State v. Josenberger
| Decision Date | 26 June 1992 |
| Docket Number | No. 66429,66429 |
| Citation | 17 Kan.App.2d 167,836 P.2d 11 |
| Parties | STATE of Kansas, Appellee, v. Muryel JOSENBERGER, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Prior to submitting the case to the jury, a trial court has the authority to submit the lesser included crime instead of the crime charged if it determines that the evidence is insufficient to establish beyond a reasonable doubt that element of the greater offense which is not an element of the lesser offense.
2. A trial court has inherent power to reconsider and modify its interlocutory orders prior to the entry of judgment, whether by oral or written modification.
3. Normally, a judgment of acquittal of a charge, entered prior to verdict on the ground that the evidence was insufficient, terminates the prosecution of that charge and bars retrial of the defendant on that or any lesser included charge. Where no judgment has been entered and there has been no dismissal of the jury, or any indication to the jury of a ruling that could prejudice the defendant on such counts as are eventually submitted, the court's oral modification of its oral decision that the evidence was insufficient to establish the original charge does not violate the defendant's double jeopardy rights under the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Bill of Rights.
4. Where the court's oral decision that the evidence did not establish the original charge was followed promptly by the modification providing for the reduction of the original charge, and where the reduced charge could be, and was, submitted in the normal course of the trial to the original jury, the action of the trial court did not violate principles of double jeopardy.
5. Sale of marijuana in violation of K.S.A.1991 Supp. 65-4127b(b) is a lesser included offense of sale of marijuana within 1,000 feet of school property in violation of K.S.A.1991 Supp. 65-4127b(e).
6. Under the facts of this case and in accord with the principles set forth in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), possession of marijuana is not a lesser included offense of the sale of marijuana.
7. Under the facts of this case, the exclusion of admissible evidence was harmless error beyond a reasonable doubt where the same evidence was admitted through another witness.
8. While the defendant in a criminal case is entitled to an instruction on the theory of his or her defense if there is evidence to support the instruction, the requested instruction should not be given if it misleads the jury.
Lucille Marino, Asst. Appellate Defender and Jessica R. Kunen, Chief Appellate Defender, for appellant.
Christopher L. Schneider, Asst. Dist. Atty., Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before DAVIS, P.J., and LEWIS, J., and MARVIN W. MEYER, J. Retired, assigned.
This is a direct criminal appeal from conviction of the sale of marijuana in violation of K.S.A.1991 Supp. 65-4127b. The defendant, Muryel Josenberger, contends that his conviction subjected him to double jeopardy. He further claims that the trial court erred in failing to instruct on a lesser included offense and failing to instruct on the defenses of mistake of fact and compulsion. He also claims that the court erred by excluding evidence relevant to his main defense. Finding no reversible error, we affirm.
Officer John Cheek, an undercover narcotics officer, arranged for Officer Mike Kill, another undercover narcotics officer, to purchase five pounds of marijuana from Charles Slaughter at the Kaw Valley Inn Motel in Kansas City, Kansas. Slaughter's room at the motel was located within 1,000 feet of the L.M. Alcott High School. According to Officer Cheek, defendant was present in the motel room when the buy was arranged.
The day after making the above arrangement, the officers went to the motel and met with Charles Slaughter. As the officers entered the motel room, Slaughter asked two or three men already in the room, including defendant, to leave the room. Officer Kill, Officer Cheek, and Slaughter negotiated the purchase of five pounds of marijuana for $2,000.
Slaughter then said he would have the black man go get the marijuana and asked the officers to wait in the room. Slaughter left the room, closing the door behind him, and returned in a few minutes. Officer Sylvia Callahan was conducting surveillance and observed a black male leave the motel building, return a short time later carrying a brown trash sack, and enter Slaughter's motel room.
According to Officer Kill, defendant came into the motel room a few minutes after Slaughter returned, carrying a brown plastic trash sack that contained a very large amount of green vegetation that was later identified as marijuana. Defendant gave the sack to Slaughter, who invited Officer Kill to check the contents. The defendant and Officer Kill discussed different methods of drying the marijuana. Officer Kill then gave Slaughter the $2,000. According to Officer Kill, Slaughter and defendant began counting the money. Slaughter and defendant were then arrested.
At the preliminary hearing, the information was orally amended and an amended information was filed charging defendant with the sale of marijuana within 1,000 feet of a school (K.S.A.1991 Supp. 65-4127b[e], a class B felony.
The defendant testified that he had just arrived in town and met Slaughter for the first time on the morning of the day the sale took place. Slaughter invited him to return that evening to drink and party.
The defendant stated that he returned to the motel shortly before 9:00 p.m. He and two other men were asked by Slaughter to leave the room when the undercover police officers arrived. According to defendant, Slaughter came out a few minutes later, pulled him aside, and asked him to do a favor. Slaughter asked defendant to go downstairs to the dumpster and pick up a brown trash bag with a knot tied on top of it. The defendant retrieved the bag and returned to the motel room. He then went to the bathroom and only upon his return observed the marijuana. The defendant testified that he did not know what was going on or what was in the bag until that moment.
According to defendant, he did not leave because he had seen the marijuana and the money and was afraid for his life if he tried to just walk out of the room after witnessing the drug deal. He denied helping count the money and denied being present at the motel room the day before when Officer Cheek made a purchase from Slaughter and arranged the buy for the next day. He also denied seeing any marijuana in an open box in the bathroom or in the wastebasket in the bedroom although Officer Dennis Ware had testified that marijuana was found in both locations and was plainly visible.
Slaughter was unavailable to testify at defendant's trial. The trial court allowed James Uhlig, Slaughter's attorney, to testify that Slaughter told him in defendant's presence that defendant did not have anything to do with the sale of the marijuana.
At the close of all the evidence, the defendant moved for a directed verdict, and the trial court found that there was no evidence to show that Alcott School was school property as defined by statute. The trial court then submitted the case to the jury on the offense of the sale of marijuana.
The defendant was charged with the sale of marijuana within 1,000 feet of school property in violation of K.S.A.1991 Supp. 65-4127b(e), a class B felony. At the close of all the evidence, defendant moved for "a dismissal or actually a directed verdict." The trial court concluded that there was no evidence that the sale took place within 1,000 feet of school property. The court posed the question, "Am I required to dismiss the case or am I allowed to instruct on what would have been the lesser included charge had I not dismissed it?" After argument by counsel, the court instructed the jury on what it concluded was the lesser included offense of sale of marijuana, K.S.A. 65-4127b(a), a class C felony.
The question of whether further prosecution of the defendant under the unique circumstances of this case subjected defendant to double jeopardy in violation of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Bill of Rights is one of first impression in this state. Federal authority exists for continuing prosecution, and it serves our purpose to quote at length from the case of United States v. LoRusso, 695 F.2d 45 (2d Cir.1982), cert. denied, 460 U.S. 1070, 103 S.Ct. 1525, 75 L.Ed.2d 948 (1983), because it addresses the double jeopardy question in an almost identical factual setting.
In LoRusso, defendant was charged with possession with intent to distribute heroin and with conspiracy to distribute and possess with intent to distribute heroin. At the close of the government's case, defendant moved pursuant to Fed.R.Crim.Proc. 29(a) for a judgment of acquittal on the charge of possession with intent to distribute heroin. The trial court found that the evidence was insufficient concerning the proof of intent to distribute and granted defendant's motion. Over defendant's objection, the trial court submitted to the jury the charge of simple possession as a lesser included offense of possession with intent to distribute.
The LoRusso court first dealt with the authority of the trial judge to submit a reduced charge to the jury:
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