*1 IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,185
S TATE OF K ANSAS ,
Appellee ,
v.
C ORY W AYNE B ENTLEY ,
Appellant . SYLLABUS BY THE COURT
1.
A district court must obtain a constitutionally sufficient jury trial waiver before a defendant stipulates to an element of a charged crime.
2.
A district court's failure to obtain a constitutionally sufficient jury trial waiver before a defendant stipulates to an element of a charged crime is reviewed for constitutional harmless error.
3.
When there is no indication a defendant objected to a guilt-based defense, a court considers whether counsel's decision to utilize such a defense was deficient performance and prejudicial under the circumstances. There is no general requirement that counsel first obtain express approval from the defendant.
4.
Possession of a larger amount of methamphetamine that could establish guilt under K.S.A. 2022 Supp. 21-5705(d)(3)(C) does not preclude guilt for possessing a smaller amount under K.S.A. 2022 Supp. 21-5705(d)(3)(A) or (B).
5.
An instruction permitting the jury to infer a defendant intended to distribute drugs based on a certain amount of drugs in the defendant's possession is not legally appropriate because it does not reflect the mandatory rebuttable presumption in K.S.A. 2022 Supp. 21-5705(e).
6.
In a prosecution under K.S.A. 8-262, for driving while one's license is suspended, the State must offer proof that a copy of the order of suspension, or written notice of that action, was mailed to the last known address of the licensee according to the division's records. The State does not have to prove the licensee actually received the notice, had actual knowledge of the revocation, or had specific intent to drive while the license was suspended.
7.
When a defendant has actual knowledge that his or her license has been suspended, the State is not required to present direct evidence that there has been compliance with K.S.A. 8-255(d).
Review of the judgment of the Court of Appeals in an unpublished opinion filed April 29, 2022. Appeal from Sedgwick District Court; B RUCE C. B ROWN , judge. Opinion filed April 14, 2023. Judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed in part and *3 reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Matt J. Maloney , assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt , attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
R OSEN , J.: A jury convicted Cory Wayne Bentley of two counts of possessing firearms by a felon, one count of possessing methamphetamine with intent to distribute, one count of driving with a suspended license, and a traffic infraction. The Court of Appeals reversed the firearms convictions and affirmed the other convictions. Bentley did not appeal his traffic infraction. This court granted the State's petition for review of the firearms reversal and Bentley's cross-petition for review of the other convictions.
For reasons we set out below, we affirm the firearm and methamphetamine convictions and reverse the suspended license conviction.
F ACTUAL AND P ROCEDURAL B ACKGROUND
On September 5, 2018, Wichita police officer Nicholas Long received an alert to be on the lookout for a car suspected of being involved in a drive-by shooting. That morning, Long and his partner, David Inkelaar, located the unoccupied car in a hotel parking lot. They watched the car and saw a man leave the motel and drive the car out of the parking lot. The officers followed the car and observed several traffic infractions, *4 including improper lane changes and failure to maintain lane positioning. The car then came to a complete stop in the roadway.
Long and Inkelaar approached the car and asked for the driver's identification. The driver told them he did not have a license or other photo identification; instead, he gave the officers his Kansas Department of Corrections number. The driver then identified himself as Cory Bentley.
Inkelaar contacted the police department communications division and determined Bentley's license was suspended and he had two outstanding city bench warrants. The officers then handcuffed Bentley and placed him under arrest. As they prepared to search Bentley after they walked him back to the patrol vehicles, he informed them he had a pistol and dope in his pocket. Long then found a gun and two bags containing a white crystalline powder in Bentley's pockets. The bags were later determined to contain respectively 7.13 grams and 20.57 grams of methamphetamine.
While standing outside the police vehicles, Bentley told a third officer at the scene, Steven Thornton, that he should tell Long and Inkelaar that another firearm was located under the seat of his car. A vehicle search turned up the weapon under the seat. The search also turned up five small empty Ziplock baggies in the car's center console and floorboards.
After Bentley was taken to the city police offices, Detective Daniel Weidner interrogated him. The interview lasted about three hours, including breaks during which Weidner left the room. Weidner informed Bentley of his Miranda rights, and Bentley agreed to speak with him without a lawyer present. Bentley told Weidner he had won $900 at a casino and was able to buy a larger quantity of drugs. Bentley said he planned *5 to use the contents of the smaller bag that day. He said he planned to share some of the other bag in order to stay with various people. Bentley's exact words were that he would have "to break the house off," a phrase that Weidner understood from his experience and training to mean to break off a smaller piece of something and give it in exchange for housing or shelter.
The State charged Bentley with possessing methamphetamine with the intent to distribute at least 3.5 grams but less than 100 grams; two counts of unlawful possession of a firearm; unlawful control over stolen property; driving while his license was canceled, suspended, or revoked; and failing to drive within a single lane. The State subsequently dismissed the stolen property count. Bentley signed a written stipulation that he had previously been convicted of a felony and that he was not in possession of a firearm at the time he committed the prior crime. Bentley's stipulation to a prior felony conviction is an element of the unlawful firearm charges.
A jury found Bentley guilty of possession of 3.5 to less than 100 grams of methamphetamine with intent to distribute; two counts of criminal possession of a weapon by a convicted felon; driving while his license was suspended or canceled; and failing to maintain a single lane. He was sentenced to a high guideline sentence of 137 months for the methamphetamine count, a high guideline sentence of 9 months for each of the weapons counts, a 6-month jail sentence and $100 fine for driving with a suspended license, and a $75 fine for failing to maintain a single lane. The sentences all ran consecutive to each other, for a controlling sentence of 155 months in prison and a consecutive 6-month jail term.
Bentley filed a timely notice of appeal. The Court of Appeals reversed the
convictions for illegal possession of firearms and affirmed the remaining convictions.
*6
State v. Bentley
, No. 123,185,
A NALYSIS
Did Bentley voluntarily participate in the interrogation by Weidner?
Soon after his arrest, Bentley signed a waiver of his Miranda rights and submitted to an interrogation by the police. He made several statements that were used against him at trial. In particular, he told Detective Weidner that he "gotta break the house" in order to have a place to spend the night. Weidner interpreted this statement to mean that Bentley would break off a piece of methamphetamine crystal to use as a quid pro quo for temporary shelter.
During the interrogation, Bentley was shackled to a table. He wept frequently and spoke many of his answers under his breath, especially in the early stages of the interrogation. He argues on appeal that his mental state was so unstable that he was incapable of making voluntary statements. The State contends that, despite a pretrial motion to suppress, Bentley failed to preserve the issue at trial. In the alternative, the State asks this court to uphold the district court's finding that the interrogation was voluntary. The Court of Appeals held the issue was sufficiently preserved for appellate review but agreed with the district court that Bentley's statements during the interrogation were voluntary. We agree with the findings of the courts below.
As a preliminary matter, the State contends Bentley failed to preserve the core of the arguments he makes on appeal for two reasons. First, Bentley's only argument to the *7 trial court regarding the voluntariness of his interrogation statements was that he was under the influence of methamphetamine at the time. Second, Bentley failed to assert concerns about the voluntariness during the presentation of evidence. The Court of Appeals considered Bentley's various motions and objections collectively and concluded the issue was sufficiently preserved to allow appellate review.
Bentley filed a couple of pretrial motions seeking to suppress the statements he
made during his postarrest interrogation. One was a "Motion to Suppress Illegally Seized
Evidence Pursuant to K.S.A. 22-3216 and Motion to Suppress Confession or Admission
Pursuant to K.S.A. 22-3215," which primarily argued that the vehicle stop and
subsequent arrest was illegal. He also filed a pretrial motion to determine the
voluntariness of his statements under
Jackson v. Denno
,
The district court conducted an evidentiary hearing addressing both motions and a subsequent hearing where counsel argued their positions. Bentley's counsel argued Bentley was "still high on methamphetamine, because that is likely the state that he's in" at the time of the interrogation. His counsel added that "to believe that Mr. Bentley is making knowing, intelligent, voluntary and free choices to waive his Miranda rights and then having this conversation, when he's probably still high on methamphetamine, I think that stretches the imagination." He raised additional arguments about the lawfulness of the stop and seizure. After making extensive findings, the court held the interrogation was voluntary and denied the motion to suppress.
At trial, Bentley requested and was granted a standing objection to admission of
evidence from the interrogation based on "the stop seizure interrogation." Generally, any
pretrial objection to the admission or exclusion of evidence must be preserved by
*8
contemporaneously objecting at trial, which can be accomplished through a standing
objection. See
State v. Richard
,
The State argues Bentley improperly relies on objections that were based on
something other than the arguments he makes on appeal. But Bentley framed part of his
suppression motion on lack of voluntariness under
Jackson v. Denno
,
The Court of Appeals determined that Bentley's objections sufficed to preserve the issue:
"Bentley's counsel objected—rather obliquely—'to evidence of the stop seizure interrogation.' From this, we take it that Bentley was renewing his pretrial objections to the validity of the stop, the validity of his subsequent arrest, and the admissibility of evidence obtained through police interrogation thereafter. The objection was overruled, but the court gave Bentley a standing objection to such testimony.
"Under these circumstances, we find that Bentley's counsel preserved his pretrial objections to the admission of Bentley's statements to the police during his interrogation, which included all the factors relating to voluntariness enumerated in Davis , which were addressed by counsel and by the court in its ruling on the suppression motion, not just the issue of whether Bentley was high on drugs at the time of the interrogation." Bentley ,2022 WL 1278482 , at *4.
We agree with the analysis by the Court of Appeals. Bentley's preservation of the issue was not a model of clarity or directness, but it was adequate for appellate review.
We turn now to the merits of Bentley's assertion that he lacked the state of mind necessary to make voluntary statements to Weidner during the interrogation.
The district court was able to review the videorecording of the interrogation, which the Court of Appeals and we likewise do. At a hearing on the motions to dismiss, the district court also heard Weidner's testimony and referred to that testimony in making its findings.
When reviewing a decision ruling on a motion to suppress statements to police,
this court applies a dual standard. The court reviews the factual underpinnings of the
decision under a substantial competent evidence standard. The ultimate legal conclusion
drawn from those facts is reviewed de novo. The appellate court does not reweigh the
evidence, assess the credibility of the witnesses, or resolve conflicting evidence.
State v.
Dern
,
Pursuant to the Fifth Amendment to the United States Constitution, "[n]o person
. . . shall be compelled in any criminal case to be a witness against himself . . . ." Under
this provision, the State may not introduce statements a defendant made during a
custodial investigation unless those statements were freely and voluntarily given.
State v.
Galloway
,
The State may introduce a defendant's previous statements if the judge finds the
defendant was conscious and capable of understanding what he said and did. The State is
not permitted to induce the defendant to make the statement under compulsion or by
*10
prolonged interrogation under such circumstances as to render the statement involuntary.
The State may not use threats or promises concerning action to be taken by a public
official with reference to the crime that would likely cause the defendant to make such a
statement falsely.
State v. Garcia
,
The State has the burden to prove the voluntariness of a confession by a
preponderance of the evidence—that the statement was the product of the defendant's free
and independent will.
State v. Mattox
,
"'These factors are not to be weighed against one another with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect's will was overborne and the confession was not therefore a free and voluntary act.' [Citation omitted.]" Mattox ,305 Kan. at 1043 .
We reject Bentley's request to review the issue de novo because the district court made findings of fact related to the circumstances of the interrogation. And those findings were founded on the recording of the interrogation and the testimony of Detective *11 Weidner and other officers. We therefore give deference to the district court's factual findings, examining whether substantial competent evidence supported them, even as we exercise unlimited review of the legal conclusions to be drawn from those findings.
Both the district court and the Court of Appeals examined in detail the six
nonexclusive factors set out in
Woods
and
Mattox
. We have reviewed the records of the
motions hearings, the recording of the interrogation, the factual findings, and the analysis
on which both those courts based their conclusions that Bentley's statements were
voluntary. The discussion by the Court of Appeals in affirming the district court is
thorough and persuasive. We see no reason to repeat it here but incorporate it by
reference into this opinion. See
Bentley
,
Should this court overrule State v. Johnson and hold no jury trial waiver is required before a defendant stipulates to an element of a crime?
The State charged Bentley with two counts of criminal possession of a weapon by
a convicted felon. Bentley stipulated to one element of these charges. The Court of
Appeals reversed those convictions in accordance with
State v. Johnson,
"'The Sixth Amendment to the United States Constitution and Sections 5 and 10 of
the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a jury
trial.'"
State v. Redick
,
Long-standing caselaw has required sufficient jury trial waivers before a defendant
proceeds to a bench trial or pleads guilty. See
Boykin v. Alabama
,
In
Johnson
, we clarified that sufficient waivers are required with equal force
before a defendant stipulates to an element of a crime.
The State urges us to overturn our holding in Johnson .
Under the doctrine of stare decisis, "'once a point of law has been established by a
court, it will generally be followed by the same court and all courts of lower rank in
subsequent cases when the same legal issue is raised.'"
State v. Sherman
,
Bentley argues this court should not overturn Johnson because the State failed to offer any argument in its briefing regarding whether more good than harm will come from overturning Johnson . He also argues that, even if this court addresses the issue, the State cannot show more good than harm would come from overturning this precedent. Bentley claims that lower courts have easily been adjusting to this "minimal procedural requirement," and there is no evidence it has "impeded the ability of defendants" to offer elemental stipulations. Bentley claims requiring a waiver has great benefit because it reduces collateral litigation and increases confidence in the validity of a jury trial waiver.
We agree with Bentley. When the State failed to brief the first requirement of
overturning precedent, it abandoned its claim that we overrule
Johnson
. See
State v.
Funk
,
Next, the State argues that if Johnson stands, the error should be reviewed for harmlessness. We agree.
Whether an error may be reviewed for harmlessness is a question of law subject to
plenary review.
Johnson
,
Some constitutional errors may be reviewed for harmlessness.
Neder v. United
States
,
Generally, the deprivation of the right to a jury trial is "unquestionably" structural
error.
Sullivan v. Louisiana
,
And this court, along with others, generally treats the denial of the jury trial right
through the failure to obtain a sufficient jury trial waiver as a structural error. See, e.g.,
Harris
,
This court is now asked to decide whether the failure to obtain a jury trial waiver
before an elemental stipulation—rather than before a bench trial or guilty plea—also
constitutes structural error. We conclude it is not structural, because a failed waiver
before a stipulation to less than all elements of the charged crime does not constitute "a
defect affecting the framework within which the trial proceeds."
Neder
,
The error here is akin to a court's failure to submit an element of the charged crime
to the jury. The United States Supreme Court and this court have held that this kind of
error is subject to harmlessness review. In
Neder
, the trial court erroneously decided an
element of a crime itself instead of submitting the element to the jury.
This court adopted the
Neder
reasoning to apply harmless error analysis when a
trial court fails to submit an uncontested element to the jury. See
State v. Carr
, 314 Kan.
744, Syl. ¶ 12,
Today, we extend the Neder reasoning to cases in which the district court failed to obtain a constitutionally sufficient jury trial waiver before a defendant stipulated to some elements of a charged crime. In such cases, the error should be reviewed under the constitutional harmless error standard. We move to that analysis.
A constitutional error is harmless only if the party benefitting from the error
demonstrates "beyond a reasonable doubt the error will not or did not affect the trial's
outcome in light of the entire record, i.e.
,
when there is no reasonable possibility the error
contributed to the verdict."
State v. Corey
,
The State and Judge Gardner's concurrence argue the error did not affect the trial's outcome. They assert that the elements to which Bentley stipulated to—prior convictions—"were facially valid or easy to verify," and "would not have furnished even *17 a colorable defense, as the decision to stipulate itself reflected." Bentley , 2022 WL 1278482, at *21 (Gardner, J., concurring).
While compelling, the State and Judge Gardner's concurrence ignore the fact that there was no evidence other than the stipulation that would have allowed the jury in this trial to find Bentley guilty of having prior convictions. Thus, if the failure to secure a constitutionally sufficient jury trial waiver led to the stipulation, then it clearly affected the verdict, because the jury had to rely on that stipulation to find that the State proved that element of the crime.
But we think it is appropriate to view the harmlessness inquiry here through a more focused lens. We have concluded the stipulation effectively decided the stipulated- to elements for the jury, thereby paving the way for a guilty verdict. Thus, it is logical to consider whether the error here led to the stipulation. In other words, we will review whether there is a reasonable possibility the failure to inform Bentley of his right to jury trial led to his decision to enter the stipulation.
The Supreme Court of California takes the same approach when it considers
whether a statutory violation of a jury trial waiver amounted to harmless error. See
People v. Sivongxxay
,
And such an inquiry would track the harmless error analysis federal courts apply
when the trial court fails to advise the defendant at a plea hearing that the defendant has
no right to withdraw a guilty plea if the court does not follow the State's sentencing
recommendation, as is required by Rule 11 of the Federal Rules of Criminal Procedure.
See
United States v. Dominguez Benitez
,
The facts to which Judge Gardner's concurrence points suggest Bentley would have offered a stipulation even if the court had advised him of his right to jury trial—that these were easily provable elements and Bentley would have had no defense had the State offered evidence to establish these elements. And there was no suggestion Bentley meant to defend his case based on these elements. A section from the record further supports such a conclusion. During the hearing on a motion for new trial based on a claim of ineffective assistance of counsel, newly appointed counsel had the following exchange with Bentley's trial counsel:
"Q: I believe that the basis of that—of that part of his motion was the fact that you and Ms. Schauf made a stipulation for the second charge, which was possession of a weapon by a criminal. Would that be a fair statement?
"A. We probably did make a stipulation to try and keep Mr. Bentley's criminal history out of the knowledge of the jury.
"Q. And that stipulation was—you presented that to Mr. Bentley?
"A. I believe I did.
"Q. And had his agreement to publish it?
"A. I believe I did. I think he would have thought that was just as good an idea as I would to keep knowledge from the jury of his prior criminal history, yes, sir." On cross-examination, the State had the following exchange with trial counsel: "Q. And along those same lines, the stipulation that was entered into— . . . Did you go over that with Mr. Bentley?
"A. His signature's right here on the bottom left, underneath my signature, and he and I would have had possession of that document at the same time and we would have signed it at the same time, I think.
"Q. Okay. So was it your strategy to keep from the jury specifically what Mr.
Bentley had been convicted of in the past?
"A. Yes.
"Q. And in fact, you had filed a pre-trial motion asking the Court to limine out any reference to the defendant's criminal history, absent what was contained in this stipulation?
"A. Yes." *20 This testimony supports the State's claim that Bentley would have elected to stipulate to this element of the crimes even if he had been informed of his right to submit them to a jury on the State's evidence. We conclude beyond a reasonable doubt that the error did not affect Bentley's decision to enter the stipulation and, consequently, the error did not affect the trial's outcome. We affirm Bentley's convictions for possession of a firearm.
Did the district court and Court of Appeals err in holding trial counsel was not ineffective in pursuing a guilt-based defense?
After the jury convicted Bentley, he moved for a new trial, arguing his counsel had been ineffective. The district court denied the motion and the Court of Appeals affirmed. Before this court, Bentley maintains his claim that his trial counsel was ineffective because it pursued a guilt-based defense without Bentley's express approval. We affirm the Court of Appeals.
"The Sixth Amendment to the United States Constitution guarantees the right to
effective assistance of counsel . . . ."
Balbirnie v. State
,
This court uses a mixed standard of review to assess a district court's conclusions
regarding ineffective assistance of counsel. It considers whether substantial competent
evidence supports the court's factual findings. It reviews the court's conclusions of law de
novo.
Balbirnie
,
After the jury found him guilty, Bentley argued that trial counsel had been generally incompetent. The court appointed new counsel and held a hearing on the motion. During the hearing, Bentley had the following exchange with his counsel:
"[Defense counsel:] Can you tell me any other incidents—inferences that [trial counsel] might have done to the Court that would make you believe he was ineffective? "[Bentley:] I believe it was his opening statement.
"Q. What did he say?
"A. He not only told them that I possessed drugs in the opening statement, told them that I had everything I needed to use the drugs and that wasn't even—simply wasn't even the case.
"Q. So his theory of the case was that you were a drug user and not a drug seller? "A. Yes, I believe that's the defense he was going for, but he did not even—he just—yeah, he didn't do me right.
"Q. What do you mean, he didn't do none of that?
"A. He did a terrible job of even trying to present it as such. He said I had the drugs, he said I had everything to use the drugs and knowing that that wasn't the case, that I didn't possess any paraphernalia to use the drug.
"Q. Based on this opening statement you think he was ineffective?
"A. Yes.
"Q. And due to that you're asking the Court for a new trial?
"A. Yes." The court denied Bentley's motion. It held trial counsel had not been deficient. The court noted this was a difficult case, given the defendant's admission the methamphetamine was his, and the issue came down to "was this individual possession for personal use or was this for distribution . . . [a]nd Mr. Smartt hit that issue and argued it from—and marshaled the evidence before the jury to the best of his ability." The court further ruled that even if counsel's performance had been deficient, there was no reasonable possibility the jury would have reached a different result without the deficiency.
On appeal, Bentley argued trial counsel had been ineffective by pursuing a guilt-
based defense without Bentley's express approval when he admitted Bentley possessed
methamphetamine for personal use but did not intend to distribute it. In support, Bentley cited
McCoy v. Louisiana
,
In
McCoy
, the State charged the defendant with three counts of premeditated first-
degree murder. The defendant maintained he had not committed the murders and
"adamantly objected to any admission of guilt."
McCoy
,
In
Carter
, the State charged the defendant with premeditated first-degree murder
and felony murder in the alternative. After the jury had been selected and sworn in,
Carter told the court he did not want to proceed to trial because he disagreed with defense
counsel's strategy, which was to concede guilt of felony murder but argue there had been
no premeditation. Carter maintained his complete innocence. The district court denied
Carter's request to appoint new counsel and proceeded to trial over Carter's strong
objection. This court reversed the conviction. It reasoned defense counsel had been
ineffective when it pursued "a guilt-based defense against Carter's wishes." 270 Kan. at
441. The court held this violated Carter's Sixth Amendment right to counsel and denied
him a fair trial. Because this "was a breakdown in our adversarial system of justice," the
court presumed prejudice.
The panel here observed a key difference between the cited cases and Bentley's: in McCoy and Carter , the defendants had voiced objections to a guilt-based defense, and the courts had held a lawyer may not pursue the defense over that objection. In contrast, Bentley offered no objection.
Before this court, Bentley argues the panel erred by concluding a lawyer may pursue a guilt-based defense unless the defendant "vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt." He insists *24 a lawyer is per se ineffective if the lawyer proceeds with a guilt-based defense without a defendant's express approval.
Bentley misconstrues the panel's holding. It did not set a new requirement that a
lawyer may pursue a guilt-based defense unless a defendant "vociferously insist[s]" they
did not commit the charged acts and "adamantly object[s]" to such a defense. The panel
used this language to describe the distinguishing factor in
McCoy
. The panel's holding
was narrower. It concluded Bentley had failed to establish counsel's performance was
deficient because he made no showing "trial counsel abandoned Bentley or took any
actions against his wishes."
Bentley
,
We conclude the panel's ruling was in line with
McCoy
and
Carter
. Both cases
held that a lawyer errs by pursuing a guilt-based defense that was clearly contrary to the
defendant's claims of innocence. They do not stand for the notion that a lawyer must
obtain express authorization before pursuing such a defense, as Bentley claims. See
Harris v. State
,
Thus, to succeed on his claim, Bentley must convince us we should extend the
reasoning of
McCoy
and
Carter
to adopt his contention that a lawyer may not proceed
with a guilt-based defense unless they first obtain a defendant's express approval. Bentley
argues this logically follows from the notion expressed in
McCoy
that "it is the client's
decision whether to use a guilt-based defense." Bentley also cites
Johnson
,
A United States Supreme Court case published before
McCoy
cuts against
Bentley's position. In the capital case
Florida v. Nixon
,
The United States Supreme Court reversed. It ruled the Florida Supreme Court
erred in equating a guilt-based defense to a guilty plea. The Court explained a guilty plea
is "'a stipulation that no proof by the prosecution need be advanced.'"
Bentley did not face a capital case, and there is no evidence he was nonresponsive to his counsel's guilt-based defense suggestions. But Nixon is instructive. It supports the notion that a guilt-based defense does not require explicit approval. The State still had to submit its evidence, and Bentley had the chance to challenge and test that evidence. Thus, the guilt-based defense did not remove the question from the jury or relieve the State from its burden of proof. Because a guilt-based defense does not erode these rights, we need not adopt a rule to safeguard those rights by requiring informed and express authorization before counsel pursues a guilt-based defense.
Bentley has failed to show the panel erred. It did not adopt a new rule requiring a defendant "vociferously insist" against a guilt-based defense, and its decision was in line with McCoy and Carter . And Bentley has not persuasively argued this court should extend the reasoning in McCoy and Carter to require express approval from a defendant before a lawyer may pursue a guilt-based defense. Rather, when there is no indication the defendant objected to a guilt-based defense, we will continue to consider generally whether counsel's decision to utilize such a defense was deficient performance and prejudicial under the circumstances. Bentley does not argue that counsel was deficient for pursuing such a defense in the absence of a rule requiring express approval. Consequently, we affirm the panel's ruling that trial counsel was not ineffective. *27 Did the district court err when it gave no lesser included instructions for possession of methamphetamine with intent to sell?
Bentley contends that, although he had in his possession two baggies containing 7.13 grams and 20.57 grams of methamphetamine, the trial court erred when it instructed the jury only on possession with intent to distribute between 3.5 and 100 grams of the drug, a level 2 felony. He argues that, even though he did not request alternate instructions, the court should have instructed on lesser degrees of possession: possession with intent to distribute less than a gram and possession with intent to distribute between 1 and 3.5 grams, which are level 4 and level 3 felonies respectively. The Court of Appeals held that instructions on the lesser offenses were legally appropriate but were not supported by the facts. We conclude that the Court of Appeals was wrong in finding the lesser instructions factually inappropriate, but we decline to reverse the conviction on this basis.
When reviewing a claim that a district court has committed an error by failing to issue a jury instruction, this court engages in a four-step analysis:
First, the court considers the reviewability of the issue from both jurisdiction and
preservation viewpoints, exercising an unlimited standard of review; next, the court
applies an unlimited review to determine whether the instruction was legally appropriate;
then, the court determines whether there was sufficient evidence, viewed in the light most
favorable to the defendant or the requesting party, that would have supported the
instruction; and, finally, if the district court erred, the appellate court must determine
whether the error was harmless, utilizing the test and degree of certainty set forth in
State
v. Ward
,
If there was instructional error but the defendant did not object to the district
court's jury instructions—as was the case here—the reviewing court applies the clear
error standard required by K.S.A. 2022 Supp. 22-3414(3). Under that standard, the
reviewing court determines whether it is firmly convinced that the jury would have
reached a different verdict had the instruction error not occurred. The defendant has the
burden to establish reversibility, and, when examining whether the defendant has met that
burden, the reviewing court makes a de novo determination based on the entire record.
Timley
,
K.S.A. 2022 Supp. 21-5705(d)(3) states that possessing with the intent to distribute material containing any quantity of methamphetamine is a:
"(A) Drug severity level 4 felony if the quantity of the material was less than 1 gram;
"(B) drug severity level 3 felony if the quantity of the material was at least 1 gram but less than 3.5 grams;
"(C) drug severity level 2 felony if the quantity of the material was at least 3.5 grams but less than 100 grams; and
"(D) drug severity level 1 felony if the quantity of the material was 100 grams or more."
K.S.A. 2022 Supp. 21-5109(b)(1) states that a defendant may be convicted of
either the crime charged or a lesser included crime. A lesser included crime is a "lesser
degree of the same crime." By these statutory provisions, the lesser included severity
levels would have been legally appropriate for Bentley's jury to consider. See
State v.
Valdez
,
The next question is whether the evidence produced at trial warranted lesser included instructions. The Court of Appeals concluded that the instructions were not factually appropriate, but we disagree.
This court considered a similar set of facts in
Valdez
, where the defendant had a
bag containing 1 gram of methamphetamine in his pocket and a bag containing about 14
grams of methamphetamine in a bag in the defendant's living room.
One device this court has used for analyzing the propriety of a lesser included
instruction is a sufficiency of the evidence test. When there is at least some evidence
supporting convictions for lesser crimes, this court will not reverse a verdict for
insufficient evidence. See
State v. Haberlein
,
In
Scheuerman
,
But Bentley did not request those instructions. His appeal is therefore subject to
review for clear error. As noted earlier, this means that the court must determine whether
it is firmly convinced that the jury would have reached a different verdict had the lesser
included felony instructions been given. Bentley has the burden to establish reversibility,
and, when examining whether he has met that burden, this court makes a de novo
determination based on the entire record. See
Timley
,
In
Valdez
, evidence was plentiful that the defendant intended to distribute the
larger quantities found in his home: a message indicating he was looking for buyers, a
digital scale with drug residue, empty baggies, and multiple baggies containing
methamphetamine. The court concluded that "the evidence strongly shows Valdez
possessed more than 3.5 grams of methamphetamine and intended to distribute it. We
hold clear error is not demonstrated. His arguments for reversal are speculative and
insufficient to carry his burden."
In the present case, there were several indications that Bentley intended to distribute at least some of the methamphetamine. He told the interrogating officer he intended to "break the house off," possibly meaning he intended to break off portions of the crystals in exchange for places to stay. He also had small, unused baggies in his car. Weidner testified that methamphetamine users typically consume from a quarter gram to a gram a day. This would translate into between 20 and 82 doses in Bentley's larger bag, a large amount for personal use.
Although the lesser included instructions might have resulted in conviction of a lesser degree of the felony, that is not the standard for finding clear error. We are not firmly convinced that the jury would have reached a different verdict if the instructions had been given. For this reason, we find no clear error and affirm the conviction. Did the district court clearly err when it gave an inference of intent to distribute instruction?
The State charged Bentley with possession of methamphetamine with intent to distribute between 3.5 and 100 grams. The district court gave a pattern instruction to the jury that permitted it to infer Bentley intended to distribute methamphetamine if he possessed 3.5 grams or more of methamphetamine. Bentley argues this instruction was legally erroneous because it does not accurately reflect the law and because it is arbitrary and thus violates due process.
This court uses a four-part framework when reviewing instructional errors. First, it
exercises unlimited review in considering jurisdiction and whether the issue was
preserved. Second, it considers de novo whether the instruction was legally appropriate.
Third, it determines whether the instruction was factually appropriate. Fourth, it
addresses any error for harmlessness, utilizing different standards depending on whether
the error has been preserved.
Valdez
,
Bentley acknowledges he did not object to this instruction in district court. He argues the second prong of instructional error review: that the instruction was not legally appropriate and amounted to clear error.
The court provided the following instruction:
"If you find the defendant possessed 3.5 grams or more of methamphetamine, you may infer that the defendant possessed with intent to distribute. You may consider the inference along with all the other evidence in the case. You may accept or reject it in determining whether the State has met the burden of proving the intent of the defendant. This burden never shifts to the defendant."
This instruction describes a permissive inference. But it is based on the following statutory provision, which describes a mandatory rebuttable presumption:
"(e) In any prosecution under this section, there shall be a rebuttable presumption of an intent to distribute if any person possesses the following quantities of controlled substances or analogs thereof:
(1) 450 grams or more of marijuana;
(2) 3.5 grams or more of heroin or methamphetamine; (3) 100 dosage units or more containing a controlled substance; or (4) 100 grams or more of any other controlled substance." K.S.A. 2022 Supp. 21- 5705(e)(2).
In the Court of Appeals, Bentley argued the instruction was legally erroneous
because the amount that triggered the inference of intent to distribute was arbitrary and
thus violated the Due Process Clause. See
County Court of Ulster Cty., v. Allen
, 442 U.S.
140, 157,
The panel did not address Bentley's argument that the permissive inference
instruction was arbitrary. It held K.S.A. 2020 Supp. 21-5705(e)(2) was "facially
*33
constitutional" because it did not describe a mandatory presumption.
Bentley
, 2022 WL
1278482, at *15; see
Francis v. Franklin
,
Before this court, Bentley maintains his argument that the instruction, although not mandatory, was nonetheless unconstitutional because the triggering amount was arbitrary. He further argues that the instruction was legally inappropriate because it describes a permissive inference while the applicable law describes a mandatory presumption.
Bentley is correct that the instruction was legally inappropriate. Jury instructions
"must always fairly and accurately state the applicable law."
State v. Plummer
, 295 Kan.
156, 161,
Because we hold that the instruction was legally inappropriate, we need not
consider Bentley's alternate claim that the permissive-inference instruction was legally
inappropriate because the triggering amount was arbitrary and thus violated due process.
Even if he is correct, the same clear error standard of review would apply here.
Martinez
,
An error is clear if this court is "firmly convinced the trial's result would have been
different without the error."
Valdez
,
In
Valdez
, this court held the instructional error was not clear because the State
presented ample evidence Valdez intended to distribute. This included evidence of a far
greater quantity than necessary to trigger the inference, empty plastic baggies, a digital
scale, and testimony from a detective Valdez had sent a text asking if anyone was looking
for drugs.
Valdez
,
In this case, there was evidence of intent to distribute beyond the permissive inference. Bentley had a large quantity of methamphetamine—nearly 28 grams—and he told the interviewing detective he was going to have to "break the house off" of his 20.57 gram bag of methamphetamine. The detective testified he understood that to mean Bentley was going to share some of the methamphetamine in exchange for a place to stay. And there were plastic baggies in Bentley's vehicle. Based on this evidence, we are *35 not firmly convinced the jury result would have been different had the court not given the permissive inference instruction. We affirm Bentley's possession with intent to distribute conviction.
Did the evidence support the suspended license conviction?
Bentley argues the State failed to present evidence of a necessary element of the crime of driving while his license was suspended. We agree.
When the sufficiency of the evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt. The court
does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of
witnesses. Furthermore, there is no distinction between direct and circumstantial evidence
in terms of probative value.
State v. Aguirre
,
In
State v. Jones
,
"In a prosecution under K.S.A. 1981 Supp. 8-262, for driving while one's license is suspended, it is incumbent upon the State to offer proof that a copy of the order of suspension, or written notice of that action, has been mailed to the last known address of *36 the licensee according to the division's records. The State need not prove that the licensee actually received the notice, had actual knowledge of the revocation, or had specific intent to drive while the license was suspended."
Once the State has complied with the mailing requirement of K.S.A. 8-255, "the
presumption of receipt arises and is not rebuttable."
Jones
,
In addition, "[w]hen a defendant has actual knowledge that his or her license has
been suspended," the State is not required to present direct evidence that there has been
compliance with K.S.A. 8-255(d).
State v. Campbell
,
In the present case, the State made no attempt to demonstrate that the Division of Vehicles ever mailed Bentley notice that his license was suspended. The State instead sought to demonstrate Bentley had actual knowledge his license was suspended.
The only evidence in the record relating to Bentley's knowledge consisted of this testimony by Officer Long:
"Q. Did you ask him for his driver's license?
"A. Yes.
"Q. And did he tell you he didn't have one?
"A. Correct.
. . . .
"Q. And your assumption that he had a suspended driver's license, was that, in part, based upon the fact that he wasn't able to—or he told you he didn't have a license?
"A. Correct." In closing argument, the prosecutor explained to the jury: "Was the defendant driving without [ sic ] a suspended license? Well, you heard on the Axon video, when Officer Long asked him for his license, he said he didn't have one, tried to give him a KDOC number. . . . And it's clear he knew [ his license was suspended ] , because he said I don't have one and tried to give them a KDOC number instead." (Emphasis added.)
Was this testimony sufficient to prove Bentley knew his license was suspended? It demonstrated that Bentley knew he was driving without having a valid license on his person. But Long's testimony was highly ambiguous regarding knowledge of a suspended license. Because the evidence proved nothing other than that Bentley did not have a valid license with him, it does not, by itself, show he was not carrying the license because he knew it was suspended. Even in hindsight, given the full record, we have no way of knowing whether Bentley knew his license was suspended.
We do not see proving notice to be an onerous burden on the State. Surely it cannot be difficult to obtain from the Division of Vehicles a showing that it mailed or attempted to mail a defendant a notice of suspension. Or the law enforcement officers could have simply asked Bentley whether he knew his license was suspended. If he answered yes, then no further proof would have been needed.
Because the evidence presented in this case did not suffice to prove an essential element of the crime, we reverse the conviction for driving with a suspended license.
We reverse the portion of the Court of Appeals decision that reversed the firearms convictions and affirm those convictions. We reverse the portion of the Court of Appeals decision that affirmed the driving with a suspended license conviction and reverse that conviction. We affirm the conviction for possessing methamphetamine with intent to distribute. Remanded for resentencing.
Judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions.
* * *
S TEGALL , J., concurring: I concur in the result based on the rationale expressed in
my concurrence in
State v. Strong
,
L UCKERT , C.J., joins the foregoing concurrence.