Opinion
No. 109,590.
2014-09-26
STATE of Kansas, Appellee, v. Antonio Michael CLAYTER, Appellant.
Appeal from Doniphan District Court; James A. Patton, Judge.Scott A. Johnson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Charles D. Baskins, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Doniphan District Court; James A. Patton, Judge.
Scott A. Johnson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Charles D. Baskins, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
ARNOLD–BURGER, J.
Shortly after being banned from the Highland Community College campus, Antonio Michael Clayter returned to spend the night with his girlfriend. Campus security, which had been alerted to his presence, discovered him in his girlfriend's dorm room, and an officer from the Highland Police Department, who was completing a campus walk-through with campus security, arrested him for criminal trespass. When another individual arrived on the scene and demanded the return of a backpack, chaos ensued, resulting in injury to the Highland police officer, multiple arrests, and the discovery of marijuana in a backpack that Clayter claimed belonged to him. A jury convicted Clayter of six crimes arising from the incident; Clayter appeals these convictions, alleging eight points of error.
First, we find that based on the evidence, a rational factfinder—in this case, the jury—could easily infer that the events in March 2012 occurred in Doniphan County, Kansas. Therefore, evidence presented by the State sufficiently established venue, and Clayter's argument on this issue fails. Next, because the record is silent regarding Clayter's presence when the jury questions were answered by the district court judge, we must presume his right to be present at every critical stage of the trial was violated. However, we find the error to be harmless. Third, we find that because Clayter was convicted of a crime that was not charged—that crime being aggravated battery on a law enforcement officer—his simple battery conviction is void, it must be reversed and a judgment of acquittal entered. This finding necessarily results in the vacation of the court's restitution order related to injuries suffered by the victim of the battery. Fourth, because there was no evidence supporting an element of the charge—that the owner of the property had advised Clayter not to return—a rational factfinder could not have found Clayter guilty beyond a reasonable doubt of criminal trespass and, accordingly, we must reverse his conviction for that charge. We find that the evidence was sufficient to support Clayter's remaining convictions. In sum, we affirm in part, reverse in part, and vacate in part.
Factual and Procedural History
In March 2012, Clayter was charged with aggravated battery on a law enforcement officer, possession of marijuana with intent to sell, aggravated escape from custody, obstructing official duty, possession of marijuana, possession of drug paraphernalia, criminal trespass, and possession of marijuana without a tax stamp. These offenses all arose out of a single incident on the campus of Highland Community College in Highland, Kansas. The State subsequently amended the complaint twice, eliminating the counts of obstructing official duty and possession of marijuana and amending the aggravated battery charge to simple battery and the aggravated escape from custody charge to attempted aggravated escape. The case proceeded to jury trial in September 2012.
At trial, Officer Arthur Buckingham from the Highland Police Department testified. On the night in question, Buckingham had joined Highland Community College security officer Michael Stonebarger on a routine patrol around campus. Stonebarger received word that Clayter—who had been previously banned from campus—was presently on campus and in his girlfriend's room in the Hearthford Dormitory. Stonebarger and Buckingham proceeded to the room, where Clayter's girlfriend Callie Percival informed them that Clayter was not in the room. Buckingham testified that they told Percival that they were going to check the room; when they did, they found Clayter hiding under a bed. Clayter initially refused to come out from under the bed but complied after Buckingham aimed his taser in Clayter's direction. At that time, Buckingham arrested Clayter for criminal trespass. Had it ended there, this would be a simple case. But that was not to be. It was at this point that chaos ensued.
Buckingham testified that, after placing Clayter under arrest and reading him his Miranda rights, he asked Clayter whether there were any illegal drugs in the room. Clayter replied that there were not. Buckingham searched Clayter and found “two rather large wads of money in” either the pocket or waistband of his shorts. As Buckingham walked a handcuffed Clayter toward the door, someone knocked at the door and Percival stated that she wanted to come back into the dorm room. Buckingham testified that several people, including Jonathan Ogletree, were at the door with Percival. Stonebarger, who was nearby, immediately told Ogletree that he was not permitted to be on campus and needed to leave. Ogletree responded by saying that he needed to collect some belongings from Percival's room. When Buckingham told Ogletree he could not come in, “[h]e became a little agitated ... becoming more adamant that he wanted into the [dorm room] and that he really needed to get the stuff.”
During this time, Percival emerged from the room opposite the kitchen with “a black, dark in color backpack from under the couch or beside the couch” and attempted to hand it to Ogletree. Ogletree in turn attempted to force his way past Stonebarger into the room, and a struggle ensued. As Percival continued to make her way toward the door with the backpack (or bag), Buckingham stopped her and noticed “a strong smell of marijuana, fresh marijuana not burnt” that “appeared to be coming from that bag.” Buckingham told Percival to turn over the bag because he knew it contained marijuana.
Buckingham testified that as he approached Percival, he released Clayter and Clayter seized this opportunity to run for the door. Buckingham and Stonebarger together attempted to close the door to the dorm room and also confine Clayter near the kitchen area, but Clayter continued to try to crawl out the door on his knees. At the same time, Ogletree continued his attempts to force his way into the dorm room, and Percival continued to try to hand the backpack off to Ogletree. When the commotion finally ended and the officers shut the door—with Ogletree outside and Percival and Clayter still in the apartment, Buckingham discovered that Percival was “on the couch attempting to open a window with the backpack in her hand.” Buckingham explained that, in his opinion, Percival intended to shove the backpack out the window. Regardless, Stonebarger stopped her from opening the window, and a minor scuffle over the bag followed. At that time, as Stonebarger worked to subdue Percival, Clayter “stood up and said to leave her alone, that everything in the bag was his.”
As Stonebarger and Percival continued to struggle, Buckingham testified that Clayter “duck[ed] his head and charge[d] our direction, basically directly at me and [Stonebarger] and [Percival] .” Buckingham, who stood between Clayter and the struggle, grappled with Clayter in an attempt to “get him headed back the other direction”; however, their “feet got tangled up or something,” and both Buckingham and Clayter ended up on the floor. Buckingham testified that he landed with his elbow “straight out as opposed to closer to [his] body” and that pain shot up his left arm and shoulder. Clayter continued to physically struggle with Buckingham, pinning him to the ground, but Stonebarger—who had placed Percival in handcuffs—intervened and pulled Clayter away.
Buckingham testified that he called for backup after the physical altercation ended. He also opened the controversial backpack and discovered “two clear cellophane plastic bags” inside, one of which contained loose marijuana and the other which contained a number of individual, smaller baggies of marijuana. As Buckingham removed one of the bags, Clayter reiterated that the contents of the backpack belonged to him and not Percival. Buckingham also found an electronic scale in the backpack.
Buckingham testified that, after leaving Highland Community College, he was transported to the hospital for his shoulder injury. Doctors ultimately diagnosed him with a dislocated shoulder, a fractured humerus, and “a massive rotator cuff tear.” Buckingham explained that he believed the injury occurred as a direct result of Clayter rushing toward him in the dorm room.
On cross-examination, Buckingham admitted that he initiated contact with Clayter when Clayter rushed toward him, but he also noted that he “didn't feel [he] had any other choice.” Buckingham explained that the reason he and Stonebarger stayed and searched Percival's room was because Stonebarger believed “the information that he received was good, and he as the campus security has the right to look through those rooms at any time.” Buckingham acknowledged that when the backpack first materialized, Percival claimed that it belonged to Ogletree and that Clayter did not correct her. Buckingham also testified that Ogletree also stated that the bag belonged to him, reaching his arm into the room in an attempt to retrieve the bag. However, Buckingham elected against arresting or otherwise detaining Ogletree at that time due to both the ongoing struggle and the fact that he was not certain about the presence of marijuana until he opened the bag.
On redirect examination, Buckingham testified that if he had not acted evasively when Clayter charged toward him, Clayter would have collided either with him or with Stonebarger.
Next, Stonebarger testified. Stonebarger stated that he serves both as the head of security for Highland Community College and as a reserve officer for the Highland Police Department. Stonebarger explained that Clayter had been barred from campus as the result of a February 2012 disciplinary hearing. At that time, Clayter was warned that if he returned to campus, he would be arrested for trespassing. Stonebarger's recollection of events largely echoed Buckingham's, although Stonebarger did testify that he had originally instructed Percival to stay in the dorm room but that she “ran out the front door” while Buckingham was convincing Clayter to come out from under the bed. Stonebarger also testified that Percival removed the backpack from under one of the couches in the room. He further noted that Clayter's cell phone—with which Stonebarger was familiar—was an iPhone with “a yellow back with little round circles with a mirror plate on the front plate.”
On cross-examination, Stonebarger noted that he never heard Ogletree claim ownership of the bag or state that he needed to collect his things from Percival's room. But he also acknowledged that Percival kept attempting to rid herself of the bag in one way or another.
Brandon Whetstine, the chief of police for the Highland Police Department, testified next. Whetstine explained that when he arrived, there were several people at the scene, including a deputy from the Doniphan County Sheriff's Department, another security guard from the college, and a few other students from campus. Because Buckingham was injured and about to be picked up by an ambulance, Whetstine took over the investigation and the scene. A “black and blue Adidas [backpack] bag,” monitored by Buckingham, sat on the kitchen table inside the dorm room. Whetstine looked through the bag at the scene and later conducted a full search of its contents at the Doniphan County Sheriff's Department, where Clayter was processed. During the full search, Whetstine recovered: an eyeglass case containing what appeared to be marijuana; a cereal box that contained approximately 21 individual packages of marijuana; a “larger chunk of marijuana”; a soda can with space for a hidden pill bottle inside; a set of Highland Community College keys; a yellow iPhone; a digital scale with “green leafy pieces” still attached; and some paper money. Because the full search of the bag took place in the booking room and in Clayter's presence, Clayter saw the items in the bag; when he noticed the keys, he remarked to Whetstine that he (Clayter) needed to return them to the college. Whetstine later confirmed that the keys belonged to Clayter's former dorm room. Whetstine also testified that the bag also contained “miscellaneous clothes and ... hygiene type items,” consistent with an overnight bag. Whetstine declined to fingerprint the evidence because Buckingham informed him that Clayter had already said that they were his items.
In regard to Clayter's ban from the Highland Community College campus, Whetstine testified that he attended the disciplinary hearing and that Clayter “was removed from housing and all properties of the college” and “he was told not to come back to any college properties by the college.” In fact, college vice president Cheryl Rasmussen informed Clayter of the ban. However, Whetstine testified he also explained to Clayter that a return to campus would result in an arrest for trespassing.
Whetstine additionally testified that there were no drug tax stamps attached to any of the marijuana recovered from the backpack and that Clayter did not possess any drug tax stamps on his person.
On cross-examination, Whetstine acknowledged that Percival's roommate, Whitlea Klaus, reported to another officer (not Whetstine) that Percival had taken Clayter's phone while Clayter ran to hide. Whetstine admitted that if Klaus' statement was correct—that is, if Percival held Clayter's phone—then the phone recovered from the backpack may have belonged to someone other than Clayter or may have been Clayter's second phone. Whetstine also acknowledged that he did not know how long the bag had remained in Percival's dorm room or who had access to the bag prior to the night in question. Similarly, Whetstine reported that no one definitively said that Clayter brought the bag to Percival's that night. Whetstine also noted that he never followed up on the origin of the money found on Clayter's person because “with the amount of drugs, the scales, and him stating that the bag was his, the money was consistent with the sale of drugs.” Moreover, Whetstine testified that the only personal effects physically on Clayter's person were the rolls of money. On redirect examination, however, Whetstine testified that, in his opinion, Clayter's statements about the keys made it unlikely that the bag belonged to someone other than Clayter.
Next, Kamala Hinnergardt, a forensic scientist with the Kansas Bureau of Investigation, testified. Hinnergardt confirmed that the vegetation found in the backpack was indeed marijuana. She also verified that no one fingerprinted the items found in the bag.
Percival testified next, explaining that although she knew that Clayter was not permitted on campus, he had stayed overnight in her dorm room with her a few times after the ban in February 2012. On the night at issue, Clayter arrived at about 10:30 p.m. with intention to spend the night. Percival testified that Ogletree., a close friend of Clayter's, came to campus with Clayter; however, she did not know that Ogletree was also banned from campus. Percival further testified that Stonebarger never told her to stay in the dorm room and that she exited the room to call Ogletree because he and Clayter “rode up together and [she] didn't know what to do.”
Percival stated that she used her own cell phone to call Ogletree, that she did not know what phone Clayter had on the night in question, and that she never took or retained his cell phone that night. She did, however, testify that she removed the bag from near the couch and attempted to hand it to Ogletree. She stated that the bag and its contents did not belong to her, but she also admitted that she did not know where it came from; instead, she first learned of the bag from Ogletree, who pointed to it and asked, “[C]an I have my bag, it has my clothes in it[?]” But Percival also testified that because the backpack was next to the couch, she would have noticed it had it been there prior to that night. Ultimately, Percival indicated that she did not know for certain to whom the bag belonged.
On cross-examination, Percival clarified that although she knew Clayter was coming to visit, she did not know he was bringing Ogletree. Percival also stated that the reason she attempted to throw the bag out the window was because “the officer said it smelled like pot” and she wanted to protect herself. Percival further stated that she did not see Buckingham's injury because of her ongoing struggle with Stonebarger.
On redirect examination, Percival acknowledged that the reason she believed the bag belonged to Ogletree was because Ogletree asked for it. She stated that even if Clayter's belongings were in the bag, it could still be Ogletree's because Clayter and Ogletree were close friends. But she also admitted that the reverse was true—that is, the bag could have been Clayter's but contained some of Ogletree's property. Both recross and further redirect examination clarified that Percival only assumed that the bag belonged to Ogletree because he asked for it.
Percival's roommate, Klaus, testified next about the events of the night in question. Klaus explained that when she arrived home from dinner that night, the only bag near the couches was an orange, white, and black bag belonging to Percival. Klaus also reiterated her statement that prior to Clayter hiding under the bed, he handed his iPhone to Percival. Klaus further testified that Percival attempted to hand the phone to her. On cross-examination, however, Klaus expressed some confusion about the sequence of events, indicating that she did not know when Clayter handed Percival his phone or how the phone ended up in the backpack. In fact, Klaus indicated that Percival set the phone down and that Klaus herself moved it to a table. On redirect examination, Klaus clarified that she assumed Percival had Clayter's phone because no one else present in the room that night owned an iPhone.
At the end of Klaus' testimony, the State rested, and Clayter moved for a judgment of acquittal on all counts except the charge of criminal trespass. When asked about that count, Clayter's attorney stated, “[M]y client if I recall at the beginning of this case, we were agreeing that he had been banned [from campus] and he [was] there, so that is what it is.” The State conceded that it failed to meet its burden regarding the aggravated attempt to escape but maintained that it provided sufficient evidence for the other charges. However, after the State presented its argument, Clayter noted that the criminal trespass charge alleged that Clayter entered a locked or secured building—and not, as the evidence suggested, that he entered a location after being banned from returning. Clayter stated that although he was in the dorm room and “[h]ad been previously banned from the campus,” the charge as presented did not comport with the evidence. As such, the State moved to amend the complaint “to show the alternative, which is [Clayter] was given a direct order by the owner of the property not to return to the property and therefore did.” Clayter objected to this change, contending that he prepared a defense based on the original complaint rather than on the amendment. Despite this argument, district court allowed the State to amend the complaint “to state that the defendant was ordered not to enter the campus, and that was as of the administrative hearing according to the evidence.” It also denied Clayter's motion for judgment of acquittal for all counts except aggravated attempt to escape.
After the close of evidence, the district court and parties reviewed the jury instructions, where neither Clayter nor the State objected to any of the instructions. Later, during jury deliberations, the jury asked two questions: one inquiring as to whether it would receive a copy of the closing arguments, and one about the location of Count 3 (the dismissed attempted aggravated escape from custody charge). Although the questions and answers appear in the record, the trial transcript is devoid of any reference to the district court meeting with the parties to discuss the jury's questions.
Regardless of its questions, the jury convicted Clayter of all the remaining charges. At the sentencing hearing, however, the State informed the district court that due to an error in the charging document, Clayter had in fact been charged with misdemeanor battery on a law enforcement officer. The jury instruction under which the jury convicted Clayter, on the other hand, recited the elements of the felony version of battery on a law enforcement officer. The district court reasoned that the error did “not nullify the conviction” but “simply change[d] the level of punishment” available. Ultimately, the district court sentenced Clayter to a total 53 months' imprisonment, including a concurrent 12–month sentence on the battery charge. At a subsequent hearing, the district court also ordered that Clayter pay a total of $63,948.51 in restitution. This total included three underlying amounts: (1) the temporary wages and medical expenses paid by Buckingham's workers compensation carrier; (2) the cost of hiring replacement officers; and (3) the difference between Buckingham's workers compensation and his actual wages, an amount the city had agreed to pay Buckingham. Clayter challenged this last amount, arguing that the agreement by the city to pay the difference between workers compensation and Buckingham's actual wages was not a direct result of Clavier's actions. The district court rejected his argument and included the amount embraced by the agreement—$2,196.87—in the restitution order.
Clayter timely appealed.
Venue in Doniphan County, Kansas
Clayter first argues that the State failed to establish that the offenses at issue occurred in Doniphan County, Kansas. Generally speaking, a criminal prosecution must occur “in the county where the crime was committed.” K.S.A. 22–2602. However, the question of where an offense occurred is a question of fact to be decided by the jury. State v. McElroy, 281 Kan. 256, 264, 130 P.3d 100 (2006); State v. Griffin, 210 Kan. 729, 731, 504 P.2d 150 (1972). Because this issue is one of fact, this court reviews a challenge to the sufficiency of evidence surrounding venue by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Stevens, 285 Kan. 307, 325, 172 P.3d 570 (2007), overruled on other grounds by State v. Ahrens, 296 Kan 151, 290 P.3d 629 (2012).
To prove the facts of venue, the State is not required to employ a “specific question and answer that the offense occurred in that particular county.” Griffin, 210 Kan. at 731. Instead, the State may establish those facts “by other competent evidence showing the offense was committed within” the county in question. 210 Kan. at 731. Such evidence includes “proof of facts and circumstances ... from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred.” State v. Pencek, 224 Kan. 725, 729, 585 P.2d 1052 (1978). Accordingly,”[v]enue may be established by circumstantial evidence .” State v. Lieurance, 14 Kan.App.2d 87, Syl. ¶ 4, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990). Moreover, the district court and jury are permitted to take judicial notice as to what county a city is in. See State v. Calderon–Aparicio, 44 Kan.App.2d 830, 838–39, 242 P.3d 1197 (2010) (finding that “the Johnson County trial court and jury could take judicial notice that the city of Shawnee is located within Johnson County” and citing to other similar cases), rev. denied 291 Kan. 914 (2011).
In Stevens, the defendant argued that the State failed to prove that the offense occurred in Crawford County, Kansas. The State provided evidence that the arresting officer worked for the Pittsburg Police Department in Crawford County, was on duty and patrol the night of the arrest, and processed the defendant at the Pittsburg police station. Based on this evidence and the fact that law enforcement officers generally cannot arrest individuals outside their own jurisdiction, our Kansas Supreme Court agreed with this court and determined that a jury could have inferred from the evidence that the offense occurred in Crawford County. 285 Kan. at 325–26. Similarly, in Calderon–Aparicio the arresting officer testified that he worked for the City of Shawnee and identified the intersection at which he encountered the defendant. Evidence—specifically, vegetation suspected to be marijuana—was inspected at the Shawnee Police Department and analyzed at the Johnson County Criminalistics Laboratory. Based on this evidence, this court determined that “a jury could fairly and reasonably infer that the place of the commission of the crime was in Johnson County.” 44 Kan.App.2d at 839–40. In another case, this court determined that testimony by a Sedgwick County deputy “about an occurrence while he was on patrol, along with the mention of Kellogg, Armour, and Post Oak Streets,” provided sufficient evidence of venue. Lieurance, 14 Kan.App.2d at 91.
These cases all demonstrate that the evidence in the present case was sufficient to establish venue. It is undisputed that the incidents in question took place in a dormitory on the campus of Highland Community College. Highland law enforcement officers attended the scene, as did a deputy from the Doniphan County Sheriff's Department. In fact, Clayter was processed at the Doniphan County Sheriff's Department. Nothing in the record suggests that either the Highland police officers or the Doniphan County Sheriff's Deputy left their jurisdiction to respond to the incident in the dormitory; in fact, the involvement of the Doniphan County Sheriff's Department and its facility bolsters the inference that the events in question took place in Doniphan County. Moreover, nothing at trial or in the record even suggests that the events in question took place anywhere other than Doniphan County.
Clayter argues, however, that a second Highland Community College campus might exist and that State v. Star, 27 Kan.App.2d 930, 10 P.3d 37, rev. denied 270 Kan. 903 (2000), forbids a jury from relying on its own common knowledge in determining that the campus in question is that in Doniphan County. But Star involves the very narrow issue of whether a jury can infer whether a building “complies with the statutory definition of a school” for the purposes of convicting someone of selling drugs within 1,000 feet of a school. See 27 Kan.App.2d at 935–36. Nothing in the case suggests that a jury cannot infer whether an institution or location—such as Highland Community College—exists within a given county; in fact, our Kansas caselaw clearly indicates that jury inferences regarding venue are permitted. See Pencek, 224 Kan. at 729.
Based on the evidence, a rational factfinder—in this case, the jury—could easily infer that the events in March 2012 occurred in Doniphan County, Kansas. Therefore, evidence presented by the State sufficiently established venue, and Clayter's argument on this issue fails.
Jury Instruction Conference and Jury Questions
Next, Clayter argues that the district court erred in both answering jury questions outside his presence and by holding an off-the-record jury instruction conference outside of his presence. Under both the United States Constitution and K.S.A. 22–3405, a criminal defendant has the right to be present at every critical stage of his or her trial. State v. Herbel, 296 Kan. 1101, 1106, 299 P.3d 292 (2013). This right includes the right to be present for communications between the district court and the jury after the jury retires for deliberation. K.S.A. 22–3420(3); Herbel, 296 Kan. at 1106. However, the defendant may voluntarily elect not to be present for communications between the district court and jury. K.S.A. 22–3420(3). As the right of a defendant to be present is a question of law, this court exercises unlimited review. Herbel, 296 Kan. at 1106–07.
During deliberations, the jury presented two questions to the district court: the first requesting a copy of the parties' closing arguments and the second inquiring as to the location of the dismissed Count 3. Although these questions and answers appear in the record, the trial transcript is silent as to whether Clayter was present when the district court received the questions and formulated answers. In fact, it is uncertain whether the district court communicated the existence of the questions and answers to the parties at all. If the record fails to affirmatively reflect the defendant's presence, an appellate court “will presume that the defendant's constitutional right to be present was violated and that K.S.A. 22–3420(3) was not followed.” State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007). Because the record is silent regarding Clayter's presence, this court must presume his rights were violated. See 272 Kan. at 391.
But the inquiry cannot end there. Instead, our Supreme Court has repeatedly held that “a violation of the right to be present is subject to the harmless error rule.” 272 Kan. at 391. When an error infringes upon a party's federal constitutional right, a court will declare a constitutional error harmless only where the party benefitting from the error persuades the court “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.3d 705, reh. denied 386 U.S. 987 [1967] ). Although the right to be present also implicates the violation of a statutory right, the constitutional harmless error test applies when violations of both statutory and constitutional rights arise out of the same acts or omissions. Herbel, 296 Kan. at 1110–11.
In State v. Coyote, 268 Kan. 726, 1 P.3d 836 (2000), the jury submitted two questions to the district court. Upon review of the record, it appeared that the defendant was not present during the deliberation or delivery of one of the questions. The defendant appealed, arguing in part that answering the question outside his presence violated his constitutional right to a fair trial.
Determining first that answering the question outside the defendant's presence constituted error, our Kansas Supreme Court considered whether the error required reversal. See 268 Kan. at 732–35. In studying the question—which dealt with the definition of the term intentionally—and the district court's response, our Supreme Court noted that despite the defendant's arguments to the contrary, the answer correctly stated the law applicable to the case. Moreover, the court emphasized that the exchange outside the defendant's presence was a brief one. As such, the court held the error to be harmless. 268 Kan. at 733–35.
This court considered a similar issue in State v. Jackson, 49 Kan.App.2d 116, 305 P.3d 685 (2013), rev. denied 299 Kan. ____ (May 29, 2014). There, the jury submitted four written questions to the district court, which “were handled between the court and counsel in chambers off the record.” 49 Kan.App.2d at 120. On appeal, the defendant argued that answering the questions in writing violated his rights. Although this court found no error in answering the questions in writing, it determined that because the record did not reflect the defendant's presence in chambers, he was “presumed to have been absent from the chambers,” which constituted error. 49 Kan.App.2d at 139. However, this court ultimately found this error harmless. 49 Kan.App.2d at 140. In its analysis, this court emphasized that the questions “were completely innocuous” and that the district court's responses accurately stated the applicable law, “pointing the jury back to the jury instructions, and reminding the jurors that they must decide the case on the evidence as they remember it only.” 49 Kan.App.2d at 140. Additionally, “[t]he questions neither invoked legally significant explanatory answers nor were they of the nature to require [the defendant]'s attorney to consult with him on trial strategy.” 49 Kan.App.2d at 140. In short, the defendant's presence “would not have changed the answers to any of the posed questions,” rendering the error harmless. 49 Kan.App.2d at 140.
In its brief, the State relies on the four factors originally announced in State v. McGinnes, 266 Kan. 121, Syl. ¶ 4, 967 P.2d 763 (1998), and reiterated in Herbel, 296 Kan. at 1111, in arguing that the instant error is harmless. But these four factors, which examine the effect of communications between the judge and jury with no parties present, are not as germane to the present situation as cases like Jackson and Coyote. See Herbel, 296 Kan. at 1111–14 (analyzing the effect of playing a DVD back to the jury without the defendant present). The four McGinnes factors are likely inapplicable—or at least, only distantly applicable—to the instant case.
And analyzing the questions at issue in the instant case also reveals its similarity to Jackson and Coyote. Here, the questions are concerned only with general issues rather than issues of law. In the first question, the jury requested a copy of the closing statements; in its answer, the district court responded: “Closing statements are not evidence, you must consider only testimony and exhibits and stipulations admitted into evidence.” This answer pointed the jury back to two jury instructions—namely Instruction 4 and Instruction 6—and reiterated both the definition of evidence and the general statement that remarks by counsel are not evidence. However, because this answer omits the portion of Instruction 6 (modeled off PIK Crim. 4th 50.070) that explains that counsel's arguments “are intended to help [the jury] in understanding the evidence and in applying the law,” it could have potentially misled the jury into ignoring or disregarding closing arguments as unimportant.
But the “district court's decision to respond to a jury's request for additional information during deliberations is reviewed for an abuse of discretion.” State v. Murdock, 286 Kan. 661, 680, 187 P.3d 1267 (2008). A district court abuses its discretion when its action is arbitrary, fanciful, or unreasonable, is based on an error of law, or is based on an error of fact. Ward, 292 Kan. at 550. In this case, there was no abuse of discretion present in the court's answer. The district court's incomplete response may have misled the jury, but it did not constitute an error of law as its exercise of discretion was not “guided by an erroneous legal conclusion.” See 292 Kan. 541, Syl. ¶ 3. In fact, the district court appropriately withheld the closing argument transcript. See State v. Boyd, 257 Kan. 82, 91, 891 P.2d 358 (1995) (finding that “the trial court was correct in denying the request [for readback of closing arguments] on the grounds that [the] argument is not evidence in the case”). Additionally, the district court's response, although not ideal, was not unreasonable, arbitrary, or fanciful; rather, it was simply incomplete.
Furthermore, the question did not raise a significant legal or evidentiary issue, and it did not invoke a matter of Clayter's trial strategy. Clayter offers no argument for how his presence may have changed or altered the court's answer. In short, Clayter's absence while the district court formulated its answer to the first jury question was harmless in spite of the incomplete statement of the law it provided.
The second jury question asked about the dismissed Count 3, which is absent from the jury instructions and verdict forms. To this question, the district court simply replied: “You were not instructed on Count 3. There is no Count 3.” This question concerned an entirely innocuous matter and raised no questions of law or fact. Nothing in the record suggests that Clayter's presence would have altered this answer.
Although presumably answered outside Clayter's presence, the questions at issue in this case dealt briefly with general matters. The district court responded briefly in writing and without addressing issues of law or fact; although the first answer may have been slightly misleading, the district court did not abuse its discretion in responding, and any error present in the answer is not so severe as to warrant reversal. As far as the record reflects, Clayter never objected to the questions or answers during the trial. Such brief, unobjectionable answers closely resemble the questions in Jackson, 49 Kan.App.2d at 140, where this court concluded beyond a reasonable doubt that the error was harmless.
Regarding the jury instruction conference, the record clearly indicates that, prior to the conference, the district court informed Clayter that the conference would be off-the-record and that Clayter and his attorney could discuss the instructions when they returned. After the conference, the district court also reviewed the instructions on the record and allowed Clayter an opportunity to object. However, Clayter contends that the failure to include him in the conference itself was error.
Kansas caselaw clearly indicates that “[a]n in-chambers conference of court and counsel to consider instructions is not a stage of the trial within the contemplation of K.S.A. 22–3405 and the absence of the defendant did not violate his constitutional or statutory rights.” State v. Mantz, 222 Kan. 453, Syl. ¶ 6, 565 P.2d 612 (1977). There, as here, the district court and counsel first discussed the jury instructions outside the defendant's presence before holding a final conference with the defendant the next morning. The defendant agreed to his absence after the fact. Drawing on federal law as well as Montana precedent, our Supreme Court held:
“The general rule clearly appears to be that a defendant's constitutional and statutory rights to be present at his trial do not encompass proceedings before the court involving matters of law. Such rights are violated only if the defendant is absent when the jury is hearing the case or where he is prevented from such other proceedings where his presence is essential to a fair and just determination of a substantial issue. [Citations omitted.]” 222 Kan. at 463.
As such, our Supreme Court held that the informal jury instruction conference during which no final decision was made was not a critical stage of the proceeding that requires the defendant's presence. 222 Kan. at 463–64. Our Supreme Court reiterated this holding in State v. Edwards, 264 Kan. 177, 198, 955 P.2d 1276 (1998), when determining that the defendant's presence was not required in a conference between the district court and counsel wherein a jury question was discussed but not answered. See also Washington v. State, No. 100,657, 2009 WL 3082582, at *7 (Kan.App.2009) (unpublished opinion) (holding that “a defendant is not entitled to be present at an in-chambers conference involving only a question of law where the defendant's presence is not essential to a fair and just determination of some substantial issue [citing Mantz, 222 Kan. at 464]”—in this case, the discussion of a jury question), rev. denied 290 Kan. 1105 (2010).
There is no indication that our Kansas Supreme Court is departing from its position in Mantz; as such, this court is duty bound to follow its precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Nonetheless, Clayter points to a number of decisions from other jurisdictions to argue that Mantz is wrongly decided—each of which is distinguishable from the instant case. See State v. Matt, 347 Mont. 530, 535–37, 199 P.3d 244 (2008) (holding that “an in-chambers conference where evidentiary issues and a motion to dismiss for insufficient evidence are argued by counsel and ruled on by the trial judge” is a critical stage requiring the defendant's presence), overruled on other grounds by State v. Charlie, 357 Mont. 355, 239 P.3d 934 (2010); State v. Exurn, 343 N.C. 291, 295–96, 470 S.E.2d 333 (1996) (holding that conducting an off-the-record, in-chambers discussion between counsel and the district court “the nature and content” of which “cannot be gleaned from the record” outside the defendant's presence constitutes reversible error); State v. Bennett, 168 Wash.App. 197, 205–07, 275 P.3d 1224 (2012) (holding that although there is no per se rule, without any indication of factual or legal issues arising in the instruction conference or an objection by the defendant regarding the instructions, an off-the-record instruction conference did not require the defendant's presence). The United States Court of Appeals for the Tenth Circuit, on the other hand, has held that because a “jury instruction conference traditionally encompasses purely legal issues,” a defendant's absence from such a conference is not a violation of that defendant's due process rights. Larson v. Tansy, 911 F.2d 392, 395 (10th Cir.1990). In fact, in the Tenth Circuit's view, jury instruction conferences are “typically ... attended only by the judge and counsel.” 911 F .2d at 395.
Here, the district court and counsel held an off-the-record instruction conference without Clayter but ultimately reviewed the relevant instructions in his presence. Clayter never objected to the conference occurring outside his presence or to the instructions as reviewed by the district court. And even if Clayter had objected, both Kansas precedent and cases from other jurisdictions establish that the jury instruction conference is not a critical stage requiring Clayter's presence as long as the defendant has been given the opportunity to review the instructions with his or her lawyer and to voice objections through counsel and is then present for the actual reading of the instructions to the jury. See Mantz, 222 Kan. at 464.
In conclusion, the district court erred by answering the jury's questions outside Clayter's presence, but the error was harmless. However, the district court did not err by holding an off-the-record jury instruction conference without Clayter as such a conference is not a critical stage of the proceedings.
Instructing the Jury on the Wrong Charge
Clayter's next claim of error concerns his conviction for battery on a law enforcement officer. Both Clayter and the State acknowledge that although the charging document cited to the felony battery of a law enforcement officer statute, the State actually charged Clayter with misdemeanor battery of a law enforcement officer. Moreover, both parties recognize that the district court instructed the jury on the felony charge instead of the misdemeanor. Clayter argues that because he was convicted of an uncharged crime that is not a lesser included offense of the crime charged the conviction must be reversed for lack of jurisdiction. Although the State conceptualizes the error as an instructional issue, it too recognizes that reversal is necessary.
In Kansas, “[t]he charging document is the jurisdictional instrument which gives the court authority to convict a defendant of crimes charged in the complaint or of the lesser included crimes thereof.” State v. Horn, 20 Kan.App.2d 689, Syl. ¶ 1, 892 P.2d 513, rev. denied 257 Kan. 1094 (1995). Consequently, “if a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.” 20 Kan.App.2d 689, Syl. 11. As such, convicting a defendant of “a charge not made in the information and not properly before the district court” violates that defendant's due process rights. 20 Kan.App.2d 689, Syl. ¶ 2. A conviction by a court without jurisdiction is void. See State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000).
Because issues of jurisdiction implicate questions of law, this court exercises unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
A lesser included crime is either “[a] lesser degree of the same crime,” “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged,” or an attempt of either the crime charged or of a lesser included crime. K.S.A.2011 Supp. 21–5109(b). The version of felony battery against a law enforcement officer at issue in this case is defined as “knowingly or recklessly causing bodily harm” against a uniformed or properly identified law enforcement officer “while such officer is engaged in the performance of such officer's duty.” K.S.A.2011 Supp. 21–5413(c)(2)(B). This offense is a severity level 7 person felony. K.S.A.2011 Supp. 21–5413(g)(3)(B). The jury convicted Clayter under this instruction.
However, because it is a lesser included crime of the felony, the jury also received instructions on simple battery against a law enforcement officer, which requires “knowingly causing physical contact with another person when done in a rude, insulting or angry manner” when that other person is a uniformed or properly identified law enforcement officer carrying out his or her duty. K.S.A.2011 Supp. 21–5413(c)(1)(B). This offense is a class A person misdemeanor. K.S.A.2011 Supp. 21–5412(g)(3)(A). It is also the crime with which Clayter was charged, as the complaint alleged that Clayter caused physical contact with Buckingham—a properly indentified law enforcement officer engaged in the performance of his duty—“in a rude, insulting or angry manner.” As the parties and district court realized at sentencing, this was not the offense for which the jury convicted Clayter. As the felony-level battery offense was an uncharged crime and not a lesser included offense of the crime charged (as it is in fact a more severe crime than the crime charged), the district court lacked jurisdiction over it. Clayter's conviction is therefore void and must be reversed.
Amendment of the Criminal Trespass Charge
On appeal, Clayter raises three issues regarding the State's midtrial amendment to the criminal trespass charge. First, Clayter contends that he suffered prejudice from the amendment because the amended complaint changed the State's theory of the case. Second, Clayter argues that the State provided insufficient evidence to prove the amended complaint. Third, Clayter argues that the district court's improperly instructed the jury regarding the amended charge. Each assertion will be addressed in turn.
Did Clayter suffer prejudice from the amendment?
In Kansas, “[t]he court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” K.S.A. 22–3201(e). Generally speaking, the amendment to a complaint is within the trial court's broad discretion. State v. Hoyden, 281 Kan. 112, 130, 130 P.3d 24 (2006). However, as our Kansas courts differentiate between amendments prior to trial and after the trial commences, an “ ‘amendment any time before the verdict is proper’ “ only when the record reflects that the defendant's substantial rights were not prejudiced by the change. See State v. Woods, 250 Kan. 109, 113–15, 825 P.2d 514, cert. denied 506 U.S. 850 (1992). This prejudice prong is the determining factor in considering whether the amendment was proper and is reviewed for abuse of discretion. State v. Spongier, 38 Kan.App.2d 817, 824, 173 P.3d 656 (2007).
Clayter acknowledges that the amendment did not alter the crime charged but insists instead that his substantial rights were prejudiced because the amended complaint altered the State's theory of the case.
In State v. Calderon–Aparicio, 44 Kan.App.2d 830, 242 P.3d 1197 (2010), rev. denied 291 Kan. 914 (2011), the State amended its complaint before trial, changing the charge from possession of marijuana with intent to sell to possession with intent to sell, distribute, or deliver. On appeal, the defendant argued that the late amendment—occurring 3 days before trial—stripped him of the ability to prepare a defense against the changed charge. But because the defendant's defense was that he never possessed the bag containing the marijuana, this court found it “difficult to ascertain how [the defendant] would have changed or modified his defense” in light of the amendment. 44 Kan.App.2d at 849. Moreover, the defendant's counsel admitted that the defense anticipated the arguments associated with the amended complaint and that the evidence relevant to the charges was unchanged by the amendment. As such, this court found no prejudice in allowing the amendment, and no abuse of discretion by the district court. 44 Kan.App.2d at 849–50. Similarly, in State v. Ransom, 288 Kan. 697, 716, 207 P.3d 208 (2009), our Kansas Supreme Court found no prejudice in an amendment that “cover[ed] the possibility that the felony murder ... occurred during [the defendant's] flight from, rather than only his commission of, the attempt to commit aggravated robbery.” There, the court reasoned that the defendant suffered no prejudice “because he and his counsel had always been aware that the evidence of [his] flight from an inherently dangerous felony was part of the State's case.” 288 Kan. at 716.
Presently, Clayter argues that he prepared for trial based on the unamended charge and moved for acquittal on that charge, but this statement misrepresents the record. At the close of the State's evidence, Clayter specifically excluded the charge of criminal trespassing from his motion for judgment of acquittal because “we are agreeing that [Clayter] had been banned [from campus] and he [was] there, so that is what it is.” After Clayter noticed that the subsection under which the criminal trespass count was charged did not comport with the State's evidence, he again acknowledged that he was on campus despite being banned. Clearly, Clayter recognized that his presence on campus constituted an important part of the State's case prior to discovering the error in the charging document. As such, he cannot now fairly argue that he prepared his defense on the erroneous charge—or that the amendment prejudiced his defense. The district court did not abuse its discretion by allowing the State to amend the complaint.
Did sufficient evidence support Clayter's conviction under the amended complaint?
Next, Clayter argues that the State failed to provide sufficient evidence to support a conviction under the amended complaint. Specifically, Clayter argues that the State failed to prove that Clayter “was given a direct order by the owner of the property not to return to the property and therefore did”—the exact language of its amended complaint. The State, on the other hand, essentially argues that the full language of the relevant statute (K.S.A.2011 Supp. 21–5808[a][1][A] ) was implied by its amendment and, as such, sufficient evidence supported Clayter's conviction.
When the sufficiency of the evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in the light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support the conviction, this court generally will not reweigh evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Preliminarily, a review of the record reveals that the State never reduced its oral amendment to writing. When the prosecution is allowed to amend a complaint, it “has the duty to memorialize the amendment by filing an amended complaint, by interlineations upon the original document, or by journal entry stating the amendment to the complaint.” State v. Switzer, 244 Kan. 449, Syl. ¶ 4, 769 P.2d 645 (1989). That said, the State's failure to so memorialize its amendment “is not grounds for reversible error in the absence of prejudice to the defendant.” 244 Kan. 449, Syl. ¶ 5. Clayter alleges no prejudice from the lack of a written amendment.
A question arises, however, when considering the actual substance of the amendment. As previously stated, the State amended the complaint to comport with a different subsection of the criminal trespass statute, one which defines criminal trespass as “entering or remaining upon or in” a location “by a person who knows such person is not authorized or privileged to do so” when that individual “enters or remains therein in defiance of an order not to enter or to leave such premises or property personally communicated to such person by the owner thereof or other authorized person.” K.S.A.2011 Supp. 21–5808(a)(1)(A). At the hearing, the State specifically requested that the amendment show that Clayter “was given a direct order by the owner of the property not to return to the property.” (Emphasis added.) In granting the motion, the district court stated that the amendment would reflect that “the defendant was ordered not to enter the campus, and that was as of the administrative hearing according to the evidence.”
Nothing in the statute suggests that criminal trespass may be accomplished by entering or remaining in a location after an administrative hearing has banned the individual from that location and orders that he or she not return. See K.S.A.2011 Supp. 21–5808(a). Therefore, without a written amendment, the State's is bound to its oral amendment at the trial—an amendment that alleges that Clayter disobeyed a direct order from Highland Community College's owner.
The State urges this court to consider Clayter's argument not as one challenging the sufficiency of the evidence but, rather, as one challenging the sufficiency of the complaint. But it is clear from the language of the State's oral amendment that the altered complaint was sufficient to charge Clayter with criminal trespass under K.S.A.2011 Supp. 21–5808(a)(1)(A), and Clayter does not argue otherwise. The question instead is whether the State provided sufficient evidence for the jury to find Clayter guilty under this statute. In addressing this question, Clayter essentially concedes that he entered campus knowing that he lacked authority to do so; however, he contends that the State failed to prove that the owner of the college was the one who revoked that authority as required by the amended complaint.
Our Kansas criminal code defines owner as “a person who has any interest in property.” K.S.A.2011 Supp. 21–5111(s). In the context of property, an interest is “[a] legal share in something; all or part of a legal or equitable claim to or right in property.” Black's Law Dictionary 934 (10th ed.2014).
Here, the State provided no evidence indicating that the college's owner or any other person with a claim to the college property revoked Clayter's access to campus. Although Stonebarger and Whetstine each confirmed that Clayter was banned from campus as the result of a disciplinary hearing, neither testified that the person informing Clayter of the ban was the college's owner. In fact, Whetstine testified that both he and college vice president Cheryl Rasmussen told Clayter not to return to campus. However, nothing in Whetstine's testimony indicates that either he or Rasmussen own or otherwise hold an ownership interest in the college. The State's assertion on appeal that the vice president “clearly has an interest in the property” is not backed by the evidence, as there is no indication that she holds any claim or right to the college campus. Similarly, even if the college administration is the functional equivalent of an owner as the State argues, the State provided no evidence at trial that proves this claim. With no evidence supporting this element of the charge, a rational factfinder could not have found Clayter guilty beyond a reasonable doubt. Accordingly, we must reverse his conviction for criminal trespass and enter a judgment of acquittal.
But even if we were to find that the evidence was sufficient, an instructional error, which we discuss next, leads us to the same conclusion.
Did instructional error deprive Clayter of his right to a fair trial?
Lastly, Clayter argues that instructional error deprived him of his right to a fair trial. The criminal trespass instruction presented to the jury included the following elements:
“1. The defendant entered a dorm room on Highland Community College campus.
“2. The defendant knew he was not authorized to do so.
“3. The defendant was ordered not to enter the campus.
“4. This act occurred on or about the 6th day of March, 2012, in Doniphan County, Kansas.”
However, in the relevant pattern instruction—namely, PIK Crim. 4th 58.140—the third element differs, reading: “The defendant was told (not to enter) (to leave) the property by the owner or other authorized person.” (Emphasis added.)
A review of the record indicates that Clayter never objected to this instruction at trial. As such, this court's standard of review requires that it determine whether the instruction is clearly erroneous. See K.S.A.2011 Supp. 22–3414(3). This inquiry employs two steps. First, this court must determine whether there was error at all. State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). To make this determination, the court must “consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” 295 Kan. 506, Syl. ¶ 4. If such error is found, this court must then employ the second step and determine whether it is “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred”; if the court is convinced, it must reverse the conviction. See 295 Kan. 506, Syl. ¶ 5.
Clearly, the instruction employed by the district court lacks an important portion of the third element—namely, whether the order to remain off the property came from a person with authority to make such an order. In State v. Williams, 220 Kan. 610, 614, 556 P.2d 184 (1976), our Kansas Supreme Court analyzed the component elements of an earlier version of the criminal trespass statute, explaining:
“It is obvious in reading this trespass statute that something more must be proven to establish criminal trespass than a knowing and unauthorized entry or remaining within the subject property. This is apparent because in drafting the statute the legislature used the conjunctive ‘and’ which follows the first paragraph of [the statute]. The word ‘and’ indicates some additional element is required. The subsequent paragraphs ... describe actual or constructive notice requirements by which a person is or should be advised he is entering or is within another person's property where he has no right to be without permission.
“To fulfill the requirements of the notice provision [in the first subsection] the state must show the defendant entered or remained upon or in the property in defiance of an order not to enter or to leave such premises. The order may be given by the owner or any other authorized person.”
The word “and” continues to appear in the relevant statute:
“(a) Criminal trespass is entering or remaining upon or in any:
(1) Land, nonnavigable body of water, structure, vehicle, aircraft or watercraft by a person who knows such person is not authorized or privileged to do so, and:
(A) Such person enters or remains therein in defiance of an order not to enter or to leave such premises or property personally communicated to such person by the owner thereof or other authorized person.” (Emphasis added.) K.S.A.2011 Supp. 21–5808(a)(1)(A).
As written, the element at issue simply requires that the jury find that some individual ordered Clayter not to enter campus. But this instruction omits an important portion of the notice requirement discussed in Williams: the identity of the person or people who delivered the order. See 220 Kan. at 614. As the identity of the person ordering the trespasser off the property is required “to fulfill the requirements of the notice provision” contained in the relevant subsection, failing to include that language removes an important legal element of the charge from the instruction. See 220 Kan. at 614. Because it lacked part of the statute's notice requirement, the instruction provided in this case was not legally sound and constituted error. See Williams, 295 Kan. 506, Syl. ¶ 4.
Because the instruction at issue was erroneous, this court must now consider whether it is “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5. As written, the instruction allowed the jury to convict Clayter provided that someone ordered him not to return to campus, be that person an administrator, a law enforcement officer, or even simply another student. Clearly, Stonebarger and Whetstine testified that two different people informed Clayter of his ban from campus, satisfying the language of the erroneous instruction. However, as previously noted, the State provided no evidence to demonstrate that the person delivering this message was the person alleged in the State's amended complaint and required by the statute—namely, the owner of the college. Had the jury known that the State needed to prove that the college's owner provided the order, it likely would have reviewed the evidence, discovered that nothing provided by the State proved that the college's owner ordered Clayter to remain off campus, and acquitted him. This result is especially likely given that there was almost no evidence to suggest that the college's owner was even passively involved with Clayter's hearing and campus ban. The evidence supported the incomplete element, but not the full instruction.
Because of the dearth of evidence supporting the jury instruction's missing element, the jury likely would have acquitted Clayter had it been provided the complete jury instruction.
Based on the foregoing analysis, the district court did not abuse its discretion by allowing the State to amend the criminal trespassing charge. However, the evidence in support of the amended charge was such that a rational factfinder could not have found Clayter guilty, and the jury instruction the district court provided was clearly erroneous. As such, his criminal trespass conviction must be reversed and a judgment of acquittal entered.
The Definition of Drug Paraphernalia
Clayter next argues that the jury instruction regarding drug paraphernalia impermissibly provided the jury with the legal conclusion that the items listed in the instruction constituted drug paraphernalia. Again, Clayter failed to object to this instruction at trial, requiring that this court again review the instruction for clear error. See K.S.A.2011 Supp. 22–3414(3).
The instruction at issue provides:
“ ‘Drug paraphernalia’ means all equipment, and materials of any kind which are used or primarily intended or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance.
“ ‘Drug paraphernalia’ includes:
(1) Backpack
(2) Baggies
(3) Digital scales
(4) Pop can with pill bottle inside”
As held by our Kansas Supreme Court,
“ ‘ “ ‘[t]he use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions.... PIK instructions and recommendations should be followed.’ “ ‘ [Citations omitted.]” State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009).
This instruction is nearly an exact replica of PIK Crim. 4th 57.180. In fact, the only difference between the PIK instruction and the one provided to the jury is that the district court, as encouraged by the PIK, listed the relevant items of drug paraphernalia in the space provided. The Notes on Use accompanying the PIK Crim. 4th 57.180 specifically instruct the court that “[t]he specific items of paraphernalia listed in [K.S.A.2011 Supp. 21–5701(f) ] and that are applicable to the case should be inserted into the instruction.” Included in the statutory list of drug paraphernalia are “scales and balances used or intended for us in weighing and measuring controlled substances,” “bags and other containers used or intended for use in packaging small quantities of controlled substances,” and “containers and other objects used or intended for us in storing or concealing controlled substances.” K . S.A.2011 Supp. 21–5701(f)(5), (f)(9), (f)(10). All the items listed in the instruction fit at least one of these descriptions.
Moreover, in State v. Bowser, No. 107,692, 2013 WL 1010579 (Kan.App.2013), (unpublished opinion), petition for rev. filed April 5, 2013, this court rejected the same argument that Clayter now sets forth. There, the jury instruction included plastic baggies, pipes, scales, and rolling papers in its list of paraphernalia. The defendant claimed that the instruction impermissibly removed the jury's ability to determine whether the listed items constituted paraphernalia. Considering the instructions as a whole, however, this court determined that the instructions provided “ma[de] it clear that it is up to the jury to determine whether the items claimed by the State to be drug paraphernalia really are drug paraphernalia under the facts of the case.” 2013 WL 1010579, at *4. Because the inclusion of the list of items “was necessary to inform the jury as to which objects the State claimed were drug paraphernalia” and did not inform the jury that the State had proven the element at issue, the court found no error in the instruction. 2013 WL 1010579, at *4.
Here, like in Bowser, the instruction at issue was immediately preceded by an instruction explaining how to determine whether an object was drug paraphernalia. Read together, it is clear that the instructions were given to both explain to the jury how to determine whether an item was drug paraphernalia and to list those items the State alleged to be drug paraphernalia. See 2013 WL 1010579, at *3. As such, the instruction was not clearly erroneous, and there was no reversible error providing it to the jury.
Sufficiency of Evidence Support convictions for Possession With Intent to Distribute, Possession of Drug Paraphernalia, and Failure to Affix a Drug Tax Stamp
Clayter next argues that his convictions for drug-related offenses are not sufficiently supported by the evidence. Specifically, Clayter contends that the only evidence suggesting that he owned the backpack was his uncorroborated declaration of ownership during the struggle in Percival's apartment and that the other evidence suggests that someone else—such as Percival or Ogletree—owned the backpack. Without proof of ownership, Clayter argues, the drug-related convictions cannot stand.
As previously stated, this court reviews challenges to the sufficiency of the evidence by considering whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Frye, 294 Kan. at 374–75. This court will not reweigh the evidence or the credibility of the witnesses. Hall, 292 Kan. at 859. It is only in rare cases rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt. See State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
For the purposes of crimes involving controlled substances, possession is defined as “having joint or exclusive control over an item with knowledge of and intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.” K.S.A.2011 Supp. 21–5701(q). Possession may be proven by direct or circumstantial evidence. See State v. Cruz, 15 Kan.App.2d 476, 489, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). However, when a defendant is in nonexclusive possession of the location in which drugs are recovered, “ ‘it cannot be inferred that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs.’ “ 15 Kan.App.2d at 489. Although more germane to situations in which drugs are discovered in homes or rooms rather than in smaller containers (such as a backpack), circumstantial factors that serve to link a defendant to drugs in nonexclusive possession cases include: the defendant's previous sale or use of drugs; his proximity to the area where the drugs were found; whether the drugs were recovered in plain view; incriminating statements by the defendant; the defendant's suspicious behavior; and the defendant's proximity to the drugs. 15 Kan.App.2d at 489. But generally, this court and our Kansas Supreme Court have required “more than mere presence or access to the drugs ... to sustain a conviction.” 15 Kan.App.2d at 489.
Here, it is undisputed that at least three people had access to the backpack containing the marijuana: Percival, Ogletree, and Clayter. However, Buckingham testified that Clayter twice announced that the bag belonged to him: once during the struggle in the dorm room and once after Buckingham opened the bag. Stonebarger testified that Clayter's cell phone was an iPhone with a yellow back, and a phone fitting that description was recovered from the bag. At the sheriff's department, Clayter claimed ownership of the keys found in the backpack; upon further investigation, Whetstine discovered that the keys belonged to Clayter's old dorm room on the college campus. The other personal effects in the bag, including clothing and personal hygiene items, appeared consistent with Percival's statement that Clayter planned on spending the night.
Of course, other testimony allows for the inference that the bag belonged to Ogletree: Percival testified that Ogletree claimed ownership; Ogletree and Clayter were close enough friends that some of Clayter's belongings could have been in Ogletree's bag; Klaus testified that Clayter's phone was in Percival's possession rather than inside the bag. However, the evidence is such that if the jury found the officers more credible than the two young women, it could infer that the bag belonged to Clayter. As previously stated, this court will not reconsider the credibility of witnesses on appeal. Hall, 292 Kan. at 859.
The testimony provided by the officers also comports with the circumstantial factors relevant in nonexclusive possession cases. See Cruz, 15 Kan.App.2d at 489. Clayter incriminated himself at the scene and again at the sheriffs office, declaring ownership first of the bag and then of the keys inside. He also behaved somewhat suspiciously: he twice attempted to leave the scene after Percival removed the bag from under the couch, and he entered into a physical altercation with Buckingham after the struggle for the bag escalated. Moreover, Percival testified that the backpack appeared in the room sometime that day, most likely after Clayter arrived. Percival noted that she did not know of the bag's location until Ogletree pointed it out to her. These circumstances, considered together, support the conclusion that Clayter owned the bag and knew of its illegal contents, satisfying the requirements for possession.
Clayter argues that this circumstantial evidence requires impermissible inference stacking. But the inference-stacking rule—which prohibits “allow [ing] the jury to speculate on unjustifiable inferences” is only applicable when the evidence “ ‘is too uncertain or speculative or which raises merely a conjecture or possibility.’ “ Cruz, 15 Kan.App.2d at 490–91. Here, the jury was asked to draw a single inference: namely, that the backpack belonged to Clayter. The evidence presented by the State supports that inference, and from that evidence, a rational factfinder could have found Clayter guilty beyond a reasonable doubt. As such, his convictions for possession of marijuana with intent to distribute, possession of drug paraphernalia, and failure to affix a drug tax stamp should be affirmed.
Restitution To the City of Highland
A court is required to “order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime.” K.S.A.2011 Supp. 21–6604(b)(1). Absent an agreement to the contrary, restitution may only be ordered for those losses caused by the defendant's crime or crimes of conviction. State v. Dexter, 276 Kan. 909, Syl. ¶ 3, 80 P.3d 1125 (2003). However, because “[n]ot all tangential costs incurred as a result of crime should be subject to restitution,” there must be a causal link between the defendant's conduct and the damages for which restitution is ordered. State v. Hunziker, 274 Kan. 655, Syl. ¶ 9, 56 P.3d 202 (2002). As a general principle, restitution exists in order to “reimburse[ ] the victim for the actual loss suffered.” State v. Hall, 297 Kan. 709, 712, 304 P.3d 677 (2013). But the question of who may be a victim for the purposes of restitution is less clear. Although a victim is usually “an involuntary participant in a crime,” the term can also include a homicide victim's family members, a state agency, or those insurance companies and government agencies that serve to reimburse crime victims. Campbell, Law of Sentencing § 3:3, pp. 73–75 (3d ed.2004).
As his last substantive issue, Clayter argues that the district court erred in ordering him to pay restitution to the City of Highland. He specifically objects to the requirement that he reimburse the City for the payments it made to Buckingham above and beyond his workers compensation award ($2,196.87) and that he reimburse the City for the costs associated with hiring another officer to take Buckingham's place ($6,571.21).
However, as Clayter argues, a decision reversing Clayter's battery conviction, resolves the issue of restitution. The only remaining convictions in this case are those arising from Clayter's possession of drugs with intent to distribute, possession of drug paraphernalia, and failure to affix a drug tax stamp. The statute that authorizes restitution in Kansas criminal cases refers to “damage or loss caused by the defendant's crime.” (Emphasis added.) K.S.A.2011 Supp. 21–6604(b)(l). So although we were asked to examine whether there is a causal connection between Clayter's conduct and the specific damages for which restitution was ordered, we must first examine whether the damages claimed in general are causally connected to his crimes of conviction. See Hunziker, 274 Kan. 655, Syl. ¶ 9. Clearly they are not. Although Clayter arguably was attempting to prevent Buckingham from discovering the drugs, the direct result of the officer's injuries was Clayter's decision to charge Buckingham. Because the injury was not caused by the crimes of conviction, we are required to vacate the restitution award as it relates to the now defunct battery charge.
Cumulative Error
Clayter finally contends that cumulative error deprived him of his right to a fair trial.
Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. If the evidence is overwhelming against the defendant, however, no prejudicial error may be found based upon this cumulative error rule. State v. Burns, 295 Kan. 951, 960, 287 P.3d 261 (2012). When analyzing whether cumulative errors are harmless, this court must examine the errors in the context of the record as a whole and consider “how the trial court dealt with the errors as they arose, including the efficacy, or lack of efficacy, of any remedial efforts; the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence.” State v. Warrior, 294 Kan. 484, 517, 277 P.3d 1111 (2012). A single error, however, cannot constitute cumulative error. State v. Haberlein, 296 Kan. 195, 212, 290 P.3d 640 (2012), cert. denied 134 S.Ct. 148 (2013).
As discussed throughout this opinion, four trial errors occurred in Clayter's case: (1) The district court answered jury questions outside Clayter's presence; (2) the district court convicted Clayter of an offense over which it had no jurisdiction; (3) the conviction for criminal trespass was unsupported by the evidence; and (4) the district court improperly instructed the jury on the elements of criminal trespass. However, as previously stated, three of these errors—the jurisdictional error, the insufficient evidence issue, and the instructional issue—are severe enough as to require reversal of the battery on law enforcement and criminal trespass convictions.
In State v. King, 297 Kan. 955, 987, 305 P.3d 641 (2013), our Supreme Court noted that reversing three convictions cured the errors associated with those convictions. Because they did not “infect the other convictions,” those errors were removed from the cumulative error analysis. 297 Kan. at 987. The remaining errors—the failure to answer a jury question in open court and an instructional error—were “relatively insignificant and bore no relationship to each other” and therefore did not affect the verdict. 297 Kan. at 987.
The instant case is similar. As previously discussed, the district court's failure to answer the jury's questions in Clayter's presence was harmless error. Nothing in the questions implicated legal questions that could infect or poison any of the remaining convictions. Moreover, the errors requiring reversal are limited to specific charges and are unrelated to the drug convictions. Because of the isolated nature of the errors and the fact that three of the four are cured by reversal, cumulative error did not deprive Clayter of a fair trial.
Affirmed in part, reversed in part, and vacated in part.
* * *
ATCHESON, J., concurring.
I write separately only to say that I would assume without deciding that the State could amend the criminal trespass charge against Defendant Antonio Michael Clayter in the manner the district court allowed. After a jury has been sworn and jeopardy attaches in a criminal case, constitutional demands of due process and fair notice substantially constrain the State's ability to amend what has been charged in the complaint. Russell v. United States, 369 U.S. 749, 765–66, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); State v. Wade, 284 Kan. 527, 541–42, 161 P.3d 704 (2007); see also Argersinger v. Hamlin, 407 U.S. 25, 27–28, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (recognizing Sixth Amendment right to notice of criminal charges applies to State prosecutions); Wooten v. Thaler, 598 F.3d 215, 219 (5th Cir.2010). Those constitutional requirements encompass proposed amendments that would allow the State to substitute an entirely new element of a charged offense for a substantive, contested element. That happened here when the district court allowed the State to amend the trespass charge by replacing wholesale the element of entering a locked or secured building, a factual circumstance the evidence didn't support.
I question whether the amendment—coming at the close of the State's evidence—satisfied due process and fair notice protections. But I need not and do not answer the question in this case. I fully agree that the State failed to prove the criminal trespass charge as amended, requiring a judgment of acquittal and, thus, rendering irrelevant any error in allowing the amendment in the first place. I also agree the jury instruction was sufficiently flawed to be clearly erroneous and, under the facts, requires the conviction be reversed—an alternative outcome that likewise makes the amendment itself superfluous as an appellate issue.