State v. Eastman

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NOT DESIGNATED FOR PUBLICATION

No. 116,573

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JESSICA E. EASTMAN,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed March 9, 2018.
Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., PIERRON and LEBEN, JJ.

PER CURIAM: Jessica E. Eastman appeals her conviction for distribution of
methamphetamine. Eastman contends the trial court committed reversible error when it
allowed the State to admit K.S.A. 60-455 evidence in rebuttal without providing the
defendant 10 days' advance notice. Upon our review, we conclude that the advance notice
requirement of K.S.A. 2017 Supp. 60-455(e) does not apply when the prior crimes
evidence is offered at trial in rebuttal. Finding no error, we affirm the conviction.


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FACTUAL AND PROCEDURAL BACKGROUND

In April 2015, Eastman moved into a friend's house in Lawrence and began using
methamphetamine. That same week she met Kevin Grob. According to Eastman, when
Grob learned that she used methamphetamine, he invited her "to get high." Eastman
accepted the invitation and the pair used methamphetamine together. Subsequently,
Eastman claimed Grob supplied her with methamphetamine "quite a few times" during
the next two months.

Grob, while denying that he ever provided Eastman with methamphetamine,
acknowledged that he was a confidential informant for the Lawrence Police Department
while he was acquainted with her. According to Grob, he and Officer Kim Nicholson
entered into a "Cooperating Individual Agreement" in order for Grob to avoid
prosecution for charges of possession of opiates, heroin, and other drug paraphernalia.
The agreement, which Grob signed on March 2, 2015, provided that he would assist the
police department with information and also participate in the controlled purchases of
drugs.

Although Grob failed to procure a controlled drug buy for three months, in early
June he identified Eastman as a potential seller and, thereafter, arranged for a drug buy on
June 8, 2015. According to Grob, he simply called Eastman and arranged for her to sell
him 7 grams of methamphetamine. On June 8, 2015, Eastman arrived at the agreed-upon
location and sold the methamphetamine to an undercover officer accompanying Grob.

Eastman was arrested and charged with four separate crimes, including
distribution of methamphetamine, a severity level 2 felony in violation of K.S.A. 2014
Supp. 21-5705(a)(1). Following a preliminary hearing, three of the charges were
dismissed but Eastman was bound over for arraignment and trial on the charge of
distribution of methamphetamine.
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At trial, Eastman testified and claimed the drug buy was originally Grob's idea.
She further claimed that the methamphetamine she sold to the undercover officer was
provided by Grob and—importantly for this appeal—maintained that she had "never sold
drugs" and "never set up people." Shortly after Eastman's testimony the defense rested
and the trial court excused the jury to hear motions from the parties.

After Eastman's motion for a directed verdict or judgment of acquittal was denied,
the State advised that it intended to present Officer Michael Ramsey as a rebuttal witness.
The State proffered that Officer Ramsey would testify that, while undercover, he met
with Eastman on April 18, 2014, as she attempted to set up a drug buy between Officer
Ramsey and a third party. Although the transaction did not occur because the drug dealer
failed to arrive, Officer Ramsey surreptitiously recorded his incriminating conversation
with Eastman.

The prosecutor sought to admit this recording and Officer Ramsey's testimony,
because "Eastman has gotten up on the stand, has denied ever being involved with drug
sales. We think this is fair rebuttal." Eastman expressed concerns about the content of
Officer Ramsey's recording, so the court ordered a lengthy recess for the parties to review
the recording and make redactions. When the parties reconvened, Eastman objected to
Officer Ramsey's testimony and audio recording arguing, among other reasons, that
K.S.A. 2016 Supp. 60-455(e) required the State to provide "pretrial notice [to the
defense] of its intent to offer evidence." The State replied that such notice was not
required for rebuttal witnesses or evidence.

The trial court agreed. It ruled: "[K.S.A.] 60-455 really does concern cases in chief
of the State. If they intend to introduce this evidence, they have to give notice. This is
rebuttal." The district court then took an hour recess for lunch. When the trial resumed,
Eastman renewed her objections to Officer Ramsey's testimony, which the district court
noted and overruled.
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At the conclusion of trial, the jury found Eastman guilty of distribution of
methamphetamine. The district court sentenced her to 104 months' imprisonment, with 36
months' postrelease supervision.

Eastman timely appealed.

ANALYSIS

Eastman raises only one issue on appeal. She contends the district court
erroneously ruled that Officer Ramsey's prior crimes rebuttal evidence was not subject to
the notice requirement of K.S.A. 2017 Supp. 60-455(e) and, as a result, her conviction
should be reversed.

At the outset, our standard of review provides that the use and extent of rebuttal
evidence rests in the sound discretion of the district court and it will not be disturbed on
appeal absent a finding that the district court abused its discretion. State v. Sitlington, 291
Kan. 458, 464, 241 P.3d 1003 (2010). A district court abuses its discretion if (1) no
reasonable person would take the view adopted by the court, (2) the decision is based on
an error of law, or (3) the decision is based on an error of fact. State v. Marshall, 303
Kan. 438, 445, 362 P.3d 587 (2015). To the extent an appellate court is required to
interpret K.S.A. 60-455(e), our review is unlimited. State v. Collins, 303 Kan. 472, 473-
74, 362 P.3d 1098 (2015). Finally, when the question of whether the trial court complied
with specific statutory requirements for admitting evidence requires interpretation of a
statute, appellate review is also de novo. See State v. Stafford, 296 Kan. 25, 47, 290 P.3d
562 (2012).

The Kansas statute at issue here is K.S.A. 2017 Supp. 60-455(e), which relates to
"[o]ther crimes or civil wrongs." That statute provides:

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"In a criminal action in which the prosecution intends to offer evidence under this
rule, the prosecuting attorney shall disclose the evidence to the defendant, including
statements of witnesses, at least 10 days before the scheduled date of trial or at such later
time as the court may allow for good cause." K.S.A. 2017 Supp. 60-455(e).

Eastman argues the language of K.S.A. 2017 Supp. 60-455(e) is clear, affording
"no exception" for "rebuttal evidence." According to Eastman, rebuttal evidence of her
prior, attempted drug sale constituted K.S.A. 60-455 evidence for which the State was
required to notify her at least 10 days prior to trial. Eastman argues that the State's failure
to provide advance notice of the prior crimes evidence violated the statute and constitutes
reversible error.

On the other hand, the State counters that in State v. Edwards, 299 Kan. 1008,
1016, 327 P.3d 469 (2014), our Supreme Court explicitly provided that the State is
generally "not required to disclose or endorse the names of rebuttal witnesses." The State
acknowledges that, while no case has explicitly addressed the notice requirements of
K.S.A. 2017 Supp. 60-455(e) in the context of rebuttal evidence, such evidence should be
"treated like any other rebuttal, meaning that pretrial disclosure is not required."

Kansas law supports the State's position. In Edwards, the court cited the
longstanding principle that "prosecuting attorneys are not required to disclose or endorse
the names of rebuttal witnesses." 299 Kan. at 1016. The court reasoned: "'Because the
purpose of a rebuttal witness is to refute testimony given in the case in chief, it would be
hard to list rebuttal witnesses in advance, not knowing exactly what detailed testimony
may be elicited during the case in chief.'" 299 Kan. at 1016 (quoting State v. Drach, 268
Kan. 636, 646, 1 P.3d 864 [2000]). Kansas courts have reiterated these same principles—
and, notably, in a variety of circumstances. See Drach, 268 Kan. at 646; State v. Trotter,
245 Kan. 657, 660, 783 P.2d 1271 (1989); State v. Hunter, 241 Kan. 629, 638, 740 P.2d
559 (1987); Talley v. State, 222 Kan. 289, 292, 564 P.2d 504 (1977).
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In Edwards, our Supreme Court held the State was not required to provide
advanced notice of a rebuttal expert witness. 299 Kan. at 1015-16. In Drach, the court
determined the State did not have to notify the defense of a rebuttal witness who testified
to "a common theme [that] caus[ed] problems throughout [the defendant's] marriage."
268 Kan. at 647. And in Trotter, the court similarly held advanced notice was not
required for a rebuttal witness who contradicted the timeline of events presented in the
defense's case-in-chief. 245 Kan. at 660.

Given this caselaw precedent, we are persuaded that the advance notice provision
of K.S.A. 2017 Supp. 60-455(e) does not apply to the admission of prior crimes evidence
at trial in rebuttal. Generally, rebuttal evidence is "intended to contradict facts put into
evidence during the defense case." (Emphasis added.) Sitlington, 291 Kan. at 464. By
definition, the State's rebuttal evidence is not admissible until the defendant presents
evidence in the defense case-in-chief, and then admissibility is determined, in part, upon
whether the rebuttal evidence contradicts the defense evidence.

In contrast to the use of rebuttal evidence at trial, the advance notice provision of
K.S.A. 2017 Supp. 60-455(e) necessarily relates to the State's case-in-chief wherein "the
prosecution intends to offer evidence under this rule." In the present case, had the State
intended to offer prior crimes evidence in its case-in-chief, K.S.A. 2017 Supp. 60-455(e)
would have required pretrial advance notice to the defense.

But here, the State rested its case without offering any prior crimes evidence.
Indeed, at the close of the State's case, Eastman could have rested without presenting any
evidence, and the State would have been precluded from offering any rebuttal evidence.
Under these circumstances, at the close of the State's case where the State did not know
whether Eastman would present any evidence, testify personally, and if so, what she
would testify about, the State was not required to provide advance pretrial notice of its
intent to offer prior crimes rebuttal evidence.
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Eastman counters that the State was on notice that she intended to employ an
entrapment defense. Our review of the record, however, shows that the first suggestion
that Eastman was intending to employ an entrapment defense was when she filed a
proposed jury instruction relating to this defense only 14 days prior to trial. Of course,
this particular filing did not bind Eastman to presenting an entrapment defense at trial.
And in Eastman's opening statement there was only one cursory reference to entrapment
in a lengthy presentation by defense counsel. Moreover, the State's prior crimes evidence
was not necessarily admissible simply because Eastman presented an entrapment defense
in her case-in-chief. Only upon Eastman's explicit testimony denying her involvement in
any prior drug sale activities was the State's prior crimes evidence admissible to
controvert and impeach the defendant's testimony.

Finally, the 10 days' notice provision of K.S.A. 2017 Supp. 60-455(e) is not
ironclad. Rather, it codifies flexibility in the notice requirement by providing that the
State's notice to use prior crimes evidence may occur "at such later time as the court may
allow for good cause." K.S.A. 2017 Supp. 60-455(e). Here, immediately after Eastman's
testimony in the defense case—at the earliest opportunity—the State notified the trial
court and Eastman of its intention to offer K.S.A. 60-455 rebuttal testimony. In allowing
the State to present this testimony, the trial court also afforded Eastman a recess of almost
an hour and a half to review the evidence, suggest redactions to the recording, and draft a
proposed limiting instruction. In this way, the trial court provided Eastman with
additional time to prepare for the admission of the rebuttal testimony.

In conclusion, we hold the advance notice requirement of K.S.A. 2017 Supp. 60-
455(e) does not apply when the prior crimes evidence is offered at trial in rebuttal.
Finding no error in the trial court's evidentiary ruling, we affirm the conviction.

Affirmed.