Review of the judgment of the Court of Appeals in an
unpublished opinion filed April 12, 2013.
Appeal from Saline District Court; JEROME P. HELLMER,
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
BY THE COURT
1. The decision by a district court of how to word its response to a jury's request for additional information during deliberations is reviewed for abuse of discretion.
2. Proof of possession of any amount of a controlled substance suffices to sustain a conviction even if the amount is not measurable or useable.
3. A party asserting that prejudicial error has occurred has the burden of designating a record that affirmatively shows the error.
4. It is the role of the jury to determine the facts in a manner independent of the court and to apply the law to those facts in reaching its decision.
5. When reviewing jury instructions, an appellate court considers all the instructions together as a whole and does not isolate any one instruction. One phrase in a jury instruction does not warrant reversal when instructions as a whole properly state the law, and one instruction cannot be isolated from other instructions.
6. It is presumed on appeal that jurors follow the instructions that they receive from the district court.
Randall L. Hodgkinson, of the Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Kassie L. McEntire, assistant county attorney, argued the cause, and Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
ROSEN, J. BILES, J., concurring. BEIER and JOHNSON, JJ., join the foregoing concurring opinion.
Cornelius Sisson appeals from his conviction of
charges relating to attempting to elude law enforcement officers and possessing
drugs and paraphernalia.
On the early morning of December 4, 2010, Officer Matthew Gawith of the Salina Police Department observed a driver make a right turn without activating the car's turn signal. Gawith started to follow the car and tried to induce the driver to pull over to a stop, first by turning on his emergency lights, and then by sounding an air horn. Instead of pulling over, the driver accelerated, driving as fast as 50 miles per hour in a posted 30-mile-per-hour zone. The driver also veered across lanes and made multiple turns without signaling. Officer Aaron Carswell joined the pursuit in a separate police car.
The vehicle eventually came to a stop by the side of the road. When Sisson, who was driving, got out of the car, the officers handcuffed and searched him. After several pat-downs, Officer Carswell eventually found in Sisson's right front pocket an electronic scale and a baggie containing a vegetable material that was later proved to be marijuana.
Another officer went to the scene of the arrest, and, after seeing that the situation was under control, drove back from the site. Along the way, she found in the middle of the road nine baggies containing marijuana and one baggie containing cocaine powder. The bags were knotted in a manner similar to the baggie found in Sisson's pocket.
On questioning at the police station, Sisson informed an officer that he had purchased the marijuana found in his pocket earlier that day and had intended to start using it just before the police pursuit began. He went on to explain that the scale was for kitchen use in ordinary cooking.
The case proceeded to trial, and a jury ultimately found Sisson guilty of possession of marijuana, possession of drug paraphernalia, possession of cocaine, and fleeing and eluding a police officer while committing five
or more moving violations. The jury found him not guilty of possession of marijuana with intent to sell, deliver, or distribute; not guilty of possession of marijuana without tax stamps; and not guilty of possession of cocaine without tax stamps. The Court of Appeals affirmed his conviction, and this court granted review with respect to all issues. See State v. Sisson, 298 P.3d 1138, 2013 WL 1688933 (Kan. App. 2013) (unpublished opinion).
The first issue that Sisson presents on appeal is the accuracy and sufficiency of the answer that the court provided to a question from the jury.
During deliberations, the jury sent a written question to the court:
" Re: possession of cocaine
" Are we considering cocaine residue on scale as an amount sufficient to allow state to prosicute [ sic ] for possession?"
The court conferred in chambers with counsel for both parties and Sisson. The parties understood the question to mean that the jury was unsure whether it could convict for possession based on the residue on the scale or on the cocaine found in the baggie on the street. Counsel for Sisson argued that a conviction could only be predicated on the baggie because the residue was insufficient in quantity to support the charge of failure to provide a tax stamp. The State argued, and the court agreed, that State v. Schoonover, 281 Kan. 453, 468, 133 P.3d 48 (2006), required a unanimous finding of guilt under one ...