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State v. Moore

April 25, 2008

STATE OF KANSAS, APPELLEE/CROSS-APPELLANT,
v.
CONNIE W. MOORE, APPELLANT/CROSS-APPELLEE.



Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge.

SYLLABUS BY THE COURT

1. Although the defendant in this case failed to lodge contemporaneous objections to the admission of evidence at trial, he properly preserved suppression issues for review when he twice renewed his objection to the denial of the suppression motion -- once after the trial court dismissed the venire panel and again after voir dire.

2. Appellate review of a suppression ruling is a mixed question of fact and law. A district court's factual findings are reviewed for substantial competent evidence, but the ultimate determination concerning the suppression of evidence is a question of law over which an appellate court has unlimited review.

3. When the material facts necessary to resolve a suppression issue are not disputed, an appellate court possesses unlimited review.

4. To stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402 and Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 899, 88 S. Ct. 1868 (1968).

5. An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation. Whether the length of detention is reasonable is a question of law over which an appellate court has unlimited review.

6. When the facts material to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review.

7. Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. To determine whether probable cause exists, an appellate court considers the totality of the circumstances, including all of the information in the officer's possession, fair inferences drawn therefrom, and any other relevant facts, even if they may not be admissible at trial. The totality of the circumstances is viewed by evaluating the information from the standpoint of an objectively reasonable police officer.

8. The odor of ether is only one factor that may be relied upon to establish probable cause to search for evidence related to the manufacture of methamphetamine. That odor must be considered with other evidence considered in the totality of the circumstances.

9. In considering whether probable cause exists, an appellate court does not view evidence in an isolated or singular fashion. Rather, the court reviews the totality of the circumstances, keeping in mind that innocent behavior frequently will provide a showing of probable cause.

10. Based on the totality of the circumstances in this case, officer had probable cause to search defendant's truck based upon suspicion that defendant was engaged in manufacturing methamphetamine when officer detected the odor of ether and anhydrous ammonia and observed in plain view in the defendant's truck several items related to the manufacture of methamphetamine.

11. Pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), law enforcement officers must inform suspects of their Miranda rights before initiating custodial interrogations.

12. Statements made during a traffic stop are not subject to the Miranda requirement. During a traffic stop an officer may ask the detainee a moderate number of questions to determine his or her identity and to try to obtain information confirming or dispelling the officer's suspicions.

13. Under the facts of this case, the officer's pre-Miranda question to defendant as to where he was going was logically related to reasons for the stop and was not made in a custodial setting, when defendant was stopped based upon suspicion of driving under the influence and provided an expired driver's license.

14. An appellate court reviews the denial of a motion for new trial for an abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then the trial court did not abuse its discretion.

15. All prior conviction evidence must be considered for admission at trial pursuant to K.S.A. 60-455. In determining whether evidence is admissible under that statute, a trial court must determine whether the evidence is relevant and whether the probative value of the evidence outweighs the prejudicial effect.

16. If a trial court admits prior conviction evidence, the court must also give a limiting instruction. However, a trial court's failure to conduct these specific inquiries or to give a limiting instruction does not require in automatic reversal. Rather, the appellate court must determine whether the failure to follow K.S.A. 60-455 resulted in harmless error.

17. Admission of prior convictions to prove possession in nonexclusive possession cases does not constitute a per se violation of K.S.A. 60-455. Rather, in nonexclusive possession cases, evidence of prior bad acts may be admissible to show knowledge, intent, and absence of mistake under K.S.A. 60-455 as long as these issues are disputed and the probative value of the evidence outweighs it potential prejudice.

18. Under the facts of this case, defendant's prior convictions were relevant to show knowledge when defendant placed knowledge in dispute. Defendant's theory of defense was that the trailer in which methamphetamine-related items were found was accessible to the public and, consequently, the items in the trailer could have belonged to someone other than the defendant. The prior conviction evidence was relevant to show the defendant's knowledge of the items in the trailer.

19. Violation of a sequestration order does not automatically disqualify a witness from testifying. Rather, in the absence of any showing of prejudice to the defendant, the trial court may in its discretion permit the witness to testify despite the violation.

20. The identical offense doctrine provides that when two statutes with differing penalties proscribe identical conduct, a criminal defendant may be sentenced only to the lesser of the two penalties.

21. As long as the elements of the two crimes at issue are not identical and the jury is clearly instructed as to the elements of each crime as defined by the charging document, the underlying facts proven by the State are not controlling in determining whether crimes are identical for sentencing purposes. Rather, the sentencing court examines the facts only to determine the areas in which the two statutes overlap. Once it is determined which provisions of a statute apply, the only question is whether the overlapping provisions contain identical elements.

22. Although K.S.A. 65-4152(a)(3) and K.S.A. 65-4159(a) may overlap factually, they they do not have identical elements. When, as in this case, the jury was instructed as to the distinct elements of each crime as defined in the complaint, the two offenses were not identical for sentencing purposes.

23. K.S.A. 21-4705(e), which provides that the sentence for a second or subsequent conviction of K.S.A. 65-4159 shall be a presumptive term of imprisonment of two times the maximum duration of the presumptive term of imprisonment, does not violate the defendant's due process rights. Because the statute does not alter the crime's severity level classification, nor does it make proof of the prior conviction an element of the crime, the State was not required to provide notice to the defendant that it intended to seek application of the statute.

24. Although the defendant's prior conviction occurred after the acts with which the defendant was charged in the instant case, the defendant was required to be sentenced as a second or subsequent offender pursuant to K.S.A. 21-4705(e) as long as his prior conviction occurred prior to his sentencing in the present case.

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

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

Before McANANY, P.J., CAPLINGER and BUSER, JJ.

Connie Moore appeals his convictions and sentences for multiple methamphetamine-related offenses, and the State cross-appeals the primary sentence imposed.

Moore argues the district court erred in denying his motion to suppress evidence found in his truck and camper because (1) the initial stop of his vehicle was unlawful; (2) the scope of the stop exceeded its initial purpose; (3) the subsequent search of his vehicle was not based upon probable cause; and (4) he was under custodial interrogation when he made pre-Miranda statements during the traffic stop.

Moore also argues the district court abused its discretion in denying his motion for mistrial based upon an allegedly biased jury. Additionally, Moore claims the district court erred in admitting evidence of his prior methamphetamine-related convictions without analyzing the evidence under K.S.A. 60-455. And Moore asserts the district court erred in permitting a witness to testify despite the witness' violation of a sequestration order. Finally, Moore challenges his sentences, arguing the severity level of his conviction for manufacture of methamphetamine violates the identical offense doctrine.

The State cross-appeals Moore's primary sentence, claiming the district court erred in failing to sentence Moore pursuant to K.S.A. 21-4705(e).

We conclude the district court did not err in denying Moore's motion to suppress as the officer (1) properly based the initial stop on a reasonable suspicion that Moore was driving under the influence; (2) did not exceed the scope of the initial stop; and (3) had probable to cause to search Moore's vehicle after the officer detected the odor of both anhydrous ammonia and ether and observed in plain view several items used in the manufacture of methamphetamine. Additionally, the district court did not err in refusing to suppress a pre-Miranda statement made by Moore during the investigative stop as Moore was not in custody when the statement was made.

We further hold the district court did not abuse its discretion in denying Moore's motion for mistrial as we find no evidence to support Moore's suggestion that the jury was somehow biased against him. Regarding Moore's prior convictions for methamphetamine-related offenses, we hold the district court erred in failing to conduct an analysis of their admissibility under K.S.A. 60-455. Nevertheless, the prior conviction evidence was properly admitted as it was relevant to show Moore's knowledge and awareness of the items in the trailer, which Moore claimed were not subject to his exclusive possession and did not belong to him. Further, even if the evidence was erroneously admitted, the error was harmless in light of the overwhelming evidence of Moore's guilt as contained in the trial record. We also conclude the district court did not err in permitting a witness to testify despite the witness' alleged violation of the sequestration order, When there is no evidence any prejudice occurred as a result of the alleged violation.

Based upon our analysis of our Supreme Court's recent holding in State v. Cooper, 285 Kan. ___, ___ P.3d ___ (No. 95,633, filed March 28, 2008), we must reject Moore's challenge to his sentence. Because the elements of manufacturing methamphetamine are not identical to the elements of the possession of paraphernalia with intent to manufacture, and the jury was properly instructed as to those elements as defined by the charging documents, the two offenses are not identical for sentencing purposes.

Finally, we sustain the State's cross-appeal and reverse and remand for resentencing, as the district court erred in failing to sentence Moore to a second or subsequent K.S.A. 65-4159 conviction pursuant to K.S.A. 21-4705(e). Moore's due process challenge to the statute fails because the statute does not alter the crime's severity level classification, nor does it make proof of the prior conviction an element of the crime. Further, although the defendant's prior conviction occurred after the acts with which the defendant was charged in the instant case, the defendant was required to be sentenced as a second or subsequent offender pursuant to K.S.A. 21-4705(e) because his prior conviction occurred prior to his sentencing in the present case.

Factual and procedural background

On July 23, 2004, Reno County Sheriff's Deputy Jeremy Hedges was working as a part-time park ranger at Cheney Reservoir State Park (Park), a position in which he retained his law enforcement and Reno County credentials. As Hedges patrolled the Park near Heimerman Point at approximately 11 p.m. that evening, he observed a green pickup truck swerve to one side of its lane and then jerk back to the other side of the lane. The truck, driven by Moore, made this same weaving, jerking motion approximately five times, and on the last time, the truck's passenger-side tires touched the grass on the right side of the road. Deputy Hedges became suspicious that the driver of the truck, who was traveling approximately 20 miles per hour in a 30-mile-per-hour zone, might be driving under the influence (DUI).

After Moore turned right off the main road, Hedges initiated a stop of the vehicle based upon his suspicion that the driver was DUI and also on the driver's failure to signal within 100 feet of the turn. As Hedges approached the vehicle, he detected the odor of both anhydrous ammonia and ether, which Hedges knew to be associated with the manufacture of methamphetamine.

In response to Hedge's request, Moore produced an expired driver's license and began searching for his proof of insurance in the glove compartment of the truck. As Moore searched for the documentation, Deputy Hedges observed a can of Coleman fuel and two cans of starter fluid in the bed of the truck.

Moore then asked Deputy Hedges if he could get out of the truck to continue searching for his insurance. Hedges permitted him to do so after patting him down for weapons. As Moore exited the truck, Deputy Hedges observed a roll of paper towels and an open container of lithium batteries on the seat of the truck. At that point, Park Ranger Jeffrey Ostlund arrived as back-up for Hedges. Ostlund also detected the odor of anhydrous ammonia near the truck.

Hedges returned to his patrol vehicle and requested that dispatch run Moore's driver's license and check for outstanding warrants. After dispatch confirmed that the license had expired, Hedges returned to Moore and asked him where he was going. Moore responded that he was going to his trailer which was parked at Heimerman Point.

Deputy Hedges then advised Moore that he intended to search Moore's truck. Moore responded that Hedges could not do so without a warrant. Hedges told Moore that this was not a request. After Moore began pacing and became fidgety, Hedges handcuffed him.

During the search of Moore's vehicle, Hedges found an empty package labeled "syringes" on the passenger side floorboard. As Hedges examined the toolbox in the truck's bed, the odor of anhydrous ammonia became stronger. Inside the toolbox, Hedges found a propane tank wrapped in a t-shirt. The tank's brass fittings had turned blue, consistent with the corrosive effect of anhydrous ammonia on brass. Hedges then Mirandized Moore, and Moore agreed to speak to him. Moore denied the presence of anhydrous ammonia or chemicals in the truck and told Hedges he was headed to a campsite belonging to his aunt and uncle.

At Deputy Hedges' direction, Ranger Ostlund then left to locate the campsite. Ostlund discovered that Moore had obtained a camping permit in Moore's name, which was affixed to a camper parked in Heimerman Point. Ostlund detected a chemical odor emanating from the camper parked at the site, and search warrants were then obtained for the camper, the campsite, and Moore's truck. Hedges also obtained a ...


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