State v. Holder

• Decision Date: 28 January 2022
• Docket Number: 120,464
• Citation: 502 P.3d 1039
• Parties: STATE of Kansas, Appellee, v. Dominic O'Shea HOLDER, Appellant.
• Court: Kansas Supreme Court

502 P.3d 1039

STATE of Kansas, Appellee,

v.Dominic O'Shea HOLDER, Appellant.

No. 120,464

Supreme Court of Kansas.

Opinion filed January 28, 2022.

James M. Latta, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Thomas R. Stanton, district attorney, argued the cause, and Keith E. Schroeder, former district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Biles, J.:

A jury convicted Dominic O'Shea Holder of possession with intent to distribute and conspiracy to distribute a controlled substance after police seized 44 pounds of marijuana during a traffic stop of a vehicle he did not own or occupy. A Court of Appeals panel affirmed his convictions. See State v. Holder , No. 120,464, 2020 WL 6108359 (Kan. App. 2020) (unpublished opinion). He petitioned this court for review, and we agreed to consider two questions: (1) whether the instruction stating a permissive inference the jury "may accept or reject" about his intent to distribute marijuana fairly and accurately reflected applicable law; and (2) whether he could facially challenge K.S.A. 2020 Supp. 21-5705(e), which provides a rebuttable presumption for a defendant's possession with intent to distribute when that defendant is found to possess specific quantities of a controlled substance. We find no reversible error on the first question and do not reach the second's merits, so we affirm the convictions.

But we also recognize the district court followed PIK Crim. 4th 57.022 (2013 Supp.), which recites a permissive inference to be drawn from the evidence in drafting the instruction given, rather than the statutorily specified rebuttable presumption in K.S.A. 2020 Supp. 21-5705(e). This makes the instruction given legally inappropriate, as an instruction on the statutory presumption, because it does not align with the statute. See State v. Plummer , 295 Kan. 156, 161, 283 P.3d 202 (2012) ("[A]n instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm."). And as an instruction on permissive inference, the instruction as given also was legally inappropriate because the 450-gram threshold taken from K.S.A. 2020 Supp. 21-5705(e) lacked any evidentiary context to explain why that specific amount supported the inference. Nevertheless, the jury instruction given played to Holder's benefit as measured against the existing statute, and therefore based on the evidence we hold the jury would have reached the same verdict without the instructional error.

FACTUAL AND PROCEDURAL BACKGROUND

In 2017, South Hutchinson police officer Jake Graber saw two vehicles driving close together and speeding. He stopped one, but the other got away. Graber radioed for assistance to stop that car. Graber identified Holder from an Arizona driver's license as the driver he pulled over. Holder denied traveling with the other vehicle. Graber conducted a field sobriety test after Holder admitted to smoking marijuana before leaving Arizona. He passed the test and was allowed to go after Graber gave him a speeding ticket.

Meanwhile, assisting officers stopped the other car and identified its driver as Alyssa Holler, who was also from Arizona. Officer Graber arrived and asked if she was traveling with Holder, which she denied. She allowed officers to search the car, where they found some 44 pounds of marijuana, but no paraphernalia. Officers detained Holler, who eventually admitted travelling with Holder. A KBI lab confirmed two packages taken from the car contained marijuana and weighed more than 600 grams.

Holder was arrested in Arizona and charged in Kansas with possession of at least 450 grams of marijuana with intent to distribute and conspiracy to distribute. See K.S.A. 2020 Supp. 21-5705(a)(4), (d)(2)(C) ; K.S.A. 2020 Supp. 21-5302(a) (conspiracy). Holler testified for the prosecution. She said she knew Holder from work in Arizona, that he developed the plan to deliver marijuana from Arizona to Indiana in a rental car, and that he gave her money for the car. She said they texted and called each other during the trip. The State supported her testimony with call and text logs. Holder did not testify.

The district court gave a jury instruction based on PIK Crim. 4th 57.022 for a permissive inference that could be drawn from the evidence. It stated:

"If you find the defendant possessed 450 grams or more of marijuana, you may infer that the defendant possessed with the intent to distribute. You may consider this 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. The burden never shifts to the defendant."

The same instruction defined "possession" to mean "having joint or exclusive control over an item with knowledge of and the intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control."

The district court also instructed the jury that:

"It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified."

And the court instructed:

"The State has the burden to prove Dominic Holder is guilty. Dominic Holder is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.

"The test you must use in determining whether Dominic Holder is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find Dominic Holder not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find Dominic Holder guilty."

The jury found Holder guilty of both possession of marijuana with intent to distribute and conspiracy to distribute. The district court sentenced him to 98 months' imprisonment with 36 months' postrelease supervision. He appealed, and the panel affirmed. Holder , 2020 WL 6108359, at *1.

Holder petitioned this court for review of the panel's decisions. We granted review on two issues: (1) whether the permissive inference instruction fairly and accurately reflected applicable law; and (2) whether he could facially challenge the rebuttable presumption of intent found in K.S.A. 2020 Supp. 21-5705(e). We declined review of his other five claims, which settled them against Holder as determined by the panel. See Kansas Supreme Court Rule 8.03(g)-(h), (k) (2021 Kan. S. Ct. R. 54).

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

Presumptions in this context operate when one fact's existence is allowed to follow from proof of another fact. K.S.A. 60-413 provides, "A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action."

But our criminal law recognizes an analytical hostility with the Due Process Clause when an adverse presumption in a jury instruction is seen as relieving or reallocating the prosecution's burden to prove all elements of an offense beyond a reasonable doubt. See Sandstrom v. Montana , 442 U.S. 510, 521, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979) (evidentiary presumption that a person intends the ordinary consequences of his voluntary acts cannot relieve the State of its burden to prove the essential elements of a crime).

In County Court of Ulster County, New York v. Allen , 442 U.S. 140, 156, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979), the United States Supreme Court noted, "Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime—that is, an ‘ultimate’ or ‘elemental’ fact—from the existence of one or more ‘evidentiary’ or ‘basic’ facts." In so doing, the Court clarified:

"The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder's freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device's constitutional validity in a given case remains constant: the device must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt ." ( Emphasis added.) 442 U.S. at 156, 99 S.Ct. 2213.

Our first consideration here is deciding whether the permissive inference instruction given to Holder's jury fairly and accurately reflects K.S.A. 2020 Supp. 21-5705(e). See State v. Owens , 314 Kan. 210, 235, 496 P.3d 902 (2021) (setting out multi-step standard of review for claims of jury instruction error; at one step, court applies unlimited review to determine if instruction was legally appropriate). We believe it does not.

Consider first the pattern instruction used by the district court to draft Holder's jury instruction. It provides a fill-in-the-blank inference the jury "may accept or reject." The pattern instruction states:

"If you find the defendant possessed (450 grams or more of marijuana) (3.5 grams or more of heroin) (3.5 grams or more of methamphetamine) (100 dosage units or more containing insert name of controlled substance ) (100 grams or more of insert name of any other controlled substance ), you may infer that the defendant possessed with intent to distribute. You may consider

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