State v. Hutcherson

1

NOT DESIGNATED FOR PUBLICATION

No. 113,669

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

XAVIER HUTCHERSON,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed May 20, 2016. Affirmed
in part, reversed in part, and remanded with directions.

Kristen B. Patty, of Wichita, for appellant.

Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., BUSER and BRUNS, JJ.

Per Curiam: After a bench trial, Xavier Hutcherson was convicted of possession
of marijuana with intent to distribute, possession of methamphetamine with intent to
distribute, felony battery of a law enforcement officer, and felony interference with law
enforcement. On appeal, Hutcherson contends that his constitutional and statutory rights
to counsel were violated. In addition, he contends that there was insufficient evidence to
support his convictions of felony battery of a law enforcement officer and felony
interference with law enforcement. For the reasons set forth in this opinion, we affirm in
2

part, reverse in part, and remand with directions for the district court to resentence
Hutcherson, treating his interference with law enforcement conviction as a misdemeanor.

FACTS

On the afternoon of February 20, 2014, Lyon County Sheriff's Deputy Heath
Samuels was traveling eastbound on 9th Avenue in Emporia when a vehicle that had been
parked on the side of the road pulled out in front of him. According to Deputy Samuels,
he had to slow down to avoid hitting the vehicle. He followed the vehicle as it turned
onto southbound East Street and then activated his emergency lights. The vehicle stopped
in the 800 block of East Street. When Deputy Samuels made contact with the driver, he
immediately smelled what he believed to be raw marijuana coming from the vehicle.

Deputy Samuels asked the driver for her driver's license as well as her proof of
insurance. In addition to the driver, there were two passengers in the vehicle—one in the
front seat and one in the back seat. He also asked the passengers if they had any
identification on them. The front seat passenger said he did not have identification with
him. The back seat passenger—who was eventually identified as Hutcherson—said that
although he had identification, he was not going to show it to Deputy Samuels.

Because he had smelled marijuana, Deputy Samuels called for backup. A few
minutes later, Lyon County Sheriff's Deputy Cory Doudican arrived. Deputy Doudican
talked to the driver while Deputy Samuels went back to his patrol vehicle to run the
license tag and call for additional backup since there were three people in the vehicle.
Deputy Samuels then went back to the vehicle and knocked on the front passenger
window. He asked the passenger to step out and briefly spoke to him before asking him
to sit on the curb. He then motioned for Hutcherson to exit the vehicle. At that point,
Hutcherson threw open the door, jumped out of the vehicle, and ran across the street.
Deputy Samuels was able to catch up to Hutcherson and tackle him on a dirt driveway.
3

Deputy Samuels wrestled with Hutcherson as he was trying to get handcuffs on
him. During the struggle, Hutcherson began biting Deputy Samuels on the arm. About
that time, Deputy Doudican came over and assisted Deputy Samuels in placing handcuffs
on Hutcherson. As soon as Hutcherson was handcuffed, Deputy Samuels observed a set
of black digital scales laying on the ground that appeared to have fallen out of
Hutcherson's coat. Deputy Samuels later testified that based on his training and
experience, he knew that drug dealers often carry digital scales to weigh drugs when they
sell them.

Immediately after being read his Miranda rights, Hutcherson told Deputy Samuels
that he had some marijuana in his coat. Deputy Samuels then searched Hutcherson's coat
and found four large bags containing what appeared to be marijuana and one large bag
containing what appeared to be methamphetamine. The deputy also found a smoking pipe
with green vegetation in the bowl, an empty cardboard box that appeared to go with the
digital scales, and a wooden grinder. Deputy Samuels also searched the vehicle that he
had stopped and found a loaded handgun in the driver's purse. It was subsequently
determined that the gun actually belonged to the front seat passenger, who had asked the
driver to hide it in her purse.

On February 21, 2014, the State charged Hutcherson with one count of distribution
or possession with intent to distribute marijuana within 1,000 feet of a school, one count
of distribution or possession with intent to distribute methamphetamine within 1,000 feet
of a school, two counts of no tax stamp, one count of felony battery of a law enforcement
officer, and one count of felony interference with a law enforcement officer. The district
court held Hutcherson's first appearance on February 24, 2014, at which time Hutcherson
invoked his right to a speedy trial and requested counsel. The district court set
Hutcherson's bond at $100,000 and appointed Ty Wheeler from Kansas Legal Services of
Emporia to represent him. On March 3, 2014, the State filed an amended complaint
reducing the amount of methamphetamine Hutcherson was charged with possessing.
4

The district court held the preliminary hearing and arraignment on April 9, 2014.
At the hearing, the district court determined that the State had failed to present sufficient
evidence that the possession charges occurred within 1,000 feet of a school. As a result,
the State filed a second amended complaint on April 14, 2014. The district court also
lowered the amount of Hutcherson's bond to $75,000.

On April 28, 2014, Hutcherson filed a waiver of jury trial and requested a bench
trial. At a pretrial hearing held that day, the State moved to dismiss one of the charges for
no tax stamp, and the case was set for a bench trial to begin on July 11, 2014. The district
court also increased Hutcherson's bond back to the original amount. On May 2, 2014, the
State filed another amended complaint—which was the final complaint filed in this
case—dismissing both no-tax-stamp charges.

On June 25, 2014, the State filed a motion to continue the trial date due to the
unavailability of a chemist from the Kansas Bureau of Investigation (KBI). A few days
later, the district court held a hearing to consider the State's motion and was informed that
Hutcherson had a warrant hold arising out of an unrelated case in Shawnee County.
Hutcherson stated that he was willing to stipulate to the admission of the KBI report at
the bench trial, and the district court denied the State's motion to continue the trial based
on this stipulation. The district court released Hutcherson from his confinement in the
Lyon County jail, and he was evidently transported to the Shawnee County jail on July 1,
2014. On the same day, the district court ordered that Hutcherson be transported from the
Shawnee County jail to the Lyon County District Court for the bench trial scheduled to
begin on July 11, 2014.

On July 8, 2014—exactly 90 days after his arraignment—Hutcherson filed a
motion to dismiss, alleging a violation of his statutory right to a speedy trial. According
to Hutcherson, he would have been in jail for 93 days since his arraignment by the time
the bench trial was held. The State filed a response to the motion to dismiss on July 10,
5

2014, arguing that Hutcherson was now being held on a warrant in Shawnee County and
was no longer being held in the Lyon County case. Later that same day, the State filed an
addendum to its response, pointing out that K.S.A. 22-3402 was amended effective July
1, 2014, to allow courts 150 days after arraignment instead of 90 days to bring a
defendant in custody to trial and arguing—in the alternative—that the amended statute
applied to Hutcherson because it was procedural rather than substantive in nature.

On July 11, 2014, the district court held a bench trial and denied Hutcherson's
motion to dismiss. At trial, Deputy Samuels testified about the events that occurred on
February 20, 2014, when he stopped the vehicle in which Hutcherson was a passenger.
The district court admitted into evidence the State's photograph showing the mark on
Deputy Samuels' arm where Hutcherson bit him. In addition, the district court admitted
into evidence the video recording of the stop. The video shows that Deputy Samuels
turned on his emergency lights before the vehicle stopped. When he exited his patrol
vehicle, Deputy Samuels was wearing gray cargo pants and a black tactical vest that said
"SHERIFF" in large yellow letters on the back. Moreover, the front of his vest also said
"SHERIFF" in smaller yellow letters. The front of the vest had various pockets for items,
including handcuffs, and the deputy was wearing a handgun in a holster on his waist. The
video also shows that Deputy Samuels identified himself as being with the Lyon County
Sheriff's Department when he first spoke to the occupants of the stopped vehicle. In
addition, the video taken from Deputy Doudican's patrol vehicle was admitted into
evidence and shows that Deputy Samuels' vehicle had flashing lights on top as well as the
word "SHERIFF" written on the side.

Deputy Doudican testified that during the altercation on the ground, Hutcherson
bit Deputy Samuels' arm. He also testified that based on his training and experience, the
amount of methamphetamine seized from Hutcherson's coat was more than a common
user would use within a day or even a week. In addition, Deputy Doudican testified that
6

the marijuana recovered from Hutcherson's coat looked to be packaged for sale, since it
was in multiple bags containing about the same quantity.

Moreover, the KBI lab report was admitted into evidence. It indicated that the
substances found in Hutcherson's coat were determined to be methamphetamine and
marijuana. The report also noted the weight of each drug. The State rested, and
Hutcherson presented no evidence. After closing arguments were given, the district court
found Hutcherson guilty of possession of marijuana with intent to distribute, possession
of methamphetamine with intent to distribute, felony battery of a law enforcement
officer, and felony interference with law enforcement.

On October 1, 2014, Hutcherson filed a motion for a dispositional or durational
departure sentence. The district court held a sentencing hearing on November 13, 2014.
At the hearing, the district court denied Hutcherson's motion for dispositional or
durational departure. The district court then sentenced Hutcherson to 142 months of
imprisonment. Thereafter, Hutcherson timely filed a notice of appeal.

ANALYSIS

Right to Counsel

Hutcherson contends that the district court interfered with his constitutional and
statutory rights to counsel. He admits, however, that he did not raise this argument before
the district court, which normally would mean that the issue was not preserved for
appellate review. See State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015)
(stating that constitutional grounds for reversal asserted for the first time on appeal are
not properly before the appellate court for review); State v. Kelly, 298 Kan. 965, 971, 318
P.3d 987 (2014) (stating that issues not raised before the district court cannot be raised on
7

appeal). Notwithstanding, Hutcherson argues that his claim meets two of the exceptions
to the preservation requirement.

The three exceptions to the general rule that a new legal theory may not be
asserted for the first time on appeal are: (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 judgment of the trial court may be upheld on
appeal despite its reliance on the wrong ground or having assigned a wrong reason for its
decision. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Here, regardless of whether the issue is properly raised for the first time on appeal,
Hutcherson offers no facts showing that he was actually deprived of the assistance of
counsel. In his brief, Hutcherson states that his attorney's office was located close to the
Lyon County jail. On the other hand, he states that his attorney's office is approximately
an hour's drive away from the Shawnee County jail to which he was transferred shortly
before trial. As a result, he argues that this "deprived [him] of his right of free access to
his counsel at a critical stage, the few days before trial when preparation is most intensive
. . . . And it continued until sentencing, another critical stage . . . ."

It is undisputed that Hutcherson was released from the custody of Lyon County on
June 30, 2014, and that he was transported to the Shawnee County jail on a warrant
arising out of an unrelated case. Moreover, it is undisputed that he was transported to
Lyon County for trial and for the sentencing hearing. Hutcherson, however, does not
contend that he had any actual difficulty contacting his attorney or preparing for trial.
Although he contends that it was theoretically more difficult to communicate with
counsel when he was in Shawnee County jail, he does not contend that he was actually
denied access to counsel. Accordingly, we conclude that Hutcherson has failed to show
that his right to counsel was violated in this case.
8

Sufficiency of the Evidence

Hutcherson next contends that the State failed to present sufficient evidence to
support his convictions for battery of a law enforcement officer and interference with a
law enforcement officer. When a defendant challenges the sufficiency of the evidence in
a criminal case, we review the evidence in a light most favorable to the State to determine
whether a rational factfinder could have found the defendant guilty beyond a reasonable
doubt. We do not reweigh the evidence, assess the credibility of the witnesses, or resolve
conflicts in evidence. State v. Longoria, 301 Kan. 489, 532-33, 343 P.3d 1128 (2015).
Hutcherson did not have to raise the sufficiency of the evidence issue before the district
court in order to preserve it for appeal. See State v. Foster, 298 Kan. 348, 352, 312 P.3d
364 (2013).

Hutcherson was charged with battery against a law enforcement officer under
K.S.A. 2013 Supp. 21-5413(c)(2)(B), which states:

"(c) Battery against a law enforcement officer is:
. . . .
(2) battery, as defined in subsection (a)(1), committed against a:
. . . .
(B) uniformed or properly identified state, county or city law enforcement officer
. . . while such officer is engaged in the performance of such officer's duty."

Hutcherson also was charged with interference with law enforcement under
K.S.A. 2013 Supp. 21-5904(a)(3), which states:

"(a) Interference with law enforcement is:
. . . .
(3) knowingly obstructing, resisting or opposing any person . . . in the discharge
of any official duty."

9

Moreover, under K.S.A. 2013 Supp. 21-5904(b)(6), when conduct under
subsection (a)(3) is charged "in the case of a felony," it is a severity level 9, nonperson
felony, and when it is charged "in the case of a misdemeanor," it is a class A nonperson
misdemeanor. The State charged Hutcherson with felony interference with law
enforcement.

Initially, Hutcherson argues that the State failed to present any testimony or
evidence that Deputy Samuels was in uniform and properly identified as a law
enforcement officer. As the State points out, however, the video recording from the
traffic stop, which was admitted into evidence, shows that Deputy Samuels was in
uniform, in a marked patrol vehicle and that he properly identified himself when he
approached the vehicle in which Hutcherson was riding. Thus, we conclude that a
rational factfinder could have found Hutcherson guilty beyond a reasonable doubt.

Continuing, Hutcherson argues that there was insufficient evidence to support his
conviction for interference with a law enforcement officer as a felony because the
evidence only supported a finding that Officer Samuels was investigating a misdemeanor
when he approached Hutcherson. See State v. Hudson, 261 Kan. 535, 538-39, 931 P.2d
679 (1997); State v. Johnson, 40 Kan. App. 2d 196, 203, 190 P.3d 995 (2008). The State
candidly concedes that Hutcherson should have been charged with misdemeanor
interference with a law enforcement officer because Deputy Samuels pulled the vehicle
over for a traffic infraction and initiated a search based on the smell of marijuana, the
possession of which would be a misdemeanor. Thus, we turn to the issue of what the
appropriate remedy should be under these circumstances.

The Kansas Supreme Court has held that "[w]hen a criminal defendant has been
convicted of a greater offense, but evidence supports only a lesser included offense, the
case must be remanded to resentence the defendant for the lesser included offense." State
v. Wilt, 273 Kan. 273, Syl. ¶ 3, 44 P.3d 300 (2002). In that case, the defendant was
10

convicted of aiding and abetting the sale of marijuana within 1000 feet of a school but the
evidence was insufficient to support the proximity to the school. Our Supreme Court
reversed the conviction but remanded to resentence the defendant for the lesser offense of
sale of marijuana. 273 Kan. at 278, 280; see also State v. Kingsley, 252 Kan. 761, 782,
851 P.2d 370 (1993) (evidence insufficient to support aggravated arson because structure
was not occupied by a living person so case was remanded to resentence defendant for
simple arson); State v. Moss, 221 Kan. 47, 50, 557 P.2d 1292 (1976) (evidence
insufficient to support attempted felony theft because State did not prove value was at
least $50 so case was remanded to resentence defendant for attempted misdemeanor
theft). Although we recognize that there are instances in which remand is not necessary,
we conclude that because misdemeanor interference with law enforcement is a lesser
offense of felony interference with law enforcement, it is appropriate under the
circumstances presented to remand the case for resentencing, treating Hutcherson's
conviction for interference with law enforcement as a misdemeanor.

Affirmed in part, reversed in part, and remanded for resentencing with directions.