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State v. Boggs

November 21, 2007

STATE OF KANSAS, APPELLEE,
v.
CHARLES ADAM BOGGS, APPELLANT.



Appeal from McPherson District Court; CARL B. ANDERSON, JR., judge.

SYLLABUS BY THE COURT

1. When reviewing a trial court's decision to admit evidence, an appellate court first determines whether the evidence is relevant. Once relevance is established, an appellate court must apply the evidentiary rules governing the admission and exclusion of evidence as a matter of law or in the exercise of the trial court's discretion, depending on the contours of the evidentiary rule in question.

2. Our legislature has adopted a framework to determine whether evidence of other crimes or bad acts is admissible: Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. K.S.A. 60-455.

3. No evidence of prior crimes or civil wrongs may be admitted unless relevant to one or more of the eight material facts listed in K.S.A. 60-455 or some other material fact not listed in the statute.

4. Before admitting K.S.A. 60-455 evidence, the trial court must (1) determine that the evidence is relevant to prove a material fact other than the defendant's propensity to commit the crime charged, (2) determine that the material fact is disputed, and (3) determine that the probative value of the evidence outweighs its potential for producing undue prejudice. Reviewing whether the trial court properly admitted evidence under K.S.A. 60-455 requires the court to review the legal basis for the trial court's decision. When an appellate court reviews the legal basis for admitting evidence, the standard of review is de novo.

5. Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). A material fact is one that is significant under the substantive law of the case and properly at issue. To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish.

6. When a prior crime is used to show intent, the determination of relevancy must be based on the similarity of the prior crime with the charged crime.

7. When a defendant completely denies that any of the charged conduct took place, the defendant's intent is not in issue and the evidence may not be admitted to prove it. Moreover, absence of mistake or accident and intent are closely related concepts. Unless a defendant has contended that the charged crimes were innocent in character, evidence of prior acts or convictions may not be admitted to show absence of mistake or accident.

8. A trial court has the discretion to exclude relevant evidence if it determines that the probative value of the evidence offered is substantially outweighed by the risk of unfair prejudice. 9. Propensity evidence is excluded because of the risk that a jury might give the evidence more weight than it should receive, thus prejudicing the defendant.

The opinion of the court was delivered by: Green, J.

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

Before HILL, P.J., GREEN and MARQUARDT, JJ.

Charles Adam Boggs appeals his convictions of one count of felony possession of marijuana and one count of misdemeanor possession of drug paraphernalia. Boggs maintains that the trial court erred in admitting evidence of his prior use of marijuana. We agree. Boggs also contends that it was improper for the court to use his prior convictions, not proven to a jury beyond a reasonable doubt, to calculate his criminal history score. We disagree. Accordingly, we affirm in part, reverse in part, and remand for a new trial.

Captain Charles Allcock and Officer Meagher of the McPherson Police Department were on patrol on the morning of October 29, 2005. Allcock saw a Chevy pickup driving erratically. He followed the truck for about three blocks before pulling the driver over on suspicion of driving under the influence of alcohol or drugs (DUI). Allcock identified the driver of the truck as Matthew Hockett and the passenger as Charles Adam Boggs. During the 10-15 minutes that Allcock and Meagher were performing sobriety tests on Hockett, Boggs remained seated in the passenger seat of the truck. Although Meagher initially was in a position to observe Boggs, he spent some time assisting Allcock with the sobriety testing. Allcock arrested Hockett for DUI and placed him in the patrol car.

At some point in time, Boggs was told that he was free to leave so he began to walk home. Allcock searched the truck and found a glass marijuana pipe on the floorboard under the passenger seat. Allcock noted that there was residue in the pipe, but the pipe was not warm to the touch. Allcock sent Meagher to bring Boggs back to the truck. Allcock showed the pipe to Hockett. According to Allcock, Hockett denied that the pipe was his and stated, "That son of a bitch Charlie Boggs, I can't believe he brought this into my dad's pickup."

When Boggs returned to the truck, Allcock Mirandized Boggs and asked him about the pipe. Boggs denied that the pipe was his. The officers searched Boggs and found no evidence of illegal drug activity. Allcock noticed the odor of burnt marijuana on Boggs' clothing. Allcock arrested Boggs for possession of marijuana, based on the residue in the pipe, and possession of drug paraphernalia based on the pipe.

Allcock placed Boggs in the patrol car with Hockett and transported them to jail. Hockett testified that when he and Boggs were alone in the patrol car, Boggs asked Hockett to tell the police that the pipe did not belong to him. At the jail, Allcock and Meagher interrogated Boggs again. Boggs again denied that the pipe was his. Meagher asked Boggs when he last smoked marijuana. Boggs stated that he had smoked marijuana about 1 month ago.

The State charged Boggs with felony possession of marijuana and misdemeanor possession of drug paraphernalia. Boggs moved in limine to exclude his statement to police about his prior drug use. The trial court denied the motion. At trial, the State admitted Boggs' statement through the testimony of Allcock. Boggs contemporaneously objected to the admission of his statement, but the court overruled the objection.

During the jury instructions conference, the trial court told the parties that it would provide a limiting instruction for the admission of Boggs' statement. Boggs did not object to the form of the instruction, but did object again to the admission of the statement. The court gave instruction No. 6 which instructed the jury that Boggs' statement was admitted only for the purpose of proving intent, knowledge, or absence of mistake or accident.

A jury convicted Boggs of one count of felony possession of marijuana, K.S.A 65-4162, and one count of misdemeanor possession of drug paraphernalia, K.S.A. 2006 Supp. 65-4152. The trial court sentenced Boggs to 18 months' probation for each count, to run concurrently, with ...


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