State v. Crosby, 011521 KSSC, 119, 824

Docket Nº:119, 824
Opinion Judge:Stegall, J.
Party Name:State of Kansas, Appellee, v. Emmanuel Elijah Crosby, Appellant.
Attorney:Peter Maharry, of Kansas Appellate Defender Office, was on the brief for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Judge Panel:Beier, J., not participating. Michael E. Ward, Senior Judge, assigned.
Case Date:January 15, 2021
Court:Supreme Court of Kansas

State of Kansas, Appellee,

v.

Emmanuel Elijah Crosby, Appellant.

No. 119, 824

Supreme Court of Kansas

January 15, 2021

SYLLABUS BY THE COURT

1.

The crimes in this case, committed within a year of each other, are factually similar enough to satisfy the "same or similar character" statutory condition set forth in K.S.A. 22-3202(1) for the purpose of joinder.

2.

In order to convict a defendant of distribution of a controlled substance under K.S.A. 2019 Supp. 21-5705(a), the State must present sufficient evidence of possession as a necessary part of the crime.

3.

A jury instruction that omits specific facts alleged in the complaint does not expand the elements of the crime. As long as the elements described by the jury instruction accurately match the statutory language for the charged offense, there is no error.

Appeal from Sedgwick District Court; Kevin J. O'Connor, judge.

Peter Maharry, of Kansas Appellate Defender Office, was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

OPINION

Stegall, J.

Emmanuel Crosby was charged with 10 crimes stemming from two separate incidents on October 15, 2015 and November 1, 2016. Crosby was charged with felony murder, distribution of a controlled substance, two counts of attempted aggravated robbery, two counts of criminal possession of a weapon, attempted murder in the second degree, criminal discharge of a firearm, aggravated battery, and aggravated burglary. The district court consolidated Crosby's cases, and a jury found Crosby guilty as charged.

Crosby directly appeals his convictions arguing the district court erred by consolidating his cases. He also claims there was insufficient evidence to support his distribution conviction and that the jury instructions on his attempted aggravated robbery, felony murder, and criminal possession of a firearm charges were erroneous. In the end, Crosby argues that cumulative error deprived him of his right to a fair trial and that his convictions must be reversed.

We reverse Crosby's distribution conviction because the State failed to provide sufficient evidence of Crosby distributing or intending to distribute the marijuana during the October 2015 incident. But because we find no other errors, we affirm the rest of Crosby's convictions.

Factual and Procedural Background

On October 15, 2015, Crosby was with his friend Diego Larraga when Crosby told Larraga he wanted some weed. Larraga believed his ex-girlfriend Megan Wells could sell Crosby some weed, so he called her. Wells confirmed that her boyfriend, David Ingram, could sell them 2 ounces of weed for $500. So Crosby and Larraga arranged to meet Wells and Ingram behind a convenience store to carry out the transaction.

Wells arrived behind the convenience store driving with Ingram in the passenger seat. Upon arrival, Larraga and Crosby entered the backseat of the vehicle and Wells started to drive around the block. Crosby asked if he could see the weed, and Ingram placed a bag on the center console. Crosby said that the weight looked "shaky," but Ingram assured him it was all there. Larraga and Wells were having a conversation when they heard Crosby tell Ingram to "give it up." Wells then heard Ingram say "all right, all right" and turned to see Ingram with his hands up. As Wells tried to put the car in park, Crosby fired five to six shots into Ingram's head and upper body. Crosby and Larraga jumped from the vehicle and fled, leaving the drugs behind.

Ingram died as a result of the gunshot wounds. About an hour later, police apprehended Larraga and Crosby at Larraga's brother's home. The State brought charges associated with this incident on October 20, 2015, but they were later dismissed because the State could not locate a witness.

Then, on November 1, 2016, Crosby contacted Phillip Saunders about getting a 10 pack of ecstasy. Saunders told Crosby it would cost $60, and the two agreed to meet at a residence. When Saunders pulled up to the residence, Crosby was already outside of the residence with a man named Gene Johnson. Saunders remained in his car as the two approached his window. Johnson showed Saunders a computer that Johnson and Crosby wanted to trade in exchange for the ecstasy pills. Saunders refused the deal and explained to them that the computer was not worth as much as the ecstasy pills.

Crosby and Johnson became irritated and started threatening Saunders. Crosby retrieved a gun from the porch and pointed it at Saunders stating "[w]ell, you're going to give up what you got." Saunders told Crosby "I'm not giving up nothing." Crosby then reached into Saunders' car with his free hand, and Saunders pushed Crosby off. Both Crosby and Johnson started firing as Saunders put the car into reverse and sped off. As Saunders was driving off, he looked down and realized he had been shot. Saunders drove to a general store where he was able to get someone to call an ambulance. Saunders sustained serious injuries from the shooting but survived.

The next day, the Wichita Police Department identified Crosby as a suspect in Saunders' shooting. Officers successfully located and apprehended Crosby. Upon arrest, the arresting officers found eight cartridges of ammunition matching a spent cartridge casing found in Saunders' vehicle. Police also found a laptop at the residence containing Crosby's fingerprints.

Ultimately, the State charged Crosby with 10 crimes between the two incidents. For the October 15, 2015 incident, the State charged Crosby with first-degree murder, distribution of a controlled substance, attempted aggravated robbery, and criminal possession of a firearm. For the November 1, 2016 incident, the State charged Crosby with attempted aggravated robbery, aggravated burglary, attempted murder in the second degree, criminal discharge of a firearm, aggravated battery, and criminal possession of a weapon by a convicted felon.

Crosby moved to sever the charges. But the court denied this request finding that the evidence established similar crimes in which Crosby lured individuals into a drug deal to rob them. The court also noted that "joinder is the rule rather than the exception" and held that Crosby failed to show joinder was prejudicial. Thus, the charges from October 2015 and November 2016 were consolidated for trial. A jury found Crosby guilty as charged.

Analysis

Crosby first challenges the district court's decision to join the cases. A district court is statutorily permitted to order two or more cases tried together if the crimes involved could have been joined in a single complaint, information, or indictment. K.S.A. 22-3203. Two or more crimes may be charged in separate counts of the same complaint, information, or indictment if the crimes: (1) are of the same or similar character; or (2) are based on the same act or transaction; or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1). Here, Crosby contends the district court erroneously concluded the crimes here met the statutory condition of being of the same or similar character. We disagree.

We review potential joinder errors using a three-step process, applying a different standard of review at each step. "'When analyzing an issue of joinder, an appellate court determines which of the three conditions precedent the district court relied on (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan); whether there is substantial competent evidence to support the district court's findings of fact, using a deferential standard; whether the district court properly concluded that a condition precedent had been met, using a de novo standard; and whether the district court abused its discretion in allowing joinder.'" State v. Cruz, 297 Kan. 1048, 1054, 307 P.3d 199 (2013) (quoting State v. Gaither, 283 Kan. 671, Syl. ¶ 4, 156 P.3d 602 [2007]).

Crosby does not challenge the district court's factual findings. Rather, Crosby argues that the legal conclusion should have been that the facts did not establish that the crimes were of the "same or similar character" or "connected together," an issue over which we exercise unlimited review. Cruz, 297 Kan. at 1054. Additionally, Crosby argues the district court abused its discretion in considering judicial economy when weighing whether joinder was appropriate. We review the district court's decision to join the cases under an abuse of discretion standard. State v. Ritz, 305 Kan. 956, 961, 389 P.3d 969 (2017).

First, we disagree with Crosby's argument that the district court erroneously found that a condition precedent under K.S.A. 22-3202(1) was met. Crosby argues the charges are not of the same or similar character because the offenses occurred a year apart, were in different locations, and the crimes were committed with different accomplices. According to Crosby, beyond generalities inherent in violent crimes, there were insufficient similarities to warrant consolidation.

We find Crosby's argument that the time between the October 2015 incident and the November 2016 incident precludes the court from finding the crimes were of similar character unpersuasive. Indeed, in the past we have found crimes occurring more than a year apart were "of the same or similar character." In Cruz, for example, this court found that two crimes occurring 17 months apart were of the same or similar character. 297 Kan. at 1057. The Cruz court even mentioned that the 17-month interval between the crimes "pale[d] in comparison" to other cases in...

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