State v. Douglas ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,583
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CHRISTOPHER SHANE DOUGLAS,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed August 6, 2021. Reversed
and remanded.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Kimberly A. Rodebaugh, senior assistant district attorney, Thomas R. Stanton, district attorney,
and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., MALONE, J., and BURGESS, S.J.
PER CURIAM: Christopher Shane Douglas appeals his convictions of possession of
methamphetamine and possession of drug paraphernalia following a jury trial. Douglas
argues three jury instruction errors. We agree with Douglas on one of his claims, more
specifically that the district court erred by failing to give his requested jury instruction on
nonexclusive possession. We also agree with Douglas that the State has failed to show
that the instructional error was harmless. As a result, we reverse Douglas' convictions and
remand for a new trial.
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Factual and procedural background
On July 28, 2017, Deputy Mikel Bohringer of the Reno County Sheriff's Office
stopped Douglas for speeding. Douglas was driving a Ford Ranger pickup truck.
Although Douglas was the only person in the truck, he did not own it. Instead, the truck
belonged to a contractor that Douglas worked with. At trial, Douglas testified that
"[p]retty much anybody" who worked with or for the contractor drove the truck, which
was probably four or five people.
When Bohringer asked Douglas for insurance information, he replied that he was
driving a friend's vehicle and did not have the insurance forms. Bohringer told Douglas to
check the glove box for insurance information. Bohringer later testified that he saw a
clear capsule filled with a white crystallized substance in Douglas' pocket as he reached
for the glove box, and it looked like the capsule was about to fall out of Douglas' pocket.
Bohringer told Douglas to step out and walk to the back of the truck. As Douglas
got out of the truck, Bohringer claimed he saw the capsule fall out of Douglas' pocket
onto the driver's seat. But Douglas testified at trial that there was no capsule in his pocket
and that he knew nothing about any drugs or drug paraphernalia in the truck. Bohringer
searched Douglas and found a pill bottle in his pocket which contained two plastic
baggies with a white residue, which Bohringer believed was methamphetamine. He then
searched the truck and found a syringe and a spoon along with the capsule that he saw
earlier. According to Bohringer, a spoon can be used to heat methamphetamine until it
becomes a liquid which can then be drawn into a syringe and administered intravenously.
Courtney Feldbauer, a forensic chemist with the Kansas Bureau of Investigation
(KBI), later tested the capsule that Bohringer said was in Douglas' pocket. The capsule
contained methamphetamine. Feldbauer did not conduct any tests on the spoon, the
syringe, or the white residue found in the two plastic baggies. The KBI also did not check
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any of the items for fingerprints. The State later charged Douglas with one count of
possession of methamphetamine and one count of possession of drug paraphernalia.
Douglas moved to suppress the evidence which the district court originally
granted, finding that Bohringer extended the traffic stop longer than necessary to issue a
speeding ticket without reasonable suspicion of a crime. But on an interlocutory appeal
brought by the State, our Supreme Court reversed the district court's decision to suppress
the evidence and remanded the case for the district court to reconsider the motion in light
of a corrected understanding of the evidence before the court. State v. Douglas, 309 Kan.
1000, 1004, 441 P.3d 1050 (2019).
On remand, the district court denied the motion to suppress, and the case
proceeded to a jury trial. After the evidence was presented, the district court denied
Douglas' request for an instruction on nonexclusive possession of the vehicle. But the
district court did instruct the jury that "[p]roof of possession of any amount of a
controlled substance suffices to sustain a conviction even if the amount is not measurable
or useable." The jury found Douglas guilty of both crimes as charged. The district court
sentenced Douglas to 15 months' imprisonment but granted probation for 18 months with
mandatory drug treatment. Douglas timely appealed the district court's judgment.
Did the district court err by failing to give an instruction on nonexclusive possession?
Douglas first claims the district court erred by failing to give his requested jury
instruction on nonexclusive possession of the vehicle. Douglas argues that this instruction
was legally and factually appropriate and that the district court's failure to give the
instruction was reversible error. The State argues that the jury instruction was not legally
and factually appropriate because Douglas was the truck's sole occupant. The State also
argues that it does not matter whether other people had access to the truck because
Bohringer observed the capsule with methamphetamine fall out of Douglas' pocket.
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"When analyzing jury instruction issues, we follow a three-step process:
'(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).
As for the first step, Douglas requested the jury instruction at issue and the district
court denied the request. The issue is preserved and is properly before this court.
At the second step, appellate courts consider whether the instruction was legally
and factually appropriate. 307 Kan. at 318. Appellate courts use unlimited review to
determine whether an instruction was legally appropriate. State v. Johnson, 304 Kan. 924,
931, 376 P.3d 70 (2016). As for whether an instruction is factually appropriate, courts
should determine whether there was sufficient evidence, viewed in the light most
favorable to the defendant or the requesting party, that would have supported the
instruction. State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101 (2016).
At the third step, if the challenging party raised the issue below, and the
challenging party does not argue that the failure to instruct violated a constitutional right,
the instructional error is reversible if the appellate court determines that there is a
reasonable probability that the error affected the outcome of the trial in light of the entire
record. State v. Plummer, 295 Kan. 156, 163-64, 168, 283 P.3d 202 (2012); State v.
Louis, 305 Kan. 453, 456-58, 384 P.3d 1 (2016) (requested instruction not given). The
party benefitting from the error has the burden to demonstrate there was no such
probability. State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012).
Douglas requested an instruction on nonexclusive possession. See PIK Crim. 4th
57.040. The jury instruction that Douglas proposed read as follows:
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"When a defendant is in nonexclusive possession of an automobile in which a
controlled substance is found, it cannot be inferred that the defendant knowingly
possessed the controlled substance unless there are other circumstances linking the
defendant to the controlled substance. You may consider all factors supported by the
evidence in determining whether the defendant knowingly possessed the controlled
substance, including the following:
"1. Whether the defendant previously participated in the sale of a controlled
substance;
"2. Whether the defendant used controlled substances;
"3. Whether the defendant was near the area where the controlled substance was
found;
"4. Whether the controlled substance was found in plain view;
"5. Whether the defendant made any incriminating statements;
"6. Whether the defendant's behavior was suspicious;
"7. Whether the defendant's personal belongings were near the controlled
substance."
Douglas correctly argues that this instruction is legally appropriate in cases of
nonexclusive possession. State v. Rosa, 304 Kan. 429, 434, 371 P.3d 915 (2016). Here,
the evidence was that although Douglas was the sole occupant of the truck, it belonged to
a contractor Douglas worked with and other people had regular access to the truck. When
a person is in nonexclusive possession of a vehicle in which illegal drugs are found, the
mere presence or access to the drugs, standing alone, is insufficient to show possession
absent some other incriminating circumstances. 304 Kan. at 434 (nonexclusive
possession of premises); State v. Simmons, No. 121,042, 2020 WL 4250115, at *2 (Kan.
App. 2020) (unpublished opinion) (nonexclusive possession of a vehicle).
The State argues that nonexclusive possession of the truck is not at issue because
the capsule containing methamphetamine was in Douglas' pocket. But the flaw in the
State's argument is that it requires this court to view the evidence in the light most
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favorable to the State instead of properly viewing the evidence in the light most favorable
to Douglas who requested the instruction. Bohringer testified that he saw the capsule in
Douglas' pocket. Douglas testified that the capsule was not in his pocket and that he knew
nothing about any drugs or drug paraphernalia in the truck. The jury's verdict does not
make clear whether the jury believed the capsule had been in Douglas' pocket or the
driver's seat of the truck. We must view the evidence in the light most favorable to
Douglas to determine whether the jury instruction he requested was appropriate.
Williams, 303 Kan. at 598-99. Thus, the State cannot rely on the capsule being in
Douglas' pocket to assert that nonexclusive possession over the truck is immaterial.
A criminal defendant generally is entitled to an instruction on the law applicable to
his or her theory of defense if the instruction would be both legally and factually
appropriate. State v. Dupree, 304 Kan. 377, 397, 373 P.3d 811 (2016). Douglas' sole
defense at trial was that the methamphetamine and drug paraphernalia found in the truck
must have belonged to another person with access to the truck. Based on the record
before us, Douglas' requested instruction on nonexclusive possession was legally and
factually appropriate and the district court erred by failing to give the instruction. We
now turn to the third step of our analysis to determine whether the error requires reversal.
Here, the State as the party who benefitted from the error bears the burden of
showing there is no reasonable probability that the jury instruction error affected the
outcome of the trial in light of the entire record. McCullough, 293 Kan. 970, Syl. ¶ 9. In
its brief to this court, the State's entire argument on harmless error is as follows:
"Even if the instruction could be deemed legally or factually appropriate, . . .
there is no reasonable possibility that the giving of the instruction would have affected
the outcome of the case. Again, the methamphetamine was found in [Douglas'] pocket.
The syringe, and the spoon used to inject and ingest methamphetamine were found in the
truck he was driving."
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Once again, the State's argument misses the point. The evidence about whether the
methamphetamine was found in Douglas' pocket was disputed. And although Bohringer
found a pill bottle in Douglas' pocket which contained two plastic baggies with a white
residue, this evidence did not support either the possession of methamphetamine charge
or the possession of drug paraphernalia charge that were submitted to the jury. Douglas'
entire defense at trial was that the methamphetamine and drug paraphernalia found in the
truck must have belonged to another person with access to the truck, and there was
evidence at trial that supported this defense. Douglas had a right to receive his requested
jury instruction on nonexclusive possession of the vehicle, and we conclude the State has
failed to meet its burden of showing that the instructional error was harmless.
In sum, the district court committed reversible error by failing to give Douglas'
requested jury instruction on nonexclusive possession of the vehicle. As a result, we
reverse Douglas' convictions and remand for a new trial. Douglas makes two other claims
on instructional error in this appeal. Because these same issues may arise in Douglas' new
trial, we will briefly address the other two claims of instructional error.
Did the district court err by failing to give a unanimity instruction?
Douglas next argues that the district court clearly erred by failing to instruct the
jury that its verdict must be unanimous as to which acts constituted the crimes charged.
The State argues that unanimity instructions are only appropriate for multiple acts cases
and this case did not involve independent criminal acts.
We set forth our standard of review when analyzing jury instruction issues in the
last section of this opinion. When a party asserts an instruction error for the first time on
appeal, the failure to give a legally and factually appropriate instruction is reversible only
if the failure was clearly erroneous. State v. Butler, 307 Kan. 831, 845, 416 P.3d 116(2018). To establish clear error, "'the defendant must firmly convince the appellate court
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that the giving of the instruction would have made a difference in the verdict.' [Citation
omitted.]" State v. Cooper, 303 Kan. 764, 771, 366 P.3d 232 (2016).
The pattern jury instruction requiring a unanimous verdict in a multiple acts case
is found at PIK Crim. 4th 68.100 and states: "The State claims distinct multiple acts
which each could separately constitute the crime of [insert crime]. In order for the
defendant to be found guilty of [insert crime], you must unanimously agree upon the
same underlying act." Douglas did not request a unanimity instruction at trial. Thus, this
court's review of the issue is limited to clear error. Butler, 307 Kan. at 845.
On the methamphetamine possession charge, Douglas argues that the jury could
have found him guilty relying on either the capsule on the driver's seat or the baggies
with residue in a prescription bottle in Douglas' pocket. But the residue in the baggies
was never tested by the KBI and there was no evidence at trial that the residue was
methamphetamine. Feldbauer testified that the capsule contained methamphetamine and
that was the only evidence to support the methamphetamine possession charge.
On the possession of drug paraphernalia charge, the district court instructed the
jury that either the capsule or the syringe could be considered drug paraphernalia
intended or designed for use in storing and containing a controlled substance. Thus, there
were two items of drug paraphernalia that could have supported the possession of drug
paraphernalia charge. But when drugs or drug paraphernalia are found in multiple
locations inside a vehicle, the case does not involve multiple acts each constituting a
separate crime. State v. Unruh, 281 Kan. 520, 528-29, 133 P.3d 35 (2006); see also State
v. Hazley, 28 Kan. App. 2d 664, 671, 19 P.3d 800 (2001) (involving multiple items of
drugs found in various locations throughout the defendant's home).
In sum, this is not a multiple acts case. Thus, the district court did not err in failing
to give a unanimity instruction to the jury.
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Did the district court err by instructing the jury that any amount of methamphetamine is
sufficient to prove possession?
Douglas argues that the district court erred by instructing the jury that any amount
of methamphetamine suffices to sustain a conviction. As part of jury instruction No. 6 on
the elements of possession of methamphetamine, the district court instructed the jury:
"Proof of possession of any amount of a controlled substance suffices to sustain a
conviction even if the amount is not measurable or usable." Douglas did not object to the
instruction at trial, so we review for clear error. Butler, 307 Kan. at 845.
The language in jury instruction No. 6 that Douglas complains about on appeal is
not included in PIK Crim. 4th 57.040 defining possession of a controlled substance. But
our Supreme Court has noted that "proof of the possession of any amount of a controlled
substance is sufficient to sustain a conviction even though such amount may not be
measurable or usable." State v. Brown, 245 Kan. 604, 613-14, 783 P.2d 1278 (1989).
Moreover, possession of a controlled substance occurs when an individual possesses "any
opiates, opium or narcotic drugs . . . ." (Emphasis added.) K.S.A. 2017 Supp. 21-5706(a).
Thus, the instruction given by the district court was legally appropriate.
But it is less clear whether the instruction was factually appropriate based on the
evidence presented at trial. Douglas was not convicted for possessing the suspected
methamphetamine residue on the plastic baggies that was never tested by the KBI.
Instead, his conviction of possession of methamphetamine was based only on the
methamphetamine found in the capsule located on the driver's seat. At trial, Feldbauer
testified there was sufficient substance in the capsule to be tested. Based on this evidence,
it was probably unnecessary for the district court to instruct the jury that possession of
any amount of a controlled substance is sufficient to sustain a conviction "even if the
amount is not measurable or usable."
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We find that the district court did not commit clear error by giving the instruction
Douglas complains about on appeal because we are not firmly convinced that the
outcome of Douglas' trial would have been different had the instruction not been given.
See Cooper, 303 Kan. at 771. But we question whether the instruction needs to be given
at Douglas' new trial assuming the evidence in that trial is the same as the evidence that
was presented in his first trial.
Reversed and remanded.
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