State v. Trotter

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NOT DESIGNATED FOR PUBLICATION

No. 114,743

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ERIC L. TROTTER,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed August 25,
2017. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., ATCHESON, J., and FAIRCHILD, S.J.

PER CURIAM: A jury sitting in Sedgwick County District Court found Defendant
Eric L. Trotter guilty of criminal possession of a firearm by a convicted felon. He has
appealed on two grounds: The district court improperly admitted a brief security video
showing him carrying what appears to be a rifle; and the district court instructed the
jurors in a way that impermissibly diminished the possibility they would ignore the law
and the evidence to find him not guilty. We find no error in those respects and affirm.

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FACTUAL AND PROCEDURAL HISTORY

Wichita police responded to a "shots fired" call for help from an apartment
complex in August 2014 and as part of their investigation reviewed a videotape from a
security camera in the lobby of the building. The video showed Trotter and others
running through the lobby and out of the building. Trotter carried what looked to be an
assault rifle.

About a week later, detectives interviewed another person shown in the video who
identified Trotter. Officers then found Trotter, and a detective interviewed him at the
police station. Trotter told the detective he had driven to the apartment building with
several other people, including a man he knew by the nickname "G." According to
Trotter, G grabbed a rifle from the trunk of the car and went into the building. Trotter
said he followed and took the rifle from G in the interests of maintaining the peace.
Trotter told the detective that while they were in the building, they heard gunshots so they
ran outside. Trotter said he carried the gun with him and later threw it away in a grassy
area. The gun was never found. Trotter told the detective he didn't fire the rifle.

Everybody agrees that in August 2014 Trotter had been convicted of a predicate
felony that would make his possession of a firearm unlawful under K.S.A. 2014 Supp.
21-6304. The State charged Trotter with one count of violating K.S.A. 2014 Supp. 21-
6304(a)(3)(B), a severity level 8 nonperson felony.

The jury convicted Trotter as charged in a 2-day trial in June 2015. The district
court later sentenced Trotter to serve 17 months in prison and placed him on postrelease
supervision for 12 months. Trotter has filed a timely appeal.


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LEGAL ANALYSIS
Video Clip as Evidence

As we have indicated, Trotter contends the district court erred in admitting about 4
seconds of the videotape showing him running through the apartment lobby with the rifle.
The district court denied Trotter's pretrial motion to exclude the videotape but limited
what could be admitted to the brief excerpt. Trotter renewed his objection at trial on the
grounds of relevance and undue prejudice, and the district court allowed him a continuing
objection to the video clip and the testimony about it. From our perspective, Trotter has
properly preserved his objection for appellate review.

On appeal, Trotter contends the video clip was unfairly prejudicial because his
quick exit from the building improperly suggested to the jury that he had been involved
in a crime and was making a getaway. He says the district court could just as easily have
admitted several still images captured from the video—providing the jurors the same
relevant information without an impermissibly prejudicial overlay fostered by his running
through the lobby.

As a starting point, we recognize that relevant evidence generally should be
considered admissible evidence. K.S.A. 60-407(f); State v. Huddleston, 298 Kan. 941,
959, 318 P.3d 140 (2014). Here, the relevance of the images on the videotape is
undisputed, since the clip shows someone who looks to be Trotter in possession of
something that looks to be a rifle. That's highly relevant to a charge of unlawful
possession of a firearm. But, as Trotter points out, even relevant evidence may be
excluded in certain circumstances. If the probative value of the evidence "is substantially
outweighed by" its undue prejudice, the district court has the authority to exclude the
evidence. 298 Kan. at 961-62. A district court's ruling weighing probative value against
undue prejudice will be reviewed on appeal for abuse of judicial discretion. State v.
Wilson, 295 Kan. 605, Syl. ¶ 1, 289 P.3d 1082 (2012). A district court exceeds that
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discretion if it rules in a way no reasonable judicial officer would under the
circumstances, if it ignores controlling facts or relies on unproven factual representations,
or if it acts outside the legal framework appropriate to the issue. See Northern Natural
Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied
134 S. Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert.
denied 565 U.S. 1221 (2012).

Here, we see no abuse of that broad discretion. The district court grasped the
material facts about the videotape and Trotter's reasons for wanting to exclude it as
evidence. And the district court understood the applicable law. We cannot say the ruling
admitting a short portion of the videotape was so far afield no other district court would
have ruled that way.

As we have said, the video provided highly probative evidence bearing directly on
the elements of the charged crime. Conversely, the ostensible prejudice stemmed from an
oblique implication Trotter sought to impute to the video. The implication was contrary
to Trotter's explanation for why he was running—an explanation the jurors heard through
the statement he made to the detective, which was also admitted as evidence. On balance,
any unfair prejudice could not be said to substantially outweigh the probative value of the
video clip. Although use of still photos captured from the video might have been a
preferable alternative, the district court's choice did not come close to an abuse of
discretion.

Even if we were mistaken in that assessment, however, any error in admitting the
video clip would have been harmless. Trotter effectively confessed to the elements of the
crime when he told the detective he took a rifle from G and then carried it around for a
substantial period of time. That established Trotter possessed a firearm. And K.S.A. 2014
Supp. 21-6304 grants no dispensation to someone who retains possession of a firearm to
prevent its misuse or for some other purportedly benign purpose. During the trial, Trotter
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did not attempt to deny what he said to the detective. Rather, his lawyer argued that
nobody, including Trotter, knew for sure whether the gun was, in fact, a firearm—it
might have been a BB gun, a toy, or a replica. The jury apparently was unimpressed by
that idea. As to the remaining element of the charge, Trotter stipulated that he been
convicted of an unidentified predicate crime bringing him within the prohibition in
K.S.A. 2014 Supp. 21-6304. The jurors were so instructed. In short, the case against
Trotter was compelling even without the video clip. See State v. Orange, No. 108,806,
2014 WL 37688, at *5 (Kan. App. 2014) (unpublished opinion) ("A defendant's
confession may be uniquely damning evidence in front of a jury, for it inculpates the
defendant from his or her own mouth."). The admission of the video clip, if erroneous,
was not the catalyst for the guilty verdict. See State v. McCullough, 293 Kan. 970, 983,
270 P.3d 1142 (2012) (A nonconstitutional error may be declared harmless if "there is no
reasonable probability that such error affected the outcome of the trial in light of the
entire record.").

Trotter has failed to show the admission of the video evidence compromised his
right to a fair trial.

Jury Instruction and Nullification

For his other point on appeal, Trotter condemns one of the instructions the district
court gave for too strongly emphasizing to the jurors that they should base their verdict
on the law and the evidence. According to Trotter, the jurors were impermissibly
constrained by this part of one of the written instructions: "Your verdict must be founded
entirely on the evidence admitted and the law as given in these instructions." He says
telling the jurors they "must" stick to the evidence and the law undermines jury
nullification. We reject the argument. Even if the instruction were flawed, Trotter cannot
demonstrate the requisite degree of harm to warrant reversal of his conviction.

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Trotter did not object to the instruction in the district court. We, therefore, review
for clear error. To grant Trotter relief, we must be firmly convinced the jury would have
come to a different result absent the purported defect in the instruction. See K.S.A. 2016
Supp. 22-3414(3) (clear-error standard applicable to jury instructions absent timely
objection in district court); State v. Cameron, 300 Kan. 384, 388-89, 329 P.3d 1158
(2014) (appellate court must be "firmly convinced" of different result to find clear error).
Trotter bears the burden of proving clear error. 300 Kan. at 390.

In a criminal case, jurors have the unchecked power to acquit a defendant in
defiance of clear-cut law and overwhelming evidence of guilt—a power commonly
known as jury nullification. Although jurors hold that authority, they have no legal right
to exercise it. State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973). They
actually act in dereliction of their duty as jurors if they flex that power. A criminal
defendant, likewise, has no concomitant legal right to jury nullification. But the courts
cannot override a not guilty verdict based on nullification. Judge Atcheson recently
outlined the history and conceptual underpinnings of jury nullification:

"In a criminal case, a jury's verdict of not guilty is essentially unimpeachable and
irreversible. As a result, a jury can with impunity acquit a defendant in complete
disregard of the applicable legal principles, the evidence, or both, thereby allowing an
obviously guilty defendant to walk free. A jury's ability to nullify the law and the facts in
a criminal case has deep historical roots. Nullification is often held up as a great equalizer
allowing ordinary citizens to strike a blow for fundamental fairness against abusive
government overreach. In given times and places, that may be true. For example, in
perhaps the most celebrated case of nullification, a jury acquitted colonial journalist John
Peter Zenger of criminal libel in 1735 for publishing biting commentaries on the royal
governor of New York. In 1973, a jury acquitted 28 activists, including several priests
and ministers, of criminal charges for seizing draft records and other documents from a
federal office building in Camden, New Jersey, to protest the war in Vietnam. But jury
nullification has an ignominious side—a side regularly on display in the last century as
all-white juries acquitted their racial cohorts of violent crimes against African-Americans
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who were not infrequently targeted for having the temerity to seek equal treatment under
the law. See generally State v. McClanahan, 212 Kan. 208, 510 P.2d 153 (1973); Ilya
Somin, "Rethinking jury nullification," The Washington Post, August 7, 2015 (accessed
March 30, 2016) (hardcopy on file with Clerk of the Appellate Courts).
"Nullification rests on an unchecked power of the jurors, not a legal right
belonging to them or to a defendant. That power actually conflicts with the duty of jurors
to follow the law and fairly find the facts to render a "true" verdict. See State v. Cash, No.
111,876, 2015 WL 5009649, at *4 (Kan. App. 2015) (unpublished opinion). Jurors in
criminal cases are typically sworn "to try the case conscientiously and [to] return a
verdict according to the law and the evidence," as are civil jurors. K.S.A. 2015 Supp. 60-
247(d); Cash, 2015 WL 5009649, at *4." State v. Stinson, No. 112,655, 2016 WL
3031216, at *3 (Kan. App. 2016) (unpublished opinion) (Atcheson, J., concurring).

Trotter relies on State v. Smith-Parker, 301 Kan. 132, Syl. ¶ 6, 340 P.3d 485
(2014), to support his claim of instructional error. In that case, the court held an
instruction informing jurors "[i]f you do not have a reasonable doubt" that the State has
proved the elements of the murder charge, "then you will enter a verdict of guilty"
impermissibly compromised jury nullification and amounted to clear error. 301 Kan. at
163-65. The instructional directive "will" went too far in mandating the jurors' obligation
upon finding the facts and the law required a guilty verdict. 301 Kan. at 164. The court
similarly condemned the use of "must" in a reasonable doubt instruction and suggested
the word "should" provided properly tempered judicial guidance to jurors. 301 Kan. at
164. In Smith-Parker, the court found that multiple trial errors combined with
comparatively weak circumstantial evidence on key issues required reversal of the
conviction. 301 Kan. at 168. As a result, the court never defined the scope of a remedy
tailored to an instructional error impermissibly treading on jury nullification.

The rule in Smith-Parker deals with that part of the reasonable doubt instruction
telling jurors what to do after they have determined the State has proved the defendant
guilty. In that respect, the instruction presumably addresses the stage in a jury's
deliberations where, if at all, nullification would come into play. Jurors disposed to acquit
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a defendant because they entertained reasonable factual doubts about his or her guilt
wouldn't need to contemplate an impulse to nullify, let alone act on that impulse. So to
the extent jury instructions ought to take implicit account of nullification—and Smith-
Parker says they should—that accounting logically would be done in the reasonable
doubt instruction.

But the instruction Trotter assails tells the jurors what to consider in arriving at a
verdict—be it guilty or not guilty. In that sense at least, the challenged instruction does
not directly implicate jury nullification in the same way as the language found wanting in
Smith-Parker. And we think the use of "must" in the instruction here didn't create the
same real or perceived inhibition of jury nullification. In short, Trotter has not raised a
legally valid complaint about the instruction. Other panels of this court have come to the
same conclusion in reviewing identical jury instructions. See State v. Toothman, No.
114,944, 2017 WL 2494953, at *11 (Kan. App. 2017) (unpublished opinion) (no error in
identical instruction; cases cited).

Trotter has not proposed specific alternative language, although he seems to
suggest "must" could be replaced with "should." That sort of phrasing would align
linguistically with what the Smith-Parker court indicated to be acceptable in a reasonable
doubt instruction. But Trotter's suggestion would fail of its intended purpose. The use of
"should" in the instruction would simply inform jurors they can (but need not) confine the
boundaries of their deliberations to the admitted evidence and the stated law, fostering the
notion they could investigate on their own by visiting a relevant place or exploring on the
internet. Trotter's revision, then, would not be particularly solicitous of jury nullification
while simultaneously cultivating activity that would tend to undermine jurors attempting
to do their job.

In a more refined bow to Smith-Parker, we suppose, a "better" instruction in this
case might have informed the jurors this way: "You have a duty to base your verdict only
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upon the evidence admitted and the law as given in these instructions." The jurors are
accurately informed of their duty, but they are not ordered to adhere to that duty. Our
refinement, however, does not render the district court's actual instruction, which drew
directly from PIK Crim. 4th 68.010, legally incorrect. A given instruction is not
erroneous simply because a superior one might be crafted. See State v. Herbel, 296 Kan.
1101, 1124, 299 P.3d 292 (2013) (jury instruction, though "not the preferred" one, still
considered "legally appropriate"). That's true here.

Even if we have missed the mark and the challenged instruction were legally
flawed, Trotter has not demonstrated clear error. That's because the evidence against him
was overwhelming between his confession and the video clip, which we have held the
district court properly admitted. Accordingly, Trotter cannot reasonably argue that a jury
would have reached a different result had the instruction been reworked as either he or
we suggest. The proposition of remedy, however, necessarily steps into a paradox. The
legal test, of course, considers a jury adhering to its appropriate role in rendering a
verdict based on the law and the evidence. But the point Trotter raises presumes a jury set
to ignore the law and the evidence. That, after all, is the essence of nullification. And a
jury disposed to nullify also presumably would not be deterred by the very instructions it
intends to disregard. But paradoxes aside, we are unconvinced that a wording change in
the instruction would have unleashed an otherwise nullifying jury to act that way in this
case. So we see no clear error.

Affirmed.