State v. Bungard

1

NOT DESIGNATED FOR PUBLICATION

No. 119,678

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICHARD BUNGARD,
Appellant.


MEMORANDUM OPINION

Appeal from Jackson District Court; NORBERT C. MAREK JR., judge. Opinion filed August 16,
2019. Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MALONE, J., and STEVEN E. JOHNSON, District Judge, assigned.

PER CURIAM: Richard Bungard appeals his convictions for possession of
methamphetamine, possession of drug paraphernalia, driving with a suspended license,
and operating his vehicle without proof of insurance. On appeal, Bungard contends that
the district court erred in denying a motion to suppress evidence. He also contends that
there is insufficient evidence in the record to support his conviction for possession of
methamphetamine and possession of drug paraphernalia. Finally, he contends that the
district court erred in failing to give a nonexclusive possession instruction to the jury. For
the reasons set forth in this opinion, we conclude that none of Bungard's contentions have
merit. Thus, we affirm.
2

FACTS

On June 14, 2017, the State of Kansas charged Bungard with possession of
methamphetamine, possession of drug paraphernalia, driving with a cancelled,
suspended, or revoked license, and operating a motor vehicle without proof of insurance.
Prior to trial, Bungard filed a motion to suppress evidence relating to the possession
charges. The district court held a hearing over Bungard's motion to suppress on February
9, 2018.

At the hearing, Deputy Eli Norris of the Jackson County Sheriff's Office testified
that he initiated a traffic stop of a black Dodge Charger on U.S. Highway 75 on February
9, 2017, at approximately 10:21 a.m. According to Deputy Norris, he believed—based on
his training and experience as a law enforcement officer—that the Charger's window tint
was darker than the 35% permitted by Kansas law. Although Deputy Norris did not
receive "specific training on window tint violations or detection," he testified that he did
receive on-the-job field training. Moreover, he testified that he had made somewhere
between 10 to 25 window tint traffic stops between 2009 and 2017.

Deputy Norris testified that when he called in the Charger's tag number, the
dispatcher reported that the tag belonged to a different vehicle. However, the deputy
acknowledged that at some point during the stop this information was corrected after it
was noted that the dispatcher had ran an incorrect number. However, at the time he
stopped the Charger, Deputy Norris believed that there was a tag violation in addition to a
window tint violation.

Deputy Norris indicated that the driver—who identified himself as Richard
Bungard—did not have a driver's license. Moreover, a record check revealed that
Bungard's license was suspended. According to Deputy Norris, he also requested the
driver's insurance information but Bungard was unable to provide it to him.
3

Deputy Norris testified that he used a tint meter to check the tinting on the
Charger's windows. In doing so, the tint meter read 28%—which is darker than the 35%
permitted by law. The deputy also indicated that Tory Truitt was a passenger in the
Charger. However, Truitt also lacked a valid driver's license.

Deputy Norris arrested Bungard for the suspended driver's license and arranged
for a tow truck to pick up the Charger because the vehicle was uninsured and neither
Bungard nor Truitt could legally drive the car. Deputy Norris testified that he proceeded
to "inventor[y] the vehicle per [sheriff's office] policy." While performing the inventory,
Deputy Norris found two syringes in the center console with other personal items
belonging to Bungard. He also found one syringe on the floorboard behind the driver's
seat as well as small plastic baggies throughout the car. The syringe from the floorboard
behind the driver's seat was field tested and came back positive for methamphetamine.

Bungard also testified at the suppression hearing. He explained that he had a
company in Topeka install the tinting when he purchased the Charger in 2007. According
to Bungard, he believed the tint was legal and did not recall Deputy Norris saying
anything about the window tint when he initially pulled him over. Rather, he recalled the
deputy telling him that his tags were "illegal for [his] car."

After considering the evidence presented at the hearing, the district court found
that Deputy Norris stopped Bungard because he believed the tinting on the windows was
too dark and he believed there was a tag violation. While the information regarding the
tag ultimately was found to have been a mistake, the district court found that Deputy
Norris had presented reasonable and articulable reasons for the traffic stop. Further, the
district court found that Deputy Norris properly used a tint meter to confirm his
suspicions about the window tinting. Accordingly, the district court denied Bungard's
motion to suppress.

4

The district court commenced a jury trial on April 3, 2018. At trial, the State
presented the testimony of two witness, including Deputy Norris and a chemist from the
Kansas Bureau of Investigation. The State also introduced five exhibits into evidence.
The State also played the dash-cam video and the video from inside Deputy Norris' patrol
vehicle for the jury.

Deputy Norris' testimony was consistent with that given at the suppression
hearing. In addition, the deputy testified regarding his department's policy requiring that
an inventory of seized vehicles be conducted and that any property valued at more than
$200 be catalogued. Although he did not recover any valuables worth more than $200,
Deputy Norris testified regarding the evidence found during the inventory search. The
chemist from the Kansas Bureau of Investigation testified that the syringe found on the
floorboard behind the driver's seat tested positive for methamphetamine.

At the close of the State's evidence, Bungard's counsel renewed his motion to
suppress and moved for acquittal. The district court denied both motions. Bungard then
testified in his own defense. According to Bungard, he purchased the syringes discovered
in the center console from a Walgreens store because he suffers from diabetes and can
become light-headed. He indicated that he self-administered insulin shots and that the
syringes were in the console in case of a medical emergency.

Bungard testified that he never carries insulin with him. In the event of an insulin
emergency, Bungard asserted that he would purchase insulin from the same Walgreens
from which he purchased the syringes. While discussing his need for insulin, Bungard
testified that he didn't "shoot up" while in the car. On cross-examination, Bungard agreed
that he just "picked up that terminology" from television.


5

While Bungard agreed that the needles in the center console were his, he denied
that the needle found in the driver's side rear floorboard—which subsequently tested
positive for methamphetamine—belonged to him. He stated that he would not have kept a
needle on the floor of the car and that he did not know it was there. According to
Bungard, he purchased the baggies to store "nuts and bolts . . . and washers," and could
only purchase a package of 200 units.

The jury ultimately convicted Bungard on all four counts. Subsequently, he filed a
motion for a new trial as well as a motion for a downward departure. Bungard also
motioned for acquittal. On May 25, 2018, the district court held a hearing on the pending
motions. The district court denied all of the motions with the exception of the motion for
a downward departure.

Although the district court denied Bungard's motion for a dispositional departure,
it granted him a durational departure and sentenced him to 30 months of incarceration for
the possession of methamphetamine conviction. The district court imposed a sentence of
12 months for possession of drug paraphernalia, 12 months for driving while suspended,
and 6 months for driving without insurance. The district court then ordered all of the
sentences to run concurrently.

Thereafter, Bungard timely appealed.

ANALYSIS

Bungard raises three issues on appeal. First, Bungard contends that the district
court erred when it denied his motion to suppress. Second, Bungard contends that the
State presented insufficient evidence to convict him of possession of methamphetamine
and possession of drug paraphernalia. Third, Bungard contends that the district court
6

erred when it failed to give an instruction regarding nonexclusive possession of the
methamphetamine and drug paraphernalia found in his car.

Denial of Motion to Suppress

Bungard argues that the district court erred in denying his motion to suppress the
evidence because the traffic stop and subsequent inventory search was illegal.
Specifically, Bungard suggests that neither the tint of the windows on his automobile nor
the belief that he was using improper tags were sufficient reasons to support the stop.
Alternatively, Bungard suggests that even if the stop was proper, the inventory search
was illegal.

Our standard of review of a district court's decision on a motion to suppress
involves two elements. We review the district court's factual findings to determine
whether they are supported by substantial competent evidence. However, we review the
district court's ultimate legal conclusion using a de novo standard. In reviewing the
factual findings, we do not reweigh the evidence nor do we assess the credibility of
witnesses. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

As the State correctly points out, Bungard failed to timely object at trial to the
admission of the evidence he had sought to suppress. "When the trial court has denied a
motion to suppress, the moving party must object to the introduction of that evidence at
the time it was offered at trial to preserve the issue for appeal." (Emphasis added.) State
v. Hernandez, 294 Kan. 200, 212, 273 P.3d 774 (2012). Although Bungard's counsel had
indicated prior to trial that he would make a contemporaneous objection at the bench
prior to trial, he failed to do so. It does appear from the record that counsel did attempt to
belatedly object after the State rested its case. Thus, because Bungard did not object at
the time the evidence was offered at trial, we find that he has failed to preserve this issue
for appeal.
7

Regardless, even had Bungard made a contemporaneous objection, we find that
his argument would still fail. Specifically, we find that the window tint violation provided
a valid basis for the traffic stop. Likewise, we find that under the circumstances
presented, the inventory search prior to the deputy releasing the car to be towed was also
appropriate.

While Bungard acknowledges that Deputy Norris was ultimately correct in
suspecting that his window tint violated K.S.A. 2018 Supp. 8-1749a, he argues that
"Deputy Norris' belief before the stop that the tint was too dark was nothing more than a
guess." "A traffic stop is a seizure under the purview of the Fourth Amendment." State v.
Brewer, 49 Kan. App. 2d 102, 108, 305 P.3d 676 (2013). To properly stop a vehicle, a
police officer must have a reasonable suspicion that a law is being violated and that
suspicion must be based upon articulable facts. State v. Kraemer, 52 Kan. App. 2d 686,
691-92, 371 P.3d 954 (2016).

"Whether reasonable suspicion exists is a question of law." State v. Lowery, 308
Kan. 359, 364, 420 P.3d 456 (2018). "The burden to prove the legality of a challenged
search or seizure rests on the State." State v. Ton, 308 Kan. 564, 568, 422 P.3d 678
(2018). An officer's observation of a traffic violation can serve as the basis for reasonable
suspicion to stop a vehicle. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007).

K.S.A. 2018 Supp. 8-1749a concerns sun screening devices, such as window
tinting. It provides in relevant part:

"(a) No motor vehicle required to be registered in this state and which is operated
on the highways of this state shall be equipped with one-way glass or any sun screening
device, as defined in K.S.A. 8-1749b, and amendments thereto, and used in conjunction
with windshields, side wings, side windows or rear windows that do not meet the
following requirements:
. . . .
8

(3) the total light transmission shall not be less than 35% when a sun screening
device is used in conjunction with other existing sun screening devices." K.S.A. 2018
Supp. 8-1749a(a)(3).

Bungard cites no authority in support of his argument that traffic stops "based on
illegal window tint [are] not reasonable because judging the tint's darkness is simply a
guess." Despite Bungard's argument to the contrary, this court has held that an officer's
observations concerning a vehicle's window tint can provide the reasonable suspicion
required for a traffic stop.

In State v. Kirk, 40 Kan. App. 2d 817, 196 P.3d 407 (2008), a criminal defendant
argued that an officer needed some form of specialized training to detain individuals for
window tint violations. Our court disagreed and held that "the officer had reasonable
grounds to stop [the defendant's] vehicle based solely on reasonable suspicion of
violation of the window-tint statute." 40 Kan. App. 2d at 819-20. In fact, several panels
of our court have held that reasonable suspicion of a window tint violation may provide a
basis for a traffic stop. See Brewer, 49 Kan. App. 2d at 109 ("This argument fails because
either [excessive window tint or an altered tag] provided an objectively valid reason for
[the officer] to make the traffic stop."); State v. Llamas, No. 105,832, 2012 WL 1072763,
at *3 (Kan. App. 2012) (unpublished opinion) ("Reasonable suspicion does not require
[the officer] to know that [the driver's] window tint fell below the statutory minimum
transparency. [The officer] merely was required to have a reasonable suspicion that a law
was being violated in order to effectuate the traffic stop."); see also State v. Ojiaka, No.
108,231, 2012 WL 6634440, at *3 (Kan. App. 2012) (unpublished opinion).

Here, Deputy Norris' testimony provided a reasonable and articulable suspicion to
justify a traffic stop for a window tint violation based on his training and experience as a
law enforcement officer. In particular, the record reflects that Deputy Norris testified that
he observed Bungard's vehicle and believed the window tinting to be too dark. Moreover,
9

the deputy testified that his observations were based upon his past experience and field
training to operate a tint meter device. As indicated above, it is undisputed that Bungard's
suspicions were ultimately confirmed. Thus, based on the evidence in the record, we find
that Deputy Norris' suspicions were not "simply a guess" but were reasonable under the
circumstances presented.

Reasonable suspicion does not require absolute knowledge that a crime occurred
or is occurring. State v. Glass, 40 Kan. App. 2d 379, Syl. ¶ 2, 192 P.3d 651 (2008).
Indeed, reasonable suspicion inherently involves some level of assumption based upon
observed articulable facts. See Llamas, 2012 WL 1072763, at *1-2. Accordingly, we find
that there is substantial competent evidence in the record to support the district court's
determination that Deputy Norris articulated a reasonable suspicion of a window tint
violation. As a result, we conclude the district court did not err in finding that the initial
stop was legal.

Bungard also argues that the dispatcher's report that Bungard's tags belonged to a
different vehicle could not serve as a valid basis for the stop. It is undisputed that during
the traffic stop this information was found to be mistaken. Nevertheless, it is not
necessary for us to reach this argument because even if Deputy Norris lacked sufficient
reasonable suspicion based on the mistaken tag violation, the window tint violation
provided an independent and sufficient basis for the stop. See Brewer, 49 Kan. App. 2d at
108-09.

Next, Bungard argues that the inventory search was unreasonable because he
offered to tow his vehicle at his own expense. Specifically, Bungard argues that because
he "not only had a means to have the vehicle towed at his expense, but also asked to have
it towed at his expense, there was no basis for the State to take custody of the vehicle and
then conduct an inventory search." It is undisputed that Bungard offered on several
occasions to have his car towed and that Deputy Norris denied his requests.
10

A warrantless search is per se unreasonable unless it falls within one of the
exceptions to the search warrant requirement recognized in Kansas. See State v.
Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). Those exceptions include:
consent; search incident to lawful arrest; stop and frisk; probable cause with exigent
circumstances; emergency doctrine; inventory searches; plain view; and administrative
searches of closely regulated businesses. 299 Kan. at 239. Accordingly, the inventory
search of a lawfully impounded vehicle is an exception to the warrant requirement. See
State v. Teeter, 249 Kan. 548, Syl. ¶¶ 1, 2, 819 P.2d 651 (1991).

Under Supreme Court precedent "[t]he decisions of this Court point unmistakably
to the conclusion reached by both federal and state courts that inventories pursuant to
standard police procedures are reasonable." South Dakota v. Opperman, 428 U.S. 364,
372, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). An inventory search protects "the owner's
property while in police custody, protecting against claims or disputes over stolen or lost
property, and guarding police from potential danger." State v. Linden, No. 118,252, 2019
WL 986183, at *3 (Kan. App. 2019) (unpublished opinion); see also State v. Branstetter,
40 Kan. App. 2d 1167, 1170, 199 P.3d 1272 (2009). To serve this limited purpose, a law
enforcement officer may not use an inventory search as a "'ruse for general rummaging in
order to discover incriminating evidence.'" Linden, 2019 WL 986183, at *3; see also
Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990).

To perform an inventory search, the police must "first obtain lawful custody of the
vehicle." Linden, 2019 WL 986183, at *3. In the absence of a statute or an ordinance, the
State must prove reasonable grounds for impoundment of a vehicle. These reasonable
grounds are viewed under the totality of the circumstances. Linden, 2019 WL 986183, at
*3. Our Supreme Court articulated a nonexhaustive list of grounds where impoundment
of a vehicle is reasonable:

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"'the necessity for removing (1) an unattended-to car illegally parked or otherwise
illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when
the driver is physically or mentally incapable of deciding upon steps to be taken to deal
with his property, as in the case of the intoxicated, mentally incapacitated or seriously
injured driver; (3) a car that has been stolen or used in the commission of a crime when
its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically
defective as to be a menace to others using the public highway; [or] (6) a car
impoundable pursuant to ordinance or statute which provides therefor as in the case of
forfeiture.'" 2019 WL 986183, at *3 (quoting Teeter, 249 Kan. at 552).

In Linden, a criminal defendant claimed on appeal that an "'arrest does not give the
highway patrol the ability to impound the car and do an inventory search. Neither does
the failure to find liability insurance, without further inquiry, allow for said impoundment
and search.'" 2019 WL 986183, at *3. The State argued that because the defendant's
driver's license was suspended, the driver lacked insurance, and the vehicle's plate was
expired, it was not lawful to operate the vehicle. On appeal, this court explained that the
officer had two bases for impounding the vehicle—statutory authority under K.S.A. 8-
1570(c)(3) and the reasonableness test. 2019 WL 986183, at *4.

The Linden panel noted that K.S.A. 8-1570(c)(3) provides a statutory basis for
impoundment and inventory searches. 2019 WL 986183, at *4. That statute provides that
law enforcement officers are "authorized to remove . . . any vehicle found upon a
highway when . . . the person driving . . . such vehicle is arrested for an alleged offense
for which the officer is required by law to take the person arrested before a judge of the
district court without necessary delay." K.S.A. 8-1570(c)(3). Likewise, the Linden panel
found that it was reasonable under the totality of the circumstances to do so. 2019 WL
986183, at *4. The panel explained that because the driver was arrested for driving on a
suspended license, "there was no one present to remove or lawfully park the vehicle" and
therefore the vehicle was unattended. 2019 WL 986183, at *4.

12

Further, the Linden court found that "an officer is not required to consult a
defendant about the disposition of the vehicle. Whether an impoundment is lawful in a
case is based upon the totality of the circumstances, not whether the defendant was
consulted about the car's disposition." 2019 WL 986183, at *5. The panel added:

"'The first question arising is whether under the Fourth Amendment, a police officer must
give a driver who is competent of making a rational disposition of the vehicle, the
opportunity to make that disposition in order to justify impoundment. The answer to this
question is no. What is required under the Fourth Amendment is that the impoundment be
reasonable under the totality of circumstances. The officer's inquiry of the driver
regarding disposition is but one of the circumstances that is considered in the court's
determination of whether the impoundment is reasonable.'" 2019 WL 986183, at *5
(quoting State v. Shelton, 278 Kan. 287, 293, 93 P.3d 1200 [2004]).

The Linden panel reiterated that the officer's actions were reasonable under the
totality of the circumstances because (1) the defendant was under arrest; (2) the
defendant's license was suspended; (3) the driver lacked insurance; (4) the vehicle's
license plate was expired; and (5) there was no passenger that could lawfully operate the
vehicle. Finally, this court upheld the inventory because the officer performed the
inventory in compliance with Kansas Highway Patrol policy and Kansas statute. 2019
WL 986183, at *5; see K.S.A. 2018 Supp. 8-262(a)(1).

A review of the record in this case reveals that Deputy Norris had the authority to
tow the vehicle. First, the deputy could move Bungard's vehicle under K.S.A. 2018 Supp.
8-1570(c)(3) after he arrested Bungard for driving with a suspended driver's license.
Second, Deputy Norris had reasonable grounds under the totality of the circumstances to
have the car removed from the scene of the traffic stop. Here, Bungard was arrested for
driving on a suspended license and neither he nor the passenger could lawfully remove or
park the vehicle. In fact, because the vehicle was uninsured no person could legally drive
the vehicle. Furthermore, Deputy Norris testified regarding his department's policy for
13

conducting inventory searches. Thus, we conclude that under the totality of the
circumstances, Deputy Norris had reasonable grounds for both having the vehicle towed
from the scene of the traffic stop and to conduct an inventory search prior to having the
vehicle removed. See Linden, 2019 WL 986183, at *5.

In Linden, this court also held a law enforcement officer "is not required to consult
a defendant about the disposition of the vehicle." 2019 WL 986183, at *5. Similarly, our
Supreme Court has found that a law enforcement officer is not required to allow an
arrested driver to determine the disposition of the vehicle. Shelton, 278 Kan. at 293.
Because Deputy Norris' actions were reasonable under the circumstances presented and
he had no obligation to consult with Bungard regarding the disposition of his car after
arrest, we conclude that the inventory search was valid. Therefore, we affirm the district
court's decision not to suppress the evidence relating to the possession of
methamphetamine and possession of drug paraphernalia.

Sufficiency of the Evidence

Bungard also contends that the State failed to present sufficient evidence at trial
upon which a jury could have found him guilty of possession of methamphetamine and
possession of drug paraphernalia. He argues that "[e]ven though [the syringes were]
found in his car, with a passenger present, the State needed to produce more evidence to
tie [Bungard] to the drugs." Citing to State v. Rios, 19 Kan. App. 2d 350, 357-58, 869
P.2d 755 (1994), Bungard suggests that there was simply "an inference that [Bungard]
possessed the drugs because he was closest" to them.

In reviewing the record to determine whether sufficient evidence was presented at
trial, we must view the evidence in a light most favorable to the State. Only if we are
convinced that a rational fact-finder could not have found a defendant guilty beyond a
reasonable doubt should we set aside a jury verdict. Moreover, in reviewing the record,
14

we do not reweigh evidence or make credibility determinations. State v. Chandler, 307
Kan. 657, 668, 414 P.3d 713 (2018).

It is important to recognize that a verdict may be supported by circumstantial
evidence. In order to be sufficient, the evidence need not exclude every other reasonable
conclusion. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). Rather, a conviction
of even the gravest offense can be based entirely on circumstantial evidence. 304 Kan. at
25.

Possession means to have "control over a . . . thing with knowledge of and the
intent to have such control." State v. Boggs, 287 Kan. 298, 312, 197 P.3d 441 (2008).
Possession may be established by exclusive control, joint control with another person, or
constructive control as where the item is kept in a place over which the defendant has
access and a right of control. State v. Beaver, 41 Kan. App. 2d 124, 129, 200 P.3d 490
(2009). Constructive possession may be established by circumstantial evidence. 41 Kan.
App. 2d at 129.

Our court has addressed constructive possession in several cases. In State v.
Fitzpatrick, No. 115,847, 2017 WL 383438, at *3 (Kan. App. 2017) (unpublished
opinion), this court recognized that "[t]o establish a defendant's constructive possession
of drugs, the State must prove more than a 'mere presence or access to the drugs'" but
requires "'other incriminating circumstances.'" See also State v. Sharpnack, No. 113,959,
2017 WL 2001601, at *7 (Kan. App. 2017) (unpublished opinion); State v. Siebold, No.
101,687, 2010 WL 1882148, at *4-8 (Kan. App. 2010) (unpublished opinion). Our
review of the record on appeal in this case reveals that the State presented sufficient
evidence in addition to the mere presence or access to drugs.

Here, viewing the evidence in the light most favorable to the State, we find
evidence establishing that Bungard owned the Charger where the methamphetamine and
15

syringes were found. Two of the syringes—which were of the type commonly used to
ingest methamphetamine—were found in the center console amongst Bungard's other
personal belongings. Bungard admitted that he owned those two syringes and purchased
similar supplies from Walgreens regularly. Although he claimed to use them because of a
diabetic condition, no insulin was found in the car and Bungard testified that he only
bought it as needed. In referring to the syringes, Bungard used the term "shoot up"—a
term commonly associated with illegal drug use—when talking about insulin injections.
Further, Deputy Norris found another syringe of the same type on the floorboard directly
behind the driver's seat in which Bungard was sitting. This syringe was found to contain
methamphetamine and was in plain view.

Consequently, we find that the jury here had a sufficient basis to conclude that
Bungard exerted control over the methamphetamine and drug paraphernalia such that it
was in his constructive possession. See Fitzpatrick, 2017 WL 383438, at *3; Siebold,
2010 WL 1882148, at *8. In addition, we find that there is sufficient evidence in the
record on which the jury could convict Bungard of possession of methamphetamine and
possession of drug paraphernalia beyond a reasonable doubt.

Nonexclusive Possession Instruction

Finally, Bungard contends that although the district court gave the jury a general
possession instruction, it should have also given a nonexclusive possession instruction
because there were two people present in the car in which the methamphetamine and drug
paraphernalia was found. In determining whether a jury instruction should have been
given by the district court, we first determine if the issue has been preserved for appeal.
We next consider the merits of the claim including whether the instruction was legally
and factually appropriate. Then, we assess whether the error requires reversal. State v.
McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

16

Here, it is undisputed that Bungard failed to object at trial. Under K.S.A. 2018
Supp. 22-3414(3), "No party may assign as error the giving or failure to give an
instruction . . . unless the party objects thereto before the jury retires to consider its
verdict . . . unless the instruction or the failure to give an instruction is clearly erroneous."
Under a clear error standard of review, we are only to reverse the district court if we are
firmly convinced that the jury would have reached a different verdict if the instruction
error had not occurred. The party claiming a clear error—in this case Bungard—has the
burden to demonstrate prejudice. McLinn, 307 Kan. at 318.

Instruction 8 given by the district court to the jury at trial stated:

"'Possession' (as used in instructions 7 and 8) means having joint or exclusive
control over an item with knowledge of and the 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."

Although Instruction 8 was appropriate, Bungard argues that the district court
should have also given a nonexclusive possession instruction. Moreover, the State
candidly agrees that an "instruction on nonexclusive possession would have been legally
and factually appropriate" in this case. Rather, the State claims that "failure to give such
instruction was not clear error." The State asserts that it presented enough evidence at
trial that even had a nonexclusive possession instruction been given, the jury would not
have changed its verdict. We agree.

Bungard fails to meet his burden to show that the jury's verdict would have
differed with the inclusion of a nonexclusive possession instruction. As previously
discussed, the State presented sufficient evidence to support a conviction on both the
possession of methamphetamine and possession of drug paraphernalia charges. This
evidence included the fact that (1) Bungard owned the vehicle and was in the driver's
seat; (2) Deputy Norris found syringes in the center console with Bungard's personal
17

belongings; (3) Bungard admitted that he purchased and owned identical syringes; (4)
Bungard referred to using a syringe as "shooting up"; (5) the syringe located directly
behind Bungard in close proximity contained methamphetamine; and (6) the syringe
containing methamphetamine was plainly visible.

During closing arguments, Bungard's attorney presented a theory to the jury that
the methamphetamine belonged to Truitt, based off Truitt's recent conviction for
methamphetamine possession:

"What makes more sense, that a guy ditches a needle because he's on bond for a
drug case and deputies are standing outside the door, or that . . . Bungard had this needle
that he kept somehow magically separated from these other needles in the console and
left it free to roll around the floor of the car while he drove around? So there's absolutely
some reasonable doubt here on whether or not . . . Bungard possessed both the
methamphetamine and drug paraphernalia."

The jury rejected this defense and convicted Bungard.

Although a nonexclusive possession instruction would have been both legally and
factually appropriate in this case, we do not find the failure to give the instruction to be
clearly erroneous based on our review of the record. Because Bungard failed to object at
trial, he must firmly convince us that the jury's verdict would have differed with the
nonexclusive possession instruction. He has not done so. Instead, we find the
circumstantial evidence tending to establish Bungard's guilt to be quite strong.
Accordingly, we do not find that Bungard was prejudiced by the failure to give a
nonexclusive possession instruction.

Affirmed.