State v. Widener ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,591
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MINNIE ELIZABETH WIDENER,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed September 10, 2021.
Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Thomas R. Stanton, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., HILL and ISHERWOOD, JJ.
PER CURIAM: This is a direct appeal by Minnie Elizabeth Widener of her
convictions by a jury for possession of methamphetamine and possession of marijuana.
Widener raises four issues on appeal. First, she contends there was insufficient evidence
to support her conviction for possession of methamphetamine. Second, Widener argues
that the district court erred by not giving a nonexclusive possession jury instruction.
Third, she asserts the district court erred by not giving a limiting jury instruction
regarding prior crimes evidence under K.S.A. 2019 Supp. 60-455. Finally, she claims that
cumulative errors deprived her of a fair trial.
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Upon our review, we find no reversible error by the district court and, therefore,
affirm the convictions.
FACTUAL AND PROCEDURAL BACKGROUND
On January 8, 2019, the Hutchison Police Department executed a search warrant at
a duplex in which Widener resided. The search warrant was obtained after Detective
Travis Lahann witnessed what he believed were two separate drug transactions involving
Widener and other individuals at the duplex on January 4 and 7, 2019.
During the execution of the search warrant, only Widener was inside the
residence. A quantity of marijuana was found concealed in the clothing she was wearing.
Quantities of methamphetamine and marijuana, smoking devices, two scales, syringes,
spoons, cotton swabs, and numerous small clear plastic baggies—a few of which
contained methamphetamine—were found throughout the residence.
Widener was charged with possession of methamphetamine with intent to
distribute within 1,000 feet of a school in violation of K.S.A. 2018 Supp. 21-5705(a)(1),
(d)(3)(C), (d)(5); possession of drug paraphernalia with intent to manufacture, plant, or
cultivate a controlled substance in violation of K.S.A. 2018 Supp. 21-5709(b)(1),
(e)(2)(A); and possession of marijuana in violation of K.S.A. 2018 Supp. 21-5706(b)(3),
(c)(3)(B). Widener pled not guilty and requested a jury trial.
As discussed more fully in the analysis, before trial Widener filed a motion in
limine to preclude the State from admitting evidence of prior crimes or bad acts. For its
part, the State moved to admit K.S.A. 2019 Supp. 60-455(b) evidence of Widener's 1989
criminal conviction for possession of methamphetamine with intent to sell. Additionally,
the State sought to admit evidence of Detective Lahann's surveillance observations
prompting the January 8 search warrant, as a "pattern of conduct" indicative of controlled
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substance distribution. The district court granted Widener's motion in limine and took the
State's motion under advisement.
The jury trial began on December 10, 2019. During the trial, the district court
ruled that the surveillance evidence was not K.S.A. 2019 Supp. 60-455 evidence and
admitted it at trial.
After the State rested its case, Widener moved for a directed verdict, arguing that
the State failed to present a prima facie case of possession with intent to distribute. The
district court denied the motion. The defense did not present evidence at trial. During the
jury instructions conference neither a nonexclusive possession instruction nor a K.S.A.
2019 Supp. 60-455(b) limiting instruction was requested by the parties and neither
instruction was given to the jury.
The jury found Widener guilty of possession of marijuana and the lesser included
offense of possession of methamphetamine. Widener was acquitted of possession of drug
paraphernalia with intent to manufacture, plant, or cultivate a controlled substance. On
January 24, 2020, the district court sentenced Widener to a controlling 17-month sentence
and granted presumptive probation. Widener timely appeals.
SUFFICIENCY OF EVIDENCE OF POSSESSION OF METHAMPHETAMINE
Widener contends there was insufficient evidence that she possessed
methamphetamine. She claims that her partner, Ernesto Cabral, shared a bedroom with
her and that her son also lived in the residence. The State counters that there was
considerable evidence throughout Widener's residence to show her use and possession of
methamphetamine.
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When reviewing whether the record shows sufficient evidence to support a
conviction of a crime, an appellate court views the evidence in a light most favorable to
the State. Moreover, in our review we do not reweigh evidence or make credibility
determinations. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). To the extent
that we must interpret and apply the statutory definition of possession, our review is
unlimited. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
The offense of possession of methamphetamine required the State to prove that
Widener knowingly possessed methamphetamine on January 8, 2019. See K.S.A. 2018
Supp. 21-5706(b)(2). "Possession of a controlled substance requires specific intent to
exercise control over the substance, with knowledge of the nature of the substance." State
v. Keel, 302 Kan. 560, Syl. ¶ 1, 357 P.3d 251 (2015). Possession may be established by
proving the defendant had exclusive control, joint control with another person, or
constructive control such as when the item is kept in a place over which the defendant has
access and a right of control. State v. Beaver, 41 Kan. App. 2d 124, 129, 200 P.3d 490(2009).
Importantly, in this case the district court provided the jury with a definition of
possession as found in K.S.A. 2018 Supp. 21-5701(q). Instruction No. 7 informed the
jury: "'Possession' means having joint or exclusive control over an item with knowledge
of and 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." K.S.A. 2018 Supp. 21-5701(q).
Although Widener argues the State relied on impermissible "inference stacking" to
obtain a conviction, "[i]mpermissible inference stacking is not present where different
circumstances are used to support separate inferences or where multiple pieces of
circumstantial evidence separately support a single inference." State v. Banks, 306 Kan.
854, Syl. ¶ 3, 397 P.3d 1195 (2017). A verdict may be supported by circumstantial
evidence and, to be sufficient, the evidence need not exclude every other reasonable
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conclusion. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). "If an inference is a
reasonable one, the jury has the right to make the inference." State v. Rosa, 304 Kan. 429,
Syl. ¶ 2, 371 P.3d 915 (2016). The State may prove possession and intent, like any
element of a crime, by circumstantial evidence. State v. Marion, 29 Kan. App. 2d 287,
290, 27 P.3d 924 (2001).
Given the totality of evidence presented to the jury and viewing the evidence in a
light most favorable to the State, we are convinced there was sufficient evidence to prove
beyond a reasonable doubt that Widener possessed methamphetamine on January 8,
2019.
On January 8, 2019, at the time of the execution of the search warrant, Widener
was the only person in the residence. Evidence showed the utilities were registered in
Widener's name. Her driver's license was the only item of personal identification found in
the residence. No other identification documents were found in the home. When Widener
insisted that she needed to use the restroom, an officer searched her and found a small
bag of marijuana hidden in her bra.
As the officers searched the residence, they found methamphetamine and
marijuana, in addition to drug paraphernalia throughout the home. The residence had only
one bedroom which contained stickers on the door with the names "Liz and Ernesto." In
that bedroom, two boxes were found under the bed. Inside one box were three smoking
devices—two of which had white residue inside it, and the third with green residue. The
other box was a jewelry box containing jewelry and 150 unused clear, plastic baggies.
Next to the bed was a small, plastic tote with drawers. The top drawer had two
small, plastic baggies with a white, crystalline substance inside, and a zippered cloth bag
containing four small, plastic baggies with a white, crystalline substance inside. In the
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second drawer, a small, white container with a large amount of unused, small, clear,
plastic baggies and a scale were found.
In the main living area of the residence, the officers found a jean jacket hanging on
the wall. In a side pocket of the jacket a small plastic bag of crystalline white substance
was found. In the only bathroom in the residence, the officers found a used needle and a
small bag of green vegetation. In the basement, which appeared to be another living area,
a scale was found on top of a coffee table. Underneath the table was a container with
syringes, spoons, and cotton swabs. Straws, which the officers believed were used to
ingest methamphetamine, were also found in the residence. The white crystalline
substances that were tested yielded 5.11 grams of methamphetamine.
While Widener argues on appeal that the evidence was insufficient to prove that
she possessed methamphetamine, during the jury trial defense counsel had a markedly
different point of view. Defense counsel's opening statement was a clear and emphatic
concession to the jury that Widener was a methamphetamine addict who possessed
methamphetamine at various locations in her residence on the day the search warrant was
executed:
"Good morning, Ladies and Gentlemen of the Jury. There's not a whole lot in
dispute in this case other than whether or not Minnie Widener actually possessed
methamphetamine with intent to sell, or whether she possessed methamphetamine with
intent to use. Minnie Widener is a methamphetamine addict. It's unfortunate. Many
people have various addictions. That's Minnie's. . . . Now, the evidence will not show
though that she possessed this methamphetamine with intent to sell it as the State alleges.
Rather the Defense believes she's an addict with a bad meth addiction. The evidence will
show that. You will see used needle, after used needle. You will see spoons. You will see
cotton swabs. You will see methamphetamine. You will see scales, but all those things
can be used for more than just, more than just simply selling methamphetamine or
distributing it. They all can be used, such as a scale could be used, . . . to make sure a
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person doesn't overdose and die from using something that they know is harmful but
they're addicted to anyway.
". . . This is a person who has an addiction, who is hiding her drugs throughout
the house. Not a meth dealer. . . .
"Rather, the evidence will show in this case that Minnie Widener is a user and an
addict of methamphetamine. So the bottom line is that Minnie Widener is a user."
(Emphasis added.)
Although Widener may have shared the residence with another person, the fact
that the methamphetamine and other drug paraphernalia were in her bedroom and
throughout her residence—much of it in plain view—was sufficient for a jury to
reasonably infer that, as defense counsel conceded in his opening statement, Widener
possessed the methamphetamine.
Viewing the evidence in a light most favorable to the State, we are firmly
convinced that a rational fact-finder could have found Widener guilty of possession of
methamphetamine beyond a reasonable doubt. We find no error.
FAILURE TO GIVE A JURY INSTRUCTION ON NONEXCLUSIVE POSSESSION
Despite Widener's failure to request a jury instruction on nonexclusive possession
at trial, for the first time on appeal, she contends the district court's failure to instruct the
jury in this regard was reversible error. While questioning the merits of Widener's claim,
the State primarily argues that there is no showing that the jury would have reached a
different verdict had the nonexclusive possession instruction been given.
We begin the analysis with our standards of review.
"When analyzing jury instruction issues, we follow a three-step process:
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'(1) determining whether the appellate court can or should review the issue, i.e.,
whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
appeal;
(2) considering the merits of the claim to determine whether error occurred
below; and
(3) assessing whether the error requires reversal, i.e., whether the error can be
deemed harmless.' [Citation omitted.]" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1(2018).
Whether a party has preserved a jury instruction issue affects the appellate court's
reversibility inquiry at the third step. 307 Kan. at 317; K.S.A. 2018 Supp. 22-3414(3)
("No party may assign as error the giving or failure to give an instruction . . . unless the
party objects thereto before the jury retires to consider its verdict . . . unless the
instruction or the failure to give an instruction is clearly erroneous.").
At the second step, appellate courts consider whether the instruction was legally
and factually appropriate. 307 Kan. at 318. Appellate courts have unlimited review to
determine whether an instruction was legally appropriate. State v. Johnson, 304 Kan. 924,
931, 376 P.3d 70 (2016). Courts should determine whether there was sufficient evidence,
viewed in the light most favorable to the defendant or the requesting party, that would
have supported the instruction. State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101(2016).
At the third step—which is particularly relevant to this appeal—if the challenging
party did not object to the jury instruction below, the appellate court applies the clear
error standard and will only reverse if "'the giving of the instruction would have made a
difference in the verdict.' [Citation omitted.]" State v. Cooper, 303 Kan. 764, 771, 366
P.3d 232 (2016).
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Was an instruction on nonexclusive possession legally appropriate? As stated
earlier, possession means to have control over something with knowledge of and intent to
have such control. It can be exclusive, jointly held with another, or constructive, which,
at minimum, requires that the individual knowingly keep the methamphetamine in a place
where they have some measure of access and right of control. Beaver, 41 Kan. App. 2d at
129. Of note, the Kansas Pattern Instructions include a "nonexclusive possession"
instruction as part of the pattern instructions for possession cases. See PIK Crim. 4th
57.040 (2018 Supp.). A nonexclusive possession instruction was legally appropriate
under the circumstances.
The jury instruction must also be factually appropriate. Whether an instruction is
factually appropriate is as simple as showing the defendant was not the only individual
with access to the premises or vehicle where the drugs were discovered. See State v.
Hazley, 28 Kan. App. 2d 664, 672-73, 19 P.3d 800 (2001); State v. Judd, No. 112,606,
2016 WL 2942294, at *6 (Kan. App. 2016) (unpublished opinion).
There was some limited evidence regarding whether other people lived in
Widener's residence. Cabral's name was written in stickers on Widener's bedroom door,
and some men's clothing was found in the basement of the home. For its part, the State
does not challenge the notion that others may have had access to the residence but argues
that Widener's defense was that she alone possessed all the methamphetamine for
personal consumption which contradicted the State's theory that she was a dealer in
methamphetamine.
When the State and defendant offer competing reasons why the requested
instruction was or was not factually appropriate, the appellate court may move straight to
the harmlessness inquiry. State v. Salary, 301 Kan. 586, 598-99, 343 P.3d 1165 (2015).
Thus, we will assume—without deciding—that the nonexclusive use instruction was both
legally and factually appropriate.
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Next, we consider harmlessness or whether the omission of the instruction was
clearly erroneous. Reprising our analysis in the prior section relating to the sufficiency of
evidence, Widener's trial strategy was to admit addiction to methamphetamine and claim
that the methamphetamine found in her home was kept purely for personal use, as
opposed to selling it to others. Defense counsel argued to the jury that, although the
amount of methamphetamine found in Widener's home was over the statutory threshold
for a rebuttable presumption of intent to distribute, someone as highly addicted as
Widener would have consumed all that methamphetamine in about 10 days. Defense
counsel also argued in his closing argument that his client "can't get away from the fact
that Minnie Widener has methamphetamine in the house. That's also true. What is not
true is that Ms. Widener possessed the methamphetamine with the intent to sell in this
case." By their verdict, the jurors took defense counsel's words to heart and determined
that Widener possessed but did not intend to sell methamphetamine.
Our determination of clear error should consider the impact of the omitted
instruction in light of the entire record including the other instructions, counsel's
arguments, and whether the evidence is overwhelming. In re Care & Treatment of
Thomas, 301 Kan. 841, 849, 348 P.3d 576 (2015). All of these circumstances considered,
Widener has not firmly convinced our court that any error in failing to give a
nonexclusive possession instruction would have made any difference in the verdict. See
Cooper, 303 Kan. at 771.
FAILURE TO GIVE A LIMITING JURY INSTRUCTION
For her next issue on appeal, Widener claims the district court erred by failing to
give the jury a limiting instruction after admitting prior bad act evidence under K.S.A.
2019 Supp. 60-455 at trial. The State responds by noting that Widener is raising this issue
for the first time on appeal. Moreover, the State asserts that no clear error has been shown
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because the challenged evidence supported the State's charge that Widener possessed
methamphetamine for sale, and the jury acquitted her of that offense.
Additional facts are necessary to address this issue. On January 4 and 7, 2019,
Detective Lahann witnessed what he believed were two separate drug transactions
involving Widener at her residence. On January 4, the detective observed two men walk
toward Widener's residence. One of the men entered the residence and left shortly
thereafter. On January 7, Detective Lahann observed Widener leave her residence, enter a
vehicle for a few minutes, and reenter her residence. The detective testified that based on
his training and experience, Widener's activities were consistent with the distribution of
controlled substances.
Prior to trial, Widener filed a motion in limine that sought, among other requests,
to prohibit the State from referring to any "bad act or propensity to commit any prior bad
acts(s) concerning Ms. Widener." For its part, the State filed a motion to admit K.S.A.
2019 Supp. 60-455 evidence regarding Wideners' prior conviction for sale of
methamphetamine. Additionally, the State sought to
"introduce evidence of the observations of members of the Reno County Drug
Enforcement Unit during periods of surveillance leading up to the application for the
search warrant in this case. These observations establish, based on the training and
experience of the officers, a pattern of conduct consistent with the distribution of
controlled substances."
In arguing the motion, Widener challenged the proposed surveillance testimony as
improper K.S.A. 2019 Supp. 60-455 evidence. The prosecutor, however, changed course,
and argued: "What officers observed has nothing to do with propensity evidence. It's
simply related to this case and this crime. It's not propensity evidence. It's activity of the
defendant related to this crime that would support the State's argument that this was, that
methamphetamine was possessed with intent to sell."
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The district court granted the motion in limine regarding Widener's prior
conviction but ruled that Detective Lahann's observations prior to obtaining the search
warrant were, as the State argued at trial, "clearly part of the investigation. That clearly
would be relevant [regardless] of any 60-455 evidence." The court stated, "I agree with
the State and we're not talking about 60-455 evidence."
Our standards of review for evaluating whether a district court erred in failing to
give a limiting jury instruction on K.S.A. 2019 Supp. 60-455 evidence that was not
requested by the defendant at trial is the same as stated in the prior section relating to the
failure to give a nonexclusive possession instruction. Additionally, a district court that
admits K.S.A. 2019 Supp. 60-455(b) evidence must give a limiting instruction informing
the jury of the specific purpose for admission of the evidence to avoid error. State v.
Breeden, 297 Kan. 567, 579, 304 P.3d 660 (2013). Kansas courts assume, under State v.
Gunby, 282 Kan. 39, 57-58, 144 P.3d 647 (2006), that omitting a limiting instruction after
admission of K.S.A. 2019 Supp. 60-455(b) evidence is error.
At the outset, we must consider whether the surveillance evidence which the State
initially characterized as prior crimes or bad acts evidence admissible under K.S.A. 2019
Supp. 60-455 was, in fact, that type of evidence. As just noted, the State changed its
approach at trial to assert that the evidence was part and parcel of the crimes charged
against Widener. On appeal, the State reverts to its initial argument and states that despite
the surveillance evidence constituting evidence of prior crimes of drug sales, there was no
reversible error in the district court failing to give a limiting instruction. This is because
the surveillance evidence was offered to prove Widener's intent to sell methamphetamine
and, by their verdict, the jurors rejected that prosecution theory.
"'K.S.A. 60-455 does not apply if the evidence relates to crimes or civil wrongs
committed as a part of the events surrounding the crimes for which [the defendant] was
on trial—that is, the res gestae of the crime.'" State v. Butler, 307 Kan. 831, 861, 416 P.3d
12116 (2018) (quoting State v. King, 297 Kan. 955, 964, 305 P.3d 641 [2013]). Res gestae
refers to acts occurring "'before, during, or after the happening of the principal occurrence
when those acts are so closely connected with the principal occurrence as to form, in
reality, a part of the occurrence.'" State v. McDaniel, 306 Kan. 595, 616, 395 P.3d 429(2017).
We are persuaded that the surveillance evidence of events that occurred within
four days of the execution of the search warrant, and which provided, in part, the
predicate for the search warrant executed at Widener's residence, was relevant to prove
whether Widener was guilty of possession with intent to sell methamphetamine. See
K.S.A. 60-407(f) (Generally, all relevant evidence is admissible.); see also K.S.A. 60-
401(b) (Defining relevant evidence as evidence having any "'tendency in reason to prove
any material fact.'") State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014).
Additionally, the surveillance evidence was so intertwined factually and temporally with
the charge of possession with intent to sell that it is not a prior crime improperly admitted
to show Widener's propensity to commit crimes.
Our Supreme Court has determined that a limiting instruction is not required when
the evidence of prior bad acts or crimes is not subject to K.S.A. 60-455(b). State v.
Gonzalez, 307 Kan. 575, 597, 412 P.3d 968 (2018) (holding evidence was admitted
independent of K.S.A. 60-455 and so no limiting instruction required). As a result, we
find no error in the district court's failure to provide a limiting instruction regarding the
surveillance evidence.
However, we will consider whether—even assuming the surveillance evidence
was prior crimes evidence under K.S.A. 60-455—the district court committed reversible
error in not providing the jury with a limiting instruction. Under the circumstances of this
case, we conduct a clear error analysis to determine whether reversal is necessary. Gunby,
282 Kan. at 58 ("[A] trial judge should give such a K.S.A. 60-455 limiting instruction,
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but the failure to do so, though error, will no longer demand automatic reversal. Where
the complaining party neither requested the instruction nor objected to its omission, the
failure to give the instruction will be reversible only if clearly erroneous."). "This requires
the appellate court to make a de novo determination of whether the court is firmly
convinced that the jury would have reached a different verdict had a limiting instruction
been given." Breeden, 297 Kan. 567, Syl. ¶ 5.
The State argues that, because the jury did not accept the State's theory about
Widener's intent to sell methamphetamine, any error in failing to give a limiting
instruction would not have made a difference in the jury verdict and thus was not clear
error. We think the State's argument has merit. A limiting instruction for K.S.A. 60-455
evidence "'"eliminate[s] the danger that the evidence will be considered to prove the
defendant's mere propensity to commit the charged crime."'" Butler, 307 Kan. at 860. The
jury's acquittal of Widener for possessing methamphetamine with intent to sell clearly
shows that the State's admission of surveillance evidence was insufficient to prove her
guilt or propensity to commit the crime of possession with intent to sell.
Widener has not firmly convinced our court that the jury would have reached a
different verdict had the district court given a limiting instruction. See Gunby, 282 Kan.
at 58-59 (holding that the district court's failure to give the instruction will not require
automatic reversal but that the complaining party must prove that the error was clear
error). Even assuming the evidence was admitted under K.S.A. 2019 Supp. 60-455, we
find no clear error.
CUMULATIVE ERROR
Finally, Widener argues that cumulative trial errors deprived her of a fair trial.
Cumulative trial errors, when considered together, may require reversal of the defendant's
conviction when the totality of the circumstances establish that the defendant was
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substantially prejudiced by the errors and denied a fair trial. State v. Hirsh, 310 Kan. 321,
345, 446 P.3d 472 (2019). In assessing the cumulative effect of errors during the trial, our
court examines the errors in the context of the entire record, considering how the trial
judge dealt with the errors as they arose; the nature and number of errors and their
interrelationship, if any; and the overall strength of the evidence. 310 Kan. at 345-46.
When an appellate court finds no errors exist, the cumulative error doctrine does
not apply. State v. Lemmie, 311 Kan. 439, 455, 462 P.3d 161 (2020). Moreover, a single
error cannot support reversal under the cumulative error doctrine. State v. Ballou, 310
Kan. 591, 617, 448 P.3d 479 (2019).
As discussed earlier—assuming without deciding that there were two instructional
errors in this case—neither one individually nor cumulatively would have adversely
affected the guilty verdicts in this case. See State v. Martinez, 290 Kan. 992, 1017, 236
P.3d 481 (2010) (two trial errors were harmless, unrelated, and were not, in combination,
so prejudicial as to deny the defendant a fair trial). We find no cumulative errors, and no
substantial prejudice that denied Widener a fair trial.
Affirmed.
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