State v. Evans

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NOT DESIGNATED FOR PUBLICATION

No. 116,149

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CLINTON KEITH EVANS,
Appellant.

MEMORANDUM OPINION

Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed March 30, 2018.
Affirmed in part, vacated in part, and remanded with directions.

Caroline Zuschek, of Kansas Appellate Defender Office, for appellant.

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

Before MCANANY, P.J., GARDNER, J., and TIMOTHY L. DUPREE, District Judge, assigned.

PER CURIAM: Law enforcement officers in Ellis County received a report of a
domestic dispute at the residence of Clinton Keith Evans between Evans and his live-in
girlfriend, Jessica Sain. When officers arrived at the house, Evans—who was naked at the
time—drove his car backwards into a tree and fled to his neighbor's house. Officers later
arrested Evans and, as they spoke with his roommates, noticed the strong smell of
marijuana emanating from his home. After officers obtained a search warrant, they
discovered drug paraphernalia with marijuana and THC residue in the bedroom shared by
Evans and Sain. A jury later found Evans guilty of possession of marijuana and/or THC.
Evans appeals.
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For the reasons stated below, we affirm Evans' conviction, vacate the BIDS fees,
and remand to the district court with instructions to make specific findings pursuant to
State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006).

Factual and Procedural Background

On the morning of January 31, 2015, Claude Ray Palmer called law enforcement
officers in Ellis County and alerted them to a domestic dispute at the residence of Evans
and his live-in girlfriend, Sain. Officer Garrett Brenning responded to this call. As Officer
Brenning approached Evans' home, he encountered both Palmer and Sain standing by
Palmer's vehicle on the side of the road. Sain informed Officer Brenning that she had
attempted to leave the house that morning with her four-year-old son, but "Evans
wouldn't let her go." Sain then called her stepfather, Palmer, to pick her up, but when
Palmer and Sain attempted to leave, Evans "came running out of the house at them,
yelling at them, calling them names, pushing [Palmer], [and] hitting his truck."

Officer Brenning testified that as he listened to Sain and Palmer's story, he
received another report from dispatch that "Evans was leaving the residence. He was
completely naked, he had a knife with him, and that he was leaving the residence in a
white car." Officer Brenning then entered the driveway to Evans' residence and
immediately observed Evans' "vehicle . . . driving backwards . . . really fast, and then it
passed the house, went into what I would call the yard area . . ., hit a tree, and stopped."
According to Officer Brenning, Evans then emerged from his vehicle "completely naked"
and ran to a neighboring residence. Officer Brenning noted it was "pretty chilly" outside
and that there was snow on the ground.

Evans fled to the home of his neighbor and stepmother, Deanna Leiker, who later
testified she believed her stepson "was under the influence of something" that morning.
Officer Brenning arrived at Leiker's residence a short time later to the sound of yelling
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from inside the home. After the officer repeatedly knocked on the door, Leiker let him in.
Inside the home, Officer Brenning observed Evans on the phone and arrested him.
According to Officer Brenning, Evans was "very hyper, excited, delusional. . . . His
pupils were very large." As Officer Brenning put Evans in handcuffs, Evans' comments
caused Officer Brenning to believe Evans "was under the influence of something."

After arresting Evans, Officer Brenning returned to Evans' residence and
interviewed Chasity Farr and Joey Maupin, who rented the basement of Evans' home.
Both Farr and Maupin stated they had never seen Evans act the way he acted that
morning. Officer Brenning testified that when Farr and Maupin opened a door to the
house he "smelled a very strong odor of burnt marijuana coming from the inside." Farr
and Maupin consented to a search of their living quarters in the basement, but "[n]othing
of significance was located in those areas, and they were allowed to leave." Sain did not
consent to a search of the quarters occupied by her and Evans, so Officer Brenning
obtained a search warrant.

Detective Scott Braun of the Ellis County Drug Enforcement Unit assisted Officer
Brenning in the search of the living area occupied by Evans and Sain. In Evans and Sain's
shared bedroom, Detective Braun discovered "black containers which contained
marijuana residue[,] . . . a homemade bong, . . . a marijuana grinder, . . . [and a]
multicolored glass pipe with marijuana residue in it." Detective Braun testified that the
black containers were located on the left side of the bed (later identified as Evans' side)
next to Evans' driver's license, while the pipe and grinder were located on the right side of
the bed (later identified as Sain's side). Detective Braun sent the glass pipe to the Kansas
Bureau of Investigation where it tested positive for THC.

The State charged Evans with possession of marijuana and/or THC—second
offense—a severity level 5 drug felony in violation of K.S.A. 2014 Supp. 21-5706(b)(3)
and (c)(2)(B), and possession of drug paraphernalia, a class A nonperson misdemeanor in
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violation of K.S.A. 2014 Supp. 21-5709(b)(2) and (e)(3). For trial purposes, the district
court consolidated these charges with those relating to Evans' earlier conduct toward both
Sain and Palmer. Evans pled not guilty.

After trial, a jury found Evans guilty of possession of marijuana and/or THC but
acquitted him of possession of drug paraphernalia as well as several other crimes
unrelated to this appeal. The district court sentenced Evans to a prison term of 24 months
with 12 months of postrelease supervision. Evans timely appealed.

Duplicitous Complaint

Evans first contends the State's complaint was duplicitous because it contained
charges for two separate crimes (possession of marijuana and possession of THC) in a
single count. In response, the State first asserts that this issue was not preserved for
appeal because it was not raised below. Evans admits he "did not object to the duplicitous
charging document," but argues that the question of duplicity "presents a purely legal
question, which could potentially be determinative of [his] appeal." Resolution of this
issue is our first order of business.

Generally, issues not raised before the district court cannot be raised on appeal.
State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are, however, several
exceptions to this rule, including: (1) the newly asserted theory involves only a question
of law arising on proved or admitted facts and is finally determinative of the case; (2)
consideration of the theory is necessary to serve the ends of justice or to prevent denial of
fundamental rights; and (3) the district court was right for the wrong reason. State v.
Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Here, neither party disputes that the State's complaint contained charges for
possession of marijuana and possession of THC in the same count. Thus, just as Evans
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argues, the only remaining issue is whether the complaint was duplicitous—a purely legal
question that could result in the reversal of Evans' conviction. Therefore, we may review
this issue for the first time on appeal.

Whether a complaint is duplicitous is a question of law over which appellate
courts exercise unlimited review. State v. Montidoro, No. 108,755, 2014 WL 274460, at
*7 (Kan. App. 2014) (unpublished opinion).

"'A complaint which charges two separate and distinct offenses in a single count
is duplicitous. Duplicity is the joinder of two or more separate and distinct offenses in the
same count, not the charging of a single offense involving a multiplicity of ways and
means of action. Duplicitous charging is bad practice because it confuses the defendant as
to how he or she must prepare a defense, and it confuses the jury.' [Citation omitted.]"
State v. Daniels, 278 Kan. 53, 71-72, 91 P.3d 1147 (2004).

Typically, the remedy for duplicity is not dismissal of the count, but instead to
require the State to elect the charge on which it will rely. 278 Kan. at 72. However, in
cases where the district court never addressed the question of duplicity, appellate courts
consider whether the error was harmless. See State v. Anthony, 242 Kan. 493, Syl. ¶ 1,
749 P.2d 37 (1988). An error is harmless if "the record shows beyond reasonable doubt
that the verdict would not have been different had the court required the State to elect one
charge." 242 Kan. 493, Syl. ¶ 1.

Here, count one of the State's amended complaint charged Evans with possessing
"an hallucinogenic drug, to-wit: Marijuana, as designated in K.S.A. 65-4105(d)(16)
and/or its active ingredient, tetrahydrocannabinol (THC), as designated in K.S.A. 65-
4105(h)(1) . . . in violation of K.S.A. 2014 Supp. 21-5706(b)(3)/(c)(2)(B)." The
instructions presented to the jury, specifically instruction 7, contained similar language.
The State concedes this count and the accompanying jury instruction were duplicitous, so
we need only consider whether the State's error was harmless.
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Evans claims the duplicitous charge of possession of marijuana and/or THC was
not harmless error because it confused the jury. He seeks to distinguish this case from
State v. Anthony, where the Kansas Supreme Court found that the use of duplicitous
charges constituted harmless error. 242 Kan. at 497. There, the court reasoned that the
jury did not see the duplicitous complaint but only the jury instructions and "was
specifically instructed it could not find the defendant guilty of both [crimes]." 242 Kan. at
497. Evans rightly notes such circumstances did not exist here because jury instruction 7
contained the same language that existed in the State's duplicitous complaint, and "the
jury was not instructed that it could only convict . . . Evans of one of the two possession
offenses."

Evans also encourages this court to follow the reasoning of Judge Green's dissent
in State v. Delarosa, 48 Kan. App. 2d 253, 288 P.3d 858 (2012). In that case, a panel of
this court declined to analyze sua sponte whether a complaint charging the defendant of
possession of "marijuana and/or its primary active ingredient THC," was duplicitous. 48
Kan. App. 2d at 257. In his dissent, Judge Green stated, first, that the complaint was
duplicitous and, next, that this error was not harmless. 48 Kan. App. 2d at 261-62 (Green,
J., dissenting). On this second point, Judge Green drew a similar distinction between that
case and Anthony, pointing out that "the jury here saw the duplicitous charge because it
was contained in the jury verdict form." Delarosa, 48 Kan. App. 2d at 262 (Green, J.,
dissenting). Judge Green found the use of "and/or" especially problematic and "add[ed] a
great deal of uncertainty to [the] case," noting:

"[T]he trial court did not instruct the jury to render a verdict indicating which criminal
offense the State had proved. Thus, the use of 'and/or' in the [complaint] and jury verdict
form is confusing when considered with the jury instructions, particularly the trial court's
failure to give an instruction for THC." 48 Kan. App. 2d at 263 (Green, J., dissenting).

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Judge Green concluded that use of the duplicitous complaint did not constitute
harmless error and that the case should have been remanded for a new trial. 48 Kan. App.
2d at 263 (Green, J., dissenting).

Evans adopts Judge Green's logic and asserts that the use of "and/or" in the State's
complaint was not a harmless error. He argues, "[A]s in Delarosa, the jury was not
instructed that it could only convict . . . Evans of one of the two possession offenses . . .,
thus making it impossible to determine the offense of which [he] was convicted, and
necessitating a new trial."

The State rebuts this argument by stating, "Evans was not prejudiced based on the
evidence in this case and the unquestionable fact that THC is the active ingredient in
marijuana." To this end, the State emphasizes the testimony of Detective Braun and
Alyssa Weeks (a KBI lab technician), who both testified that THC is an active ingredient
in marijuana, an assertion Evans did not contest. Because marijuana residue was found in
the black containers in Evans' room, and because the glass pipe tested positive for THC,
the State argues "[n]o reasonable jury could have convicted him of possessing one [drug],
but not the other." In other words, based on the evidence presented at trial, the jury would
not have reached a different verdict had it been instructed that it could find Evans guilty
of either possession of marijuana or possession of THC, but not both.

In the context of this case, the State's argument is a reasonable one. As already
noted, the State presented unrefuted testimony that THC is an active ingredient in
marijuana. The jury also heard evidence that Evans' home smelled strongly of marijuana,
that Farr and Maupin's portion of the home contained no contraband, and that officers
discovered both a glass pipe, which later tested positive for THC, and containers
containing marijuana residue in Evans and Sain's shared bedroom. Here, the jury had
ample evidence to convict Evans of possession of marijuana or possession of THC. To be
sure, the use of "and/or" by the State in its complaint and in the jury instruction was not
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good practice, but this error had no impact on the verdict rendered by the jury. Further,
the State's error had no impact on the sentencing of Evans. Thus, the erroneous use of a
duplicitous complaint by the State was harmless.

The Identical Offense Doctrine

Evans next proposes the identical offense doctrine should apply, thereby reducing
the severity of his sentence. He reasons "since the offenses of possessing marijuana and
THC were identical under the facts of [t]his case, and since a sentence for possessing
THC would have resulted in a lesser sentence . . ., he should have been sentenced for
misdemeanor THC possession, rather than felony marijuana possession."

Again, Evans did not raise this issue below. Nonetheless, K.S.A. 2017 Supp. 21-
6820(e)(3) allows appellate courts to determine if "the sentencing court erred in ranking
the crime severity level of the current crime." See State v. Snellings, 294 Kan. 149, 151,
273 P.3d 739 (2012).

The basic principle of the identical offense doctrine is that, "'[w]here two criminal
offenses have identical elements but are classified differently for purposes of imposing a
penalty, a defendant convicted of either crime may be sentenced only under the lesser
penalty provision.'" 294 Kan. at 151 (quoting State v. Cooper, 285 Kan. 964, 966-67, 179
P.3d 439 [2008]). The Kansas Supreme Court has found there are three circumstances in
which offenses may have identical provisions: (1) one offense is a lesser included offense
of the other; (2) some provisions in two statutes overlap, the overlapping provisions apply
to the charged crime, and the overlapping provisions are identical except for the penalty
provisions; and (3) all provisions in two statutes are identical except for the penalty
provisions. Snellings, 294 Kan. at 152. The identical offense doctrine applies to the
second and third of these circumstances. State v. Campbell, 279 Kan. 1, 14-15, 106 P.3d
1129 (2005).
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Evans does not specify whether he believes the second or third circumstance
applies here, though the State concedes that the elements for possession of marijuana and
possession of THC are identical when applied to the facts of this case. Rather than
focusing on the elements of the two crimes, the State contends the identical offense
doctrine does not apply because the penalty provisions for possession of marijuana and
possession of THC were the same at the time Evans committed the crime.

Resolution of this matter requires us to interpret K.S.A. 2014 Supp. 21-5706 as
written on January 31, 2015. See State v. Kurtz, 51 Kan. App. 2d 50, 55, 340 P.3d 509
(2014) (citing State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 [2004]) (generally,
statutes in effect on date defendant committed crimes govern penalties assessed against
defendant). The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. State v. Jordan, 303 Kan. 1017,
1019, 370 P.3d 417 (2016). Appellate courts must first attempt to ascertain legislative
intent through the statutory language enacted, giving common words their ordinary
meanings. State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). When a statute is
plain and unambiguous, this court should not speculate about the legislative intent behind
that clear language and should refrain from reading something into the statute not readily
found in its words. 303 Kan. at 813.

In relevant part K.S.A. 2014 Supp. 21-5706 provides:

"(b) It shall be unlawful for any person to possess any of the following controlled
substances or controlled substance analogs thereof:
. . . .
(3) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105,
subsection (g) of K.S.A. 65-4107 or subsection (g) of K.S.A. 65-4109. . .;
. . . .
(7) any substance designated in subsection (h) of K.S.A. 65-4105."
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K.S.A. 2014 Supp. 65-4105(d)(16)—denoting marijuana—corresponds to
subsection (b)(3) above, while K.S.A. 2014 Supp. 65-4105(h)(1)—denoting THC—
corresponds to subsection (b)(7).

K.S.A. 2014 Supp. 21-5706(c) continues:

"(2)(A) [V]iolation of subsection (b) is a class A nonperson misdemeanor, except
as provided in subsection (c)(2)(B); and
(B) violation of subsection (b)(1) through (b)(5) or (b)(7) is a drug severity level
5 felony if that person has a prior conviction under such subsection, under K.S.A. 65-
4162, prior to its repeal, under a substantially similar offense from another jurisdiction, or
under any city ordinance or county resolution for a substantially similar offense if the
substance involved was 3, 4-methylenedioxymethamphetamine (MDMA), marijuana as
designated in subsection (d) of K.S.A. 65-4105 . . . or any substance designated in
subsection (h) of K.S.A. 65-4105." (Emphasis added.)

Evans acknowledges that the penalties described in subsection (c) "were the same
generally," but argues that "different results occur when applied to this case because [he]
had a prior marijuana-possession conviction, but no prior THC-possession conviction."
Focusing on the portion of K.S.A. 2014 Supp. 21-5706(c)(2)(B) emphasized above,
Evans argues that the word "'such'" "limited the enhancement provisions to include only
prior convictions for the same subsection." That is, the crime's severity level could only
be elevated if the defendant had a prior conviction for the exact same crime with the
exact same drug. Evans concludes that because "a sentence for possessing THC would
have resulted in a lesser sentence," the identical offense doctrine applies and his sentence
for felony possession should be vacated.

The State responds that "the plain language of [K.S.A. 2014 Supp. 21-
5706(c)(2)(B)] does . . . not require a conviction for an identical controlled substance for
the enhancement to apply." This interpretation is correct.
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As Evans notes in his brief, the key phrase from K.S.A. 2014 Supp. 21-
5706(c)(2)(B) is "violation of subsection (b)(1) through (b)(5) or (b)(7) is a drug severity
level 5 felony if that person has a prior conviction under such subsection." However,
Evans' interpretation of this provision is far too narrow. Nothing in the language of
K.S.A. 2014 Supp. 21-5706(c)(2)(B) suggests that a sentence could be enhanced only if
the defendant's current and prior convictions were for possession of the exact same drug.
A more reasonable interpretation can be reached with the aid of Black's Law Dictionary
1661 (10th ed. 2014), which defines "such" as: "1. Of this or that kind . . . 2. That or
those; having just been mentioned." In the context of K.S.A. 2014 Supp. 21-
5706(c)(2)(B), it is clear the term "such" refers not to prior convictions for possession of
the same drug, but instead to the subsections just mentioned: "(b)(1) through (b)(5) or
(b)(7)." In other words, under K.S.A. 2014 Supp. 21-5706(c)(2)(B), the severity level of a
defendant's crime could be enhanced if he or she had a prior conviction for possession of
any drug referred to in K.S.A. 2014 Supp. 21-5706(b)(1) through (b)(5) or (b)(7).

The practical effect of the above interpretation is that the identical offense doctrine
is inapplicable to this case. Because Evans already had a prior conviction for possession
of marijuana, a subsequent conviction for possession of marijuana or possession of THC
necessarily enhanced the subsequent conviction from a class A misdemeanor to a severity
level 5 felony. That is, under K.S.A. 2014 Supp. 21-5706(c), the penalty provisions for
possession of marijuana and possession of THC were the same. Thus, the identical
offense doctrine does not apply.

Sufficiency of the Evidence

Evans next contends there was insufficient evidence to convict him of possession
of marijuana and/or THC. Specifically, Evans claims the State failed to prove beyond a
reasonable doubt that he jointly or exclusively possessed the marijuana and THC found in
his bedroom.
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When a criminal defendant challenges the sufficiency of evidence, appellate courts
review all evidence in a light most favorable to the State. This court will uphold a
conviction if, based on the evidence presented at trial, it is convinced a rational fact-
finder could have found the defendant guilty beyond a reasonable doubt. State v. Rosa,
304 Kan. 429, 432-33, 371 P.3d 915 (2016). When considering sufficiency, this court
does not reweigh the evidence presented at trial or assess the credibility of witnesses.
State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016).

For the charges of possession of drugs or drug paraphernalia, "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. 2014 Supp. 21-5701(q). This definition
requires that the defendant know of the drugs and have some intent to control or right of
control of the drugs. State v. Keel, 302 Kan. 560, 567, 357 P.3d 251 (2015); State v. Judd,
No. 112,606, 2016 WL 2942294, at *2 (Kan. App. 2016) (unpublished opinion).

Kansas courts have recognized that the presence of drugs in the common area of a
residence occupied by multiple individuals is itself insufficient to convict an occupant of
unlawful possession. Keel, 302 Kan. at 567-68; State v. Cruz, 15 Kan. App. 2d 476, 489,
809 P.2d 1233 (1991). To prove possession, the State must provide additional evidence
that links a defendant to the drugs or paraphernalia. Kansas courts have identified several
circumstantial and direct indicia of knowledge and control that could link a defendant to
the drugs in question, including: (1) the defendant's past use or sale of drugs; (2) the
defendant's proximity to the contraband upon which the charges are based; (3) the
location of the contraband in plain sight; and (4) the defendant's incriminating statements
or suspicious behavior relating to the contraband. Keel, 302 Kan. at 567-68.

Evans draws strong comparisons between this case and Judd, in which a panel of
this court reviewed evidence of drug contraband found in a living area occupied by
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several residents and in a bedroom shared by the defendant and his girlfriend. 2016 WL
2942294, at *1-2. Citing Judd, Evans argues there was insufficient evidence to convict
him of possession of marijuana/THC because: (1) "Sain had as much access to the
contraband as . . . Evans . . . in their shared bedroom and the bulk of the contraband was
located on her nightstand"; (2) "Evans had not been sleeping in the area where the
contraband was discovered . . . but Sain had been"; (3) the "evidence indicated it was
more likely the marijuana residue belonged to Sain or one of . . . Evans' roommates"; and
(4) "the State failed to introduce evidence that the pipe and residue belonged to . . . Evans
at the time of the search."

Although Evans' factual assertions are correct—to an extent—his reliance on Judd
is completely misplaced and indeed at times appears designed to intentionally mislead
this court. For instance, Evans claims the Judd panel reversed the defendant's conviction
for possession of methamphetamine because "other individuals had the same amount of
access to the common area . . .; someone else had actually been living in the area where
the contraband was found . . .; and . . . the State's evidence failed to . . . [attribute] the
methamphetamine to the defendant." As the State notes in its brief, statements such as the
above ignore the nuances of the Judd decision.

In Judd, law enforcement officers smelled marijuana as they approached the front
door of a mobile home. Through the open front door, the officers observed a glass pipe
that they suspected was drug paraphernalia. When the officers later searched the house,
they discovered a digital scale and glass pipe in the living room, a homemade smoking
device in the kitchen, and a grinder in the closet of the bedroom occupied by Judd and his
girlfriend. The State charged Judd with possession of the contraband found in the living
room, kitchen, and his bedroom. Relying on the indicia described above, this court
reversed Judd's conviction relating to the contraband found in the living room and
kitchen, noting that Judd's roommates "had access to the common areas of the mobile
home to the same extent [he] did." 2016 WL 2942294, at *3. However, this court found
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there was sufficient evidence to support Judd's conviction relating to the grinder
discovered in the bedroom occupied by him and his girlfriend. The court explained:

"The grinder and the marijuana it contained offer a materially different
circumstance than do the contraband in the common areas. Officers found the grinder in a
closet in a bedroom Judd and his girlfriend occupied to the exclusion of other residents of
the mobile home. That fact was undisputed at trial. . . . The officers appear to have
readily found the grinder, supporting the inference that a person simply opening the
closet would see it.
"Accordingly, a factfinder could fairly conclude Judd had knowledge of the
grinder and at least common or joint possession of it with his girlfriend. . . . Who owned
the grinder is irrelevant. The crime requires possession of proscribed items. Simply put, a
person does not necessarily own everything he or she possesses . . . . The evidence . . .
establishes a sufficient, if thin, basis for upholding Judd's conviction for possession of the
marijuana found in the grinder." 2016 WL 2942294, at *4.

Contrary to what Evans argues, Judd actually provides the framework for
upholding his conviction here. The jury heard testimony from Officer Brenning that he
"smelled a very strong odor of burnt marijuana coming from . . . inside" Evans' home.
The portion of the home occupied by Farr and Maupin did not contain drug contraband,
nor did the common areas of the home. However, in the bedroom shared by Evans and
Sain, officers discovered "black containers" with marijuana residue in them on Evans'
side of the bed next to his driver's license and "a homemade bong," "a marijuana grinder,"
and a "multicolored glass pipe" (which later tested positive for THC) on Sain's bedside
table. Furthermore, Maupin testified that he gave the glass pipe to Evans "as a gift."

Considering the evidence here, a rational fact-finder could have found Evans
guilty of possession of marijuana/THC beyond a reasonable doubt.



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Alternative Means

Leaving no stone unturned, Evans argues, "If this Court disagrees with [his]
above-asserted premise that possession of marijuana and possession of THC constitute
distinct crimes (Issue I), it should consider whether they are alternate means of
committing a single crime." Because the State concedes that its complaint was
duplicitous, i.e., contained two distinct crimes in one charge, this panel does not need to
delve into an alternative means analysis here.

Jury Instruction

Evans next claims the district court erred "by not giving the jury a non-exclusive
possession instruction" and that his conviction should be reversed as a result. When
reviewing challenges to a district court's jury instruction, Kansas courts follow a
multistep analysis:

"'(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless . . . . [Citation omitted.]'"
State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).

Reviewability concerns this court's appellate jurisdiction and whether the
defendant objected to the challenged jury instruction at trial. See State v. Simmons, 295
Kan. 171, 175, 283 P.3d 212 (2012). In his brief, Evans does not contest this court's
jurisdiction and readily admits he did not request a nonexclusive possession instruction
below. When a party fails to object to a jury instruction at trial but challenges that
16

instruction, or the lack thereof, on appeal, this court will review the district court's
conduct for clear error. K.S.A. 2017 Supp. 22-3414(3). Evans, then, must "'firmly
convince [this] court that the giving of [a different] instruction would have made a
difference in the verdict.' [Citation omitted.]" State v. Cooper, 303 Kan. 764, 771, 366
P.3d 232 (2016).

Step two of this analysis considers the legal and factual appropriateness of a
nonexclusive possession instruction, "employing an unlimited review of the entire
record." State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). The State
concedes a nonexclusive possession instruction was both legally and factually appropriate
in this case.

At trial, the district court provided the following instruction to the jury regarding
possession of marijuana and/or THC:

"The defendant is charged with unlawfully possessing marijuana and/or its active
ingredient, tetrahydrocannabinol (THC). The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant possessed marijuana and/or its active ingredient, [THC].
"2. This act occurred on or about the 31st day of January, 2015, in Ellis County,
Kansas.
"'Possession' 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."

This instruction follows verbatim the language for possession of drugs or drug
paraphernalia found in the Pattern Instructions Kansas (Criminal). See PIK Crim. 4th
57.040 (2016 Supp.). And, the Kansas Supreme Court "strongly recommend[s] the use of
PIK instructions, which knowledgeable committees develop to bring accuracy, clarity,
and uniformity to [jury] instructions." State v. Barber, 302 Kan. 367, 377-78, 353 P.3d
17

1108 (2015). However, the most recent PIK does not include an instruction for
nonexclusive possession, even though the indicia remain a part of governing law in drug
contraband cases. See Keel, 302 Kan. at 567-68; Judd, 2016 WL 2942294, at *5-6. A
nonexclusive possession instruction does exist in PIK Crim. 3d 67.13-D (2009 Supp.).
That instruction reads:

"Possession of a controlled substance requires that the defendant have control
over the substance with knowledge of and the intent to have such control. To possess a
controlled substance, the defendant must have knowledge of the presence of the
controlled substance with the intent to exercise control over it. Control means to exercise
a restraining or directing influence over the controlled substance.
"(Possession may be immediate and exclusive, jointly held with another, or
constructive.) (Joint possession occurs when two or more persons, who have the power or
control and intent to manage property, exercise the same jointly.) (Constructive
possession is knowingly keeping a controlled substance in a place to which the defendant
has some measure of access and right of control.)
[When a defendant is in nonexclusive possession of (the premises upon) (an
automobile in) which a controlled substance is found, it cannot be inferred that the
defendant knowingly possessed the controlled substance unless there are other
circumstances linking the defendant to the controlled substance. You may consider the
following factors in determining whether the defendant knowingly possessed the
controlled substance, if you find they are supported by the evidence:
"1. whether the defendant previously participated in the sale of a controlled
substance;
"2. whether the defendant used controlled substances;
"3. whether the defendant was near the area where the controlled substance was
found;
"4. whether the controlled substance was found in plain view;
"5. whether the defendant made any incriminating statements;
"6. whether the defendant's behavior was suspicious; and
"7. whether the defendant's belongings were near the controlled substance.]" PIK
Crim. 3d 67.13-D.

18

Addressing this same issue, in Judd the court determined that the above instruction
was both legally and factually appropriate. 2016 WL 2942294, at *5-6. The court noted
that, in a case where more than one person had access to the drug contraband, an
instruction that only followed PIK Crim. 4th 57.040 "fail[ed] to explain in clear terms
that Kansas law requires more than the contraband be in a common area of a place to
which the defendant and others have access to satisfy the legal requirements for
possession." 2016 WL 2942294, at *6.

Considering that this case is nearly identical to Judd, a nonexclusive possession
instruction was warranted and should have been given to the jury. Drug contraband was
found in a room occupied by both Evans and Sain and on both sides of their shared bed.
As given, the district court's jury instructions did not help the jurors understand the
concept of possession.

Despite the above oversight, the district court did not commit clear error when it
failed to include a nonexclusive possession instruction. As already noted, clear error
exists only where this court is "firmly convince[d] . . . that the giving of [a different]
instruction would have made a difference in the verdict." Cooper, 303 Kan. at 771.

Evans again relies heavily on Judd, arguing that the jury "had no way of knowing
that it could not infer that he knowingly possessed drugs based solely upon the discovery
of those items in the room he shared with [Sain]." He suggests that the lack of a
nonexclusive possession instruction explains the apparent inconsistency in the jury's
determination that he possessed marijuana/THC but did not possess the paraphernalia that
contained these drugs.

Once again, Evans' reliance on Judd is misplaced. There, the panel similarly
determined the district court erred when it failed to provide a nonexclusive possession of
marijuana instruction to the jury. 2016 WL 2942294, at *6. The panel found this
19

oversight constituted clear error regarding the drug contraband discovered in the common
area of Judd's home, but determined there was no clear error relating to the drugs found
in the bedroom shared by Judd and his girlfriend. 2016 WL 2942294, at *6-7. It reasoned:

"The circumstantial evidence pointing toward Judd's possession of the grinder (and the
marijuana), perhaps jointly with his girlfriend, is somewhat stronger. While an instruction
on the indicia of possession almost certainly would have aided the jurors in their
consideration of [the charge for possession of marijuana], we are not firmly persuaded the
outcome would have been different. It would have been a better informed outcome but
not necessarily a different one. . . . [W]e decline to reverse the conviction for possession
of marijuana on this point." 2016 WL 2942294, at *7.

We agree. The rationale employed by the Judd panel should be applied here. As in
Judd, the evidence presented to the jury here suggested that Evans possessed the
marijuana/THC at least jointly with Sain in their shared bedroom. Officers discovered
paraphernalia containing drug residue on both sides of Evans and Sain's bed, so even
without a nonexclusive possession instruction a jury could infer that Evans possessed the
drugs found in his room. Certainly, a nonexclusive possession instruction would have
provided clarity to the jury's findings, but Evans provides no real explanation of how
such an instruction would have influenced the outcome of this case. Because there was no
clear error here, Evans' conviction for possession of marijuana will stand.

Prosecutorial Misconduct—Comment on Witnesses' Credibility

Evans next contends the State prosecutor "reversibly erred" during closing
arguments. Specifically, Evans argues the prosecutor "improperly commented on the
credibility of the witnesses and [his] guilt" and "misstat[ed] the law of possession." Once
again, Evans did not object to the prosecutor's statements during his trial. Nevertheless,
out of an abundance of caution, and out of respect to the seriousness of a criminal
conviction, this court will review all comments made during closing arguments that are
20

not evidence, even when a contemporaneous objection was not made at the trial level.
See State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012).

When reviewing a question of prosecutorial misconduct, Kansas courts engage in
a two-step analysis, which can be described as "error and prejudice." State v. Sherman,
305 Kan. 88, 109, 378 P.3d 1060 (2016). In the first step of this analysis

"[t]o determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduce the State's case and attempt to obtain a conviction in a manner
that does not offend the defendant's constitutional right to a fair trial." 305 Kan. at 109.

If the appellate court finds error, it must move to the second step and "determine
whether the error prejudiced the defendant's due process rights to a fair trial," using the
traditional constitutional harmless error inquiry. 305 Kan. at 109. An error is harmless if
the State can demonstrate "'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., where there
is no reasonable possibility that the error contributed to the verdict.'" 305 Kan. at 109.

As a general rule, prosecutors are forbidden from offering a personal opinion that
a defendant's testimony is untruthful and are similarly prohibited from giving a personal
opinion regarding the ultimate guilt or innocence of the defendant. State v. Brown, 300
Kan. 542, 560, 331 P.3d 781 (2014); State v. Peppers, 294 Kan. 377, 399, 276 P.3d 148
(2012). These statements are disallowed because they "are a form of unsworn, unchecked
testimony, not commentary on the evidence of the case." 294 Kan. at 399. But
prosecutors are permitted to emphasize inconsistencies in a defendant's statements and
argue the evidence reflects poorly on a defendant's credibility. Brown, 300 Kan. at 560.
Prosecutors are also allowed to argue that the evidence presented proves the defendant's
guilt, so long as they add directional language to the statement, such as "the evidence
21

shows the defendant's guilt." Peppers, 294 Kan. at 399-400. "The comments are
considered in the context in which they were made, not in isolation." Brown, 300 Kan. at
560.

Evans takes issue with the following statement made by the prosecutor during the
rebuttal portion of the State's closing arguments:

"[Evans] testifies about the knowledge of the marijuana. He testified as to the
knowledge. Well, now I think this was more a gift, maybe it was a gift to both of us by
Joey Maupin. Joey Maupin testified he gave it to Clinton Evans.
"He knew it was there. He knew it's illegal. He knows it's in the bedroom. And
the marijuana container is on his side of the bed right next to his driver's license, they are
not on her nightstand. Of course he knows. And it's joint or exclusive control, joint or
exclusive control. He knew it was there in his house in his bedroom and that's possession.
"All five of the witnesses, starting with Claude Ray Palmer, testified the
defendant was out of his mind. He was on something. Jessica Sain, I didn't know, he may
have even had a nervous breakdown. He was totally out of it on something.
. . . .
"Who possessed the marijuana and the hallucinogenic? Who stayed up all night
smoking it? Who was hallucinating that morning when he was interacting with the
people? And that's the only way you can reconcile what you heard on those 9-1-1 calls
with what he tried to testify to here today. The only way you can put those together is
obviously he was hallucinating.
. . . .
"The defendant is guilty of all six violations based on the evidence that you
heard.
"It comes down to the credibility. Are you going to believe the five witnesses
including his mother who said he was on something? Or the defendant? That's what it
comes down to. The five are the believable ones, and the defendant is guilty of all six
violations.
"Thank you." (Emphasis added.)

22

Evans claims the above statement constituted prosecutorial error because "it told
the jury the prosecutor's opinion on the witnesses' credibility and on the ultimate issue of
[his] guilt." However, in his effort to persuade this panel that the prosecutor's closing
statements were erroneous, Evans has cherry-picked small quotes to make the
prosecutor's comments appear more egregious than they really were. The record clearly
shows the prosecutor did not say, "[t]he defendant is guilty of all six violations," as Evans
would have this panel believe, but instead stated: "The defendant is guilty of all six
violations based on the evidence that you heard." (Emphasis added.) In context, it is
evident the prosecutor's statement was merely directional and in no way improper.

Context similarly undermines Evans' claim that the prosecutor made
impermissible statements about witness credibility. The prosecutor did not tell the jury
"the State's witnesses were truthful and that . . . Evans was not." Rather, the prosecutor
emphasized the inconsistencies between Evans' testimony and the testimony of five other
witnesses who saw him on the morning of January 31, 2015, and suggested that these
discrepancies made the five witnesses more believable. Because the prosecutor did not
err, we will not consider whether Evans suffered prejudice.

Prosecutorial Misconduct—Statement on the Law for Possession of Marijuana/THC

As one would suspect, a prosecutor may not misstate the law in closing arguments.
State v. Tahah, 302 Kan. 783, 791, 358 P.3d 819 (2015). Evans alleges the prosecutor
erroneously stated the law in the following instances:

"Instruction No. 7, possession of marijuana. This includes either marijuana, or its
active ingredient tetrahydrocannabinol, as was testified to by the KBI Agent Alyssa
[Weeks]. 22-A, the glass pipe, tested positive for THC, tetrahydrocannabinol, which she
testified was the active ingredient. It is the part of the marijuana that [affects] the mind,
causes the hallucination. That's why it's a hallucinogen.
23

"You have her lab report in 22-B showing you that it's THC,
tetrahydrocannabinol.
"You also have the testimony of Scott Braun that in the bong, No. 20, inside No.
21, you can still see stems and seeds of marijuana; inside 23-A and 23-B, marijuana
residue which Scott Braun testified to; inside of the grinder, which is 21-C, used to grind
a bud down to usable marijuana.
"So you had testimony from Scott Braun, has over 20 years experience with
marijuana detection, drug detection in Ellis County, that this was marijuana. You also
have the KBI lab report telling you, yes, we tested the pipe, and it does contain THC,
tetrahydrocannabinol, the active ingredient.
"Possessed, the bottom paragraph, possession means having joint or exclusive
control. We have a divergence of testimony here. Jessica Sain said, I didn't smoke it.
That's not mine. Yes, it's on a nightstand in our bedroom; yes, it's even on the side of the
bed I sleep on. Ain't my stuff. I left, it wasn't there. When I came back, it's there.
"Defendant is saying oh, it's her stuff, but, you know, I know about it, and I know
she's using, and golly gee, I would like to get her to quit using.
"Joint or exclusive control. By his own testimony, he established joint control
over those items. Knowing about them, knowing they are there, knowing about the
marijuana. In his bedroom, in his house. And you have heard on both tapes how much he
relishes the fact that he lords over everyone there, it's his house. Well, in his house, in his
bedroom, is the marijuana.
. . . .
"But he testifies about the knowledge of the marijuana. He testified as to the
knowledge. Well, now I think this was more a gift, maybe it was a gift to both of us by
Joey Maupin. Joey Maupin testified he gave it to Clinton Evans.
"He knew it was there. He knew it's illegal. He knows it's in the bedroom. And the
marijuana container is on his side of the bed right next to his driver's license, they are
not on her nightstand. Of course he knows. And it's joint or exclusive control, joint or
exclusive control. He knew it was there in his house in his bedroom and that's
possession." (Emphases added.)

Evans argues the above comments were a misstatement of the law for possession
of marijuana/THC and again compares this case to Judd, where, during closing
24

arguments, the prosecutor repeatedly emphasized that the drug contraband was found
inside Judd's home. These statements by the prosecutor, this court found, implied to the
jury that Judd was guilty of possession of marijuana simply because the marijuana was
found inside his house—a significant misstatement of the law. The Judd panel concluded
the prosecutor's statements were not just erroneous, but also "gross and flagrant," and
reversed Judd's conviction for possession of marijuana. 2016 WL 2942294, at *8-10.

Evans stretches mightily to analogize this case to Judd. He argues, for instance,
that "the prosecutor repeatedly discussed . . . Evans' ownership of the house as a reason to
find [him] guilty of possession of marijuana." And that, "[a]s in Judd, the prosecutor
improperly indicated to the jury that because . . . Evans owned the home in which the
residue was found, he could be liable for possessing the residue merely because it could
be inferred that . . . the residue was there." Evans also takes issue with what he considers
the prosecutor's misstatement of the law for joint or exclusive possession, stating:
"[S]imply because . . . Evans knew the marijuana residue was in his house or even in his
bedroom does not prove that he had joint or exclusive control over it."

These arguments do not stand up to the State's counterpoint, which claims that
Evans is focusing on only one aspect of the law for possession. K.S.A. 2014 Supp. 21-
5701(q) defines "possession" 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." (Emphasis added.)
While Evans' argument focuses on the first half of K.S.A. 2014 Supp. 21-5701(q), the
State reasons that the prosecutor, in his closing arguments, was referring to the latter
portion of the statute. In other words, "that Evans knowingly kept the contraband in a
place where he had some manner of access and right of control."

The State's position is more logical, especially when considering the context of the
prosecutor's statements. Contrary to what Evans argues, the prosecutor did not imply that
25

Evans was guilty of possession of marijuana/THC because officers found the drugs in his
house. Instead, the prosecutor emphasized to the jury that law enforcement discovered the
drugs in Evans' bedroom, on either side of his bed, and also noted that Evans himself
testified he knew the drugs were there. These statements contrast with those made by the
prosecutor in Judd, whose closing arguments implied Judd could be found liable simply
because drugs were found inside his house. The prosecutor's statements here were
consistent with Kansas law. Evans could be found liable for possession of the marijuana
discovered in his shared bedroom, and thus the prosecutor committed no error.

Cumulative Error

Evans also argues that the cumulative effect of the errors alleged above "has
deprived [him] of a fair trial." Appellate courts can weigh the collective impact of trial
errors and may grant relief if the overall result of the imperfections deprives the
defendant of a fair hearing, even when the errors considered individually are harmless.
State v. Smith-Parker, 301 Kan. 132, 167-68, 340 P.3d 485 (2014). When determining the
cumulative effect of trial errors, appellate courts examine the errors as they arose; the
nature and number of errors and their relationship, if any; and the overall strength of the
evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). "The test is whether
the totality of the circumstances substantially prejudiced the defendant and denied him or
her a fair trial. No prejudicial error may be found under the cumulative error doctrine if
the evidence against the defendant is overwhelming." State v. Hart, 297 Kan. 494, 513-
14, 301 P.3d 1279 (2013).

There are only two errors this panel can consider for a cumulative error analysis:
(1) the State's duplicitous complaint and (2) the district court's failure to provide a
nonexclusive possession instruction to the jury. The duplicitous complaint was harmless,
and the failure to provide a nonexclusive possession instruction would not have made a
26

difference in the verdict. Furthermore, the overall strength of the evidence shows Evans
possessed marijuana/THC. Therefore, there is no cumulative error.

Assessment of BIDS Attorney Fees

Finally, Evans contends the district court erred in its assessment of BIDS attorney
fees because it "failed to 'meaningfully consider' [his financial] resources so as to comply
with K.S.A. 22-4513(b)." This issue requires interpretation of K.S.A. 22-4513(b), which
presents a question of law over which appellate courts exercise unlimited review. State v.
Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

Indigent defendants who are represented by BIDS attorneys must reimburse their
attorney fees if they are found guilty. Fee assessments are regulated under K.S.A. 22-
4513 and are essentially treated as a civil judgment imposed on a guilty defendant.
K.S.A. 22-4513(b) also requires that the district court "take account of the financial
resources of the defendant and the nature of the burden that payment of such sum will
impose." District courts must make this determination at the time the fee assessment is
ordered and must do so "explicitly, stating on the record how those factors have been
weighed in the court's decision." Robinson, 281 Kan. at 546.

Following trial, Evans' trial counsel and the district court discussed BIDS attorney
fees:

"[DEFENSE COUNSEL]: I've been splitting [fees] between the two cases. I know
one case last I checked was $2,700 and the other one was $1,300. It's going to be, between
the two, I will be asking for reimbursement of roughly $4,000.
"He's going to be in jail for well, 30 months, minus his time, so probably 18
months. He's going to be unemployed when he gets out. I think it would work an undue
hardship on him if he had to pay the total amount. I mean if the court were to assess attorney
27

fees, we would ask that the court consider perhaps giving him a reduction or making him
pay perhaps the cap limit.
"THE COURT: That's what I will order. I will order the cap limit in both cases. . . .
"You only have to pay the cap limit on each case. That will be based on the highest
felony . . . the marijuana was the only felony charged . . . .
. . . .
"[A] drug tried is $2,600. So he's within the cap for tried cases.
"[THE STATE]: Total [for both cases] $5,375.
"THE COURT: And [defense counsel] has talked in the range of $4,000 to $4,500.
So it looks like those will be ordered paid. Along with the BIDS application fee of $100 in
each case."

The above discussion supports the finding that the district court elicited
information regarding Evans' financial circumstance. However, it is clear the court failed
to provide an explanation for the BIDS fee amount it ordered and thus ran afoul of
Robinson. The district court's BIDS order is vacated and remanded for proper
consideration.

In sum, we affirm Evans' conviction, we vacate the BIDS fee, and remand to the
district court with instructions to make specific findings pursuant to Robinson.