State v. McConnell

106 P.3d 1148, 33 Kan. App. 2d 711, 2005 Kan. App. LEXIS 210
CourtCourt of Appeals of Kansas
DecidedMarch 11, 2005
DocketNo. 92,011
StatusPublished

This text of 106 P.3d 1148 (State v. McConnell) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McConnell, 106 P.3d 1148, 33 Kan. App. 2d 711, 2005 Kan. App. LEXIS 210 (kanctapp 2005).

Opinion

Malone, J.:

John David McConnell appeals his convictions of possession of methamphetamine and illegal vehicle registration. McConnell claims the trial court failed to properly instruct the jury on presumption of innocence. He further claims there was insufficient evidence to support his conviction of possession of methamphetamine. We affirm.

On April 10, 2003, at approximately 1:50 a.m., Sumner County Sheriff s Deputy Brien Swingle stopped a car traveling on a dirt road without a tag light or license plate. Deputy Risa Hofmeier [712]*712joined Swingle at the scene to assist. Swingle identified the driver as McConnell from his Kansas driver’s license and arrested McConnell when he could not produce a title, tag, or registration for the vehicle.

Swingle searched McConnell and found pocket knives, a cigarette tin, and a blue glass bottle with a tin lid in the lower left pocket of McConnell’s military fatigue-styled pants. According to Swingle, when he asked McConnell about the bottle, McConnell responded, “I don’t know. These aren’t my britches.”

Swingle opened the bottle and noticed it contained a yellowish substance and small rock-sized objects. Relying on his training, Swingle was suspicious of the bottle’s contents. He performed a field test and identified the contents as methamphetamine. Based on the field test, Swingle arrested McConnell for possession of methamphetamine.

McConnell was charged in district court with possession of methamphetamine and illegal vehicle registration. At the start of his trial, McConnell stipulated to the bottle’s contents being methamphetamine. On direct examination, Swingle described the stop, the search and arrest of McConnell, and also noted how the waist and length of McConnell’s pants appeared to fit him. On cross-examination, Swingle testified he never asked McConnell what the bottle contained, how long he had it, or where he got the bottle. Swingle said he never asked McConnell these questions because McConnell had told him the pants were not his own. Hofmeier’s testimony corroborated Swingle’s version of McConnell’s stop, search, and arrest.

The defense presented testimony from two of McConnell’s friends. Susan Hauser testified she had known McConnell for 25 years, that he collected old glass bottles for a number of years, and identified a collection of old blue glass as McConnell’s. Lisa Taylor testified she had known McConnell for 11 years and her testimony mirrored Hauser’s. Neither Hauser nor Taylor testified as to the events of April 10, 2003.

On direct examination, McConnell testified he was at an abandoned farmhouse looking for perennial asparagus prior to his arrest. He stated he was too early to find asparagus, but found the [713]*713blue glass bottle during his search at the abandoned farmhouse. McConnell testified that he collected old glass bottles, so he placed the bottle in his pants’ pocket to be examined later. He categorically denied having any intent to possess methamphetamine the day of his arrest. McConnell testified Swingle never asked if the bottle was his or what it contained.

On cross-examination, McConnell presented a slightly different version of the events of his arrest. McConnell described how Swingle searched him, felt the bottle in his pocket, asked what it was, and that he responded he did not know because they were not his pants. McConnell told the jury his own pants had been switched with his brother-in-law’s who had recently done laundry at McConnell’s house. McConnell testified that once Swingle showed him die bottle, he told Swingle it appeared to be an antique. He admitted he did not tell Swingle he had found the bottle that day or that he collected blue glass.

The jury convicted McConnell of one count of possession of methamphetamine and one count of illegal vehicle registration. The trial court sentenced McConnell to 11 months’ incarceration with the Kansas Department of Corrections on the possession of methamphetamine count and 30 days in jail on the illegal vehicle registration count, with the sentences to run consecutively, and placed him on 12 months’ probation. McConnell timely appeals.

Jury instruction on presumption of innocence

McConnell first claims the trial court failed to properly instruct the jury on the presumption of innocence. When reviewing challenges to jury instructions, an appellate court is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. State v. Peterson, 273 Kan. 217, 221, 42 P.3d 137 (2002).

At the close of evidence, the trial court instructed the jury on burden of proof, presumption of innocence, and reasonable doubt as follows:

[714]*714“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced, from the evidence that he is guilty.
"The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) .

McConnell argues tire phrase “until you are convinced” misleads a juiy into believing that it should expect to be convinced of the defendant’s guilt and therefore should convict. McConnell asserts that the phrase “unless you are convinced” would be a better instruction on presumption of innocence.

Because McConnell did not object to the instruction as given, review is under a clearly erroneous standard. See State v. Daniels, 278 Kan. 53, 57, 91 P.3d 1147 (2004). “Instructions are clearly erroneous only if tire reviewing court is firmly convinced there is a real possibility that tire jury would have rendered a different verdict if the error had not occurred.” State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).

The jury instruction given in this case was drawn directly from PIK Crim. 3d 52.02. The Pattern Instructions for Kansas were developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions, and while they are not required, they are strongly recommended for use by Kansas trial courts. State v. Dias, 263 Kan. 331, 335, 949 P.2d 1093 (1997) (quoting State v. Moncla, 262 Kan. 58, Syl. ¶ 5, 936 P.2d 727 [1997]).

The statutory source of tire PIK instruction on presumption of innocence is K.S.A. 21-3109, which provides: “A defendant is presumed to be innocent until

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Cite This Page — Counsel Stack

Bluebook (online)
106 P.3d 1148, 33 Kan. App. 2d 711, 2005 Kan. App. LEXIS 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcconnell-kanctapp-2005.