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State v. Taylor

Court of Appeals of Kansas

July 21, 2017

State of Kansas, Appellee,
v.
Albert Donett Taylor, Jr., Appellant.

         SYLLABUS

         1. To be convicted of theft, the State must establish that the defendant acted "with the intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services" at issue. Whether a defendant acted "with the intent to" commit a theft speaks to whether the defendant had the requisite culpable mental state to commit the theft, which is an essential element of the crime.

         2. Nothing within the plain language of the theft statute provides that persons who are found to be in possession of stolen firearms are guilty of theft regardless of whether those persons had knowledge that the firearms they possessed were stolen. Under no circumstances is the State relieved of its duty of establishing that the defendant acted with the intent to commit theft.

         3. A prosecutor who tells the jury that it is the legislature's desire to convict persons who possess stolen firearms of theft regardless of whether those persons had knowledge that the firearms they possessed were stolen has committed prosecutorial error under the standard of review set forth in State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). Such a statement not only misstates the law but also erroneously conveys to the jury that the prosecutor is the final arbiter on the legislature's intent.

         4. When the State has prosecuted persons for theft based solely upon their possession of stolen property, sufficient evidence to support those persons' convictions exists only if (1) they provided unsatisfactory explanations for why they possessed the stolen property, and (2) the property they possessed had been recently stolen. Stolen property found in the possession of a person 14 to 20 months after it has been reported stolen is too remote in time to be considered recently stolen.

         5. Our Supreme Court's decision State v. Watson, 273 Kan. 426, 44 P.3d 357 (2002), makes clear that because the trafficking in contraband statute does not define what items constitute contraband inside correctional institutions, the trafficking in contraband statute could lawfully prohibit the introduction or attempted introduction of contraband only if the correctional institution's administrator has given notice of what items constitute contraband. This notice requirement exists even when the items deemed contraband inside a correctional institution are also items that are illegal to possess outside a correctional institution.

         6. When a person is convicted of trafficking in contraband but was not given notice that the item of contraband that he or she was trafficking or attempting to traffic constituted contraband, the trafficking in contraband statute has been applied to that person in a way inconsistent with constitutional due process, rendering the person's conviction invalid.

         Appeal from Johnson District Court; Thomas M. Sutherland, judge.

          Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

          James Crux, legal intern, Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Arnold-Burger, C.J., Green and McAnany, JJ.

          GREEN, J.

         Following a jury trial, Albert Donett Taylor, Jr., was convicted of theft, trafficking in contraband, possession of marijuana, and driving with a suspended license. Taylor appeals his felony theft and trafficking in contraband convictions. Regarding his theft conviction, Taylor makes two arguments: (1) that the prosecutor committed reversible error during closing arguments by stating the jury could convict him of theft of a stolen firearm regardless of whether he actually knew that the firearm had been stolen; and (2) that the trial court erred by denying his motion for judgment of acquittal because insufficient evidence supported his theft conviction. Regarding his trafficking in contraband conviction, Taylor makes four arguments that hinge on his belief that he was entitled to receive notice of what items were deemed contraband inside the jail. Those four arguments are as follows: (1) The trafficking in contraband statute is unconstitutional as applied to him because he received no notice; (2) the evidence was insufficient to convict him because he received no notice; (3) the trial court was required to give his requested instruction on the notice; and (4) the prosecutor committed error by telling the jury the State had no burden to prove notice. Taylor also argues that the trial court prejudiced his defense by giving a jury instruction that broadened the culpable mental state needed to convict him. Last, Taylor argues cumulative error.

         For reasons set forth below, we need not reach Taylor's cumulative error argument because each of Taylor's individual arguments are meritorious. We conclude that the prosecutor made a serious misstatement of the law when he stated in his closing argument that persons who are charged with theft of a firearm can be convicted of theft of that firearm regardless of whether they acted with the intent to permanently deprive the owner of the possession, use, or benefit of that firearm. Moreover, we conclude that insufficient evidence supported Taylor's theft conviction because there was inadequate evidence showing that he knew he was in possession of a stolen firearm. In regards to Taylor's trafficking in contraband conviction, Taylor arguments concern the "individualized notice" requirement that persons are entitled to notice of what items are prohibited from coming within a correctional facility. Our Supreme Court adopted this notice requirement in State v. Watson, 273 Kan. 426, 436, 44 P.3d 357 (2002). Highly summarized, the trafficking in contraband statute was unconstitutional as applied to Taylor because he never received such notice. In turn, there was insufficient evidence to support Taylor's trafficking in contraband conviction. As a result, we reverse Taylor's theft and trafficking in contraband convictions.

         Factual Background

         On December 26, 2014, Deputy Christopher Pechnik responded to a car accident in Johnson County, Kansas. When Deputy Pechnik arrived at the scene of the accident, he found a single overturned car. Taylor, who was not injured, identified himself to Deputy Pechnik as the driver of the overturned car. Taylor told Deputy Pechnik that he might have fallen asleep while driving. Deputy Pechnik ran Taylor's name through the police database and discovered that Taylor was driving on a suspended license. When questioned about the status of his license by Deputy Pechnik, Taylor admitted that he knew his license was suspended. For this reason, Deputy Pechnik arrested Taylor.

         Following Taylor's arrest, Deputy Pechnik conducted a search of Taylor's car. Deputy Pechnik had smelled an odor of marijuana emanating from both Taylor and Taylor's car. The search of Taylor's car resulted in police finding marijuana fragments and two loaded handguns; one of the loaded handguns, a Smith and Wesson handgun, was found behind the driver's seat of Taylor's car. When booking Taylor into jail, Deputy Pechnik also discovered a baggie of marijuana inside one of Taylor's shoes. Also, a records check revealed that the Smith and Wesson handgun had been reported stolen by Michael Brown of Wyandotte County, Kansas.

         Based on the preceding facts, the State charged Taylor with the following: (1) theft, a severity level 9 nonperson felony in violation of K.S.A. 2014 Supp. 21-5801(a); (2) possession of marijuana, a class A nonperson misdemeanor in violation of K.S.A. 2014 Supp. 21-5706(b)(3); (3) driving while suspended, a class B nonperson misdemeanor in violation of K.S.A. 2014 Supp. 8-262; and (4) trafficking in contraband, a severity level 5 nonperson felony in violation of K.S.A. 2014 Supp. 21-5914. The State charged Taylor under a theory of theft requiring Taylor to have obtained or exerted unauthorized control over the Smith and Wesson handgun with the intent to permanently deprive Brown of possession of the handgun on or about December 26, 2014. The State charged Taylor under a theory of trafficking in contraband requiring Taylor to have intentionally introduced or attempted to introduce marijuana into the Johnson County jail.

         Taylor's jury trial was held on June 1, 2015, and June 2, 2015. The primary witness for the State was Deputy Pechnik. Deputy Pechnik testified about his interactions with Taylor on December 26, 2014, including discovering that Taylor was driving with a suspended license, smelling marijuana on Taylor's person, finding marijuana fragments in Taylor's car, and finding the Smith and Wesson handgun in Taylor's car. Deputy Pechnik's bodycam video of the search of Taylor's car was admitted into evidence and played for the jury. The video showed Deputy Pechnik touching the visor and steering wheel of Taylor's car while wearing gloves before picking up and unloading the Smith and Wesson handgun. Deputy Pechnik stated that when he asked Taylor about the Smith and Wesson handgun, Taylor told him that he was unaware that there were handguns in his car.

         Deputy Pechnik testified that following the search of Taylor's car, he arrested Taylor for driving with a suspended license and drove him to the jail. Deputy Pechnik explained that when he brings a person to the jail, he has to drive through a secured gate, then enter a secured parking garage, and then finally enter a secured door which leads to the booking area of the jail. Deputy Pechnik testified that there was a sign on the secured door that leads to the booking area of the jail that stated "No illegal weapons or drugs." Deputy Pechnik explained that when he started the booking process with Taylor, he asked Taylor to take off all of his clothes, including his shoes, because all inmates must wear the same uniform. Deputy Pechnik stated that Taylor was hesitant to take off his shoes. Deputy Pechnik testified that based on Taylor's hesitation and the fact he continued to smell marijuana on Taylor while booking him, he decided to immediately search Taylor's clothing after admitting him into the jail. Deputy Pechnik explained that he quickly found a baggie of marijuana in one of Taylor's shoes. Deputy Pechnik's bodycam video of his interactions with Taylor during booking, which were admitted into evidence, establish that Taylor was hesitant to surrender his shoes.

         Regarding the Smith and Wesson handgun, Deputy Pechnik testified that a records check of the handgun revealed that the handgun belonged to a man named Michael Brown who lived in Kansas City, Kansas. Deputy Pechnik explained that he spoke to Taylor shortly after December 26, 2014, about the handgun, and Taylor continued to deny having any knowledge about any handguns being in his car. Deputy Pechnik also explained that he asked Taylor for his DNA at that time because he wanted to see if Taylor's DNA was on the handgun. Deputy Pechnik stated that Taylor refused and told him the police had already taken a sample of his DNA at booking. Deputy Pechnik got a sample of Taylor's DNA after getting a search warrant.

         On cross-examination, Deputy Pechnik testified that in addition to denying any knowledge about the handguns, Taylor had told him that there had been three other people in his car. When asked about who owned the car Taylor was driving, Deputy Pechnik admitted that during his investigation, he learned that Taylor's car was actually a rental car that had been rented under Taylor's girlfriend's name.

         Besides Deputy Pechnik, the supervisor of booking at the Johnson County jail and a few forensic scientists testified on behalf of the State. Sergeant Shane Thomas, who supervises bookings at the Johnson County jail, testified that he did not give Taylor permission to bring marijuana into the jail. Sergeant Thomas never testified that he personally told Taylor he could not bring the marijuana inside the jail. The forensic scientists testified to the following: (1) The Smith and Wesson handgun had Taylor's DNA located on its trigger; (2) the Smith and Wesson handgun also had DNA from four other individuals on it; and (3) the substance in the clear baggie removed from Taylor's shoe was in fact 5.21 grams of marijuana. On cross-examination, the forensic scientist who did the DNA testing agreed with Taylor's attorney that a process called "transfer DNA, " which involves someone touching an item that another person had touched and then transferring that other person's DNA onto some other object, was possible.

         Last, Michael Brown testified on behalf of the State. During his testimony, the State asked Brown whether the Smith and Wesson handgun disappeared in September of 2014, to which Brown responded, "I noticed that the box had been pried open, and called the police, and made a police report that it had been stolen out of my house." On cross-examination, however, when directly asked when he noticed that the Smith and Wesson handgun was missing, Brown testified that he believed it was taken from his house in the spring or the fall of 2013.

         After the close of the State's evidence, Taylor moved for a judgment of acquittal on the theft and trafficking in contraband charges. Taylor's attorney argued that there was no evidence that Taylor had committed the theft on or about December 26, 2014, or in Johnson County. Regarding the trafficking in contraband charge, Taylor's attorney asserted that Kansas caselaw required that people have notice what items constitute contraband inside a jail before those people can be charged with trafficking, and the State had failed to establish such notice. The prosecutor responded that the State had no burden to prove that Taylor knew that the Smith and Wesson handgun was stolen because "[t]he legislature in K.S.A. 21-5801 has differentiated why a firearm is different" based on the fact there was a penalty provision specifically addressing firearms. The prosecutor also responded that notice was not required with cases involving marijuana. Taylor's attorney responded that there was no evidence Taylor was involved in the theft. The trial court denied Taylor's motion as to the trafficking in contraband charge because it determined that the State had no burden of establishing notice for items that were not "intrinsically innocent" based on its reading of State v. Conger, No. 92, 381, 2005 WL 1561369 (Kan. App. 2005) (unpublished opinion). The trial court simply stated that Taylor's motion for acquittal of the theft charge was denied.

         Next, Taylor requested that the jury be instructed that Taylor was entitled to notice of what conduct was prohibited inside the jail under the trafficking in contraband law before he could be convicted of that crime. The trial court denied Taylor's request based on its interpretation of Conger. Also, over Taylor's objection, the trial court decided to give the jury the State's proposed instruction on the elements of trafficking in contraband, which stated Taylor could be convicted if he committed the crime "intentionally, knowingly, or recklessly" even though the complaint charged him with only "intentionally" committing trafficking in contraband.

         After the jury instruction conference, Taylor presented his evidence, which consisted of recalling Deputy Pechnik to testify. While testifying on behalf of Taylor, Deputy Pechnik explained that he had went back to the sign on the jail's secured booking door after testifying for the State, and he had discovered that the sign on the door does not say "No illegal weapons or drugs." Instead, he testified that the sign only says "No firearms." Deputy Pechnik also testified that there were no signs in the jail stating that a person could not have marijuana in the jail.

         The trial proceeded to closing arguments. During closing arguments, the prosecutor repeated his understanding of the theft law as it pertains to firearms, telling the jury that people found in possession of a stolen firearm were guilty of committing theft even if those people did not know that the firearm they possessed was stolen because this was what the legislature wanted. The prosecutor also told the jury that it could convict Taylor of trafficking in contraband regardless of whether he had received notice and if it believed he had acted intentionally, knowingly, or recklessly. Taylor's attorney's closing emphasized that Taylor had consistently denied having any knowledge that handguns were located in the rental car. Moreover, Taylor's attorney emphasized that Taylor had never intended to traffic the marijuana in jail and that Taylor had no notice that bringing the marijuana inside the jail would result in trafficking in contraband charges.

         During jury deliberations, the jury came back with the following question: "What is the definition of 'theft' as it relates to the firearm and as related to the charge in Instruction No. 9?" Taylor and the State agreed to answer the jury's question by referring the jury back to the jury instructions. The jury found Taylor guilty on all counts.

         After trial, Taylor moved for judgment notwithstanding the jury's verdicts or, in the alternative, a new trial. In this motion, Taylor argued that there was insufficient evidence to support his theft and trafficking in contraband convictions based on the same arguments that he had raised at trial. Taylor also argued that the trafficking in contraband statute was unconstitutional as applied to him. At the hearing, in addition to repeating the arguments made in his motion, Taylor emphasized that the sentencing enhancement provision for thefts involving firearms did not otherwise change the culpable mental state requirement to establish theft. The trial court denied Taylor's motion as to both his theft and trafficking in contraband convictions. Taylor was sentenced to a controlling sentence of 42 months' imprisonment followed by 24 months' postrelease supervision. The trial court ran Taylor's theft and trafficking in contraband convictions consecutively.

         Did the Prosecutor Commit Reversible Error by Telling the Jury that Kansas Law Does Not Require Persons to Know that an Item Was Stolen to be Convicted of Theft?

         Taylor asserts that the prosecutor's statement to the jury that persons can be convicted of theft of a firearm even though those persons had no knowledge the firearm was stolen was a misstatement of law that constituted error. Taylor further argues that this misstatement of law was not harmless (1) because "it lowered the State's burden to prove criminal intent" and (2) because the jury's question about "the definition of 'theft' as it relates to the firearm" showed the prosecutor's statement confused the jury.

         On the other hand, the State contends that the "State did not have to prove that Taylor knew the Smith & Wesson [handgun] was stolen." The State reaches this conclusion by considering the elements of theft by obtaining or exerting unauthorized control of a handgun and asserting that there is no element requiring "that Taylor knew the Smith & Wesson was stolen." The State even asserts that it was Taylor's attorney who misstated the law to the jury when he said the State had the burden of proving that Taylor knew the firearm was stolen. Last, the State alleges that even if the prosecutor's statements constituted error, that error was harmless because sufficient evidence supported Taylor's conviction.

         Standard of Review

         In the recent decision State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016), our Supreme Court outlined the standard for reviewing prosecutorial error as follows:

"Appellate courts will continue to employ a two-step process to evaluate claims of prosecutorial error. These two steps can and should be simply described as error and prejudice. To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman. In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.' [Citation omitted.] We continue to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but when 'analyzing both constitutional and nonconstitutional error, an appellate court need only address the higher standard of constitutional error.' [Citation omitted.]"

         Furthermore, to the extent Taylor's argument involves statutory interpretation, statutory interpretation is a question of law over which this court exercises de novo review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The most fundamental rule of statutory interpretation is that the legislature's intent governs. State v. Jordan, 303 Kan. 1017');">303 Kan. 1017, 1019, 370 P.3d 417 (2016). Appellate courts should always attempt to ascertain the legislature's intent through the plain language of a statute before turning to the cannons of statutory construction. State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016).

         Additional Facts

         Shortly after the prosecutor started his closing arguments, the prosecutor told the jury that theft of a firearm was a special crime that was different from other thefts. Specifically, the prosecutor stated that by looking at the theft elements instruction, the jury could "clearly see that the legislature has prescribed that possession of a stolen firearm in this case constitutes a theft."

         During Taylor's closing, Taylor's attorney told the jury that it had to make its decision on the evidence, and the evidence showed "a gun was found under a floor mat in the back seat of Mr. Taylor's car, not that he stole that firearm." Taylor's attorney stated that "just because [the Smith and Wesson handgun] was a stolen firearm doesn't mean that [Taylor] knew about it."

         During rebuttal, the prosecutor immediately began explaining that to convict Taylor of theft, the State was not required to prove that Taylor knew the handgun found in his car was stolen. The following are the specific statements made by the prosecutor that Taylor takes issue with on appeal:

"With all due respect to [Taylor's attorney, ] in the last 15 minutes, what he is asking you to do is find reasonable doubt on elements that don't exist, that aren't required of you to look at. He made the statement that the State can't prove that Mr. Taylor stole a gun from Michael Brown's house. Totally agree with that[, ] that would be a burglary in Wyandotte County, which I don't prosecute. I don't charge that. What I charge is possessing that ...

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