunk or camper shell, for additional evidence of contraband." 2012 WL
1970108, at *7. Just like this court found in Specht, it was reasonable for the officers to
believe Crudo's camper might contain additional evidence of illegal drugs. And Crudo
cites no authority to support his contention that the quantity of marijuana found in the
truck negates that probable cause.
The district court also relied on United States v. Millar, 543 F.2d 1280 (10th Cir.
1976), which addressed whether the detection of the odor of marijuana coming from and
discovery of marijuana seeds within the vehicle pulling a U-Haul trailer provided officers
probable cause to search the trailer. The difference in Millar is the officers applied for a
search warrant, while the officers here did not. Yet Millar challenged the affidavit in
support of the search warrant on the same basis that Crudo challenges the camper search:
both alleged marijuana odor coming from the vehicle where marijuana was ultimately
found did not provide sufficient probable cause to search a trailer or camper attached to
that vehicle.
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In upholding the search warrant, the Millar court found it "unrealistic" to isolate
the trailer from the vehicle that was pulling the trailer. 543 F.2d at 1283. Instead, it found
the vehicle and trailer constituted a unit for purposes of the search. In so finding, the
Millar court noted the trailer was attached to the vehicle and both were ostensibly
traveling to the same destination. The court found the officer's detection of the odor of
marijuana coming from the vehicle, coupled with finding seeds on the floorboard,
provided probable cause to search the vehicle's trunk and then analogized the trailer
search to a trunk search. It also found it important that Millar was in possession and
control of both the automobile and the U-Haul trailer. It distinguished this situation from
United States v. Rodriguez, 525 F.2d 1313 (10th Cir. 1975), where it held discovery of
marijuana under a tarp in a trailer being pulled by a commercially operated bus did not
support probable cause to search the baggage of the 12 paying passengers on the bus.
Millar, 543 F.2d at 1283.
We similarly find it unrealistic to treat Crudo's pickup and camper separately for
purposes of this search. Crudo was in possession and control of the pickup and attached
camper, which were also both ostensibly traveling to the same destination. Once the
officers discovered marijuana in the pickup, they had probable cause to search the
attached camper for additional drug evidence.
The last case the district court relied on in denying Crudo's motion to suppress was
State v. Finlay, 257 Or. App. 581, 307 P.3d 518 (2013). As in Millar, the Oregon
appellate court viewed a vehicle and its attached trailer as one unit. It found that attaching
a trailer to a vehicle expands the automobile exigency exception to the trailer, since the
trailer now had the ability to move and be mobile. 257 Or. App. at 593 (noting the
"'quality of mobility is as true for the trailer attached to defendant's pickup as for the
pickup itself'"). The Finlay court "fail[ed] to see a significant distinction between
searching containers inside a vehicle, which is permitted under the automobile exception
. . . and searching containers attached to the outside of a vehicle." 257 Or. App. at 593
12
(citing State v. Brown, 301 Or. 268, 721 P.2d 1357 [1986]). We agree with the district
court that this logic is sound and supported by the findings in Specht and Millar.
We also note that in State v. Overbey, 790 N.W.2d 35, 42 (S.D. 2010), the South
Dakota Supreme Court found probable cause existed to search an attached fifth-wheel
camper after a drug dog alerted to the cab of the pickup. That court found the pickup and
attached fifth-wheel camper were one unit once attached and the camper was "subject to
search as long as the motor vehicle exception was satisfied as to any part of the pickup or
camper." 790 N.W.2d at 42. Similarly, in United States v. Torres, No. 3-:05-CR-051,
2005 WL 3546677, at *7-8 (S.D. Ohio 2005) (unpublished opinion), the court found
officers had probable cause to search the locked trailer of a tractor-trailer rig once a drug
dog alerted on the tractor since it determined the tractor trailer should be treated as one
unit.
Based on these cases, we find the automobile exception applies to the fifth-wheel
camper attached to Crudo's vehicle. And once officers had probable cause to search
Crudo's vehicle, they had probable cause to search containers inside and attached to the
outside of that vehicle which they had probable cause to believe may contain contraband
or evidence of a crime. This includes a camper attached to a vehicle when both are
traveling on a public roadway in the possession and control of the defendant.
The district court properly exercised its discretion when finding Lieutenant Ricard's
testimony was not expert testimony under K.S.A. 60-456(b).
In his next claim of error, Crudo argues several portions of Lt. Ricard's testimony
constituted expert testimony under K.S.A. 2021 Supp. 60-456(b), and because the State
did not comply with the expert disclosure requirements in K.S.A. 2021 Supp. 22-
3212(b)(2), the district court erred in allowing it. He contends the following was expert
testimony: (1) the packaging and quantity of marijuana found in the camper suggested an
13
intent to distribute; (2) wholesale marijuana prices; and (3) "the 'patterns' of marijuana
traffickers"—specifically, that "the product is purchased in the western states and travels
east on 'short trips,'" and that "traffickers would try to spend as little time on the road as
possible as that increases the likelihood of being stopped." He argues these errors warrant
reversal because the State's case for the intent to distribute charge hinged on this expert
testimony and the quantity of drugs found.
Preservation
Crudo argues he preserved this issue because he objected to Lt. Ricard's testimony
as improper expert testimony when the State asked Lt. Ricard whether the drugs found in
the camper would reflect the intent to distribute. While we find Crudo preserved his
objection to the first two portions of Lt. Ricard's testimony, he fails to identify the
location in the second jury trial transcript where he objected to the third portion of
testimony that he challenges—Lt. Ricard's testimony about "the 'patterns' of marijuana
traffickers"—specifically, that "the product is purchased in the western states and travels
east on 'short trips,'" and that "traffickers would try to spend as little time on the road as
possible as that increases the likelihood of being stopped." Thus, the record reflects he
only preserved a portion of the challenged testimony for our review. See State v. Ballou,
310 Kan. 591, Syl. ¶ 6, 613-14, 448 P.3d 479 (2019) ("A timely interposed objection, as
required by the plain language of K.S.A. 60-404, is one that gives the district court the
opportunity to make the ruling contemporaneous with an attempt to introduce evidence at
trial.").
Standard of Review
We review the district court's decision as to whether Lt. Ricard's testimony was
expert or lay opinion testimony and its admission of this testimony using an abuse of
discretion standard. State v. Aguirre, 313 Kan. 189, 195, 485 P.3d 576 (2021); State v.
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Hubbard, 309 Kan. 22, 43-48, 430 P.3d 956 (2018) (analyzing whether officers'
testimony about having smelled raw marijuana was lay or expert opinion testimony,
concluding it was lay opinion testimony and, as a result, holding district court did not
abuse its discretion in admitting testimony; citing State v. Sasser, 305 Kan. 1231, 1243,
391 P.3d 698 [2017]).
Applicable Law
The statute governing opinion testimony, K.S.A. 2021 Supp. 60-456, provides:
"(a) If the witness is not testifying as an expert, the testimony in the form of
opinions or inferences is limited to such opinions or inferences as the judge finds: (1)
Are rationally based on the perception of the witness; (2) are helpful to a clearer
understanding of the testimony of the witness; and (3) are not based on scientific,
technical or other specialized knowledge within the scope of subsection (b).
"(b) If scientific, technical or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue, a witness who is qualified
as an expert by knowledge, skill, experience, training or education may testify thereto in
the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or
data; (2) the testimony is the product of reliable principles and methods; and (3) the
witness has reliably applied the principles and methods to the facts of the case."
Crudo relies on K.S.A. 2021 Supp. 22-3212(b)(2), which states:
"The prosecuting attorney shall also provide a summary or written report of what
any expert witness intends to testify to on direct examination, including the witness'
qualifications and the witness' opinions, at a reasonable time prior to trial by agreement
of the parties or by order of the court."
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And Crudo asserts that subsection (i) of that statute "authorizes the district court to
'prohibit the party from introducing into evidence the material not disclosed.'" In full,
subsection (i) states:
"If, subsequent to compliance with an order issued pursuant to this section, and
prior to or during trial, a party discovers additional material previously requested or
ordered which is subject to discovery or inspection under this section, the party shall
promptly notify the other party or the party's attorney or the court of the existence of the
additional material. If at any time during the course of the proceedings it is brought to the
attention of the court that a party has failed to comply with this section or with an order
issued pursuant to this section, the court may order such party to permit the discovery or
inspection of materials not previously disclosed, grant a continuance, or prohibit the party
from introducing in evidence the material not disclosed, or it may enter such other order
as it deems just under the circumstances." K.S.A. 2021 Supp. 22-3212(i).
Lay or Expert Opinion Testimony
The State counters that it did not have to follow K.S.A. 2021 Supp. 22-3212(b)
because Lt. Ricard's testimony was lay opinion testimony under K.S.A. 2021 Supp. 60-
456(a)—not expert opinion testimony under K.S.A. 2021 Supp. 60-456(b). The State
argues that Lt. Ricard testified to his opinion based on what he personally witnessed in
his professional career as a law enforcement officer. It also notes the training he received
pertaining to drug distribution did not fall into the category of specialized, scientific, or
complex subject matter that would require a court to find him to be an expert witness.
Last, it contends Crudo knew about Lt. Ricard's proposed trial testimony on these issues
since he provided similar statements in his probable cause affidavit and in his testimony
at the preliminary hearing (to which Crudo did not object).
The State cites Hubbard in support, where, according to the State, the "Kansas
Supreme Court discussed the distinction between lay and expert opinion in regards to an
officer's testimony regarding their recognition of the odor of marijuana," and "f[ound]
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that the district court did not abuse its discretion in admitting the officer's testimony, as
lay witnesses."
In Hubbard, two police officers testified that they had smelled raw marijuana. On
appeal, the Kansas Supreme Court analyzed whether the officers' testimony became
expert opinion testimony because they had also testified their ability to identify marijuana
odor came from their training and experience as police officers. 309 Kan. at 44-46. The
Hubbard court first turned to Sasser, another case about the distinction between lay and
expert opinion testimony, and noted: "In Sasser, the critical feature for the majority that
made the testimony admissible as a lay opinion was that the special knowledge on which
the [opinion] was based was not 'so . . . specialized that it cried out for greater court
control.'" Hubbard, 309 Kan. at 45. The Hubbard court also quoted Osbourn v. State, 92
S.W.3d 531, 537 (Tex. App. 2002), stating: "Similarly, '[w]hile smelling the odor of
marihuana smoke may not be an event normally encountered in daily life, it requires
limited, if any, expertise to identify.'" Hubbard, 309 Kan. at 45.
The Hubbard court found the officers' testimony about smelling raw marijuana
was lay opinion testimony and admissible under K.S.A. 2017 Supp. 60-456(a). The court
based this conclusion on the officers' opinions not being "'highly technical,'" stating:
"[W]e are confident it is within the realm of common human experience to smell
something and subsequently be able to recognize that same odor again." 309 Kan. at 45-
46 (supporting its conclusion with the quote from State v. Loudermilk, 221 Kan. 157,
163, 557 P.2d 1229 [1976]: "'Whether a small wound is a cut or a puncture and whether
it is old or new, would not appear highly technical.'" [Emphasis added.]). Lastly, in
responding to the dissent's argument that the officers were giving expert opinion
testimony because they had been exposed to raw marijuana from police training and on-
the-job experience, the court found that the "officers did not learn how to smell at the
police academy," Hubbard, 309 Kan. at 46, and clarified:
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"'There are certain fields where a witness may qualify as an expert based upon experience
and training, however, use of the terms "training" and "experience" do not automatically
make someone an expert. All opinions are formed by evaluating facts based on life
experiences including education, background, training, occupation, etc. While [the police
officer] may have had the potential to be qualified as an expert because she possessed
knowledge, skill, experience and education, she was not testifying as an expert when she
identified the marihuana. Rather, she was testifying based on her firsthand sensory
experiences. [The police officer] herself smelled the odor that she perceived to be burnt
marihuana. The fact that she had smelled marihuana before in the course of her
employment as a police officer does not necessarily make her an expert. And, again, even
if she was an expert, that would not preclude her from offering a lay opinion about
something she personally perceived." 309 Kan. at 46 (quoting In re Ondrel M., 173 Md.
App. 223, 244-45, 918 A.2d 543 [2007]).
Having determined the officers' testimony was lay opinion testimony, the Hubbard
court determined the district court did not abuse its discretion by admitting the testimony.
309 Kan. at 43, 46, 48.
Lt. Ricard's testimony that the marijuana's quantity and packaging are
consistent with the intent to distribute
Crudo challenges testimony Lt. Ricard provided in both trials on the basis that it
improperly supported the intent to distribute charge. But since Crudo was convicted of
this charge in the second trial, we do not consider testimony from the first trial.
In the second trial, Lt. Ricard testified that, based on his law enforcement training,
the quantity and packaging of the 19 vacuum-sealed bags of marijuana were consistent
with the intent to distribute. Following our Supreme Court's conclusion in Hubbard, we
find this testimony was lay opinion. Concluding that 19 vacuum-sealed bags of
marijuana, labeled with strain names, which appeared to be of equal weight
(approximately one pound), would evidence an intent to distribute does not involve a
18
"'highly technical'" matter. See Hubbard, 309 Kan. at 45-46. Rather, it is "within the
realm of common human experience" to know that marijuana packaged in this way would
be intended for distribution rather than personal use. See 309 Kan. at 45-46. Thus, as in
Hubbard, we find the district court did not abuse its discretion in admitting this
testimony. See 309 Kan. at 43, 46, 48.
Lt. Ricard's testimony about marijuana prices
Crudo also claims Lt. Ricard's testimony on marijuana prices constituted expert
testimony—specifically, his testimony that the wholesale price of marijuana on the West
Coast ranged from $1,200 to $1,600 per pound, and that the same marijuana would be
worth $4,500 to $6,000 per pound on the East Coast. Lt. Ricard stated this testimony was
based upon drug interdiction training he received as part of his required 40 hours of
annual training. He testified this training included how drug traffickers operate, bulk
marijuana traffickers, and wholesale marijuana prices.
Crudo relies on two cases for his contention that Lt. Ricard's testimony rose to the
level of an expert—State v. Villa-Vasquez, 49 Kan. App. 2d 421, 310 P.3d 426 (2013),
and State v. Tran, 252 Kan. 494, 847 P.2d 680 (1993). Crudo asserts that in Villa-
Vasquez, "this Court found the State's witness was an expert, even though he had no
formal training. Rather, his expertise was based on his 'law enforcement work in the field'
studying narco-saints." But the statement Crudo cites does not provide a complete
representation of the expert's credentials in Villa-Vasquez. There, the expert was a United
States marshal from Texas who was an expert on shrines used by drug dealers. He
worked in law enforcement since 1978 and spent 13 of those years overseeing a narcotics
task force in Texas—where it was common for him to encounter shrines in drug cases.
He then researched how criminals prayed to icons for protection from law enforcement,
studied case reports and photos of scenes depicting narco saints, talked to drug traffickers
with shrines about the connection between the shrines and drug trafficking, traveled to
19
Mexico to visit shrines and study the topic, created a law enforcement training video on
the topic, and presented that training video to officers around the nation. 49 Kan. App. 2d
at 423-24.
On the other hand, Lt. Ricard has not developed an expertise on the subject at
issue like the expert in Villa-Vasquez. Rather, Lt. Ricard's training on marijuana prices
was merely included in the annual training all officers had to undergo.
The second case Crudo relies on, Tran, is similarly distinguishable. The expert
there was a Wichita gang intelligence officer who accumulated knowledge and
information on gangs and gang activity through his position. 252 Kan. at 502. Both cases
Crudo cites predate the changes to K.S.A. 60-456 in 2014, but more recent caselaw
appears to similarly require the officer to have received specialized training to be
considered an expert. See L. 2014, ch. 84, § 2; see, e.g., State v. Claerhout, 310 Kan. 924,
932, 934-35, 453 P.3d 855 (2019) (finding officer to be qualified as expert in reading
crash data retrieval when officer testified to having "training, proficiency testing, and
extensive experience in accident reconstruction and using crash data retrieval").
Like his testimony about the packaging and quantity of marijuana, we do not find
Lt. Ricard's testimony about wholesale drug prices to constitute the type of "scientific,
technical or other specialized knowledge" which is contemplated by K.S.A. 2021 Supp.
60-456(b) or K.S.A. 2021 Supp. 22-3212(b)(2). Observations about wholesale drug
prices do not require significant expertise nor are they based on any scientific theory. See
Osbourn, 92 S.W.3d at 537. Such testimony is also not "based on information that was so
scientific, technical, or specialized that it cried out for greater court control." Sasser, 305
Kan. at 1246-47. The district court did not abuse its discretion in admitting testimony
about the quantity and packaging of the marijuana or wholesale marijuana prices.
20
The district court erred when instructing the jury, but it did not affect the trial's outcome.
Crudo next argues the district court erred in instructing the jury that it could "'infer
that the defendant had the intent to distribute marijuana, if the defendant possessed more
than 450 grams of marijuana.'" In full, the challenged jury instruction, which Crudo
acknowledges followed PIK Crim. 4th 57.022 (2013 Supp.), provides:
"You may infer that the defendant had the intent to distribute marijuana, if the
defendant possessed more than 450 grams of marijuana.
"The inference may be considered by you along with all other evidence in the
case. You may accept or reject it in determining whether the State has met the burden to
prove that the defendant had the intent to distribute marijuana. This burden never shifts to
the defendant."
Crudo argues the instruction was erroneous because it violated the Due Process
Clause along with the constitutional right to a jury trial mandate that "the jury find each
fact necessary for a conviction beyond a reasonable doubt." He asserts that "[m]andatory
presumptions in jury instructions are problematic because they deprive a criminal
defendant of due process protections afforded under [the] Fourteenth Amendment to [the]
United States Constitution." Finally, he contends that for the possession with the intent to
distribute charge, the State had the burden to prove both possession and the intent to
distribute the marijuana, but the court's instruction reduced the State's burden of proof
regarding the intent to distribute, thus this error warrants reversal because it affected the
verdict. We are not persuaded.
The Kansas Supreme Court recently took up the precise issue Crudo raises in State
v. Holder, 314 Kan. 799, 801-02, 502 P.3d 1039 (2022). Holder was charged with the
same crime as Crudo—possession with the intent to distribute under K.S.A. 2020 Supp.
21-5705(a)(4)—and, also like Crudo, challenged a jury instruction based on PIK Crim.
4th 57.022. The court found the instruction did not accurately reflect the applicable law
21
because it allowed for a "permissive inference" of an intent to distribute based on the
quantity of drugs, where the statute on which the instruction is patterned, K.S.A. 2020
Supp. 21-5705(e), provides for a "rebuttable presumption." (Emphasis added.) 314 Kan.
at 800, 804-07. The court explained the distinction between the two concepts:
"'A rebuttable presumption does not remove the presumed element from the case
but nevertheless requires the jury to find the presumed element unless the accused
persuades the jury otherwise. That is, once the State proves certain facts, the jury must
infer [the element] from those facts, unless the accused proves otherwise. . . .
"'An instruction containing a permissive inference does not relieve the State of its
burden because it still requires the State to convince the jury that an element, such as
intent, should be inferred based on the facts proven.'" 314 Kan. at 805 (quoting State v.
Harkness, 252 Kan. 510, Syl. ¶¶ 13-14, 847 P.2d 1191 [1993]).
The court applied Kansas' "rebuttable presumption" definition to K.S.A. 2020 Supp. 21-
5705(e), explaining, "the statutory rebuttable presumption means that once the State
proved possession of 450 grams or more of marijuana, the jury must infer [the
defendant's] intent to distribute unless he proved otherwise." (Emphasis added.) Holder,
314 Kan. at 805.
The court concluded the instruction in Holder was legally erroneous because it did
not accurately reflect the law. We similarly find the instruction here was legally
inappropriate and erroneous. See 314 Kan. at 803 (noting one step in the multi-step
standard of review for claims of jury instruction error involves determining if the
instruction was legally appropriate).
Having determined the jury was instructed in error, we must now decide whether
the error requires reversal. State v. Holley, 313 Kan. 249, 253, 485 P.3d 614 (2021).
Because Crudo preserved the claimed instructional error, we apply the constitutional
harmless error standard. See 313 Kan. at 256-57 ("[W]hen an instructional error impacts
22
a constitutional right, this court assesses 'whether the error was harmless under the
federal constitutional harmless error standard, i.e., whether there was "no reasonable
probability" that the error contributed to the verdict.'").
As the court did in Holder, we find the instructional error was harmless. First, we
do not find the permissive inference instruction reduced the State's burden to prove
Crudo's intent to distribute marijuana. Holder, 314 Kan. at 807 (applying a clear error
standard since Holder did not preserve his jury instruction argument). Not only did the
instruction specifically reference the State's burden to prove Crudo's intent to distribute
marijuana, but it also told the jury it could accept or reject the permissive inference that
Crudo had an intent to distribute depending on whether the State met its burden. And it
reminded the jury that the "burden never shifts to the defendant."
Next, the erroneous jury instruction contained a permissive inference, which was
beneficial to Crudo in comparison to K.S.A. 2021 Supp. 21-5705(e)'s rebuttable
presumption. If the court had not erred and, instead, applied the "rebuttable presumption"
in K.S.A. 2021 Supp. 21-5705(e)(1), once the State proved possession of 450 grams or
more of marijuana—which it did when the forensic chemist testified to the gross weight
of the 19 bags of marijuana being 9.34 kilograms (i.e., 9,340 grams)—the jury would
have had to infer that Crudo had the intent to distribute, unless he proved otherwise. See
Holder, 314 Kan. at 805. Here, instead of being told it must presume the intent to
distribute based on the quantity of marijuana (unless Crudo proved otherwise), the jury
was told it could accept or reject the inference of such intent. The permissive inference
arguably heightened the burden of proof on this charge for the State beyond what is
required by K.S.A. 2021 Supp. 21-5705(e), yet the jury still convicted Crudo. If the jury
found the evidence sufficient to convict Crudo under this heightened standard, we fail to
see how there would be no reasonable probability it would convict under the lesser
standard. See United States v. Pinson, 542 F.3d 822, 832-33 (10th Cir. 2008) ("An
incorrect instruction that is beneficial to the defendant is generally not considered
23
prejudicial."; citing Killian v. United States, 368 U.S. 231, 258, 82 S. Ct. 302, 7 L. Ed. 2d
256 [1961]).
Last, even setting aside the beneficial aspect of the instruction, given the evidence
presented (including the quantity, packaging, and labeling of the 19 bags of marijuana),
we find no reasonable probability the instructional error affected the trial's outcome. We
do not find the jury would have reached a different verdict had the instructional error not
occurred.
As for Crudo's constitutional argument, like in Holder, even if we found the
statutory rebuttable presumption unconstitutional (an issue we do not reach here), Crudo's
due process rights were not violated since the rebuttable presumption was not applied to
him at trial. See Holder, 314 Kan. at 807-08. Crudo suffered no prejudice from the error
about which he complains.
Crudo's protection against double jeopardy was not violated.
"[T]he Double Jeopardy Clause of the Fifth Amendment 'protects against: (1) a
second prosecution for the same offense after acquittal; (2) a second prosecution for the
same offense after conviction; and (3) multiple punishments for the same offense.'" State
v. Dale, 312 Kan. 174, 178, 474 P.3d 291 (2020) (quoting State v. Schoonover, 281 Kan.
453, 463, 133 P.3d 48 [2006]). Like the United States Constitution, the Kansas
Constitution also prohibits a criminal defendant from being "'twice put in jeopardy,'" and
the Kansas Supreme Court has interpreted the Kansas and federal double jeopardy
provisions as providing a criminal defendant with the same protections. State v. Hensley,
298 Kan. 422, 435, 313 P.3d 814 (2013); see U.S. Const. amend. V; Kan. Const. Bill of
Rights, § 10. A defendant's argument under any of the three categories of protection
raises a question of law over which this court has unlimited review. Dale, 312 Kan. at
178.
24
Crudo argues (1) his convictions for possession of marijuana and for no drug tax
stamp at the first trial were multiplicitous—or in other words, they were two separate
punishments for the same offense, and (2) his conviction for possession of marijuana at
the first trial barred a retrial on the possession of marijuana with intent to distribute
charge because K.S.A. 2021 Supp. 21-5109(b) bars a conviction for both a greater and
lesser offense. Possession of marijuana is a lesser included offense of possession of
marijuana with intent to distribute. To prevail on either of these arguments, Crudo must
establish the crimes at issue arise from the "same offense." Dale, 312 Kan. at 178.
The State denies these convictions were multiplicitous because it notes the jury
could have only found Crudo guilty of the no drug tax stamp charge based on the 19 bags
of marijuana found under the bathtub—not the marijuana found in the pickup or
underneath the stairs in the camper. It points out the only testimony the jury heard
pertaining to the weight of marijuana related to the 19 bags of marijuana found
underneath the bathtub.
Invited Error
Before we analyze Crudo's claims, we must address the State's argument that
Crudo invited the error and cannot complain about it on appeal. The State contends
Crudo deliberately avoided requesting a lesser included instruction as to count 1—the
possession with the intent to distribute charge—to nullify the jury. The State argues, "It
was an all or nothing defense, that did not go in the defendant's favor, and no[w] the
defense is attempting to argue that it now constitutes double jeopardy." But Crudo
correctly notes the invited error doctrine does not apply. The issue he raised on appeal
stems from whether the convictions are multiplicitous—not on the district court's failure
to instruct the jury on a lesser-included offense.
25
Relevant Facts
The State charged Crudo with four counts in the complaint:
(1) possession of marijuana with intent to distribute in violation of K.S.A. 2013
Supp. 21-5705(a)(4) and (a)(7), "a drug severity level 2, nonperson felony
(450grams-30kg)." Based on a review of the statute for this offense, the
State's reference to "(450grams-30kg)" corresponds to K.S.A. 2013 Supp. 21-
5705(d)(2)(C), which provides that a "[v]iolation of subsection (a) with
respect to material containing any quantity of marijuana, or analog thereof, is
a: . . . (C) drug severity level 2 felony if the quantity of the material was at
least 450 grams but less than 30 kilograms." (Emphasis added.)
(2) no drug tax stamp, a severity level 10 nonperson felony, in violation of
K.S.A. 79-5204(a) and K.S.A. 79-5208. The State alleged that Crudo, "a
dealer of marijuana or other controlled substances as defined by K.S.A. 79-
5201, unlawfully, feloniously and intentionally possessed such a controlled
substance [to wit: over 28 grams of marijuana] upon which a tax is imposed
without having affixed thereto an official stamp or other indicia of tax
payment." K.S.A. 79-5201(c) provides that "'dealer' means any person who,
in violation of Kansas law, manufactures, produces, ships, transports or
imports into Kansas or in any manner acquires or possesses more than 28
grams of marijuana . . . ." (Emphasis added.) The statutes under which Crudo
was charged reference a "dealer," which thereby incorporates the definition's
weight requirement. See K.S.A. 79-5204(a) ("No dealer may possess any
marijuana . . . upon which a tax is imposed pursuant to K.S.A. 79-5202, and
amendments thereto, unless the tax has been paid as evidenced by an official
stamp or other indicia." [Emphasis added.]); K.S.A. 79-5208 ("Any dealer
violating this act is subject to a penalty of 100% of the tax in addition to the
tax imposed by K.S.A. 79-5202 and amendments thereto. In addition to the
26
tax penalty imposed, a dealer distributing or possessing marijuana . . .
without affixing the appropriate stamps, labels or other indicia is guilty of a
severity level 10 felony." [Emphases added.]).
(3) possession of marijuana, a class A nonperson misdemeanor, in violation of
K.S.A. 2013 Supp. 21-5706(b)(3) or (b)(7). The State did not specify a
weight for the marijuana it alleged Crudo possessed for this crime.
(4) conspiracy to possess marijuana with the intent to distribute, a severity level
2, nonperson felony, in violation of K.S.A. 2013 Supp. 21-5302(a).
The jury instruction for possession of marijuana with intent to distribute provided,
in relevant part:
"In Count I, the defendant is charged with the crime of unlawfully possessing
marijuana with the intent to distribute at least 450 grams but less than 30 kilograms. . . .
"To establish this charge, each of the following claims must be proved:
"1. The defendant possessed marijuana with the intent to distribute.
"2. The quantity of the marijuana possessed with the intent to distribute was at
least 450 grams but less than 30 kilograms.
"3. This act occurred on or about the 23rd day of January, 2014, in Geary
County, Kansas." (Emphases added.)
The jury instruction for the charge of no drug tax stamp provided, in relevant part:
"In Count II, the defendant is charged with possession of marijuana, without
Kansas tax stamps affixed. . . .
"To establish this charge, each of the following claims must be proved:
"1. That the defendant intentionally possessed more than 28 grams of marijuana
without affixing official Kansas tax stamps or other labels showing that the tax
had been paid.
"2. That the defendant did so on or about the 23rd day of January, 2014, in Geary
County, Kansas." (Emphasis added.)
27
The jury instruction for possession of marijuana provided, in relevant part:
"In Count III, the defendant is charged with possession of marijuana. . . .
"To establish this charge, the State must prove each of the following claims
beyond a reasonable doubt:
"1. That the defendant possessed marijuana.
"2. This act occurred on or about the 23rd day of January, 2014 in Geary County,
Kansas."
Were Crudo's convictions for possession of marijuana and no drug tax
stamp multiplicitous?
"'[M]ultiplicity is the charging of a single offense in several counts of a complaint
or information'" and "'creates the potential for multiple punishments for a single offense,
which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution and § 10 of the Kansas Constitution Bill of Rights.'" State v.
George, 311 Kan. 693, 696-97, 466 P.3d 469 (2020). This court reviews multiplicity
challenges using an unlimited standard of review. 311 Kan. at 696.
The framework for determining whether convictions are multiplicitous involves
first asking whether the convictions are for the "same offense"—an inquiry that requires
this court to "decide whether 'the convictions arise from the same conduct.'" 311 Kan. at
697. In doing so, the "court examines the facts to determine whether the charges arise
from 'discrete and separate acts or courses of conduct' or unitary conduct arising from
'"the same act or transaction"' or a '"single course of conduct."'" Dale, 312 Kan. at 178.
Courts generally consider four factors in determining whether conduct is "unitary"
(i.e., the same conduct): (1) whether the acts occurred at or near the same time; (2)
whether the acts occurred at the same location; (3) whether there is a causal relationship
28
between the acts or an intervening event; and (4) whether a fresh impulse motivated some
of the conduct. Dale, 312 Kan. at 179.
If the court determines the defendant's conduct was unitary, a double jeopardy
violation is possible. At that point, the court's analysis turns to determining whether there
are two offenses or only one. Dale, 312 Kan. at 180.
Crudo's argument involves convictions based on two statutes—the statute for
possession of marijuana and the statute for no drug tax stamp. Convictions based on
different statutes are multiplicitous only if "'the statutes upon which the convictions are
based contain an identity of elements.'" George, 311 Kan. at 697. To determine whether
there is an identity of elements, we ask "'whether each offense requires proof of an
element not necessary to prove the other offense.'" 311 Kan. at 698. If each offense
requires proof of an element unnecessary to prove the other offense, the convictions are
not multiplicitous. See 311 Kan. at 698 (determining that statute for each offense required
proof of element that was not required by statute for other offense, and concluding
convictions were not multiplicitous).
The Kansas Supreme Court in Hensley discussed how this analysis is affected by
K.S.A. 21-3107(2)(b)—which is now codified at K.S.A. 2021 Supp. 21-5109(b)(2).
Hensley, 298 Kan. at 427, 435; see L. 2010, ch. 136, § 307. K.S.A. 2021 Supp. 21-
5109(b) is the statute Crudo references in his double jeopardy arguments. The Hensley
court explained the Kansas and federal double jeopardy clauses "prohibit a court from
imposing multiple punishments under different statutes for the same conduct in the same
proceeding when the legislature did not intend multiple punishments." (Emphasis added.)
298 Kan. at 435. The court explained the identity of elements test (calling it the "same-
elements test") is merely a rule of construction used to determine whether the Legislature
intended to punish the same conduct under the two statutes. 298 Kan. at 435-36. Under
the test, if each statute contains an element not found in the other, we presume the
29
Legislature intended punishment for both crimes. 298 Kan. at 435. But the Hensley court
explained that legislative history can override this presumption and stated: "K.S.A. 21-
3107(2)(b) clearly specifies a circumstance in which our legislature did not intend
cumulative punishment, removing the need to turn to legislative history." 298 Kan. at
436. The court explained that "K.S.A. 21-3107(2)(b) is essentially the inverse of the
same-elements test as it prohibits a defendant from being convicted of both a greater and
lesser crime, and defines a lesser crime as 'a crime where all elements of the lesser crime
are identical to some of the elements of the crime charged.'" 298 Kan. at 436. The court
held that as a result, this statute "supplants the same-elements test" or the identity of
elements test. 298 Kan. at 436.
Crudo contends the charges for possession of marijuana and for no drug tax stamp
arose from unitary conduct because the drugs were all found at the same time—during
the traffic stop. He argues "the fact some were in the camper and some in the pickup
should not alter the calculus" and notes he owned both the pickup and the camper. He
cites four cases in support of his assertion—State v. Unruh, 281 Kan. 520, 133 P.3d 35(2006); State v. Alvarez, 29 Kan. App. 2d 368, 28 P.3d 404 (2001); State v. Rank, No.
122,893, 2021 WL 4032859 (Kan. App. 2021) (unpublished opinion); and State v.
Gilmore, No. 97,362, 2008 WL 5234530 (Kan. App. 2008) (unpublished opinion).
Crudo explains that in Unruh, methamphetamine was found in multiple areas
within a van, while various items commonly used to manufacture methamphetamine were
found in the back of the van. He highlights that the State brought multiple drug charges
against Unruh, and when addressing whether a unanimity instruction was warranted, the
Unruh court found the case involved "multiple items of evidence but not multiple acts."
281 Kan. at 529. Crudo asserts that in Unruh, "[t]here were not multiple acts because
'there was no temporal, geographic, or other separation or severance of the acts.'" But
these statements from Unruh are inapplicable. Although Unruh included a double
jeopardy analysis, the holdings Crudo references did not come from the double jeopardy
30
analysis but from the court's unanimity instruction analysis for the possession of
methamphetamine charge. Thus, the court was determining whether the
methamphetamine found in the various locations would be considered multiple acts that
could each constitute the single crime of possession of methamphetamine. 281 Kan. at
528-29. And in the Unruh court's double jeopardy analysis, it never analyzed whether the
conduct was unitary, because it determined the convictions were not multiplicitous.
Unruh, 281 Kan. at 533-34.
Both Alvarez, 29 Kan. App. 2d at 369-70, and Rank, 2021 WL 4032859, at *2, are
inapplicable for the same reasons—they did not involve double jeopardy challenges, but
challenges to a district court's failure to give a unanimity instruction when the defendant
believed the State presented multiple acts that could prove the charged crime of
possession of methamphetamine.
The final case Crudo cites—Gilmore, 2008 WL 5234530—is the only one which
bears any possible relevance. In that case, the court found Gilmore's convictions for
possession of methamphetamine with intent to distribute and simple possession of
methamphetamine arose from the same conduct based on the following analysis of the
four factors:
"When we apply these factors to our case, we conclude that the charges did arise
from the same conduct. All of the drugs and paraphernalia were seized at nearly the same
time in or around the apartment when the search warrant was executed. All of the items
were causally related to [the defendant's] alleged participation in the manufacture or
acquisition of methamphetamine without any intervening fresh impulse. Although [the
defendant] allegedly possessed several different items, the charges all arose from the
same conduct: his possession of drugs and paraphernalia." Gilmore, 2008 WL 5234530,
at *1.
31
That said, the facts of Crudo's case and Gilmore's are critically different. First, the
evidence underlying the drug tax stamp conviction had to be the 19 bags of marijuana
found under the bathtub in the camper because the drug tax stamp charge stemmed from
a weight of "over 28 grams of marijuana." The jury was also informed of this weight
requirement in the jury instruction for the drug tax stamp charge. The only evidence
presented at the first trial about the weight of any of the marijuana related to the 19
vacuum-sealed bags of marijuana. Moreover, the only testimony referencing drug tax
stamps was Lt. Ricard's testimony that these 19 bags did not have any such stamps.
The evidence underlying the possession of marijuana conviction, on the other
hand, could have been the marijuana found underneath the stairs in the camper or the
small piece of marijuana found in the pickup. Lt. Ricard and Lt. Stopper only testified
that the 19 bags reflected possession with the intent to distribute. But they testified the
marijuana found under the stairs in the camper contained items consistent with personal
use—a grinder and rolling paper. And Lt. Ricard testified the piece of marijuana found in
the pickup was a small "bud"—just after he confirmed that grinders are used to grind up
marijuana buds and then those buds are put into rolling paper to form a joint. This would
similarly suggest the small piece of marijuana found in the pickup was for personal use.
Turning to the first factor of the unitary conduct analysis, all the marijuana was
found around the same time—during the search of the pickup and the camper. See Dale,
312 Kan. at 179. That said, as to the second factor, the marijuana was found in three
locations—in the pickup, under the bathtub in the camper, and under the stairs in the
camper. See 312 Kan. at 179. And there is no evidence of any intervening event, as
considered in the third factor. See 312 Kan. at 179. The most significant factor here may
be the fourth factor—which asks whether a "fresh impulse" motivated some of the
conduct. 312 Kan. at 179. Here, the conduct leading to the no drug tax stamp conviction
(the 19 bags) and the conduct leading to the possession of marijuana conviction (the
marijuana found underneath the stairs or the small piece of marijuana found in the
32
pickup) would be prompted by separate impulses—the first being an impulse to distribute
marijuana to others and the second being an impulse to personally use marijuana. See
State v. Thompson, 287 Kan. 238, 248, 200 P.3d 22 (2009) (effectively providing
examples of both separate and singular impulses by stating: "[O]rdinarily, . . . the
possession of heroin would be prompted by a separate impulse from possession of
cocaine or possession of methamphetamine. . . . In contrast, a defendant might gather
several items listed in K.S.A. 65-7006(a)[—statute making it unlawful for any person to
possess any of the listed substances with the intent to use the product to manufacture a
controlled substance—]when motivated by a single impulse, i.e., a unitary intent to
conduct one manufacturing process."). The State cites State v. Hekekia, No. 101,781,
2010 WL 2852581, at *1-3, 5 (Kan. App. 2010) (unpublished opinion), in support of its
conclusion.
In Hekekia, officers were dispatched to a motel and while there, an officer saw
Hekekia push a spoon with white residue under her bed covers. After arresting the
defendant, the officers obtained a warrant to search the motel room and found two bags
containing "'$20 rocks'" in a nightstand drawer. 2010 WL 2852581, at *1. One bag
contained nine rocks and the other contained four. Each rock was individually packaged.
The officers testified the size of each rock was a common amount for sale. They also
found a larger chunk of crack cocaine in the drawer, a pipe used for smoking crack
cocaine on top of the nightstand, and a roll of toilet paper containing a chunk of crack
cocaine on top of the television. The amount of crack cocaine found totaled 8.8 grams.
During a police interview following the search, the defendant conceded there had been
crack on the spoon which she intended to smoke, but she flushed it when the officers
came. She denied any knowledge of the cocaine in the drawer. The State charged the
defendant with seven counts, including possession of cocaine and possession of cocaine
with intent to sell, distribute, or deliver and possession of cocaine. At trial, the defendant
admitted to possessing cocaine for personal use, but she denied possessing with the intent
to distribute or having any knowledge of the cocaine found in the drawer. The jury found
33
her guilty of both possession of cocaine with intent to sell, distribute, or deliver and
possession of cocaine. On appeal, she claimed these two convictions were multiplicitous.
The panel turned to the first question in the multiplicity analysis—determining whether
the convictions arose from the same conduct (i.e., unitary conduct). The defendant argued
all the evidence of cocaine possession stemmed from the same conduct. But the panel
found the convictions were not based on the same conduct, relying on the "'fresh impulse'
factor":
"More helpful is the 'fresh impulse' factor. Because the possession here was mostly
simultaneous rather than sequential, a 'fresh' impulse may not be relevant, but there are at
least different impulses. The large amounts of cocaine were, the evidence suggests, for
sale rather than for personal use. The cocaine that was on the spoon and was flushed was
obviously not for sale since [the defendant] said she had intended to use it. These were
not the same conduct, and her convictions were not multiplicitous." 2010 WL 2852581,
at *5.
Similar here, the 19 bags which led to the no drug tax stamp conviction were, as
the evidence suggests, for distribution rather than for personal use, while the evidence
suggests the marijuana found in the pickup and under the stairs in the camper was for
personal use. Thus, we find different impulses motivated the conduct—an impulse to
distribute marijuana versus an impulse to personally use it.
We find Crudo's convictions for possession of marijuana and for no drug tax
stamp did not arise out of unitary conduct because the evidence was not found in the
same location and separate impulses motivated the conduct that led to each conviction.
Thus, the convictions are not multiplicitous and Crudo's double jeopardy argument fails.
See Dale, 312 Kan. at 178.
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Did the conviction for possession of marijuana with intent to distribute at
the second trial violate double jeopardy because Crudo had been convicted
of possession of marijuana at the first trial?
We analyze Crudo's second double jeopardy argument—wherein he claims
multiple prosecutions for the same offense—the same away we analyzed his first double
jeopardy argument. So, again, we must first determine whether the convictions for
possession of marijuana and possession with intent to distribute arise from "unitary
conduct," because, as explained above, "[d]ouble jeopardy concerns arise only if unitary
conduct is at issue." Dale, 312 Kan. at 175, 178, 180 (turning to defendant's successive
prosecution double jeopardy claim rooted in K.S.A. 21-3107[2][a]—which court noted is
now codified at K.S.A. 2019 Supp. 21-5109—only after finding conduct was unitary,
stating, "[b]ecause [the defendant's] conduct was unitary, a double jeopardy violation is
factually possible, and our analysis must continue").
As to this issue, Crudo simply repeats the argument he made regarding his
convictions for possession of marijuana and no drug tax stamp. That is, he claims the
drugs found constituted a unitary act. Still, just like those convictions, the convictions at
issue—possession of marijuana and possession of marijuana with intent to distribute—
did not arise out of unitary conduct.
The evidence underlying the possession of marijuana with intent to distribute
conviction had to be the 19 bags. Again, this is because the complaint stated this charge
was based on a weight of 450 grams to 30 kilograms. The statute for this offense required
proving this weight to categorize the offense as a severity level 2 felony as the State did.
See K.S.A. 2013 Supp. 21-5705(d)(2)(C). The jury was also informed that proof of this
weight was required to establish this charge. The only evidence presented at either trial
about the weight of any of the marijuana related to the 19 bags, as a forensic chemist with
the Kansas Bureau of Investigation testified the total weight of the 19 bags amounted to
9.34 kilograms (i.e., 9,340 grams) and confirmed this amount would be between 450
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grams and 30 kilograms. At the second trial, Lt. Ricard also testified to this weight in
pounds. Neither the marijuana found in the pickup, nor the marijuana found under the
stairs in the camper could have led to the conviction for possession with intent to
distribute because there was no evidence presented of the weight of this marijuana. And
both Lt. Ricard and Lt. Stopper testified possession of the 19 bags reflected marijuana
with the intent to distribute. As noted when addressing the first two convictions Crudo
challenged, the marijuana found in the pickup and the marijuana found under the stairs in
the camper could have served as the evidence that led to the possession of marijuana
conviction.
Turning to the four factors for determining whether Crudo's convictions for
possession of marijuana and possession of marijuana with intent to distribute arose out of
unitary conduct, it is again evident based on to location and "fresh impulse" factors that
these convictions were not based on unitary conduct. See Dale, 312 Kan. at 179. The
marijuana was found in three distinct locations—in the pickup, under the bathtub in the
camper, and under the stairs in the camper. See 312 Kan. at 179. And the conduct leading
to the possession of marijuana with intent to distribute conviction (the 19 bags) was
prompted by a different impulse than the conduct leading to the possession of marijuana
conviction (either the marijuana found underneath the stairs in the camper, the marijuana
found in the pickup, or both). Again, the evidence suggests the 19 bags underlying the
conviction for possession of marijuana with intent to distribute was motivated by an
impulse to distribute marijuana, while the marijuana found in the pickup and under the
stairs in the camper was motivated by an impulse to personally use marijuana. Thus, the
convictions were not based on the same conduct. See Hekekia, 2010 WL 2852581, at *5.
As a result, Crudo's double jeopardy arguments fail again because double jeopardy
concerns arise only if unitary conduct is at issue. See Dale, 312 Kan. at 178.
We find Crudo's conviction for possession of marijuana with intent to distribute at
the second trial after his conviction of possession of marijuana at the first trial did not
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violate Crudo's double jeopardy protections because the two convictions did not arise out
of unitary conduct.
We find no trial errors whose cumulative effect require reversal.
Finally, Crudo argues the cumulative effect of the trial errors prejudiced his right
to a fair trial and, as a result, we must reverse his convictions and order a new trial. But
the district court's only error was the legally inappropriate jury instruction, which we
found was harmless and did not require reversal. A single error that has been found to be
nonreversible cannot establish reversible cumulative error. Ballou, 310 Kan. at 617.
Affirmed.
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