Appeal from Lyon District Court; W. LEE FOWLER, judge.
1. Venue is a necessary jurisdictional fact that must be proven along with the elements of the actual crime. Because venue is jurisdictional and implicates a district court's subject matter jurisdiction, an appellate court's standard of review is de novo.
2. Where two or more acts are requisite to the commission of a charged crime and such acts occur in different counties, K.S.A. 22-2603 authorizes the State to prosecute the crime "in any county in which any of such acts occur."
3. K.S.A. 2009 Supp. 21-36a07(a)(1) prohibits the knowing or intentional use of a communication facility to commit, cause, or facilitate the unlawful manufacture, distribution, cultivation, or possession of a controlled substance.
4. Interpretation of a statute is a question of law over which appellate courts have unlimited review. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings.
5. For purposes of venue, "use" of a communication facility in violation of K.S.A. 2009 Supp. 21-36a07(a) occurs simultaneously where the parties to the communication are located.
6. K.S.A. 22-3414(3) provides that no party may assign as error a district court's giving or failure to give a particular jury instruction unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.
7. In determining whether an instruction or a failure to give an instruction was clearly erroneous, the appellate court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the instruction was legally and factually appropriate, employing an unlimited review of the entire record. If the appellate court concludes the district court erred in giving or failing to give a challenged instruction, the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.
8. In a prosecution for felony fleeing or attempting to elude a police officer under K.S.A. 2009 Supp. 8-1568(b) based on five or more moving violations, the district court must instruct the jury on the specific moving violations and the definitions of those moving violations. Failure to provide the jury with such instructions constitutes error.
9. Where the evidence establishes that all traffic infractions committed by a defendant constitute moving violations, the district court's failure to instruct the jury on the specific moving violations is not clearly erroneous.
10. A multiple acts case is one in which several distinct and separate acts are alleged, any one of which could constitute the crime charged.
11. In a case involving multiple acts, unless the State elects what act it is relying on to base a conviction, a unanimity instruction is required to make sure the jurors understand that they must unanimously agree on the act constituting the crime. The analytical framework for the resolution of multiple acts issues is discussed and applied.
12. When a single criminal offense may be committed by alternative means, jury unanimity is not required as to the means by which the crime was committed, as long as substantial evidence supports each alternative means set out in the jury instructions. If the evidence is insufficient on one or more of the means on which the jury has been instructed, the conviction must be reversed.
13. Definition statutes which merely describe a material element or a factual circumstance that would prove the crime are "options within a means" that do not create additional alternative means of committing an offense.
14. Under K.S.A. 2009 Supp. 21-36a01(d), the statutory definition of "distribute" lists options within a means by merely describing the factual circumstances that may prove the material element of "distribute" and therefore does not raise concerns of jury unanimity or warrant application of the super-sufficiency requirement.
15. The use of prior convictions for sentencing enhancement under the Kansas Sentencing Guidelines Act is constitutional.
16. The Court of Appeals is required to follow Supreme Court precedent unless there is some indication the court is departing from its previous decision.
The opinion of the court was delivered by: Standridge, J.:
Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.
Brandon Castleberry appeals from convictions against him for obstruction of official duty, distribution of methamphetamine, unlawful use of a communication facility to arrange a drug sale, failure to affix a drug tax stamp, and fleeing or attempting to elude a police officer. For the reasons stated below, we affirm each of Castleberry's convictions.
On June 10, 2010, Emporia Police Officer Lance Delgado stopped a vehicle driven by Mark Foltz and discovered that Foltz and his passenger were in possession of methamphetamine. In order to prevent his own prosecution, Foltz agreed to make a controlled purchase of methamphetamine from Castleberry. From the Emporia police station, Foltz used his cell phone to place two calls to Castleberry, both of which were monitored and recorded by law enforcement. During the course of the first conversation, Foltz and Castleberry discussed "going fishing," which Foltz explained to police was code for a methamphetamine purchase. During the second conversation, Foltz and Castleberry agreed to meet at Peter Pan Park in Emporia.
The police set up video camera surveillance at the park, secured a wireless transmitter on Foltz, and provided him with $600 in cash to purchase the methamphetamine. An officer followed Foltz to the park and, in addition to that officer, several other officers later observed Castleberry pull up next to Foltz. After 3 to 5 minutes, Foltz and Castleberry parted ways and separately left the park. Both Foltz and Castleberry were followed by the police. When Foltz arrived back at the Emporia police station, he turned over a Marlboro cigarette box containing two plastic baggies with a substance that was later confirmed to be methamphetamine. Foltz reported he had given Castleberry $600 in exchange for the drugs.
When the police officers following Castleberry attempted to pull him over, he sped up and led the officers on a high-speed chase outside the city limits. The chase lasted approximately 45 minutes, during which Castleberry ran multiple stop signs and traffic lights. Castleberry eventually came to a stop and exited his vehicle. He ignored officers' warnings to get down on the ground, put his hands up in what officers believed to be a taunting and aggressive manner, and told the officers to shoot him. Officer Delgado ultimately tased Castleberry and took him into custody.
Castleberry was charged with one count each of aggravated assault of a law enforcement officer, obstructing legal process or official duty, distribution of methamphetamine, unlawful use of a communication facility to arrange a drug sale, failure to affix a drug tax stamp, fleeing or attempting to elude a law enforcement officer, and reckless driving.
At trial, Castleberry denied that he provided methamphetamine to Foltz in exchange for money. Castleberry testified that he and Foltz occasionally went fishing together and that he believed both of their June 10, 2010, phone conversations were related to fishing. Castleberry claimed they always met at an agreed upon location before going fishing because they would take Foltz' car. Castleberry testified that before meeting Foltz at the park on the day in question, he received a text from Foltz' girlfriend, Stacy Ragsdale, who said Foltz had been "busted" by police and was in jail. On his way to the park, Castleberry called Ragsdale and told her that Foltz could not be in jail because he was on his way to meet Foltz. When he pulled up beside Foltz in the car, Castleberry gave the phone to Foltz so Foltz could talk to Ragsdale. After Foltz got off the phone, he told Castleberry that he could not go fishing that day and suggested they go another time. Castleberry reported that they each left the park separately.
As Castleberry was leaving the park, he noticed a police officer following him and "panicked" because he just then realized he had associated with someone who allegedly had been caught with drugs. Castleberry decided to "take off" and leave town; he finally stopped his car after talking to his mother and a friend, who convinced him that he needed to pull over. Castleberry testified that after he stopped his car, he found himself surrounded by five or six police cars and could not hear anything due to all the sirens. Castleberry reported that he threw his keys down, put his hands up in the air, and told the officers not to shoot. Castleberry denied resisting arrest and claimed that his large size, combined with the stress of being tased, made it hard to get his hands behind his back, which caused the officers difficulties in trying to handcuff him.
After the close of evidence, the State dismissed the reckless driving charge. After deliberation, the jury acquitted Castleberry of aggravated assault of a law enforcement officer but found him guilty of obstructing official duty, distributing methamphetamine, illegal use of a communication facility, failure to affix a drug tax stamp, and fleeing or attempting to elude a police officer. The district court sentenced Castleberry to a controlling prison term of 61 months.
On appeal, Castleberry argues: (1) The evidence was insufficient to convict him of unlawful use of a communication facility to arrange a drug sale; (2) the district court erred in failing to instruct the jury on the specific offenses that constitute moving violations for the fleeing and eluding charge; (3) the district court erred in failing to give a unanimity instruction on the obstruction of official duty charge; (4) the State failed to present sufficient evidence on each of the alternative means of committing the crime of distribution of methamphetamine; and (5) the district court erred in enhancing his sentence based on criminal history without proving it to a jury beyond a reasonable doubt. We address each of Castleberry's arguments in turn.
I. Sufficiency of the Evidence: Unlawful Use of a Communication Facility
Castleberry challenges the sufficiency of the evidence supporting his conviction in Lyon County of unlawfully using a communication facility to distribute methamphetamine. Specifically, he contends the State failed to prove that he committed this crime in Lyon County, which necessarily renders Lyon County an improper venue for the charge against him.
Venue is a necessary jurisdictional fact that must be proven along with the elements of the actual crime. See State v. Rivera, 42 Kan. App. 2d 1005, 1008-10, 219 P.3d 1231 (2009), rev. denied 290 Kan. 1102 (2010). Because venue is jurisdictional and implicates the district court's subject matter jurisdiction, our standard of review is de novo. State v. Jackson, 280 Kan. 16, 20, 118 P.3d 1238 (2005), cert. denied 546 U.S. 1184 (2006); see State v. Calderon-Aparicio, 44 Kan. App. 2d 830, 836-41, 242 P.3d 1197 (2010), rev. denied 291 Kan. 913 (2011). In this case, resolution of the venue issue also involves interpretation of K.S.A. 2010 Supp. 21-36a07, which is subject to de novo review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
We begin our discussion of venue with K.S.A. 22-2602, the statutory authority for conferring venue in criminal prosecutions. This statute authorizes the State to prosecute a crime in the county where the crime was committed. Where two or more acts are requisite to the commission of the crime charged and such acts occur in different counties, however, K.S.A. ...