State v. Albano

• Decision Date: 10 April 2020
• Docket Number: No. 120,767,120,767
• Citation: 464 P.3d 332,58 Kan.App.2d 117
• Parties: STATE of Kansas Appellee, v. Anita Jo ALBANO, Appellant.
• Court: Kansas Court of Appeals

58 Kan.App.2d 117

464 P.3d 332

STATE of Kansas Appellee,

v.Anita Jo ALBANO, Appellant.

No. 120,767

Court of Appeals of Kansas.

Opinion filed April 10, 2020.

Heather Cessna and Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Kelly G. Cunningham, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Malone and Gardner, JJ.

Malone, J.:

Anita Jo Albano appeals following her convictions of two counts of distribution of a controlled substance within 1,000 feet of a school. Albano claims: (1) The district court erred by failing to give a limiting instruction concerning the admission into evidence of her prior drug convictions; (2) the district court undermined the jury's power of nullification by instructing the jury that it "must" follow the law and it was the jury's "duty" to do so; and (3) the sentencing court's use of judicial findings of prior convictions to sentence a defendant under the Kansas Sentencing Guidelines Act (KSGA) violates section 5 of the Kansas Constitution Bill of Rights. For the reasons stated in this opinion, we reject Albano's claims and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2017, Riley County Police Officer Michael Dunn assisted in three controlled buys between a confidential informant, S.O., and Albano. Each of the buys took place in Albano's apartment, 280 feet from an elementary school. The first controlled buy occurred on January 19, 2017. S.O. bought 12 oxycodone pills from Albano for $180. S.O. had texted Albano to set up the buy. S.O. walked into Albano's apartment, got the pills, and returned to Dunn's car a few minutes later.

On January 20, 2017, S.O. bought one oxycodone pill from Albano for $20. S.O. first went to Albano's door but received no answer, so he called her. Shortly after the call, Albano walked toward her apartment from an alley and took S.O. inside. S.O. returned to Dunn's car a few minutes later with the pill.

On April 10, 2017, S.O. bought 10 oxycodone pills from Albano for $200. S.O. walked in, got the pills, and returned to Dunn's car a short time later. All three of the buys were audio and video recorded by a device attached to S.O.

On September 14, 2017, the State filed an amended complaint charging Albano with three counts of distribution of a controlled substance within 1,000 feet of a school based on the transactions on January 19, January 20, and April 10, 2017. The district court held a jury trial on October 31, 2018. Dunn testified to driving S.O. to each of the three buys and the sequence of events. Dunn also testified that Albano appears in all three video recordings of the buys. Riley County Police Detective Robert Dierks testified that he strip-searched S.O. before and after the January 19 and 20, 2017 buys and that nothing was found. Dierks also explained that the department paid S.O. for completing the buys. Riley County Police Sergeant Nathan Boeckman, S.O.'s handler, testified that he strip-searched S.O. before and after the April 10, 2017 buy and nothing was found.

S.O. testified about the three controlled buys. S.O. was originally working off charges as an informant but was now paid for conducting buys. S.O. explained that Albano was not one of the original targets identified by the police, but he brought Albano's name up to them because he did drugs with her before. S.O. was the one who reached out to Albano asking to buy drugs. Albano did not respond two of the times he reached out, but S.O. knew he could just drop by her apartment to get the pills because she had an open-door policy. At the time of the buys, S.O. had a prescription for Percocet. S.O. admitted that he was using methamphetamine and opiates during early 2017, but he did not use drugs when doing controlled buys for the police.

Albano testified on her own behalf, presenting an entrapment defense. Albano testified that she had prior convictions for distributing drugs, but she had successfully completed probation 4 months before the first buy and she received only one sanction during the entire 22-month probation period. Albano stated that during the time frame the buys occurred she was "in the business of putting [her] home together, and trying to get [her] life put back together."

Albano testified that she had a prescription for oxycodone because of her severe back problems. Albano explained that she had since asked her doctor to take her off of oxycodone because "people, including [S.O.], were constantly berating [her] in an effort to get those pills, and if [she] didn't sell them ... they ended up being stolen." Albano admitted to giving S.O. the pills on January 19 and 20, 2017, within 1,000 feet of an elementary school. She said she felt pressured to sell S.O. the pills because he was always reaching out to her and he was at her house daily; he was so persistent that she gave him the pills just to get him to leave.

Albano did not remember giving S.O. the 10 pills on April 10, 2017. She stated that since she did not get paid for the first 12 pills, she would not have sold to him after that. When asked what she was doing counting $200 in the April 10, 2017 video if she was not selling S.O. pills, Albano responded that she was randomly counting her own money since she had just gotten paid and she wanted to know what she had in her wallet.

The State called Riley County Police Corporal Neil Ramsey as a rebuttal witness. Ramsey testified that he interviewed Albano about the three buys and Albano told him that she did not "typically" sell pills and that she had sold them in the past but not during the time frame he asked about.

The jury found Albano not guilty of count one—distribution on January 19, 2017—and guilty on counts two and three—distribution on January 20, 2017, and April 10, 2017. On January 28, 2019, the district court sentenced Albano to 101 months' imprisonment and 36 months' postrelease supervision. Albano timely appealed the district court's judgment.

DID THE DISTRICT COURT ERR BY ALLOWING ADMISSION OF ALBANO'S PRIOR DRUG CONVICTIONS WITHOUT GIVING A LIMITING INSTRUCTION?

Albano first claims the district court erred by failing to give a limiting instruction concerning the admission into evidence of her prior drug convictions. It was Albano herself who first testified about her prior convictions. Albano concedes that she did not request a limiting instruction at trial, but she argues that a limiting instruction was factually and legally appropriate because her prior convictions met the definition of K.S.A. 60-455 evidence. The State argues that Albano is precluded from seeking review on this issue because she invited the error by not requesting the limiting instruction. In the alternative, the State argues that any error was not clearly erroneous.

The court employs a multi-step process to review claims of jury instruction error. First, this court must decide whether the issue was preserved. Second, it must decide whether an error occurred by determining whether the instruction was legally and factually appropriate. In addressing the first two steps, this court exercises unlimited review. State v. Williams , 308 Kan. 1439, 1451, 430 P.3d 448 (2018).

If error is found, this court must then determine whether the error is reversible. 308 Kan. at 1451, 430 P.3d 448. Because Albano did not object at trial, a clear error standard applies. See K.S.A. 2019 Supp. 22-3414(3) ; 308 Kan. at 1451, 430 P.3d 448. Under a clear error standard, the appellate court must decide "whether it is ‘firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.’ " 308 Kan. at 1451, 430 P.3d 448. Albano has the burden of establishing clear error. See State v. Gentry , 310 Kan. 715, 721, 449 P.3d 429 (2019). To determine whether she met her burden, the court examines the entire record de novo. See 310 Kan. at 721, 449 P.3d 429.

We will not apply the invited error doctrine.

A defendant's ability to allege an instructional error is not absolute. State v. Stewart , 306 Kan. 237, 248, 393 P.3d 1031 (2017). The invited error doctrine states that a "defendant may not invite and lead a district court into error and then complain of the error on appeal." 306 Kan. at 248, 393 P.3d 1031. The State argues that Albano invited this error by failing to request the instruction in her proposed instructions or at the jury instruction conference. Albano counters that she did not invite the error but that she simply did not request the instruction or object to its omission.

The Kansas Supreme Court has found that the invited error doctrine applies when: (1) the district court gave the defendant's requested instruction; (2) the defendant agreed to the wording of an instruction; or (3) the defendant agreed to a response to a jury question. See Stewart , 306 Kan. at 248-49, 393 P.3d 1031. In these types of cases, the defendant took affirmative action to cause the error that he or she later appealed.

Here, there was no agreement by Albano that the district court should not give a limiting instruction. The only action Albano took concerning this issue was choosing to introduce the evidence of her prior convictions in her case-in-chief. But a defendant does not waive the applicability of a limiting instruction simply by introducing K.S.A. 60-455 evidence because a limiting instruction is required regardless of which party introduced the evidence. State v. Molina , 299 Kan. 651, 660, 325 P.3d 1142 (2014). Thus, the invited error doctrine does not prevent Albano from arguing this issue on appeal.

The district court erred in failing to give a limiting instruction, but this failure was not clearly erroneous.

Turning to the merits, Albano argues that a limiting instruction was appropriate because her prior convictions met the statutory definition of K.S.A. 60-455 evidence. She asserts that a limiting instruction is legally necessary when a defendant's prior convictions are admitted...