NOT DESIGNATED FOR PUBLICATION
No. 121,460
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MATTHEW PAUL SLUSSER,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed December 23,
2020. Affirmed.
Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before ATCHESON, P.J., BRUNS and POWELL, JJ.
PER CURIAM: A jury sitting in Shawnee County District Court convicted
Defendant Matthew Slusser of possession of methamphetamine with the intent to
distribute and other offenses. On appeal, Slusser challenges the drug conviction based on
a jury instruction and the prosecutor's argument to the jurors regarding an inference of
intent that could be drawn from the quantity of methamphetamine he had. We find any
claimed error to be, at best, invited or harmless. He also challenges the statute creating
presumptions of intent for illegal drug possession—an irrelevant point because the jurors
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were never informed of the statutory presumption. We, therefore, affirm Slusser's
convictions and his resulting sentences.
The material facts may be outlined briefly. In mid-July 2017, two Topeka police
officers intercepted Slusser for a possible traffic violation in the vicinity of a street
festival. Slusser had his two minor children in the motor vehicle with him. The officers
quickly determined Slusser's driver's license was suspended, and they arrested him for
that violation. While searching Slusser following his arrest, the officers found 11.2 grams
of methamphetamine in his pocket. Slusser had no accouterments commonly associated
with drug traffickers, such as digital scales, large amounts of cash, or materials used to
package illegal drugs for sale. At the time, Slusser told the officers he had the drugs
because he was working as an undercover operative for federal law enforcement
authorities. The story didn't check out.
The State charged Slusser with possession of methamphetamine with the intent to
distribute, a severity level 2 drug felony; two counts of aggravated endangering a child, a
severity level 9 person felony; and driving on a suspended license, a traffic misdemeanor.
The jury heard evidence over two days in January 2019 and convicted Slusser as charged.
The district court later ordered Slusser to serve 123 months in prison on the drug
conviction running consecutive to a six-month term for each child endangerment
conviction and concurrent with a 90-day jail sentence on the suspended license
conviction, yielding a controlling 135-month period of imprisonment. Slusser has
appealed.
Slusser's appeal focuses on the drug charge and related presumptions and
inferences drawn from the quantity of methamphetamine he had in his possession.
Slusser has not directly disputed his convictions for child endangerment or for driving
while suspended.
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For his first point, Slusser attacks K.S.A. 2019 Supp. 21-5705(e)(2) creating "a
rebuttable presumption" that a person possessing 3.5 grams or more of methamphetamine
has "an intent to distribute the drug." He contends the statutory presumption is facially
unconstitutional because it diminishes the State's burden in proving a defendant guilty
beyond a reasonable doubt of possession with the requisite intent to distribute.
Presumptions favoring the State in criminal cases can be tricky creatures. See
Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419, 105 L. Ed. 2d 218 (1989)
(mandatory presumption in jury instruction deprives criminal defendant of due process
protections afforded under Fourteenth Amendment to United States Constitution);
Sandstrom v. Montana, 442 U.S. 510, 523, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Even a
nonconclusive presumption bearing on criminal intent may be constitutionally suspect
depending on how it has been presented to a jury. 442 U.S. at 524. Conversely, a jury
properly may be instructed on reasonable inferences at least in some circumstances. See
Barnes v. United States, 412 U.S. 837, 840-41, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973)
(instruction that jury may infer knowledge from defendant's unexplained possession of
recently stolen property constitutionally permissible); United States v. Harrison, 585 F.3d
1155, 1159-60 (9th Cir. 2009) (instruction that jury may infer consciousness of guilt from
flight constitutionally permissible).
Here, we do not need to address the constitutionality of the presumption in K.S.A.
2019 Supp. 21-5705(e)(2) for the simple reason that the jury was not informed of the
presumption and, therefore, could not have considered it in convicting Slusser. Even if
the statutory presumption were constitutionally deficient, Slusser would not have been
prejudiced in any way as a result. He cannot predicate error, let alone reversible error, on
something that didn't happen in his trial.
The district court did instruct the jurors that to convict Slusser they had to find:
(1) he possessed methamphetamine with the intent to distribute; (2) he had between 3.5
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and 100 grams of methamphetamine; and (3) he did so on July 15, 2017, in Shawnee
County, Kansas. The instruction also informed the jurors:
"If you find the defendant possessed 3.5 grams or more of methamphetamine,
you may infer that the defendant possessed with intent to distribute. You may consider
the inference along with all the other evidence in the case. You may accept or reject it in
determining whether the State has met the burden of proving the intent of the defendant.
This burden never shifts to the defendant."
The instruction combined PIK Crim. 4th 57.020, listing the elements of the crime,
and PIK Crim. 4th 57.022, outlining an inference of intent to distribute based on
the quantity of methamphetamine.
On appeal, Slusser faults the instruction because the language outlining the
inference differs from the statutory presumption in K.S.A. 2019 Supp. 21-
5705(e)(2). The argument fails in two respects. First, the inference in the
instruction is more favorable to Slusser than the statutory presumption would have
been. Second, Slusser's lawyer submitted proposed jury instructions to the district
court that matched PIK Crim. 4th 57.020 and PIK Crim. 4th 57.022 and did not
later object when the district court proposed giving an instruction that combined
them. Any complaint Slusser now makes about the instruction is invited error that
we will not consider. See State v. Cottrell, 310 Kan. 150, 162, 445 P.3d 1132
(2019); State v. Hargrove, 48 Kan. App. 2d 522, 531, 293 P.3d 787 (2013).
Moreover, any error that might have arisen from the inference in the
instruction would have been harmless in this case. Two law enforcement officers
testified at trial that based on their training and experience methamphetamine
users typically have less than 3.5 grams for personal consumption and larger
quantities would be consistent with trafficking or distribution. Slusser did not
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rebut that testimony at trial. And, of course, he had considerably more than what
the officers testified would indicate possession for commercial purposes.
Slusser also contends the prosecutor committed error in discussing the
instruction with the jurors during closing argument and the error deprived him of a
fair trial. We are unpersuaded Slusser was denied a fair trial.
Several years ago, the Kansas Supreme Court retooled the analytical model for
assessing prosecutorial trial errors, including ostensible misstatements in jury arguments.
State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). In the Sherman analysis, the
reviewing court first considers whether an error has occurred and then weighs any
prejudice to the defendant resulting from the error. Comments made during closing
argument are considered error if they fall outside "the wide latitude" afforded a
prosecutor in discussing the evidence and the law. 305 Kan. at 109. That determination
replicates the initial step of the former analytical method, while substituting the term
"error" for "misconduct," a more pejorative label that at least connotes a deliberate
violation of the rules even when there might be only an inadvertent mistake. 305 Kan. at
104-05.
If an appellate court finds the challenged argument to be prosecutorial error, it
must then consider prejudice measured by the test set out in State v. Ward, 292 Kan. 541,
Syl. ¶ 6, 256 P.3d 801 (2011), for a constitutional wrong. The State, as the party
benefiting from the error, must demonstrate "'beyond a reasonable doubt'" that the
mistake "'did not affect the outcome of the trial'" taking account of the full trial record.
305 Kan. at 109 (quoting Ward, 292 Kan. 541, Syl. ¶ 6). That is, the appellate court must
determine if the error deprived the defendant of a fair trial—a constitutional protection
rooted both in due process and in the right to trial itself. 305 Kan. at 98-99, 109. The
prejudice analysis in Sherman replaced a multifactor standard that also considered the
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prosecutor's bad intent or ill will—breaches of professional conduct the court concluded
could be more pointedly addressed in other ways. 305 Kan. at 114-15.
Here, the prosecutor discussed in some detail the elements instruction and the
inference of intent based on the quantity of methamphetamine Slusser had in his pocket.
We do not recite the remarks at length. The prosecutor noted that Slusser had 11.2 grams
of methamphetamine and pointed out that the jurors could infer a person with more than
3.5 grams intended to distribute the drugs. But he also reminded the jurors they didn't
have to rely on that inference and could consider all of the evidence. The prosecutor
suggested the Kansas Legislature—through the law and the district court's instruction—
was "trying to give you guidance on [the] topic" of illegal drug distribution.
The gist of that portion of the closing argument amounted to fair comment on the
law and the evidence, especially in light of the jury instruction. Consistent with the
invited error rule, Slusser cannot now complain about the prosecutor's fair
characterization of a jury instruction he requested from the district court.
One aspect of the prosecutor's closing argument does give us pause. The
prosecutor referred to the instruction as a "rebuttable presumption" several times and told
the jurors they could "presume" Slusser intended to distribute the methamphetamine
based on the amount he had. In a strict legal sense, the prosecutor mischaracterized the
instruction, since it outlined a reasonable inference rather than a rebuttable presumption.
The law formally draws a distinction between the two. See Shim v. Rutgers, 191 N.J. 374,
386, 924 A.2d 465 (2007) (outlining difference between reasonable inference and
evidentiary presumption); Brown v. Vannoster, No. 120,376, 2019 WL 5485149, at *5
(Kan. App. 2019) (unpublished opinion) ("A discussion of a reasonable inference that
may be drawn from a set of the facts is quite different from creating a common-law
evidentiary presumption mandating the finding of a presumed fact."). But we doubt lay
jurors would impute materially different meanings to presumptions, assumptions, and
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inferences in the context of the prosecutor's closing argument. We see, at most, subtle
shades of meaning among those words in their common usage.
The precise error would have been of little or no moment in the jurors'
consideration of the evidence and could not have influenced their verdict on the drug
charge. The instruction itself diminishes any possible effect of the erroneous comments.
It informs the jurors they could choose to "accept or reject" the inference of intent based
on quantity. And the unrebutted testimony of the law enforcement officers describing
typical commercial quantities of methamphetamine similarly defuses the error.
Having examined the issues Slusser has raised on appeal, we find no basis to
reverse the jury verdicts or the resulting sentences.
Affirmed.
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