State v. Everett, 124,321

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM
PartiesState of Kansas, Appellee, v. Jeffry Albert Everett, Appellant.
Docket Number124,321
Decision Date16 September 2022

State of Kansas, Appellee,
v.

Jeffry Albert Everett, Appellant.

No. 124,321

Court of Appeals of Kansas

September 16, 2022


NOT DESIGNATED FOR PUBLICATION

Appeal from Smith District Court; PRESTON PRATT, Judge.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., ISHERWOOD and COBLE, JJ.

MEMORANDUM OPINION

PER CURIAM

A jury convicted Jeffry Albert Everett of possession of methamphetamine with the intent to distribute, possession of drug paraphernalia, and unlawfully operating a vehicle without a tag light. He now raises three issues on appeal: (1) the jury instruction given which allowed the jury to infer intent to distribute if it found Everett possessed 3.5 grams or more of methamphetamine was legally inappropriate and denied him a fair trial; (2) the district court failed to provide lesser included offense instructions for possession of less than 3.5 grams of methamphetamine; and (3) appointed counsel provided ineffective assistance by pursuing a guilt-based defense without his express approval.

1

After a review of the record, we affirm Everett's convictions as to all three issues. Although the inference instruction was not legally appropriate, Everett has not sustained his burden to establish clear error. The lesser included offense instructions were not factually appropriate, and we decline to review his claims of ineffective assistance of counsel as unpreserved.

FACTUAL AND PROCEDURAL BACKGROUND

Everett was stopped by law enforcement officers on October 24, 2020, while driving his vehicle with an inoperative tag light. During the traffic stop, the officers searched his vehicle and deployed a canine to search the vehicle.

During the search, officers discovered a pipe used for inhaling methamphetamine protruding from a blue pouch behind the driver's seat stuck between it and the center console. Inside the blue pouch five plastic bags were discovered with two bags containing drug-like white substances. The first bag weighed around 2 grams. The second bag weighed about 14 grams. The substance was field tested and confirmed as methamphetamine. The Kansas Bureau of Investigation (KBI) later tested and confirmed the substance in the second bag to be 13.34 grams of methamphetamine. Furthermore, an additional 29 empty plastic bags, similar to the ones containing the methamphetamine, were located inside the vehicle along with a digital scale. The officers found six cell phones in a bag on the backseat of the vehicle. With these phones, the cell phone Everett had in his possession at the time of the traffic stop, and another six cell phones located throughout the vehicle, a total of 13 cell phones were present in the vehicle. Everett was arrested on site and taken into custody.

About a week later, officers conducted a recorded interview with Everett. When officers asked Everett about the drugs during the interview, Everett repeatedly told the officers it was possible that the methamphetamine and the pipe found in the vehicle were

2

his, but he did not definitively confirm that he possessed the drugs the officers retrieved because they were not shown to him. Everett stated that there should be around a 1/2 ounce of methamphetamine within the vehicle. Everett also stated that the blue pouch containing the pipe and drugs was not his and that he was not aware where it came from but did not deny that it was in the vehicle and that the drugs and pipe inside were possibly his.

When asked during the interview about the multiple cell phones found in the vehicle, Everett said he usually goes through a lot of phones but, again, he did not confirm that all the cell phones were his. Everett told the officers that the vehicle was not registered under his name but that he was using the vehicle and making payments to purchase it. He claimed that the scale and clear bags found in the vehicle were for selling gold, specifically gold coins and flake that were retrieved from the vehicle.

Everett admitted to the interviewing officers that he is a drug user and that he had some methamphetamine for personal use. He also stated that on occasion he sometimes shared drugs with other people.

The State charged Everett with unlawful possession of methamphetamine with the intent to distribute, possession of drug paraphernalia with intent to use it for distribution, criminal use of a weapon, unlawful possession of drug paraphernalia for personal use, and operating a vehicle without a tag light. The district court held a jury trial during which four witnesses testified for the State. The State also showed the recording of Everett's interview with the officers to the jury during trial. The charge of criminal use of a weapon was later removed from the jury instructions as it was dismissed. The jury convicted Everett on all remaining charges and Everett was sentenced to 123 months in prison.

3

Everett timely appeals.

ANALYSIS

As noted, Everett presents three issues on appeal: (1) the legality of the inference instruction to the jury; (2) whether the district court erred by failing to provide a jury instruction on lesser included offenses; and (3) whether Everett's trial counsel's guiltbased defense strategy constituted ineffective assistance of counsel and deprived him of the right to a jury trial. We address each issue in turn.

THE INTENT TO DISTRIBUTE INSTRUCTION DID NOT RESULT IN CLEAR ERROR

Everett first argues that the district court erred when it provided an instruction to the jury stating that if it found him to have possessed more than 3.5 grams of methamphetamine, it could infer that he possessed the drugs with the intent to distribute. The instruction at issue, jury instruction No. 7, is identical to Kansas Pattern Instruction (PIK) Crim. 4th 57.022 (2013), which states:

"If you find the defendant possessed 3.5 grams or more of methamphetamine, you may infer that the defendant possessed with intent to distribute. You may consider the inference along with all the other evidence in the case. You may accept or reject it in determining whether the State has met the burden of proving the intent of the defendant. This burden never shifts to the defendant." (Emphasis added.)

As authority, this pattern instruction cites K.S.A. 2021 Supp. 21-5705(e), which provides in pertinent part: "In any prosecution under this section, there shall be a rebuttable presumption of an intent to distribute if any person possesses the following quantities of controlled substances or analogs thereof: . . . (2) 3.5 grams or more of heroin or methamphetamine." (Emphasis added.)

4

Everett argues the instructional inference regarding intent to distribute is legally inappropriate considering recent Kansas Supreme Court precedent finding the pattern instruction sets out a permissive inference, while the statute provides a rebuttable presumption. See State v. Holder, 314 Kan. 799, 502 P.3d 1039 (2022). He also contends the other evidence regarding intent to distribute was sparse and entirely circumstantial, so instructing the jury regarding the presumption was clear error. The State argues any error is not clear error, because the evidence in this case was overwhelming and, therefore, even an erroneous instruction would have made no difference in Everett's conviction.

Legal framework

When analyzing jury instruction issues, our appellate courts adhere to the following framework:

"'"First, [the reviewing court] considers the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; next, it applies unlimited review to determine whether the instruction was legally appropriate; then, it determines whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and finally, if the district court erred, this court determines whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012)."'" State v. Valdez, 316 Kan. 1, 6, 512 P.3d 1125 (2022).

But, if the defendant failed to object to the instructional error before the district court, rather than using the harmless error standard, the "'clear error standard is applied to assess prejudice.'" 316 Kan. at 6 (quoting State v. Owens, 314 Kan. 210, 235, 496 P.3d 902 [2021]). In this vein, a failure to object below does not prevent appellate review, but "simply specifies a higher degree of prejudice to warrant reversal." Valdez, 316 Kan. at 6.

5

An instructional error equates to clear error if "'"the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict."'" Reardon for Estate of Parsons v. King, 310 Kan. 897, 902, 452 P.3d 849 (2019) (quoting Siruta v. Siruta, 301 Kan. 757, 772, 348 P.3d 549 [2015]).

Preservation

The parties each maintain this issue was not properly preserved for appeal and, therefore, the clear error standard should apply. Defense counsel did object to this instruction at trial by stating, "Well, Your Honor, obviously we wouldn't want the jury to infer that. I think it's pretty clear in [the previous instruction] what is needed, what the elements are of the intent to distribute with just the weight being there." But counsel did not specifically object that the instruction differed from K.S.A. 2021 Supp. 21-5705(e), which is the primary error being raised through this appeal. We agree the precise alleged error raised on appeal differs from the objection made at trial and will apply the clear error standard as a result.

The permissive instruction was legally inappropriate...

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