State v. Housworth

NOT DESIGNATED FOR PUBLICATION

Nos. 115,836
115,860

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOSEPH R. HOUSWORTH,
Appellant.

MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed June 30,
2017. Affirmed in part, reversed in part, vacated in part, and remanded with directions.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Michael G. Jones, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., LEBEN, J., and PATRICIA MACKE DICK, District Judge,
assigned.

Leben, J.: Joseph Housworth raises several issues on appeal from his convictions
in a jury trial of 12 crimes, mostly related to distributing illegal drugs. Two of
Housworth's appellate claims are well taken.

First, he argues that there's insufficient evidence to support his conviction for
intimidation of a witness. We agree. Intimidating a witness means dissuading a witness
from testifying, and all of the evidence at trial showed that Housworth actually
encouraged this witness to testify.
2

Second, he argues that two portions of his sentence are illegal, and here again,
Housworth is correct. First, by statute, the sentence for a conspiracy or solicitation
conviction should be 6 months shorter than the sentence for the underlying drug felony.
But the district court sentenced Housworth to the full sentence for the underlying drug
felonies. Second, 6 months can be added to a sentence if the trier of fact finds that the
defendant carried a gun to commit a drug felony or possessed a gun in furtherance of a
drug felony. The district court added 6 months to Housworth's sentence for distribution or
possession with the intent to distribute an illegal substance near a school, but the jury
made no finding that Housworth carried a gun in connection with a drug felony. The only
jury verdict related to a gun was Housworth's conviction for being a felon in possession
of a gun (which requires no drug felony). Since the jury didn't specifically find that
Housworth carried a gun to commit a drug felony or possessed a gun in furtherance of a
drug felony, the court was wrong to add 6 months to his sentence.

Housworth raises several other issues on appeal, but we have not found any of
those to require reversal:

 First, he claims that two of the prosecutor's statements were improper and
deprived him of a fair trial. The prosecutor suggested that Housworth
should have come forward with his version of events earlier, improperly
commenting on Housworth's right to remain silent. Later, the prosecutor
improperly suggested that the jury could convict Housworth of conspiracy
to distribute oxymorphone simply because his coconspirator had already
been convicted. Neither of these comments, however, had a reasonable
possibility of affecting the verdict. The implication that Housworth should
have come forward earlier was just one of many avenues the prosecutor
used to undermine Housworth's credibility on the stand; its standalone
impact was minor. And the evidence supporting the conspiracy charge was
3

overwhelming, so the prosecutor's suggestion that the jury convict based on
something other than the evidence at trial didn't impact the verdict.
 Second, Housworth argues that four of his convictions—the ones related to
oxymorphone and oxycodone—aren't supported by sufficient evidence
because the State was required to prove that these drugs have the addictive
qualities of morphine. Housworth's argument fails as a matter of statutory
interpretation. K.S.A. 2016 Supp. 21-5705(a) prohibits distributing or
possessing with intent to distribute certain controlled substances, including
"[o]piates, opium or narcotic drugs." Those three words are defined in
K.S.A. 2016 Supp. 21-5701, and an "opiate" is a drug having the addiction-
forming capability of morphine. But evidence that oxymorphone and
oxycodone have addictive qualities isn't necessary to prove that they are
opiates because both are listed as forms of opium in a separate but
incorporated statute. The definition of "controlled substance" (also in
K.S.A. 2016 Supp. 21-5701) incorporates other statutes that list types of
controlled substances; one of these other statutes lists oxymorphone and
oxycodone as forms of opium. K.S.A. 2016 Supp. 65-4107(b)(1)(N)-(O).
 Third, Housworth claims that three of his possession-with-intent-to-
distribute convictions—those related to oxymorphone, morphine, and
oxycodone—are multiplicitous. But because the statute criminalizes the
possession of "any" of the listed controlled substances, the legislature
intended to allow for a separate charge for each controlled substance.
 Fourth, Housworth claims that the district court should have obtained a
jury-trial waiver before allowing Housworth to stipulate to his felon status
because the stipulation effectively removed an element of two of the
charges against him from the jury's consideration. But evidentiary
stipulations are common strategic trial choices, and Kansas caselaw doesn't
require a district court to give any particular warnings to a defendant before
accepting such stipulations.
4

To summarize our rulings in Housworth's appeal, we reverse the conviction for
intimidation of a witness but affirm the other convictions. We vacate Housworth's
sentences for conspiracy and criminal solicitation. We also vacate Housworth's sentence
for distributing or possessing with intent to distribute oxymorphone because the 6-month
sentence enhancement was illegal. We remand the case to the district court for
resentencing on the conspiracy, criminal solicitation, and possession with intent to
distribute oxymorphone convictions. With that summary in hand, we move on to a
detailed review of the factual and procedural background of this case along with our more
complete analysis of each of the issues Housworth has raised.

FACTUAL AND PROCEDURAL BACKGROUND

There's very little dispute about most of the underlying facts of this case.
Housworth lived on Miami Street in Leavenworth, Kansas, which was within 1,000 feet
of Immaculata High School. When police obtained a warrant and searched Housworth's
home in February 2014, they found, in Housworth's bedroom, two guns, several dozen
pills, 1½ grams of methamphetamine, several hundred baggies, two digital scales, a list of
likely drug users, and 18 grams of marijuana. The pills included 101 oxymorphone pills,
11 morphine pills, 93 oxycodone pills, 21½ alprazolam pills, and 21 diazepam pills.

Detective Mark Metcalf interviewed Housworth while other officers were
searching his home. Metcalf testified that as soon as the officers read the search warrant
to Housworth, Housworth indicated that he wanted to talk to the police. So Metcalf took
Housworth to a small laundry room (away from the other people who were in the house
at the time) and read him his Miranda rights. Housworth signed a form waiving those
rights and told Metcalf where the officers would find the marijuana, methamphetamine,
guns, and pills in his bedroom. Housworth told Metcalf that he sold a small amount of
methamphetamine every day and that he had the guns to protect himself from being
robbed. Metcalf testified that it was common for drug dealers in Leavenworth to have
5

guns for protection because the drugs dealers in the area routinely robbed each other.
According to Metcalf, Housworth told him that he had the prescription pills "for women,"
which Metcalf understood to mean that Housworth was giving women pills in exchange
for sex. At trial, a woman named Kerry Pike testified that she had been living with
Housworth at the time of the search and that Housworth had provided her with
oxymorphone pills in exchange for sex.

For his part, Housworth testified that he had not signed the Miranda waiver (and
introduced his driver's license to dispute the accuracy of the signature) and had not said
any of these things to Metcalf. He also questioned Kerry Pike's motivation for testifying
against him and described a time that she had made a false police report against him.

Based on the search of Housworth's home, the State charged him in case No. 14-
CR-112 with seven counts of distributing or possessing with the intent to distribute a
controlled substance, two counts of being a felon in possession of a gun, one count of
possession of drug paraphernalia, and one count of aggravated child endangerment
(because a minor was in the house at the time of the search).

While Housworth was in jail awaiting trial, he made several phone calls, which
were recorded, to his sons Charlie and Andrew and to his girlfriend, Elizabeth Aldridge.
In one call, Housworth told Charlie to tell Andrew to look behind the bathtub and under
the bottom shelf and to give Aldridge one "30" a day. Housworth asked Charlie to tell
Aldridge to ration herself to half of a "30" a day. In another call, Housworth asked
Andrew if he was keeping Aldridge "in medicine." Andrew replied that he only had "two
more" and had limited financial resources. Later in the call, Housworth asked Aldridge to
get a "front" that he would pay off when he got out of jail. Aldridge complained to
Housworth that she was only getting half of a "15" each day, but Housworth told her that
Andrew was supposed to give her half of a "30" each day.
6

Detective Metcalf testified at trial that keeping Aldridge "in medicine" meant
giving her the oxymorphone pills that she was addicted to. He explained that a "front"
referred to buying drugs on credit.

In a later call, Andrew told Housworth that Aldridge wanted to be his girlfriend;
Housworth asked Andrew not to take his girl and said that Aldridge was "just sick."
Andrew replied that Aldridge wasn't sick anymore because she had gotten medicine.
Housworth then asked Andrew if he had gotten Aldridge high, and Andrew said she had
gotten medicine from someone else.

Aldridge, while under arrest on unrelated charges, wrote a statement that was
admitted at trial; in it, she said that Housworth used to give her prescription pills,
specifically oxymorphone, in exchange for sex. She wrote that when Housworth went to
jail, he asked Andrew to keep giving her pills, so Andrew had given her pills, again in
exchange for sex.

The State also presented an audio recording of a jail visit between Housworth and
Aldridge. During this conversation, Aldridge was upset because Housworth had been
telling people in the Leavenworth drug community that she was a snitch and that she was
the reason he was in jail. Housworth told Aldridge that he would tell everyone that she
wasn't a snitch if she wrote a statement and testified that the jail phone calls were related
to Andrew giving her over-the-counter sleeping pills, not prescription pills.

Based on these recordings, the State charged Housworth in case No. 14-CR-430
with conspiracy (with Charlie and Andrew) to distribute oxymorphone, solicitation (of
Aldridge) to possess oxymorphone, and intimidation of a witness (Aldridge). The two
cases were consolidated for trial.

7

At trial, as we noted earlier, Housworth denied speaking with Detective Metcalf
while police searched his house. Housworth testified that the drugs and guns in his
bedroom belonged to Aldridge—he said she had brought them into his house the evening
before the search. Housworth said that he had asked Aldridge to take the drugs out of his
house and had then gone to bed.

Aside from the drugs and guns, which he said were Aldridge's, Housworth
provided innocent explanations for each of the other suspicious items found in his room.
He said that the list of likely drug users found in his bedroom wasn't a client list; it was a
list of people he had asked to stay away from his ex-girlfriend because they used drugs
and were a bad influence. He said that only one of the digital scales was his and that he
used it to weigh mail. He said that the plastic baggies were his ex-wife's craft supplies.
Housworth testified that the jail phone calls were about over-the-counter sleeping pills
that he rationed for Aldridge so she wouldn't take them all at once. Andrew testified to
the same thing. But Detective Mark Doud testified that according to his research, there
were no sleeping pills in 15- or 30-milligram doses available over the counter at that
time.

The jury found Housworth guilty of six counts of distributing or possessing with
the intent to distribute a controlled substance within 1,000 feet of a school
(oxymorphone, morphine, oxycodone, alprazolam, methamphetamine, and diazepam),
two counts of being a felon in possession of a gun, possession of drug paraphernalia,
conspiracy to distribute oxymorphone, solicitation to possess oxymorphone, and
intimidation of a witness. The jury acquitted him of possessing with the intent to
distribute marijuana and of aggravated child endangerment.

For sentencing, the convictions were separately sentenced based on the underlying
case in which they had been charged.

8

For case No. 14-CR-112, the base crime (the most serious charge) was one of the
counts for distribution or possession of a controlled substance within 1,000 feet of a
school. The court sentenced Housworth to 192 months in prison on that charge, which
reflected the standard guideline sentence (for someone with Housworth's level of past
criminal offenses) of 186 months plus 6 months for having carried a gun to commit a
drug felony or having possessed a gun in furtherance of a drug felony. For the other five
controlled-substance convictions, the district court sentenced him to 98 months on each
offense, which was the standard guideline sentences. (The guideline sentences for non-
base sentences are less because, under our sentencing guidelines, a defendant's criminal-
history score is set at the lowest level—no matter the defendant's true score—for all but
the base offense.) The court made the sentences on the five additional counts run
concurrently with the base sentence, so the total sentence for those offenses was 192
months in prison. For the two convictions for possession of a gun as a felon, the district
court sentenced Housworth to 8 months in prison on each count; the court made one of
those sentences consecutive to the others, so that increased his effective sentence to 200
months in prison. The court made the sentence for possession of drug paraphernalia (11
months) concurrent, leaving the total sentence in case No. 14-CR-122 at 200 months in
prison.

For case No. 14-CR-430, the base crime was a count of conspiracy to distribute
oxymorphone, and the court gave Housworth a standard guideline sentence of 44 months.
The court sentenced him to 11 months in prison for solicitation of the unlawful
possession of oxymorphone and made that sentence consecutive, leaving a prison
sentence of 55 months. The court also sentenced Housworth to 6 months in the county
jail for misdemeanor intimidation of a witness, consecutive to the other sentences, but the
court credited pretrial time spent in jail against that sentence, leaving the 55-month prison
sentence to be served.

9

The prison sentences in the two cases would be served consecutively, leaving
Housworth's controlling prison sentence at 255 months.

Housworth then appealed to our court.

ANALYSIS

I. The Evidence Was Not Sufficient to Support a Conviction for Intimidation of a Witness.

Housworth argues that the evidence at trial wasn't sufficient to support his
conviction for intimidation of a witness because the evidence showed that he actually
encouraged Aldridge to testify. When reviewing a challenge to the sufficiency of the
evidence, since the jury convicted the defendant (thus finding in the State's favor), we
consider the evidence in the light most favorable to the State and ask whether we're
convinced that a rational factfinder could have found the defendant guilty beyond a
reasonable doubt. We will not reweigh the evidence, resolve evidentiary conflicts, or
make credibility determinations. State v. Wilkins, 305 Kan. 3, 10, 378 P.3d 1082 (2016).

Intimidation of a witness is "attempting to prevent or dissuade [a witness from
giving testimony], with an intent to vex, annoy, harm or injure in any way another person
or an intent to thwart or interfere in any manner with the orderly administration of
justice." K.S.A. 2016 Supp. 21-5909(a). It doesn't matter whether the witness actually
ends up testifying; the crime is complete when the defendant, with the required intent,
commits an act to intimidate or dissuade the victim. State v. Aguirre, 296 Kan. 99, 106,
290 P.3d 612 (2012). Consistent with this statutory definition, the jury was instructed that
to find Housworth guilty of intimidating a witness, it must find that he "attempted to
dissuade a witness from attending or giving testimony at any proceeding authorized by
law." While deliberating, the jury asked a question about the meaning of the word
10

"dissuade," and the district court replied with a dictionary definition: "To advise a person
against something."

Even considering the evidence in the light most favorable to the State, we are not
convinced that a rational factfinder could have reasonably concluded that Housworth
attempted to dissuade Aldridge from testifying. In the audio recording of Housworth's
conversation with Aldridge when she visited him in jail, instead of asking Aldridge not to
testify, Housworth repeatedly encourages her to testify. It's true that he's apparently
asking her to lie—to testify that the "medicine" referred to in the jail phone calls was just
over-the-counter sleeping pills—but he isn't trying to keep her from testifying. And
asking someone to give untruthful testimony is a different crime, known as soliciting
perjury. See K.S.A. 2016 Supp. 21-5903 (defining perjury); K.S.A. 2016 Supp. 21-
5303(a) (defining solicitation); State v. Ellis, 25 Kan. App. 2d 61, 62, 957 P.2d 520
(1998) (affirming conviction for soliciting perjury). The State didn't charge Housworth
with soliciting perjury. Housworth does tell Aldridge, on the recording, that he can undo
the "snitch" label if she testifies that the "medicine" was just over-the-counter sleeping
pills, but even this statement encourages Aldridge to testify, not dissuades her from doing
so.

During closing argument, the prosecutor mentioned this charge only once, and he
didn't provide much guidance about how the evidence supported this charge:

"Regarding the intimidation of the witness, he had labeled her as a snitch. He's
accusing her of basically coming—he's accusing her of being basically—you're going to
testify against me, then you're a snitch. That's pretty intimidating, as you heard from her.
If you hear her on her voice, she was—she was not enjoying that."

From this, it seems that the State's theory was that Housworth attempted to dissuade
Aldridge from testifying before the recorded jail-visit conversation took place—that he
11

tried to dissuade her from testifying by labeling her a snitch in the drug community. But
there wasn't any evidence connecting the snitch name-calling to an attempt to dissuade
Aldridge from testifying. Furthermore, that's not how the State charged this crime: both
the complaint and the jury instruction indicate that the intimidation of a witness happened
on August 4, 2014, the date of the recorded jail visit. We conclude that there wasn't
sufficient evidence that Housworth tried to dissuade Aldridge from testifying for a
reasonable jury to convict him of intimidation of a witness, and we therefore reverse that
conviction.

II. The District Court Erred in Sentencing When It Failed to Enter a Shorter Sentence for
Conspiracy than Would Be Used for the Underlying Offense and When It Added 6
Months to Housworth's Primary Drug-Offense Sentence Based on the Use of a Gun.

Housworth argues that two portions of his sentence are illegal.

Courts can correct an illegal sentence at any time. State v. Fisher, 304 Kan. 242,
264, 373 P.3d 781 (2016). A sentence is illegal when, among other reasons, it doesn't
follow the applicable sentencing statutes, either in the character or the term of authorized
punishment. State v. Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016). We interpret
sentencing statutes independently, so we are not required to give any deference to the
district court's interpretation. See State v. Nguyen, 304 Kan. 420, 422, 372 P.3d 1142
(2016).

Housworth's first claim is that his sentences for conspiracy and solicitation are
illegal because the district court was required by statute to shorten the prison term for
each of these convictions by 6 months. The State concedes that Housworth is correct on
this issue, but we will briefly explain the problem with the district court's sentences.

Sentences for most felony crimes are determined based on a grid created by the
legislature. The grid box at the intersection of a defendant's criminal-history score and the
12

severity of the crime is used to calculate the presumptive sentence. Each box in this grid
contains three sentence options: a low number (the mitigated sentence), a mid-range
number (the standard sentence), and a high number (the aggravated sentence). See, e.g.,
K.S.A. 2016 Supp. 21-6805(a) (drug grid).

In addition, special sentencing rules apply to convictions for conspiracy and
criminal solicitation, depending on the underlying crime the defendant was conspiring or
soliciting someone to commit. Relevant to this case, K.S.A. 2016 Supp. 21-5302(e) and
K.S.A. 2016 Supp. 21-5303(e) provide sentencing rules for a defendant convicted of
conspiracy or solicitation to commit a drug-related crime. Both state that the defendant
should be sentenced using the grid box applicable to the underlying drug felony minus 6
months. See K.S.A. 2016 Supp. 21-5302(e) ("Conspiracy to commit a felony which
prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug
grid block for an underlying or completed crime by six months."); K.S.A. 2016 Supp. 21-
5303(e) (identical language for criminal solicitation).

In this case, Housworth was convicted of conspiracy to distribute a controlled
substance and solicitation of unlawful possession of a controlled substance—both drug-
related felonies. In each case, the district court should have started with the applicable
grid box and then subtracted 6 months. See K.S.A. 2016 Supp. 21-5302(e); K.S.A. 2016
Supp. 21-5303(e). As the State concedes, the district court didn't do that—it simply
sentenced Housworth to the mid-range number for the underlying drug felonies of
distributing a controlled substance and possessing a controlled substance. Because the
district court didn't follow the statutes, Housworth's sentences in 14-CR-430 on the
conspiracy and solicitation convictions are illegal, and he must be resentenced for those
convictions.

Housworth's second claim is that since the jury didn't specifically find that he had
carried a gun to commit a drug felony or had possessed a gun in furtherance of a drug
13

felony, the district court shouldn't have added 6 months to the sentence for his primary
possession-with-intent-to-distribute conviction.

Under K.S.A. 2016 Supp. 21-6805(g)(1)(A), if the trier of fact finds that a
defendant carried a gun to commit a drug felony or possessed a gun in furtherance of a
drug felony, then 6 months will be added to the defendant's sentence. In a jury trial, the
"trier of fact" is the jury—that's who is responsible for determining the facts—not the
judge. See K.S.A. 60-401(k). Housworth argues that having the judge make the finding
instead of the jury would violate his constitutional right to a jury trial, citing Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in which the
United States Supreme Court held that "[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt."

In this case, the jury found Housworth guilty of several offenses, including two
counts of being a felon in possession of a gun and six counts of distribution or possession
with intent to distribute a controlled substance. Later, at sentencing, the district court
added 6 months to Housworth's sentence for his primary possession-with-intent-to-
distribute conviction based on K.S.A. 2016 Supp. 21-6805(g)(1)(A).

But the jury didn't make a standalone, specific finding that Housworth had carried
a gun to commit a drug felony or had possessed a gun in furtherance of a drug felony. It
could be argued that such a finding is implicit in the jury's verdict, which was based on
Housworth's simultaneous possession of drugs and guns. And the evidence would support
such a finding: A police officer testified that Housworth said he had the guns for
protection and explained that drug dealers often have guns to protect themselves from
being robbed. But the jury didn't specifically find that Housworth carried a gun to commit
a drug felony or possessed a gun in furtherance of a drug felony; a finding of that fact
wasn't required for any of Housworth's convictions. What the jury actually convicted
14

Housworth of was being a felon in possession of a handgun, which doesn't require a
factual conclusion that Housworth had the guns in order to commit drug felonies, and
distributing or possessing with the intent to distribute controlled substances, which
doesn't require a factual conclusion that he carried or used a gun in connection with the
drug offenses.

Because the statute directs that the 6-month increase must be based on a finding
from the "trier of fact"—in this case, the jury—the district court wasn't free to make the
finding itself. See State v. Arnold, No. 113,750, 2016 WL 1079487, at *4 (Kan. App.
2016) (unpublished opinion) (concluding that because defendant's no-contest plea didn't
establish the fact that defendant carried a gun to commit a drug crime, the district court
imposed an illegal sentence when it made such a finding and enhanced the sentence under
K.S.A. 2016 Supp. 21-6805[g][1][A]), rev. denied April 26, 2017; see also State v.
Morales, No. 114,223, 2016 WL 4070748, at *2-4 (Kan. App. 2016) (unpublished
opinion) (concluding that because defendant's no-contest plea didn't establish the fact that
defendant carried a gun to commit a drug crime, the district court's finding that defendant
did carry a gun to commit a drug crime violated Apprendi). So the district court erred
here when it added 6 months to Housworth's sentence for using a gun in connection with
a drug offense.

III. Prosecutorial Error Did Not Prejudice Housworth's Right to a Fair Trial.

Housworth argues that we should reverse all of his convictions and remand his
case for a new trial because the prosecutor committed two errors that unfairly prejudiced
him and deprived him of his constitutional right to a fair trial. We review claims of
prosecutorial error with a two-step analysis: error and prejudice. State v. Sherman, 305
Kan. 88, 109, 378 P.3d 1060 (2016). To determine whether an error has occurred, we ask
whether the prosecutor's statement or conduct falls outside the wide latitude the State has
to conduct its case in any manner that doesn't offend the defendant's right to a fair trial.
15

305 Kan. at 109. Then, if we find an error, we consider whether it prejudiced the
defendant's right to a fair trial or if, on the other hand, it was harmless beyond a
reasonable doubt. 305 Kan. at 109. To show this level of harmlessness, the State must
prove that there is no reasonable possibility that the error contributed to the verdict. 305
Kan. at 109.

Housworth's first claim of error is that the prosecutor, during cross-examination,
improperly commented on Housworth's silence after he received Miranda warnings.
Housworth's lawyer objected to the prosecutor's questions, preserving this issue for
appeal. See K.S.A. 60-404 (contemporaneous-objection rule).

Miranda, of course, provides that police must give certain warnings before
interrogating a defendant in their custody. Miranda v. Arizona, 384 U.S. 436, 444-45, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966). One of those warnings is the now-familiar
statement that a defendant has the right to remain silent and that anything he or she says
can and will be used as evidence against him or her. 384 U.S. at 444. The necessary
corollary to the right to remain silent is that the defendant's choice to exercise that right
cannot and will not be used against him or her in court. Doyle v. Ohio, 426 U.S. 610, 618-
19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Kemble, 291 Kan. 109, 122, 238 P.3d
251 (2010). Using a defendant's post-Miranda silence against him or her is generally
called a "Doyle violation" after the United States Supreme Court case that first addressed
this issue.

The rule from Doyle means that when a defendant testifies at trial, the prosecutor
is not allowed to question the truthfulness of that testimony or undermine the defendant's
credibility—a process known as "impeaching" the defendant—by implying that the
defendant should have come forward earlier with this explanation. "In such
circumstances, it would be fundamentally unfair and a deprivation of due process to
allow the arrested person's silence to be used to impeach an explanation subsequently
16

offered at trial." Doyle, 426 U.S. at 618; see Kemble, 291 Kan. at 122. For example, in
Kemble, the defendant presented a voluntary-intoxication defense at trial, telling the jury
that he had been too drunk to know or remember what he was doing at the time of his
crime. The prosecutor included in closing argument a PowerPoint slide that read, "'[The
defendant] never said I was too drunk to remember until today.'" 291 Kan. at 121. The
court found that this was a Doyle violation because it implied that the defendant should
have come forward with this explanation earlier, which amounted to an improper
comment on the defendant's post-Miranda silence. 291 Kan. at 122-23. The court also
found that this error wasn't harmless because the outcome of the case depended on the
jury's evaluation of the defendant's credibility, and the prosecutor's improper comment
directly addressed the defendant's voluntary-intoxication defense. 291 Kan. at 124-25.

Similarly, in Fisher, 304 Kan. at 250, the court found that the prosecutor had
committed a Doyle violation by asking the defendant whether he had ever contacted the
police to give them a fuller explanation of what happened the night of the crime. The
court noted that even though the defendant hadn't expressly exercised his right to silence
and had actually given some post-Miranda statements to the police, he nevertheless
hadn't been obligated to volunteer his exculpatory story (the story that he told at trial
about why he wasn't guilty) to the police before trial. 304 Kan. at 250. But the court
found that the error was harmless because the prosecutor also thoroughly impeached the
defendant's credibility with his prior inconsistent statements, so any impact that the Doyle
violation had on the defendant's credibility was minor by comparison. 304 Kan. at 250-
51. The Fisher court also emphasized that while a prosecutor can't impeach a defendant
with his or her post-Miranda silence, the prosecutor can still impeach a defendant with
post-Miranda statements. 304 Kan. at 249.

In this case, Housworth testified that the drugs and guns founds in his bedroom
weren't his; he said they belonged to Aldridge, who had brought them into his house the
night before the raid to set him up. While the prosecutor was cross-examining
17

Housworth, he said, "So you've had about 18 months to get ready to testify today. How
come you haven't come forward with any of this information until this morning?" This is
exactly the type of question that isn't permitted by Doyle—even without any indication
that Housworth expressly invoked his right to remain silent, he was still under no
obligation to divulge testimony supporting his claim of innocence to the police or to the
prosecutor before trial. See Kemble, 291 Kan. at 122; State v. Clark, 223 Kan. 83, 89, 574
P.2d 174 (1977). The prosecutor wasn't asking Housworth about a prior inconsistent
statement, he was asking about Housworth's prior silence. See Fisher, 304 Kan. at 249.
So the question was improper.

Next, the prosecutor asked why Housworth hadn't "come forward" and "ma[d]e an
official report" about Aldridge's alleged lies. This question is slightly different in tone
because it focuses both on Housworth's silence and on reporting someone else's crime,
but it similarly implies that Housworth should have come forward earlier with some part
of his testimony.

Because these questions were improper, we must turn to the second part of our
test: Did the prosecutor's Doyle violation prejudice the jury and deprive Housworth of a
fair trial, or was it harmless beyond a reasonable doubt? First, we note that while the
prosecutor's questions improperly implied Housworth had exercised his right to silence,
Housworth's answers rejected that implication. He answered the first question by saying
that he had come forward with this story, to his lawyers, from the start of the case. He
answered the second question by explaining that he had reported Aldridge to the police
for stealing his car. So Housworth's own answers undercut any potential prejudice. Next,
even though Housworth's defense at trial hinged on his credibility, any prejudice or
damage to his credibility that resulted from these two improper questions was marginal at
best because the prosecutor undercut Housworth's credibility in many other ways. See
Fisher, 304 Kan. at 250-51. Among other things, the prosecutor pointed out differences
between Housworth's trial testimony and his post-Miranda statements to police while
18

they were searching his house, questioned why Aldridge would want to set Housworth
up, and suggested that Housworth wanted to pin this crime on her because she had slept
with his son. We are convinced that in these circumstances, the Doyle violation had no
reasonable possibility of contributing to the verdict.

Housworth's second claim of error is that the prosecutor, during closing argument,
improperly referred to a coconspirator's conviction as evidence of Housworth's guilt on
the conspiracy charge.

There's a rule in some federal and state courts that in a conspiracy case, the
government cannot use a coconspirator's conviction or guilty plea as substantive evidence
of the defendant's guilt. See, e.g., United States v. Whitney, 229 F.3d 1296, 1304 (10th
Cir. 2000); United States v. Austin, 786 F.2d 986, 991 (10th Cir. 1986); State v.
Campbell, 296 N.C. 394, 399, 250 S.E.2d 228 (1979); State v. Padgett, 410 N.W.2d 143,
146 (1987). Kansas courts haven't adopted this specific rule, but it is one that developed
from some basic legal concepts about what kind of evidence is admissible at trial, so we
can analyze this claim of prosecutorial error—that the prosecutor used the conviction of
Housworth's coconspirator as substantive evidence against Housworth—using those
concepts.

Generally, evidence is admissible if it is relevant, meaning it tends to prove a
material fact. See K.S.A. 60-401(b); K.S.A. 60-407(f). In a conspiracy prosecution, the
conviction of a coconspirator is relevant because it's based on the same underlying facts.
United States v. Griffin, 778 F.2d 707, 710 (11th Cir. 1985). But a district court has the
discretion to exclude otherwise relevant evidence if its probative value—its value based
on what it proves—is substantially outweighed by its prejudicial effect. See K.S.A. 60-
445. Some federal and state courts that have weighed this issue have decided that the
probative value of a coconspirator's conviction is almost always substantially outweighed
by its prejudicial effect. See, e.g., Griffin, 778 F.2d at 710. If the jury learns about the
19

coconspirator's guilty plea or conviction, it may assume that the defendant must also be
guilty and that the trial is a mere formality, depriving the defendant of his right to a fair
trial. United States v. De La Vega, 913 F.2d 861, 866 (11th Cir. 1990). If a coconspirator
testifies at the defendant's trial, though, the government can introduce evidence of the
coconspirator's conviction to undermine his or her credibility as a witness. Whitney, 229
F.3d at 1304.

That's what initially happened in this case: Andrew testified at Housworth's trial,
stating that the pills discussed in the jail phone calls were over-the-counter sleeping pills,
and the prosecutor introduced Andrew's conviction for conspiracy to distribute controlled
substances to impeach his credibility on this point. Later, when cross-examining
Housworth himself, the prosecutor asked him if he thought that everyone who had
testified was lying; Housworth responded that Andrew had told the truth. So the
prosecutor reminded Housworth that Andrew had already been convicted of conspiracy
on these facts. Housworth's trial lawyer didn't object to either of these introductions of
Andrew's conspiracy conviction, and Housworth admits on appeal that the lack of
objection means he cannot challenge on appeal the actual introduction of this evidence.
See K.S.A. 60-404 (requiring contemporaneous objection to evidentiary challenges);
State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862 (2016).

Instead, Housworth's claim is prosecutorial error when the prosecutor mentioned
Andrew's conspiracy conviction a third time, during closing argument. Housworth argues
that this reference in closing argument suggested that the jury should assume Housworth
was guilty of conspiracy simply because Andrew had already been convicted. Even
though no objection was made to this argument at trial, Kansas courts review claims of
prosecutorial error based on comments made during closing argument even when a
contemporaneous objection was not made at the trial level. State v. Roeder, 300 Kan.
901, 932, 336 P.3d 831 (2014), cert. denied 135 S. Ct. 2316 (2015).

20

Let's first see exactly what the prosecutor said in his closing argument about
Andrew's conspiracy conviction as it related to the conspiracy charge against Housworth:

"There [were] some conspiracy charges. These are the ones that occurred on the phone.
So, for example, the one involving his son Andrew, Andrew has already been convicted
of his—of having his—basically, he's already—his portion is already done.

"So the fact that Mr. Housworth conspired with another person, his son, to
distribute the drugs, we know he did that because his son's already been convicted. Your
job today is determining whether or not he actually conspired with his son to—to do this
crime or not. We know his son was. The question to you is, did he?" (Emphasis added.)

It's not hard to conclude that this statement was improper, based on the rules of
evidence we just reviewed. The prosecutor told the jury that it should convict Housworth
on the conspiracy charge because Andrew had already been convicted of it: "[W]e know
he did that because his son's already been convicted." The end of the prosecutor's
comments are less troubling, because there, he at least draws a clear line between
Andrew's conviction and the case against Housworth: "We know his son was. The
question to you is, did he?" But overall, we conclude that the prosecutor's comments fall
outside the wide latitude the State has to conduct its case because, put simply, the
prosecutor told the jury that it should convict Housworth because Andrew had already
been convicted. See Sherman, 305 Kan. at 109.

We turn next to the second part of the test: Does this error require reversal of
Housworth's conspiracy conviction? In our view, it does not, primarily because
overwhelming evidence supported the conspiracy conviction.

The jury heard five phone calls between Housworth and his two sons. In the first,
Housworth directed Charlie to tell Andrew to look behind the bathtub under the bottom
shelf and to give Aldridge one of the "30s" a day and to tell Aldridge to try to ration
21

herself to half of a "30" per day. In the second, Charlie confirmed to Housworth that he
had passed on the message. In the third, Housworth directed Charlie to make sure that
Andrew found the "2 things" that were under the bathroom shelf. In the fourth,
Housworth spoke to Andrew directly and asked him if he was "keeping [Aldridge] in
medicine," and the two men had an extended conversation about how many pills (which
they referred to as "15s" and "30s") had been under the shelf in the bathroom and how
many pills Aldridge had been given. In a call later the same day, Housworth asked
Andrew if he had gotten Aldridge high, and Andrew replied that Aldridge had gotten
"medicine" from someone else. According to police testimony, the reference to keeping
Aldridge in medicine meant giving her oxymorphone pills, to which she was addicted.
The State also introduced a written statement from Aldridge, which said that after
Housworth went to jail, he had called Andrew and asked Andrew to keep giving Aldridge
her pills, and Andrew had done so.

Housworth claims that this evidence isn't overwhelming, presumably because the
calls don't include the actual words "please give Aldridge oxymorphone," and he points
out that both he and Andrew testified that no conspiracy occurred because the pills in
question were over-the-counter sleeping pills. But the purpose of these phone calls seems
obvious, despite the slightly coded language, in light of Aldridge's written statement.
Additionally, a police officer specifically testified that at the time these events took place,
there were no over-the-counter sleeping pills available in a 15- or 30-milligram dose—in
other words, Housworth's and Andrew's version simply wasn't possible because no such
over-the-counter sleeping pills existed. So even though the prosecutor should not have
suggested to the jury that it could convict Housworth based on Andrew's conviction, we
are convinced that there's no reasonable possibility that this error impacted the verdict.



22

IV. The Evidence Was Sufficient to Support Housworth's Oxymorphone and Oxycodone
Convictions.

Housworth argues that the evidence was insufficient to support his four
oxymorphone and oxycodone convictions because the State didn't present evidence that
these two drugs meet the statutory definition of "[o]piates, opium or narcotic drugs."
K.S.A. 2016 Supp. 21-5705(a)(1).

Usually, when reviewing a challenge to the sufficiency of the evidence, we
consider the evidence in the light most favorable to the State and ask whether we're
convinced that a rational factfinder could have found the defendant guilty beyond a
reasonable doubt. State v. Wilkins, 305 Kan. 3, 10, 378 P.3d 1082 (2016). But
Housworth's argument actually challenges whether the evidence fits the elements of his
crimes; the argument requires that we interpret criminal statutes, which we do
independently and without any required deference to the district court's interpretation.
State v. Brown, 295 Kan. 181, Syl. ¶ 6, 284 P.3d 977 (2012).

Housworth's oxycodone and oxymorphone convictions arose under two main
statutes, a distribution statute and a possession statute. The distribution statute states that
it's illegal to distribute or possess with the intent to distribute "any of the following
controlling substances," and it then lists seven categories of controlled substances. K.S.A.
2016 Supp. 21-5705(a)(1)-(7). The State charged Housworth under the first of these
categories for possessing with the intent to distribute "[o]piates, opium or narcotic drugs,
or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107."
K.S.A. 2016 Supp. 21-5705(a)(1). Likewise, the applicable portion of the possession
statute makes it illegal to possess "any opiates, opium or narcotic drugs, or any stimulant
designated in K.S.A. 65-4107(d)(1), (d)(3) or (f)(1)." K.S.A. 2016 Supp. 21-5706(a).

23

So the relevant portions of each statute include the same two categories of
controlled substances: those listed in K.S.A. 2016 Supp. 65-4107(d)(1), (d)(3), or (f)(1);
and those that are opiates, opium, or narcotic drugs. Since neither oxycodone nor
oxymorphone is listed in K.S.A. 2016 Supp. 65-4107(d)(1), (d)(3), or (f)(1), for
Housworth's convictions to be valid, those two substances must, by statutory definition or
according to the evidence, be "[o]piates, opium or narcotic drugs." K.S.A. 2016 Supp. 21-
5705(a)(1); K.S.A. 2016 Supp. 21-5706(a).

We first look for such a definition in K.S.A. 2016 Supp. 21-5701, which provides
definitions that apply to both the distribution and possession statutes. But the definitions
of "opiate," "opium," and "narcotic drug" included there aren't especially illuminating and
don't specifically list oxycodone or oxymorphone:

"(l) 'Narcotic drug' means any of the following . . . :
"(1) Opium and opiate and any salt, compound, derivative or preparation of
opium or opiate;
. . . .
"(m) 'Opiate' means any substance having an addiction-forming or addiction-
sustaining liability similar to morphine or being capable of conversion into a drug having
addiction-forming or addiction-sustaining liability." K.S.A. 2016 Supp. 21-5701.

Housworth argues that because oxycodone and oxymorphone aren't specifically
listed here, the State needed to prove that they fit into one of these definitions. See K.S.A.
2016 Supp. 21-5701(m) (defining "opiate"). For example, Housworth concedes that
another of his convictions, for morphine, is valid because morphine obviously fits into
the definition of "opiate" because it has the addictive qualities of morphine. But he claims
that because the State didn't prove that oxycodone and oxymorphone have the addictive
qualities of morphine, the evidence was insufficient to support his convictions because
there wasn't any evidence that oxycodone and oxymorphone were "[o]piates, opium or
narcotic drugs."
24

In our view, Housworth's interpretation is too narrow and overlooks other relevant
statutes. We are required to construe separate statutes that cover the same subjects
together and attempt to bring the provisions into workable harmony. State v. Coman, 294
Kan. 84, 93, 273 P.3d 701 (2012). And K.S.A. 2016 Supp. 21-5701(a) also includes a
definition for the term "controlled substance" that in turn incorporates some related
statutes: "any drug, substance or immediate precursor included in any of the schedules
designated in K.S.A. 65-4105 [schedule I], 65-4107 [schedule II], 65-4109 [schedule III],
65-4111 [schedule IV] and 65-4113 [schedule V]." (Emphasis added.) This definition
essentially incorporates the five schedules (or lists) of controlled substances from the
Uniform Controlled Substances Act. And it's in one of those schedules—subsection
(b)(1) of K.S.A. 2016 Supp. 65-4107—that we find the definitional link between the
controlled-substance category of "[o]piates, opium or narcotic drugs" and the specific
drugs at issue here. K.S.A. 2016 Supp. 21-5705(a)(1). This subsection lists oxycodone
and oxymorphone as forms of "[o]pium and opiate." K.S.A. 2016 Supp. 65-
4107(b)(1)(N)-(O). So by statutory definition, these two drugs fit into the relevant
category, and the State didn't need to present any evidence about the drugs' addictive
qualities. See State v. Parrish, No. 110,568, 2015 WL 967546, at *10 (Kan. App. 2015)
(unpublished opinion) (finding that the addictive quality of hydromorphone, another
opiate listed in K.S.A. 2016 Supp. 65-4701[b][1], is not an element of a drug-distribution
crime).

To summarize: two criminal statutes prohibit possession and distribution of certain
types of controlled substances, including a category of controlled substances described as
"[o]piates, opium or narcotic drugs." K.S.A. 2016 Supp. 21-5705(a)(1); K.S.A. 2016
Supp. 21-5706(a). The possession-and-distribution statutory scheme itself doesn't list
which particular drugs are part of the category "[o]piates, opium or narcotic drugs," but it
does specifically incorporate an additional set of statutes—the controlled-substance
statutes—that do list which particular drugs are part of that category. K.S.A. 2016 Supp.
21-5701(a); K.S.A. 2016 Supp. 21-5705(a)(1). These controlled-substance statutes list
25

and define many types of controlled substances, including opiates and opium. See, e.g.,
K.S.A. 2016 Supp. 65-4105(b), (c) (schedule I, listing 79 specific forms of opiates and
opium); K.S.A. 2016 Supp. 65-4107(b), (c) (schedule II, listing over 10 forms of opium
and 28 specific opiates). And as we've mentioned, the particular drugs that Housworth
possessed appear on one of these lists, in K.S.A. 2016 Supp. 65-4107(b)(1)(N)-(O).

Housworth argues that because the distribution and possession statutes don't
specifically reference subsection (b)(1) of K.S.A. 2016 Supp. 65-4107—while they do
specifically reference other subsections of that statute—the legislature didn't intend to
criminalize distribution or possession of these types of opiates. We don't find this
argument persuasive. It appears that instead of intending to exclude the controlled
substances listed in K.S.A. 2016 Supp. 65-4107(b)(1) from the distribution and
possession statutes, the legislature instead intended the category "[o]piates, opium or
narcotic drugs" to cover a broader swath of drugs listed in various locations in the
controlled-substance statutes. K.S.A. 2016 Supp. 21-5705(a)(1); see Parrish, 2015 WL
967546, at *10 (suggesting that the legislature also intended to cover substances that
aren't specifically listed in the controlled-substance statutes but that meet the definitions
provided in K.S.A. 2016 Supp. 21-5701).

So while the possession and distribution statues don't specifically reference
subsection (b)(1) of the controlled-substance statute, K.S.A. 2016 Supp. 65-4107, it's
enough that they reference the opiate category and rely on the controlled-substance
statutes to provide greater detail. Sufficient evidence supported Housworth's convictions
related to oxycodone and oxymorphone. See Parrish, 2015 WL 967546, at *10 (reaching
the same result for hydromorphone, another drug on the list in K.S.A. 2016 Supp. 65-
4107).


26

V. Housworth's Oxymorphone, Morphine, and Oxycodone Convictions Are Not
Multiplicitous.

Housworth argues that three of his individual convictions for possessing with the
intent to distribute different types of opiates (oxymorphone, morphine, and oxycodone)
are multiplicitous, which is not allowed. We review questions of multiplicity
independently, without any required deference to the district court. State v. King, 297
Kan. 955, 970, 305 P.3d 641 (2013); State v. Schoonover, 281 Kan. 453, 462, 133 P.3d
48 (2006).

Multiplicity is the charging of a single offense as more than one count on a
charging document. State v. Pham, 281 Kan. 1227, 1246, 136 P.3d 919 (2006). That's a
problem because it results in multiple punishments for a single offense, which violates
the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
and Section 10 of the Kansas Constitution Bill of Rights. 281 Kan. at 1246.

Housworth didn't raise this argument below, and we generally don't consider
issues that are raised for the first time on appeal. State v. Kelly, 298 Kan. 965, 971, 318
P.3d 987 (2014). There are several exceptions to this general rule, and Housworth claims
that two of them apply here: (1) this is a purely legal question arising on proved or
admitted facts and (2) consideration is necessary to serve the ends of justice and prevent
the denial of fundamental rights. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095
(2014); see State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015) (discussing
Supreme Court Rule 6.02[a][5], which requires appellant to explain why we should
consider an issue raised for the first time on appeal). We agree that multiplicity presents a
purely legal question in this case. See State v. Appleby, 289 Kan. 1017, 1026, 221 P.3d
525 (2009) (describing multiplicity issue as "purely one of law"). Further, Housworth's
fundamental right to a fair trial is implicated because if his convictions are multiplicitous,
then he's being punished twice for a single offense. State v. Walker, 283 Kan. 587, 609,
27

153 P.3d 1257 (2007) (citing State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 [1984]);
see State v. Weber, 297 Kan. 805, 808-09, 304 P.3d 1262 (2013).

So we move on to the merits of Housworth's multiplicity argument. Determining
whether convictions are multiplicitous has two steps. First, we ask whether the
convictions arise from the same conduct. If they do, then we examine the criminal statute
or statutes under which the defendant was convicted to determine whether there are two
offenses or only one. Schoonover, 281 Kan. at 496.

To determine whether the convictions arise from the same conduct, we are to
consider a variety of factors, such as whether the acts occurred at or around the same time
or in the same place, as well as whether the acts were motivated by some fresh impulse.
281 Kan. at 497. Here, all of the pills were found at the same time and in the same place,
and there's no evidence of a fresh impulse motivating Housworth's possession of any of
them, so Housworth's convictions arise from the same conduct. State v. Booton, No.
113,612, 2016 WL 4161344, at *8 (Kan. App. 2016) (unpublished opinion) (finding
"same conduct" where three items of drug paraphernalia were found in defendant's
bedroom), petition for rev. filed September 2, 2016.

Since Housworth's convictions arose from the same conduct, we consider the
second question. In cases like this one, involving multiple convictions under a single
statute, the court must consider whether the legislature intended to permit multiple
charges under the statute or intended only a single unit of prosecution. Schoonover, 281
Kan. at 497-98. This is called the unit-of-prosecution test, and under it the court must
analyze what kind of conduct the legislature has defined as a single violation of the
statute. 281 Kan. at 497-98. That conduct is a "unit of prosecution," and a person can
only be convicted once for each unit. 281 Kan. at 497-98. The key is the nature of the
conduct prohibited rather than the number of victims or the number of physical actions.
281 Kan. at 472.
28

Housworth was convicted under K.S.A. 2016 Supp. 21-5705(a), which makes it a
crime to "distribute or possess with the intent to distribute any of the following controlled
substances." The statute includes seven subsections of different kinds of controlled
substances that are illegal to possess with the intent to distribute, including opiates,
depressants, stimulants, hallucinogens, and anabolic steroids. See K.S.A. 2016 Supp. 21-
5705(a)(1)-(7). Housworth only challenges three of his six convictions under this statute
as multiplicitous, the oxymorphone, morphine, and oxycodone convictions that are based
on the part of subsection (a)(1) that criminalizes possessing "[o]piates, opium or narcotic
drugs" with the intent to distribute them. K.S.A. 2016 Supp. 21-5705(a)(1).

We can understand more about Housworth's argument if we start with some of the
convictions he does not claim are multiplicitous. First, he doesn't claim that his
oxymorphone conviction is multiplicitous of his alprazolam conviction. The
oxymorphone conviction is based on subsection (a)(1), while the alprazolam conviction is
based on subsection (a)(2), so he seems to concede that convictions based on different
subsections of K.S.A. 2016 Supp. 21-5705(a) aren't multiplicitous. We agree on that
distinction—the legislature specifically listed different subsections, which suggests that a
defendant can be separately convicted of violating each of them. Next, Housworth does
not claim his oxymorphone conviction is multiplicitous of his methamphetamine
conviction, even though both of these convictions are based on subsection (a)(1). This
subsection prohibits possessing either "[o]piates, opium or narcotic drugs or any
stimulant designated in subsection . . . (d)(3) . . . of K.S.A. 65-4107." (Emphasis added.)
K.S.A. 2016 Supp. 21-5705(a). Oxymorphone is a form of opium while
methamphetamine is specifically listed in subsection (d)(3) of K.S.A. 2016 Supp. 65-
4107. See K.S.A. 2016 Supp. 65-4107(b)(1)(O) (listing oxymorphone as a type of
opium). So Housworth also seems to concede that convictions based on clearly delineated
options within each subsection aren't multiplicitous, just like convictions based on
different subsections aren't multiplicitous.
29

But he claims that the three convictions he does challenge (for oxymorphone,
morphine, and oxycodone) are different and multiplicitous because they were all based
on the same category within the same subsection—all are "[o]piates, opium or narcotic
drugs" within subsection (a)(1), and more specifically, all are forms of opium. K.S.A.
2016 Supp. 21-5705(a)(1); see K.S.A. 2016 Supp. 65-4107(b)(1)(M)-(O) (listing
oxymorphone, morphine, and oxycodone as forms of opium). His argument suggests that
because the statute criminalizes possessing "opium" with the intent to distribute, he can
only be convicted once under the statute even though he possessed three different forms
of opium.

Although Housworth's argument has some logic to it, we think it focuses on the
wrong portion of statutory language—the key language appears in K.S.A. 2016 Supp. 21-
5705(a) itself, not in its subsections: "It shall be unlawful for any person to distribute or
possess with the intent to distribute any of the following controlled substances."
(Emphasis added.) The word "any" generally leads Kansas courts to conclude that a
statute provides for multiple units of prosecution in cases involving the possession of
multiple prohibited items. See Booton, 2016 WL 4161344, at *10; State v. Hulsey, No.
109,095, 2014 WL 4627486, at *11-12 (Kan. App. 2014) (unpublished opinion) (holding
that the word "any" in statute criminalizing possession of child pornography supports
separate convictions for multiple images), rev. denied 302 Kan. 1015 (2015); State v.
Odegbaro, No. 108,493, 2014 WL 2589707, at *9 (Kan. App. 2014) (unpublished
opinion) (holding that the word "any" in statute criminalizing making a false information
supports separate convictions for multiple written instruments), rev. denied 302 Kan.
1018 (2015); State v. Odell, No. 105,311, 2013 WL 310335, at *8 (Kan. App. 2013)
(unpublished opinion) (holding that the phrase "any item" in statute criminalizing traffic
in contraband in a correctional institution provides for multiple units of prosecution).
Because K.S.A. 2016 Supp. 21-5705(a) criminalizes the distribution or possession with
intent to distribute "any" of the listed controlled substances, including "[o]piates, opium
or narcotic drugs," and the controlled-substance statute separately lists oxymorphone,
30

morphine, and oxycodone as types of opium, Housworth's convictions for possessing
oxymorphone, morphine, and oxycodone aren't multiplicitous. See K.S.A. 2016 Supp.
65-4107(b)(1)(M)-(O). Even though all three drugs fall into the same controlled-
substance category, K.S.A. 2016 Supp. 21-5705(a) criminalizes possession with intent to
distribute "any" of them, so possession of each drug can be charged as a separate crime.

We find further confirmation of our conclusion when we look at another example
that Housworth doesn't challenge. He doesn't claim his alprazolam conviction is
multiplicitous of his diazepam conviction, even though both are based on the same phrase
within subsection (a)(2) that prohibits possession of depressants listed in K.S.A. 65-4111,
a statute that lists both alprazolam and diazepam. See K.S.A. 2016 Supp. 65-4111(b)(1),
(15). These aren't multiplicitous because K.S.A. 2016 Supp. 21-5705(a) criminalizes
possession of "any" of the listed controlled substances with the intent to distribute them,
subsection (a)(2) includes depressants listed in K.S.A. 2016 Supp. 65-4111, and K.S.A.
2016 Supp. 65-4111 lists alprazolam and diazepam as depressants. We can follow the
same path for Housworth's oxymorphone, morphine, and oxycodone convictions. K.S.A.
2016 Supp. 21-5705(a) prohibits possession with intent to distribute "any" of the listed
controlled substances, subsection (a)(1) includes "[o]piates, opium or narcotic drugs,"
and K.S.A. 2016 Supp. 65-4701(b)(1) (schedule II of controlled substances) lists
oxymorphone, morphine, and oxycodone as types of opium. Housworth's convictions
aren't multiplicitous.

VI. The District Court Does Not Need to Obtain a Jury-Trial Waiver from a Defendant
Before the Defendant Stipulates to a Fact During a Jury Trial.


Housworth argues that we must reverse his two convictions for being a felon in
possession of a firearm because he didn't waive his right to a jury trial before he
stipulated to his felon status, which is one of the elements of this crime. Housworth didn't
raise this issue below, but he correctly argues that we can consider a jury-waiver issue for
31

the first time on appeal because it is a purely legal question and implicates his
fundamental right to a jury trial. See State v. Rizo, 304 Kan. 974, 978-79, 377 P.3d 419
(2016) (considering jury-waiver issue for the first time on appeal).

The Sixth Amendment to the United States Constitution provides criminal
defendants with a fundamental right to have their cases tried to a jury. See State v.
Parker, 301 Kan. 556, 563, 344 P.3d 363 (2015). In this case, of course, Housworth had a
jury trial.

But at that trial, Housworth's lawyer stipulated that Housworth was a convicted
felon, and this felon status was an element of the two gun-possession charges. K.S.A.
2016 Supp. 21-6304(a)(1). A stipulation is simply a "voluntary agreement between
opposing parties concerning some relevant point." Black's Law Dictionary 1641 (10th ed.
2014). In other words, a stipulation tells the jury that both sides agree that a particular
fact or facts are true. See State v. Bogguess, 293 Kan. 743, 745, 268 P.3d 481 (2012) (a
defendant waives his right to contest the factual evidence included in a stipulation). So
because this stipulation removed from the jury's consideration an element of a crime he'd
been charged with, Housworth claims that the district court should have advised him that
he was giving up his right to a jury trial on that element.

As an initial matter, we note that stipulating to felon status is commonplace and is,
in fact, encouraged by the law. If a criminal defendant offers to stipulate to his or her
felon status, the State and the district court must accept that stipulation. Old Chief v.
United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997); State v. Lee, 266
Kan. 804, 813-15, 977 P.2d 263 (1999). This rule is a narrow exception to the general
rule that the State is allowed to prove its case against the defendant "free from any
defendant's option to stipulate the evidence away." Old Chief, 519 U.S. at 189. Without a
stipulation, the State would prove a defendant's felon status by admitting court records
showing a defendant's prior felony or felonies. But these records would likely include
32

details—such as what type of felony it was—that aren't relevant to determining a
defendant's felon status and run the risk of unfairly prejudicing the jury against the
defendant based on his or her past crimes. Lee, 266 Kan. at 815 ("Unless there is a
dispute over the status of the prior conviction . . . the admission of the type and nature of
the prior crime can only prejudice the jury."). So Housworth's stipulation in this case was
common practice and a way to avoid undue prejudice to the defendant.

Since this stipulation is for the defendant's benefit, it's not surprising that the
district court didn't warn Housworth that he was giving up some other right (the right to
require the State to prove his past conviction to the jury). As a more general matter, the
district court usually doesn't have to give a defendant any particular warnings before the
defendant agrees to evidentiary stipulations. In White v. State, 222 Kan. 709, 713, 568
P.2d 112 (1977), the Kansas Supreme Court held that a bench trial on stipulated facts was
not the same thing as a guilty plea and didn't require the district court to inform the
defendant about rights he or she was giving up by choosing a stipulated-facts bench trial.
"We know of no case or statute holding that a trial court must interrogate and advise a
defendant, who is represented by counsel, before accepting and approving stipulations as
to the evidence, and we are not prepared to initiate such a requirement." 222 Kan. at 713.
More recently, in Rizo, the defendant knowingly and voluntarily waived his right to a jury
trial, and the district court then held a bench trial on stipulated facts and found him guilty.
The defendant argued on appeal that the district court was required to give him additional
warnings (beyond the jury-waiver warnings) about the rights he gave up by stipulating to
the facts. The Kansas Supreme Court disagreed, quoting White and holding that no
additional warnings or waivers were required when a defendant chooses to proceed on
stipulated facts. Rizo, 304 Kan. at 982-83.

In State v. Johnson, 53 Kan. App. 2d 734, 742, 391 P.3d 711, petition for rev. filed
April 4, 2017, this court extrapolated from White and Rizo to address the same argument
that Housworth makes here: that stipulating to felon status removed an element of the
33

crime from the jury's consideration, so a knowing and voluntary jury-trial waiver as to
that element was required. The Johnson court concluded that a jury waiver wasn't
required in these circumstances because factual stipulations generally don't require
additional warnings from the court. 53 Kan. App. 2d at 742; see State v. Brooks, No.
113,636, 2017 WL 839793, at *6-9 (Kan. App. 2017) (unpublished opinion), petition for
rev. filed March 30, 2017.

Like the defendants in Johnson and White, Housworth doesn't claim that he
misunderstood the stipulation, that he had insufficient time to discuss it with his lawyer,
that he was unaware of its effect, or that he entered into it other than knowingly and
voluntarily. Nor does he claim he was coerced or victimized in any way. White, 222 Kan.
at 714; Johnson, 53 Kan. App. 2d at 743. Under these circumstances, the district court
was not required to obtain his waiver to a jury trial on the fact of his status as a felon
before accepting a factual stipulation to that fact.

Based on the conclusions we've set out in this opinion, we reverse Housworth's
conviction for intimidation of a witness; we vacate Housworth's sentence for conspiracy
and criminal solicitation in 14-CR-430; we vacate Housworth's sentence for distributing
or possessing with intent to distribute oxymorphone (in 14-CR-112) because the 6-month
sentence enhancement was illegal; we remand for resentencing on each of the convictions
for which we have vacated the sentence; and we otherwise affirm the district court's
judgment.