Review of the judgment of the Court of Appeals in 48
Kan.App.2d 469, 293 P.3d 757 (2013) .
Appeal from Lyon District Court; W. LEE FOWLER,
BY THE COURT
1. Venue to prosecute an alleged drug dealer for the crime of unlawful use of a communication facility is proper in the county where a potential drug purchaser initiates a telephone call to the dealer, when the dealer knows the location of the caller and intentionally uses that telephone communication to facilitate the sale of drugs.
2. The term " moving violation" is not defined in the fleeing or attempting to elude a police officer statute and is not a simple matter of common knowledge among jurors. Therefore, where the State relies on K.S.A. 2009 Supp. 8-1568(b)(1)(E)--that the defendant committed five or more moving violations--to prosecute the felony version of the crime of fleeing or attempting to elude a police officer, the district court errs when it fails to instruct the jury on the specific underlying moving violations being alleged to support the crime.
3. Alternative means are legislatively determined, distinct, material elements of a crime, as opposed to the legislative descriptions or definitions of material elements or the factual circumstances that would prove the crime.
4. In K.S.A. 2009 Supp. 8-1568(b)(1), the legislature did not intend to create alternative means of committing the crime of fleeing or attempting to elude a police officer.
5. Multiple acts are legally and factually separate incidents that independently satisfy the elements of the charged offense. Incidents are factually separate when independent criminal acts have occurred at different times or different locations or when a criminal act is motivated by a fresh impulse. The district court is not required to give a jury unanimity instruction unless the jurors heard evidence of multiple acts, each of which could have supported a separate conviction of the charged crime.
6. When a defendant's attempts to elude arrest during a police pursuit are continuous and uninterrupted, the jury is not presented with a multiple acts scenario.
7. The terms " actual, constructive or attempted" within the definition of " distribute" do not create alternative means of committing the crime of distribution of methamphetamine. The terms " actual, constructive or attempted" simply describe the factual circumstances under which a material element of the crime of distribution of methamphetamine--the transfer of drugs--may be proved.
8. Use of prior convictions in a criminal defendant's criminal history score to enhance the defendant's sentence without requiring the history to be included in the complaint and proved to the jury beyond a reasonable doubt does not violate the defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Jonathan L. Noble, assistant county attorney, argued the cause, and Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
JOHNSON, J. MICHAEL J. MALONE, Senior Judge, assigned.
[301 Kan. 171] Johnson, J.
Brandon Castleberry seeks review of the Court of Appeals' decision affirming his jury trial convictions and sentence 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. State v. Castleberry, 48 Kan.App.2d 469');">48 Kan.App.2d 469, 293 P.3d 757 (2013). Castleberry arranged to sell methamphetamine to a police informant in a telephone conversation and then, after effecting the sale in a park, led police on a high-speed chase before being subdued and arrested.
On petition for review from the Court of Appeals, Castleberry argues: (1) The State failed to establish that Castleberry used a communication facility in Lyon County so as to establish venue on [301 Kan. 172] that charge; (2) the district court's failure to instruct the jury on the definition of a moving violation for purposes of fleeing and eluding was clearly erroneous; (3) the district court's failure to give a unanimity instruction on the obstruction of official duty charge was clearly erroneous; (4) the State presented insufficient evidence on all of the instructed alternative means of committing distribution of methamphetamine; and (5) the district court violated his rights to the Sixth and Fourteenth Amendments to the United States Constitution when it sentenced him to an increased sentence based upon his criminal history without requiring the State to prove it to a jury beyond a reasonable doubt. Finding no reversible error, we affirm Castleberry's convictions and sentence.
Factual and Procedural Background
On June 10, 2010, to avoid being prosecuted on unrelated charges, Mark Foltz agreed to assist law enforcement officers by making a controlled purchase of methamphetamine from Brandon Castleberry. While at the Emporia Police Department, Foltz made two recorded cell phone calls to Castleberry. In the first call, Foltz told Castleberry he wanted to " go fishing," which he explained to police was code for purchasing methamphetamine. During that call, Castleberry asked Foltz where he was calling from, and Foltz responded that he was " in town." During the second call, Foltz and Castleberry agreed to meet at Peter Pan Park in Emporia.
Based upon these phone calls, police set up video recording equipment at Peter Pan Park, placed a wireless transmitter on Foltz, and gave Foltz $600 to fund the methamphetamine purchase. Then, Foltz drove his pickup truck to the park to meet Castleberry, who also arrived in a vehicle. Foltz got into Castleberry's car, where, according to Foltz' testimony, he gave Castleberry $600 in exchange for a cigarette package containing methamphetamine. When the two parted ways, Foltz returned to the Emporia Police Department with the methamphetamine.
Officer Lance Delgado, driving a marked patrol vehicle, unsuccessfully attempted to stop Castleberry's car as it left the park. Instead of pulling over, Castleberry led officers on a 45-minute, high-speed chase through residential and rural areas of Lyon [301 Kan. 173] County. During the chase, Castleberry disobeyed several stop signs and traffic signals, while driving at speeds ranging from approximately 45 miles per hour to 120 miles per hour.
Highway Patrol Trooper Beau Wallace learned of Castleberry's location and stopped his patrol car in the opposite lane of traffic with the intent of deploying stop sticks to end the chase. Wallace was still in his car when Castleberry's car traveled towards him at 109 miles per hour. As Castleberry approached, he neared the road's centerline, as though he was aiming at Wallace's car. Wallace accelerated into the ditch to get out of Castleberry's path and notified dispatch that Castleberry had tried to hit him.
The pursuit finally ended when law enforcement deployed stop sticks in the path of Castleberry's vehicle, which caused Castleberry to stop before reaching the stop sticks. Immediately upon coming to a stop, Castleberry got out of his vehicle. Four officers pointed their weapons at Castleberry and yelled at him to get down on the ground. Castleberry threw his arm up in the air in what Delgado described as an " almost taunting" or " threatening" motion. Wallace described Castleberry's behavior as antagonistic and aggressive and noted that Castleberry told the officers to shoot him. After approximately 5 to 20 seconds, Delgado tased Castleberry, allowing officers to temporarily subdue him, before Castleberry resumed resisting the officers' attempts to handcuff him.
Based on these events, the State charged Castleberry with one count each of aggravated assault on a law enforcement officer, obstructing legal process or official duty, distribution of methamphetamine, unlawful use of a communication facility, failure to affix a drug tax stamp, fleeing or attempting to elude a law enforcement officer, and reckless driving.
At trial, Castleberry testified in his own defense, denying that he had given Foltz methamphetamine in exchange for money. He contended that his telephone conversation with Foltz was literally about going fishing, as they had done in the past. Castleberry said that on those prior fishing expeditions, he had used the fishing equipment that Foltz kept in his pickup truck. Castleberry explained further that, when the two met at the park, Castleberry was talking to Foltz' girlfriend and handed the telephone to Foltz. [301 Kan. 174] After Foltz spoke with his girlfriend, he announced that he was not ready to fish that day but perhaps they could go the following day.
Castleberry explained that as he left the park, he noticed police officers following him, and he panicked. But he said that during the chase he spoke by telephone with his mother and a friend, who convinced him to stop his car. He further testified that he did not resist arrest, but rather he was unable to
place his arms behind his back because of his large body structure and the effects of the taser.
After the close of evidence, the district court granted the State's motion to dismiss the misdemeanor reckless driving charge to avoid a potential issue with convicting Castleberry of both felony fleeing or eluding a police officer and misdemeanor reckless driving. The jury acquitted Castleberry of aggravated assault of a law enforcement officer but found Castleberry guilty of the remaining charges. The district court sentenced Castleberry to a controlling sentence of 61 months' imprisonment.
Castleberry appealed to the Court of Appeals, which affirmed his convictions and sentence. On the venue question, the panel concluded that the State's proof that Foltz originated the call in Lyon County was sufficient evidence to establish venue on the use of a communication facility charge. Castleberry, 48 Kan.App.2d at 477. Although the panel determined that the trial court erred in failing to instruct the jury on the specific underlying moving violations that supported the fleeing and eluding charge, it determined that the error was harmless because all of the traffic offenses described at trial constituted moving violations. 48 Kan.App.2d at 482. The panel found no error in the district court's failure to provide the jury with a unanimity instruction on the obstruction of official duty charge because Castleberry's conduct was one continuous act, i.e., there were not multiple acts. In the alternative, the panel found that the State effectively elected the act upon which it was relying. 48 Kan.App.2d at 484-86. The panel rejected Castleberry's argument that the definition of " distribute" provided to the jury established alternative means of committing the crime of distribution of methamphetamine. 48 Kan.App.2d at 486-89. Finally, the panel rejected Castleberry's due process challenge to the district court's use of his criminal history score to enhance his sentence. [301 Kan. 175] 48 Kan.App.2d at 489. This court granted Castleberry's petition for review.
Proper Venue For Unlawful Use of a Communication Facility
Castleberry argues that the State failed to establish that venue to prosecute the use of a communication facility charge was proper in Lyon County because the State failed to present sufficient evidence from which a rational jury could infer that Castleberry was physically present in Lyon County during his telephone conversations with Foltz. Rejecting the premise that Castleberry had to be physically present in Lyon County in order to use a communication facility within that county, we deny his venue challenge.
Standard of Review
Castleberry cites to this court's standard of review for analyzing the sufficiency of the evidence. But before we can determine whether the State's evidence was sufficient to prove the facts necessary to establish Lyon County as a proper venue for the use of a communication facility charge, we must interpret the statute that defines the crime to ascertain where the defendant is deemed to have used the communication facility. Of course, statutory interpretation is a question of law over which appellate courts exercise unlimited review. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
We begin by looking at the statutory definition of the crime of unlawful use of a communication facility contained in K.S.A. 2009 Supp. 21-36a07, which provides, in relevant part:
" (a) It shall be unlawful for any person to knowingly or intentionally use any communication facility :
(1) In committing, causing, or facilitating the commission of any felony under K.S.A. 2009 ...