State v. Pena ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,565
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
NILO I. PENA,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed March 5, 2021.
Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON and SCHROEDER, JJ.
PER CURIAM: Nilo I. Pena appeals his convictions for possession of heroin and
drug paraphernalia, contending the district court erred by placing "guilty" before "not
guilty" on the jury verdict forms. This argument has been presented to our appellate
courts for over 30 years, and Pena's recrafted argument is not persuasive. We find no
error by the district court in the jury verdict forms submitted to the jury. We affirm.
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FACTS
The facts involving the underlying crimes are not germane to the issues on appeal.
The record reflects Pena was found guilty by his jury of one count of possession of
heroin, a severity level 5 drug felony, in violation of K.S.A. 2017 Supp. 21-5706(a); and
one count of possession of drug paraphernalia, a class B nonperson misdemeanor, in
violation of K.S.A. 2017 Supp. 21-5709(b)(2). Before trial, Pena's defense counsel
submitted proposed jury instructions that included a verdict form listing "not guilty"
before "guilty" for each alleged offense.
At Pena's one-day jury trial, Pena's counsel objected to the placement of "guilty"
before "not guilty" on the verdict forms during the instruction phase of the jury trial. In
making the objection, Pena's counsel explained that "Mr. Pena is entitled to the
presumption of innocence and I believe not guilty should be the first option, but I have
the understanding that the Court has heard this objection many times before." The district
court overruled Pena's objections.
The district court then instructed the jury, in part, that "[t]he State has the burden
to prove the defendant is guilty. The defendant is not required to prove he is not guilty.
You must presume that he is not guilty unless you are convinced from the evidence that
he is guilty." The verdict forms adopted by the district court listed the "guilty" option
before the "not guilty" option for each offense.
The jury found Pena guilty on both counts. Pena was sentenced to 37 months of
imprisonment on the felony conviction for possession of heroin and a concurrent sentence
of 6 months in jail on the misdemeanor conviction for possession of drug paraphernalia,
with 24 months of postrelease supervision.
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On appeal, Pena claims the district court violated his presumption of innocence by
listing the "guilty" option before the "not guilty" option on the verdict forms, thus
denying him the right to a fair trial.
Standard of Review
"While a verdict form is not technically a jury instruction, it is part of the packet
sent with the jury which includes the instructions and assists the jury in reaching its
verdict. It is appropriate to apply the same standard of review applicable to the review of
instructions." Unruh v. Purina Mills, 289 Kan. 1185, 1197-98, 221 P.3d 1130 (2009). As
a result, we apply the three-step process used to analyze jury instruction issues, which
involves:
"'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.' [Citation omitted.]" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).
At the second step, we consider whether the instruction was legally and factually
appropriate. 307 Kan. at 318. Because the only issue raised on appeal here is whether the
verdict form provided to the jury was legally appropriate, we exercise unlimited review.
See State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70 (2016).
Discussion
Pena requested the verdict forms be changed by placing "Not Guilty before
Guilty" in the instructions he submitted to the district court and again just before the jury
instructions were presented to the jury. However, the district court overruled Pena's
objection. Thus, the issue is preserved for appeal.
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Both parties direct us to State v. Wesson, 247 Kan. 639, 652, 802 P.2d 574 (1990),
cert. denied 501 U.S. 1236 (1991), disapproved of on other grounds by State v. Rogers,
282 Kan. 218, 144 P.3d 625 (2006), where our Supreme Court found more than 30 years
ago there is no prejudice to a defendant when the "guilty" option precedes the "not guilty"
option on the verdict form. In reaching this conclusion, the Wesson court explained that
the presumption of innocence instruction would "cure any possibility of error." 247 Kan.
at 652. Our Supreme Court then reaffirmed its Wesson holding in State v. Wilkerson, 278
Kan. 147, 159, 91 P.3d 1181 (2004).
Pena asks us to adopt a change in the law, arguing the Wesson court's holding is
"no longer persuasive in the face of new peer-reviewed information regarding choice
behavior." As support, Pena references a 2012 behavioral study that "confirms a bias
against a defendant when 'guilty' is designated as the first choice on verdict forms." See
Carney and Banaji, First is Best, 7 PLOS One, No. 6, 1-3 (June 2012),
https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone0035088. Pena now
suggests the results of this study "conclusively demonstrate" that the verdict form used
here was "slanted in favor of conviction and contrary to the presumption of innocence."
Pena's argument is not persuasive.
The State points out the verdict forms used here are from the PIK instructions, a
point which Pena never addresses in his brief. See PIK Crim. 4th 68.030 (2012 Supp.);
PIK Crim 4th 68.040 (2012 Supp.); PIK Crim. 4th 68.070 (2012 Supp.). Our Supreme
Court "'strongly recommend[s] the use of PIK instructions, which knowledgeable
committees develop to bring accuracy, clarity, and uniformity to instructions.'" State v.
Butler, 307 Kan. 831, 847, 416 P.3d 116 (2018). Moreover, as the Wesson court
recognized, jurors are reminded the State must prove a defendant's guilt to secure a
conviction and the inclusion of a legally appropriate instruction on the presumption of
innocence cures the possibility of any alleged error in the order of the options presented
on the verdict form. 247 Kan. at 652. Here, the district court instructed the jury on the
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presumption of innocence: "The State has the burden to prove the defendant is guilty.
The defendant is not required to prove he is not guilty. You must presume that he is not
guilty unless you are convinced from the evidence that he is guilty." (Emphasis added.)
The given instruction mirrors the language recommended by PIK Crim. 4th 51.010 (2017
Supp.) and accurately informed the jury of its role at trial.
Finally, the study cited by Pena does not outweigh our Supreme Court's precedent
approving the verdict forms used during his trial. As the State notes, the results of the
study were essentially based on "snap judgments" and have little relevance to the
complex, deliberative process undertaken by jurors in a criminal trial. Simply put, Pena
has not shown jurors will always favor a "guilty" verdict because it is the first option
presented on the verdict form.
Our Supreme Court has approved the placement of "guilty" before "not guilty" on
the verdict form for more than 30 years, and Pena provides no support for his argument
our Supreme Court has changed or is going to change its position on the issue. In fact, the
opposite has just happened in State v. Fraire, 312 Kan. ___, 2021 WL 646486, at *8
(2021), where the Kansas Supreme Court reaffirmed the longstanding holdings in Wesson
and Wilkerson when it said: "Fraire makes no showing at all that the order in which the
verdict form presents the options has any bearing on the likelihood of a jury reaching one
verdict or the other. . . . Fraire gives this court no reason to depart from Wesson and
Wilkerson."
We are duty-bound to follow Kansas Supreme Court precedent and now there is
no indication our Supreme Court is departing from its previous position. See State v.
Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017); see also State v. Salary, 309 Kan.
479, 481, 437 P.3d 953 (2019) (failure to support argument with pertinent authority akin
to failing to brief issue). The district court did not err in providing the approved PIK
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verdict forms to the jury to answer the question whether Pena was guilty or not guilty of
the crimes with which he was charged.
Affirmed.
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