Updated - July 8, 2013
1. The prosecutor's use of a painting of George Washington as an analogy in discussing the concept of reasonable doubt during voir dire, while discouraged, was not improper.
2. Aiding and abetting under K.S.A. 21-3205(1) does not create a separate crime but, rather, extends criminal liability to a person other than the principal actor. Therefore, all persons involved are equally responsible for all the actions of the others, meaning aiders and abettors may be charged, tried, and convicted in the same manner as principals.
3. Aiding and abetting does not provide an alternative means of committing a crime. First, the aiding and abetting statute does not set out alternative material elements of the underlying crime. Second, K.S.A. 21-3205(1), describing one who "intentionally aids, abets, advises, hires, counsels or procures" another to commit a crime with intent to promote or assist in its commission, merely provides descriptors as to how a person participates in the crime. Third, and more fundamentally, K.S.A. 21-3205(1) only provides factual circumstances that impose equal liability on a person who aids and abets the principal actor.
4. Although there are minor differences in the meaning of the terms aids, abets, advises, hires, counsels, and procures, these terms do not entail materially different or distinct ways of committing a particular crime. The thrust of K.S.A. 21-3205 is that a person who knowingly induces or assists another person to commit a crime is criminally responsible for the crime regardless of the extent the person participates in the actual commission of the crime. K.S.A. 21-3205(1) does not set forth alternative means of committing a crime.
5. The use of "person or presence" in the aggravated robbery instruction merely describes the victim's proximity to the property taken, and the two words are simply two options used to describe different factual circumstances in which aggravated robbery can occur. Therefore, the phrase "person or presence" in the aggravated robbery statute does not create an alternative means of committing the crime.
6. Under the facts of the present case, the jury's questions neither invoked legally significant explanatory answers nor were they of the nature to require the defendant's attorney to consult with the defendant on trial strategy. The defendant's presence would not have changed any of the answers to any of the posed questions; therefore, it is safe to conclude beyond a reasonable doubt that the error of excluding the defendant from the discussion about the answers to the jury's questions was harmless.
Appeal from Riley District Court; David L. Stutzman, judge.
Marsha J. Sonner, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Barry Disney and Kendra Lewison, assistant county attorneys, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Standridge, P.J., Arnold-Burger and Powell, JJ.
Naazir Jackson appeals his convictions for one count of aggravated robbery, one count of aggravated burglary, and two counts of possession of drug paraphernalia. He argues several points of error: (1) The prosecutor's misconduct during voir dire denied him a fair trial; (2) there was insufficient evidence to support the alternative means for aggravated robbery; (3) the court committed reversible error in answering four written jury questions outside of Jackson's presence; and (4) there was insufficient evidence to support his convictions for possession of drug paraphernalia.
Because we find: First, that the prosecutor's use of a painting analogy was not prosecutorial misconduct; second—with regard to the crime of aggravated robbery—that principal versus aiding and abetting, the phrase "aids or abets" in the aiding and abetting instruction, and the phrase "person or presence" in the aggravated robbery instruction do not constitute alternative means of committing the crime; third, the trial court committed harmless error by answering the jury's questions outside the presence of the defendant; and fourth, there was sufficient evidence to support the defendant's convictions for possession of drug paraphernalia, Jackson's convictions are affirmed.
Factual and Procedural History
On April 18, 2011, around noon, Christopher Detar-Newbert and Meagan Rocha were in the bedroom they shared in their apartment when Detar-Newbert heard a knock at the door. Looking through the peephole, he saw Jackson, whom he recognized from a prior acquaintance, so he opened the door. When he opened the door, Jackson and a second man were standing close to the door. Detar-Newbert did not recognize the second man, who appeared to have a gun with a blue handkerchief around the gun's visible stock tucked into the top of his pants. Detar-Newbert later described the gun as what he believed to be a black semi-automatic handgun.
Jackson ordered Detar-Newbert to be quiet and go into his room. Detar-Newbert complied, and the two men followed him into his room where Rocha was asleep on the bed. Detar-Newbert woke Rocha, then Jackson ordered them to open the small safe sitting next to the bed. Rocha opened the safe; Jackson proceeded to take the cash and a small bag of marijuana from the safe and put them into the other man's black backpack. Jackson and the second man then left the apartment. Detar-Newbert estimated that there was between $350 to $450 cash and about $20 to $30 worth of marijuana in the safe.
About 30 to 40 minutes later, Detar-Newbert called the police; at 12:58 p.m., Riley County Police Officer Carl Stevens was dispatched to the apartment. When the police arrived, Detar-Newbert provided them with a description of both men who had robbed them. Though neither Detar-Newbert nor Rocha knew Jackson's name, they recognized him as being a friend of a mutual friend, Deangelo Grimm. A couple of months prior to the date of the robbery, Detar-Newbert, Rocha, and their friend Grimm had all been to Jackson's apartment. Then, a couple of weeks before the robbery, Jackson had come to Detar-Newbert and Rocha's apartment with Grimm.
Detar-Newbert and Rocha went with detectives to a neighboring apartment complex and pointed out Jackson's apartment. The detectives ascertained the names of the tenants in that apartment; one of them, Jackson, fit the physical description given by Detar-Newbert and Rocha. A review of the surveillance footage from a few minutes prior to the time of the robbery showed two black males walking from Jackson's apartment complex towards the victims' apartment complex. A short time later, the same two individuals walked past the surveillance cameras in the opposite direction towards Jackson's apartment complex.
Detar-Newbert identified Jackson as one of the robbers when presented with a photo line-up. A search warrant was obtained for Jackson's apartment, and the apartment was searched later that same day. One of the detectives who was positioned outside the door of the apartment testified that he could smell the odor of burnt marijuana emanating from within the apartment. Jackson and the suspected second robber were both found within the apartment. The police searched both men and found $162 in cash on Jackson and $159 in cash on the other man.
When officers searched Jackson's bedroom, they located a box in Jackson's closet that contained a black air pistol (BB gun) that resembled a semi-automatic handgun. Wrapped around the pistol was a blue bandanna. Under the bed was a Wal-Mart bag that contained the packaging from the air pistol and a receipt indicating it was purchased on April 11, 2011—7 days before the robbery. The officers also found a small digital scale on the dresser and some plastic baggies in the top dresser drawer.
Officers found empty packaging from Swisher Sweets cigars and discarded loose tobacco in a trash can. One of the police sergeants, a former narcotics detective, testified at trial that one common way to ingest marijuana is to smoke a "blunt, " which is a cigar that has had the tobacco hollowed out and replaced with marijuana. One of the most common brands of cigars used as blunts is Swisher Sweets. The sergeant also testified that it is common for marijuana users to own a small scale and that plastic baggies are the most common container in which marijuana is stored. The sergeant had personally examined the baggies and scale found in the defendant's bedroom and had observed flecks of green vegetation on the items that were consistent with the appearance of marijuana.
From the area surveillance footage, the detectives identified the second robber as exiting the bus at Jackson's apartment complex at 12:06 p.m., before the robbery occurred. He was wearing a white t-shirt with a very distinct memorial logo on the front, and he was wearing a black Nike backpack with a Nike logo. Officers searched this man's apartment and found the distinctive white t-shirt seen on the video. Other surveillance footage from 12:21 p.m. showed this same man wearing this distinctive white shirt walking with an individual who had long hair roughly the same length as Jackson's hair.
During the weeks that followed Jackson's arrest, he remained in jail and made a number of phone calls. The police monitored these phone calls, and Jackson was aware of this. Jackson made a phone call to his girlfriend, asked her to get in touch with the man identified as the second robber, and find out why he had not been arrested. Jackson also called his mother and told her that the second robber was deeper in "it" than he was and he had a good plan to get the victims to drop the charges.
The trial was held on October 26-27, 2011. During deliberations, the jury sent out four questions by note. These questions were handled between the court and counsel in chambers off the record. The questions and answers were retained in the court file and made part of the record.
The jury convicted Jackson of aggravated robbery, aggravated burglary, and two counts of misdemeanor possession of drug paraphernalia. Jackson was sentenced to a controlling prison term of 94 months with the Kansas Department of Corrections. Jackson's motion for dispositional departure to probation and durational departure was denied.
Jackson timely appeals his convictions asserting four allegations of error.
Did the Use of an Analogy Concerning an Incomplete Painting During Voir Dire Constitute Prosecutorial Misconduct?
Jackson's first allegation of error is that the prosecutor committed misconduct by using an analogy during voir dire in an attempt to improperly define the burden of proof. Relying on a prior decision of our court, State v. Crawford, 46 Kan.App.2d 401, 262 P.3d 1070 (2011), petition for rev. granted in part May 21, 2012, Jackson claims the prosecutor's analogy had the effect of diluting the burden of proof.
Standard of Review
The Kansas Supreme Court has recently reaffirmed the two-step analysis an appellate court must use in evaluating allegations of prosecutorial misconduct during voir dire. State v. Stevenson, 297 Kan. __, 298 P.3d 303 (2013). "First, the court determines whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the appellate court determines whether those comments constitute plain error . . . ." Stevenson, 298 P.3d at 306 (citing State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 ).
Prosecutor's Wide Latitude
It is common for prosecutors to use analogies to help explain the concept of beyond a reasonable doubt during trial. However, our Supreme Court has found "that prosecutors embellish on the definition of the burden of proof in criminal cases at their peril." State v. Magallanez, 290 Kan. 906, 914, 235 P.3d 460 (2010). An "argument designed to define reasonable doubt . . . with unusual or seemingly clever analogies" is a dangerous path for prosecutors. Crawford, 46 Kan.App.2d at 416.
In this case, Jackson argues that the prosecutor's use of an analogy to define the beyond a reasonable doubt standard by employing a painting of George Washington with some flakes of the paint missing diluted the burden of proof and constitutes prosecutorial misconduct. During voir dire the following exchange took place between the prosecutor and prospective jurors:
"Q: . . . [The defendant is] obviously charged with a crime. Ms. [P.], that doesn't mean that he's guilty. It is just simply an allegation of the State making it. Do you understand that?
"Q: It's our responsibility to prove beyond a reasonable doubt that he is guilty. Are you presuming that the defendant is guilty just because we have charged him?
"Q: Okay. Is there anyone who has trouble with that concept? Obviously, there is going to be evidence but we have to prove it and you can't give the State, Ms. [P.], a head start. You can't say well if they charge him that he must be guilty. We start at square one.
Do you understand that?
"Q: . . . Ms. [H], who is Bob Ross?
"A: He's a painter on TV.
"Q: . . . When he starts [painting] that he starts with a blank canvas and . . . when the Judge talks about presumption of innocence . . . what I would like [you] to think of is that it's a blank canvas. We don't know what is going to be painted but you got to presume that he's innocent. And then we put on evidence, as the trial progresses [ ] we'll have one witness who will get up and put a little bit of paint, a little bit of evidence on the canvas.
We'll have another one. Eventually, a picture will start to form. And Ms. [W], your job then at the end of the trial is to sit back and determine has the State shown me a picture that I know what it is beyond a reasonable doubt. Do you understand that?
"Q: Have you ever seen that picture of George Washington and at the very bottom that there is no paint on it? ...