State v. Moore
Decision Date | 25 April 2008 |
Docket Number | No. 96,597.,96,597. |
Citation | 181 P.3d 1258 |
Parties | STATE of Kansas, Appellee/Cross-appellant, v. Connie W. MOORE, Appellant/Cross-appellee. |
Court | Kansas Court of Appeals |
and Paul J. Morrison, attorney general, for appellee.
Before McANANY, P.J., CAPLINGER and BUSER, JJ.
Connie Moore appeals his convictions and sentences for multiple methamphetamine-related offenses, and the State cross-appeals the primary sentence imposed.
Moore argues the district court erred in denying his motion to suppress evidence found in his truck and camper because (1) the initial stop of his vehicle was unlawful; (2) the scope of the stop exceeded its initial purpose; (3) the subsequent search of his vehicle was not based upon probable cause; and (4) he was under custodial interrogation when he made pre-Miranda statements during the traffic stop.
Moore also argues the district court abused its discretion in denying his motion for mistrial based upon an allegedly biased jury. Additionally, Moore claims the district court erred in admitting evidence of his prior methamphetamine-related convictions without analyzing the evidence under K.S.A. 60-455. And Moore asserts the district court erred in permitting a witness to testify despite the witness' violation of a sequestration order. Finally, Moore challenges his sentences, arguing the severity level of his conviction for manufacture of methamphetamine violates the identical offense doctrine.
The State cross-appeals Moore's primary sentence, claiming the district court erred in failing to sentence Moore pursuant to K.S.A. 21-4705(e).
We conclude the district court did not err in denying Moore's motion to suppress as the officer (1) properly based the initial stop on a reasonable suspicion that Moore was driving under the influence; (2) did not exceed the scope of the initial stop; and (3) had probable to cause to search Moore's vehicle after the officer detected the odor of both anhydrous ammonia and ether and observed in plain view several items used in the manufacture of methamphetamine. Additionally, the district court did not err in refusing to suppress a pre-Miranda statement made by Moore during the investigative stop as Moore was not in custody when the statement was made.
We further hold the district court did not abuse its discretion in denying Moore's motion for mistrial as we find no evidence to support Moore's suggestion that the jury was somehow biased against him. Regarding Moore's prior convictions for methamphetamine-related offenses, we hold the district court erred in failing to conduct an analysis of their admissibility under K.S.A. 60-455. Nevertheless, the prior conviction evidence was properly admitted as it was relevant to show Moore's knowledge and awareness of the items in the trailer, which Moore claimed were not subject to his exclusive possession and did not belong to him. Further, even if the evidence was erroneously admitted, the error was harmless in light of the overwhelming evidence of Moore's guilt as contained in the trial record. We also conclude the district court did not err in permitting a witness to testify despite the witness' alleged violation of the sequestration order, When there is no evidence any prejudice occurred as a result of the alleged violation.
Based upon our analysis of our Supreme Court's recent holding in State v. Cooper, 285 Kan. ___, 179 P.3d 439 (2008), we must reject Moore's challenge to his sentence. Because the elements of manufacturing methamphetamine are not identical to the elements of the possession of paraphernalia with intent to manufacture, and the jury was properly instructed as to those elements as defined by the charging documents, the two offenses are not identical for sentencing purposes.
Finally, we sustain the State's cross-appeal and reverse and remand for resentencing, as the district court erred in failing to sentence Moore to a second or subsequent K.S.A. 65-4159 conviction pursuant to K.S.A. 21-4705(e). Moore's due process challenge to the statute fails because the statute does not alter the crime's severity level classification, nor does it make proof of the prior conviction an element of the crime. Further, although the defendant's prior conviction occurred after the acts with which the defendant was charged in the instant case, the defendant was required to be sentenced as a second or subsequent offender pursuant to K.S.A. 21-4705(e) because his prior conviction occurred prior to his sentencing in the present case.
Factual and procedural background
On July 23, 2004, Reno County Sheriff's Deputy Jeremy Hedges was working as a part-time park ranger at Cheney Reservoir State Park (Park), a position in which he retained his law enforcement and Reno County credentials. As Hedges patrolled the Park near Heimerman Point at approximately 11 p.m. that evening, he observed a green pickup truck swerve to one side of its lane and then jerk back to the other side of the lane. The truck, driven by Moore, made this same weaving, jerking motion approximately five times, and on the last time, the truck's passenger-side tires touched the grass on the right side of the road. Deputy Hedges became suspicious that the driver of the truck, who was traveling approximately 20 miles per hour in a 30-mile-per-hour zone, might be driving under the influence (DUI).
After Moore turned right off the main road, Hedges initiated a stop of the vehicle based upon his suspicion that the driver was DUI and also on the driver's failure to signal within 100 feet of the turn. As Hedges approached the vehicle, he detected the odor of both anhydrous ammonia and ether, which Hedges knew to be associated with the manufacture of methamphetamine.
In response to Hedge's request, Moore produced an expired driver's license and began searching for his proof of insurance in the glove compartment of the truck. As Moore searched for the documentation, Deputy Hedges observed a can of Coleman fuel and two cans of starter fluid in the bed of the truck.
Moore then asked Deputy Hedges if he could get out of the truck to continue searching for his insurance. Hedges permitted him to do so after patting him down for weapons. As Moore exited the truck, Deputy Hedges observed a roll of paper towels and an open container of lithium batteries on the seat of the truck. At that point, Park Ranger Jeffrey Ostlund arrived as back-up for Hedges. Ostlund also detected the odor of anhydrous ammonia near the truck.
Hedges returned to his patrol vehicle and requested that dispatch run Moore's driver's license and check for outstanding warrants. After dispatch confirmed that the license had expired, Hedges returned to Moore and asked him where he was going. Moore responded that he was going to his trailer which was parked at Heimerman Point.
Deputy Hedges then advised Moore that he intended to search Moore's truck. Moore responded that Hedges could not do so without a warrant. Hedges told Moore that this was not a request. After Moore began pacing and became fidgety, Hedges handcuffed him.
During the search of Moore's vehicle, Hedges found an empty package labeled "syringes" on the passenger side floorboard. As Hedges examined the toolbox in the truck's bed, the odor of anhydrous ammonia became stronger. Inside the toolbox, Hedges found a propane tank wrapped in a t-shirt. The tank's brass fittings had turned blue, consistent with the corrosive effect of anhydrous ammonia on brass. Hedges then Mirandized Moore, and Moore agreed to speak to him. Moore denied the presence of anhydrous ammonia or chemicals in the truck and told Hedges he was headed to a campsite belonging to his aunt and uncle.
At Deputy Hedges' direction, Ranger Ostlund then left to locate the campsite. Ostlund discovered that Moore had obtained a camping permit in Moore's name, which was affixed to a camper parked in Heimerman Point. Ostlund detected a chemical odor emanating from the camper parked at the site, and search warrants were then obtained for the camper, the campsite, and Moore's truck. Hedges also obtained a destruction warrant permitting the officers to destroy any hazardous materials discovered in the search.
More than 25 items associated with the manufacture of methamphetamine were discovered in the pickup, in the camper, and at the campsite. Moore was charged with the manufacture of methamphetamine; attempted manufacture of methamphetamine; possession of ephedrine or pseudoephedrine; possession of anhydrous ammonia or pressurized ammonia; possession of lithium metal; possession of drug paraphernalia; and possession of methamphetamine.
Moore filed a motion to suppress the evidence discovered in the search of the campsite, camper, and truck, alleging the initial stop was unlawful and the items discovered were the fruit of the unlawful stop. The district court denied the motion, finding the stop was lawful based upon Deputy Hedge's testimony regarding Moore's weaving and jerking within his lane and his concern that Moore was DUI. Citing State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993), the district court found that these concerns, standing alone, were sufficient to justify the stop. Nevertheless, the court held that Moore's failure to properly signal a turn provided a further basis for the stop.
Following a jury trial, Moore was found guilty of all charges. Moore was sentenced to concurrent sentences of 162 months' imprisonment each for the manufacturing and attempted manufacturing convictions, which were to be served consecutive to the concurrent sentences of 11 months each on the five possession convictions. Moore appeals his convictions and sentences.
Moore first challenges the denial of his motion to suppress, alleging the initial stop was not lawful as Moore committed no...
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