State v. Sisson
| Decision Date | 12 June 2015 |
| Docket Number | 106,580. |
| Citation | 351 P.3d 1235,302 Kan. 123 |
| Parties | STATE of Kansas, Appellee, v. Cornelius SISSON, Appellant. |
| Court | Kansas Supreme Court |
Randall L. Hodgkinson, of the Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Kassie L. McEntire, assistant county attorney, argued the cause, and Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Cornelius Sisson appeals from his conviction of charges relating to attempting to elude law enforcement officers and possessing drugs and paraphernalia.
On the early morning of December 4, 2010, Officer Matthew Gawith of the Salina Police Department observed a driver make a right turn without activating the car's turn signal. Gawith started to follow the car and tried to induce the driver to pull over to a stop, first by turning on his emergency lights, and then by sounding an air horn. Instead of pulling over, the driver accelerated, driving as fast as 50 miles per hour in a posted 30–mile–per–hour zone. The driver also veered across lanes and made multiple turns without signaling. Officer Aaron Carswell joined the pursuit in a separate police car.
The vehicle eventually came to a stop by the side of the road. When Sisson, who was driving, got out of the car, the officers handcuffed and searched him. After several pat-downs, Officer Carswell eventually found in Sisson's right front pocket an electronic scale and a baggie containing a vegetable material that was later proved to be marijuana.
Another officer went to the scene of the arrest, and, after seeing that the situation was under control, drove back from the site. Along the way, she found in the middle of the road nine baggies containing marijuana and one baggie containing cocaine powder. The bags were knotted in a manner similar to the baggie found in Sisson's pocket.
On questioning at the police station, Sisson informed an officer that he had purchased the marijuana found in his pocket earlier that day and had intended to start using it just before the police pursuit began. He went on to explain that the scale was for kitchen use in ordinary cooking.
The case proceeded to trial, and a jury ultimately found Sisson guilty of possession of marijuana, possession of drug paraphernalia, possession of cocaine, and fleeing and eluding a police officer while committing five or more moving violations. The jury found him not guilty of possession of marijuana with intent to sell, deliver, or distribute; not guilty of possession of marijuana without tax stamps; and not guilty of possession of cocaine without tax stamps. The Court of Appeals affirmed his conviction, and this court granted review with respect to all issues. See State v. Sisson, No. 106,580, ––– Kan.App.2d ––––, 2013 WL 1688933 (Kan.App.2013) (unpublished opinion).
The first issue that Sisson presents on appeal is the accuracy and sufficiency of the answer that the court provided to a question from the jury.
During deliberations, the jury sent a written question to the court:
The court conferred in chambers with counsel for both parties and Sisson. The parties understood the question to mean that the jury was unsure whether it could convict for possession based on the residue on the scale or on the cocaine found in the baggie on the street. Counsel for Sisson argued that a conviction could only be predicated on the baggie because the residue was insufficient in quantity to support the charge of failure to provide a tax stamp. The State argued, and the court agreed, that State v. Schoonover, 281 Kan. 453, 468, 133 P.3d 48 (2006), required a unanimous finding of guilt under one theory or the other. The court then provided the jury with a written response: “You must find unanimously as to which item they believe to be cocaine.”
On appeal, Sisson reiterates the argument that the answer was inaccurate, because the State only intended to charge him with the cocaine that was found on the street.
The decision by a district court to respond to a jury's request for additional information during deliberations is reviewed for abuse of discretion. State v. King, 297 Kan. 955, 976, 305 P.3d 641 (2013) ; State v. Murdock, 286 Kan. 661, 680, 187 P.3d 1267 (2008). A district court abuses its discretion when it is guided by an erroneous conclusion of law. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied –––U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
Sisson argues that, because the jury acquitted him of possession of cocaine without a tax stamp, it necessarily must have limited the basis of its conviction to the residue found on the scale. He then argues that this residual possession was never charged.
The amended complaint charged one count of possession of cocaine:
“That on or about the 4th day of December, 2010, in Saline County, Kansas, Cornelius Lee Sisson, then and there being present, did unlawfully, feloniously, and intentionally possess or have under such person's control a controlled substance to-wit: Cocaine.”
The State also charged Sisson with one count of possessing more than 1 gram of cocaine without a tax stamp.
The instruction to the jury on possessing cocaine read:
The complaint did not specify which cocaine Sisson was alleged to possess—the cocaine residue on the scale or the cocaine in the baggie on the road. Evidence supporting either theory was presented to the jury, although the jury apparently elected to exonerate Sisson of possessing the cocaine in the baggie. Proof of possession of any amount of a controlled substance suffices to sustain a conviction even if the amount is not measurable or useable. State v. Berry, 223 Kan. 102, Syl. ¶ 2, 573 P.2d 584 (1977).
While Sisson argues that the State did not intend to convict him of possessing cocaine residue found on the scale, the charging documents did not distinguish between the cocaine found on the road and the cocaine found on the scale in Sisson's pocket. The evidence that the State presented to the jury supported both theories of possession, and the instructions that the court gave to the jury allowed a conviction under either theory. Following the answer to the jury's question, the jury understood that it had to be unanimous in choosing a theory of which cocaine Sisson possessed in order to sustain a conviction.
Sisson also argues that the court's reply to the question was nonresponsive. The jury asked whether the residue was sufficient to support a prosecution for possession. The court replied that the jury had to be unanimous in deciding which item it believed to be cocaine. The jury already had before it instructions defining possession.
The alternative theories of possession that the evidence supported invokes a multiple-acts analysis. In such an instance, the State must inform the jury upon which act to rely, or the district court must instruct the jury to agree on the specific act for each charge. State v. De La Torre, 300 Kan. 591, 596, 331 P.3d 815, cert. denied ––– U.S. ––––, 135 S.Ct. 728, 190 L.Ed.2d 455 (2014). Although the original instruction did not direct the jury to make its choice unanimously, the answer to the jury's question informed the jury that it would have to find guilt unanimously based on one cocaine location or the other.
It is evident that the jury based its conviction on the residue. The court instructed the jury that it had to be unanimous in rendering such a conviction. There was nothing improper about the conviction, and the instructions, read together with the answer to the jury's question, were enough for the jury to understand the foundation for a conviction. The court's answer sufficed to allow the jury to fulfill its function as a factfinder.
Sisson next contends that his defense was prejudiced by the State's failure to disclose in advance of the trial the existence of a videotape of vehicle pursuit.
During the State's direct examination of the officer who made the initial stop, the State sought to introduce as an exhibit the on-board camera videotaped recording of the pursuit. Sisson's counsel objected, stating that he had never been provided a copy of that video, had never had a chance to review it, and had no idea what the video contained. The prosecution responded that the video had been available to the defense the entire time. Sisson's counsel then stated that he had sent a letter to the prosecution formally requesting discovery. It was noted that there was no discovery order, and the court admitted the exhibit with the provision that defense counsel have the opportunity to review it.
Sisson argues that the State violated K.S.A. 22–3212 by failing to provide the requested materials before trial. Unfortunately, the record is not sufficiently complete for this court to determine whether the State actually withheld the videotape or obstructed efforts by Sisson's counsel to obtain it. Although Sisson's counsel asserted at trial that he had sent a letter requesting discovery, the letter is not included in the record on appeal. It is unknown what materials counsel requested or what steps he wanted the State to take to make evidence available, and it is unknown whether counsel specifically requested...
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State v. Gonzalez
...court has long held that appellate courts presume that juries follow the instructions given by district courts." State v. Sisson , 302 Kan. 123, 131, 351 P.3d 1235 (2015).Nor do we find much substantive assistance for the jury from Gonzalez' suggested response in his appellate briefing as q......
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...in Sutherland —the instructions in Colbert and Brice told the jury what the State had established.Most recently, in State v. Sisson , 302 Kan. 123, 130, 351 P.3d 1235 (2015), this court considered whether a jury instruction that defined "drug paraphernalia" invaded the jury's province. That......
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