State v. Collins

NOT DESIGNATED FOR PUBLICATION

No. 121,112

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOEL DEAN COLLINS,
Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; C. WILLIAM OSSMANN, judge. Opinion filed March 12,
2021. Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Stephen J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before BUSER, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: Joel Dean Collins appeals his convictions and sentences for
possession of methamphetamine, possession of drug paraphernalia, and interference with
law enforcement. Collins raises several issues relating to search and seizure, jury
instructions, cumulative trial errors, and sentencing. Upon our review, we hold the district
court did not err in its jury instructions or commit cumulative error. Regarding Collins'
claims relating to search and seizure and sentencing, we conclude these issues were not
preserved for appellate review. Accordingly, we affirm the convictions and sentences.

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 FACTUAL AND PROCEDURAL BACKGROUND

On April 21, 2018, Deputy Matt Boling with the Shawnee County Sheriff's Office
was on patrol with his trainee Deputy Jonathan Martens. The officers noticed two men
securing a refrigerator on a truck parked at the end of a driveway. Deputy Boling thought
it was odd that the truck, loaded with household items which included a refrigerator and a
new television, was parked at the end of the driveway. Deputy Boling told Deputy
Martens that he recognized the men and he suspected they were engaged in criminal
activity. Deputy Martens agreed. Deputy Martens stopped his patrol vehicle and
conversed with the men.

The officers identified the men as Collins and Dustin Vandam. Deputy Martens
asked them what they were doing. They responded that they had pulled over to pick up
the refrigerator, which had "free" taped in large letters on the door.

The officers obtained the men's identification and asked the dispatcher to check for
outstanding warrants. The officers discovered that the license tag on the truck was issued
to a Cadillac. Vandam explained that he had just purchased the truck and had not yet
transferred the registration. The truck's vehicle identification number, however, was not
registered to either of the two men.

Within three to five minutes after the officers' arrival, Collins walked behind the
truck where the officers could not see him. Deputy Boling asked Collins to stand where
he could see him for officer safety. Deputy Boling noticed Collins' hands curled into fists
when he reappeared. Collins walked to the end of the truck, stood by a tie-down port, and
unclenched his fist, which Deputy Boling interpreted as having dropped something into
the tie-down port. Collins stood near the back of the truck.

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 Several minutes later, Deputy Boling asked Collins to move so he could look
inside the hole of the tie-down port. Initially, Collins protested but he relented, and when
the deputy peered into the hole, he saw a small plastic baggie with a crystal substance on
a ledge inside the truck's frame. Deputy Boling suspected the substance was
methamphetamine.

When Deputy Boling saw the baggie, he told Collins to put his hands behind his
back. When the deputy tried to handcuff Collins, he resisted, and Collins tried to blow
into the port in an apparent effort to dislodge the baggie further into the interior of the
truck's frame. Collins yelled to Vandam, "'They found a baggie,'" even though Deputy
Boling had not notified anyone he had found anything. Collins continued to resist arrest.
During the struggle, Deputy Boling tripped and fell into a ditch, whereupon Collins ran
across the street. Collins was ultimately subdued after being stunned by Deputy Boling's
Taser. Deputy Boling retrieved the baggie from the tie-down port. Testing showed the
bag contained 0.55 grams of methamphetamine.

The State charged Collins with possession of methamphetamine, possession of
drug paraphernalia (a baggie), and interference with law enforcement. Before trial,
Collins moved to suppress evidence of the baggie of methamphetamine, contending that
it resulted from an illegal search and seizure. About a month before trial, after a hearing,
the district court denied the motion.

At trial, the jury found Collins guilty of all three charges. At sentencing, the
district court determined that his criminal history score was A. Collins did not object to
this finding. The court sentenced Collins to a mitigated 37-month sentence for possession
of methamphetamine, with concurrent sentences of 5 months' imprisonment for
interference with law enforcement, and 6 months in jail for possession of drug
paraphernalia.

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 Collins appeals.

DENIAL OF MOTION TO SUPPRESS

Collins' first argument on appeal is that the district court erred by denying his
motion to suppress evidence of methamphetamine. He candidly acknowledges that he did
not object to the admission of the contested evidence at trial, and that ordinarily a
defendant must make such an objection to preserve the issue for appellate review. He
asserts, however, that two exceptions to the general rule should apply under the
circumstances of this case to warrant our review.

Generally, when the district court has denied a pretrial motion to suppress, the
moving party must still object to the introduction of that evidence at the time it was
offered at trial to preserve the issue for appeal. State v. Dupree, 304 Kan. 43, 62, 371
P.3d 862 (2016); K.S.A. 60-404 ("A verdict or finding shall not be set aside, nor shall the
judgment or decision based thereon be reversed, by reason of the erroneous admission of
evidence unless there appears of record objection to the evidence timely interposed and
so stated as to make clear the specific ground of objection."). "The purpose of the rule is
to avoid the use of tainted evidence and thereby avoid possible reversal and a new trial."
State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). When the district court's
admissibility ruling occurs before trial, a contemporaneous objection is still required
"because the unfolding of a case may require a reevaluation of the reasons for the initial
ruling." Dupree, 304 Kan. at 62. Finally, our Supreme Court has declined on repeated
occasions to consider evidentiary suppression issues on appeal when the defendant failed
to preserve the issue with a contemporaneous objection at trial. E.g., State v. Richard, 300
Kan. 715, 725-26, 333 P.3d 179 (2014); State v. Houston, 289 Kan. 252, 270, 213 P.3d
728 (2009).

4
 Collins argues that "the spirit of the preservation rule was met in his case because
the suppression hearing was held in front of the same judge as the jury trial, and only
approximately one month prior to the trial." Additionally, he asserts that substantially the
same facts were presented at the hearing and the trial. The State counters that Collins'
failure to object to the evidence at trial precludes him from raising the issue on appeal.

Collins' argument mirrors the reasoning stated in State v. Gordon, 219 Kan. 643,
651-52, 549 P.2d 886 (1976), superseded by statute on other grounds as stated in State v.
Murry, 271 Kan. 223, 21 P.3d 528 (2001), wherein our Supreme Court concluded that an
objection made in a posttrial brief after a bench trial was timely because "under the
circumstances of [the] case the spirit if not the letter of the contemporaneous objection
rule was satisfied." The Kansas Supreme Court has reaffirmed this holding on several
occasions, permitting appellate review without a contemporaneous objection at a bench
trial. See State v. Spagnola, 295 Kan. 1098, Syl. ¶ 1, 289 P.3d 68 (2012); State v. Kelly,
295 Kan. 587, Syl., 285 P.3d 1026 (2012); State v Bogguess, 293 Kan. 743, Syl. ¶ 1, 268
P.3d 481 (2012).

These cases are inapplicable here, however, because our Supreme Court has never
stated that it has relaxed the contemporaneous objection requirement for a jury trial. See
Richard, 300 Kan. 725-26 (holding that issues raised in motion to suppress were not
preserved because defendant did not make contemporaneous objection at jury trial).
While Collins' reasoning is similar to that raised in cases dealing with bench trials, we
must adhere to Kansas Supreme Court precedent. Snider v. American. Family Mut. Ins.
Co., 297 Kan. 157, 168, 298 P.3d 1120 (2013) (holding that our court is duty bound to
follow Kansas Supreme Court precedent unless there is some indication that the court is
departing from its previous position).

Alternatively, Collins argues that because this error affected his rights under the
Fourth Amendment to the United States Constitution, our court may consider

5
constitutional errors raised for the first time on appeal. But constitutional grounds for
reversal asserted for the first time on appeal are not properly before an appellate court for
review. State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018).

Collins then claims an exception to the general rule that a new legal theory may
not be asserted for the first time on appeal: consideration of the theory is necessary to
serve the ends of justice or to prevent denial of fundamental rights. See State v. Johnson,
309 Kan. 992, 995, 441 P.3d 1036 (2019).

At the outset, the Kansas Supreme Court has "consistently been refusing to review
an evidentiary issue without a timely and specific objection even if the issue involves a
fundamental right." Dukes, 290 Kan. at 487-88. The Supreme Court has emphasized the
importance of the legislative mandate contained in K.S.A. 60-404, "which 'dictates that
evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and
specific objection to the alleged error at trial.'" State v. Richmond, 289 Kan. 419, 428, 212
P.3d 165 (2009) (quoting State v. King, 288 Kan. 333, 349, 204 P.3d 585 [2009]). The
Supreme Court has also warned that if it were to overlook a contemporaneous objection
"and consider the issue because it is necessary to serve the ends of justice or to prevent
the denial of [the defendant]'s right to a fair trial, these and other case law exceptions
would soon swallow the general statutory rule." Richmond, 289 Kan. at 429-30. Most
recently, our Supreme Court stated: "Subsequent to State v. King, 288 Kan. 333, 342,
204 P.3d 585 (2009), the three judicially recognized exceptions allowing appellate review
of issues not raised below have not been applied to absolve a party of K.S.A. 60-404
violations." State v. Brown, 307 Kan. 641, Syl. ¶ 2, 413 P.3d 783 (2018).

In summary, Kansas caselaw makes clear that the exception Collins relies on does
not apply to permit review of the search and seizure issue because he failed to
contemporaneously object to the incriminating evidence at trial. State v. Sean, 306 Kan.
963, 971-73, 399 P.3d 168 (2017) (refusing to consider denial of pretrial motion to

6
suppress even though it involved fundamental rights because defendant did not make a
contemporaneous objection). Accordingly, we decline to review the propriety of the
district court's denial of Collins' motion to suppress.

FAILURE TO INSTRUCT ON CULPABLE
MENTAL STATE FOR POSSESSION OF METHAMPHETAMINE

Next, Collins contends the district court committed clear error in its jury
instructions relating to possession of methamphetamine and possession of drug
paraphernalia. He presents a two-pronged argument. First, he argues that the district court
failed to instruct the jury that a culpable mental state was an element of each crime.
Second, he claims the district court failed to define the culpable mental states for the jury.

We begin the analysis with our standard of review:

"When analyzing jury instruction issues, we follow a three-step process:
'(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).

At the third step, if the challenging party did not object to the jury instruction at
trial, the appellate court applies the clear error standard and will only reverse the
conviction if an error occurred and the court is firmly convinced that the jury would have
reached a different verdict if the instructional error had not happened. See K.S.A. 2017
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
7
erroneous."); 307 Kan. at 317-18. Importantly, the party claiming a clear error has the
burden to demonstrate the necessary prejudice. 307 Kan. at 318. Collins did not object to
the instructions in the district court, so the clear error standard applies.

Regarding the second step of the process, appellate courts consider whether the
instruction was legally and factually appropriate. 307 Kan. at 318. We employ unlimited
review to determine whether an instruction was legally appropriate. State v. Johnson, 304
Kan. 924, 931, 376 P.3d 70 (2016). In this regard, appellate 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). We will next consider whether the jury
instruction given by the district court was legally and factually appropriate.

"[A] culpable mental state is an essential element of every crime." K.S.A. 2017
Supp. 21-5202(a). Evidence that the conduct of the accused person was committed
"intentionally," "knowingly," or "recklessly" may establish a culpable mental state.
K.S.A. 2017 Supp. 21-5202(a). The terms are defined in Kansas statutes and in the PIK
instruction at issue here. K.S.A. 2017 Supp. 21-5202(h)-(j).

Regarding the possession of methamphetamine charge, the district court provided
the jury with this instruction:

"Instruction Number 9. The defendant is charged with unlawfully possessing
methamphetamine. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant possessed methamphetamine.
"2. This act occurred on or about the 21st day of April, 2018, in Shawnee
County, Kansas.

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 "Possession means having joint or exclusive control over an item with knowledge
of and the 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." See PIK Crim. 4th 57.040.

Regarding the possession of drug paraphernalia charge, the district court provided
the jury with this instruction:

"Instruction Number 12. The defendant is charged with unlawfully possessing
drug paraphernalia with intent to use it. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant possessed a baggie with the intent to use it as drug
paraphernalia to store, contain, conceal, inject, ingest, inhale or otherwise introduce into
the human body methamphetamine.
"2. This act occurred on or about the 21st day of April, 2018, in Shawnee
County, Kansas.
"Possession means having joint or exclusive control over an item with knowledge
of and the 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." See PIK Crim. 4th 57.100.

Collins argues that neither instruction clearly sets forth a culpable mental state.
Instead, the district court should have given the instruction in PIK Crim. 4th 52.010
(Culpable Mental State). This pattern instruction informs the jury that the State must
prove the defendant committed a crime intentionally, knowingly, or recklessly. The
instruction also defines those three terms as they are defined by K.S.A. 2017 Supp. 21-
5202(h)-(i). Of note, the PIK Committee states in the "Notes on Use" following the
instruction that it believes it should generally be given in every case. PIK Crim. 4th
52.010 (2017 Supp.).

Collins claims the district court erred in two ways when it failed to provide the
jury with the instruction in PIK Crim. 4th 52.010: (1) it failed to inform the jury that the
crimes of methamphetamine possession and possession of drug paraphernalia had to be

9
committed intentionally or knowingly; (2) it failed to provide the jury with definitions of
the terms "intentionally" or "knowingly." We are not persuaded by either argument.

Collins' first argument ignores the plain language of the two instructions given by
the district court. In these instructions, the district court informed the jury about the
proper mental states for both crimes. Our Supreme Court has held that the mental state
for possession is embedded within the definition of the word "possession." State v. Rizal,
310 Kan. 199, 206-07, 445 P.3d 734 (2019). On both charges at issue, the district court
clearly defined "possession" for the jury and the definition set forth the appropriate
mental state: a person must have "knowledge of and the intent to . . . control" the item
possessed. The possession of drug paraphernalia instruction set forth an additional mental
state of "intent to use." These jury instructions are also consonant with the statutory
definitions of the crimes. See K.S.A. 2017 Supp. 21-5706(a) (prohibiting possession of
methamphetamine); K.S.A. 2017 Supp. 21-5709(b) (prohibiting possession of drug
paraphernalia).

Our conclusion that the district court properly instructed the jury on the requisite
mental states is also consistent with Rizal, 310 Kan. at 206-07. In that case, the Kansas
Supreme Court considered K.S.A. 2011 Supp. 21-5705(a). This statute made it "unlawful
for any person to distribute or possess with the intent to distribute" a controlled
substance. Our Supreme Court held that this statute contained two mental states, "one on
its face and the other imbedded in the definition of the word 'possession,' which applies to
crimes involving controlled substances." 310 Kan. at 206.

First, the plain language of the statute required "possession to be committed 'with
the intent to distribute' any controlled substance." 310 Kan. at 207. Second, possession is
defined as "'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.'" 310 Kan. at 207 (quoting K.S.A. 2011

10
Supp. 21-5701[q]). "Harmonizing these provisions," our Supreme Court concluded, "the
crime of possession with intent to distribute a controlled substance requires proof that the
defendant possessed—meaning knowingly exercised control—over any controlled
substance with the intent to distribute it." 310 Kan. at 207.

Although Rizal is not a jury instruction case nor did it examine the crimes at issue
here, its analysis is informative because the operative language in the relevant statutes is
similar. Rizal teaches that the mental state for possession is embedded within the
definition of the term, and that a statute requiring "intent" to do something sets forth a
mental state on its face.

Applying Rizal to the jury instructions on appeal, the instruction for possession of
drug paraphernalia required the jury to find that Collins "possessed a baggie with the
intent to use it as drug paraphernalia to store, contain, conceal, inject, ingest, inhale or
otherwise introduce into the human body methamphetamine." Similarly, the jury
instruction for possession of methamphetamine required the jury to find that Collins
"possessed methamphetamine." Both instructions included the definition of "possession."
As a result, the jury instructions identified the culpable mental states needed to support
Collins' convictions. See also State v. Hanks, No. 114,640, 2016 WL 4585620, at *4
(Kan. App. 2016) (unpublished opinion) (holding that jury instructions for possession of
methamphetamine and possession of drug paraphernalia appropriately identified the
culpable mental states).

Collins' second argument is that the district court should have defined the terms
"intentionally" and "knowingly" for the jury consistent with the definitions in PIK Crim.
4th 52.010 (Culpable Mental State) and K.S.A. 2017 Supp. 21-5202(h)-(i). He
acknowledges that on numerous occasions our court has rejected this argument, but he
argues these cases were wrongly decided.

11
 Our court has held on numerous occasions that a district court has no duty to
define the terms "intentionally" or "knowingly" when those terms appear in jury
instructions. See, e.g., State v. Bacon, No. 114,951, 2017 WL 2403355, at *9-10 (Kan.
App. 2017) (unpublished opinion); State v. Garrett, No. 114,191, 2017 WL 2304450, at
*3-4 (Kan. App. 2017) (unpublished opinion); Hanks, 2016 WL 4585620. In Hanks, we
explained:

"The trial court should define words in an instruction only if the instructions as a whole
would otherwise mislead the jury or cause it to speculate. State v. Armstrong, 299 Kan.
405, 440, 324 P.3d 1052 (2014). The trial court is not required to define for the jury
widely used words or those readily comprehensible by individuals of common
intelligence. 299 Kan. at 440; State v. Roberts-Reid, 238 Kan. 788, 789, 714 P.2d 971
(1986). The test to determine if the trial court is required to define a legal term in the jury
instructions rests on whether the common lay definition of the term differs from the legal
definition of the term. State v. Patton, 33 Kan. App. 2d 391, 397, 102 P.3d 1195 (2004),
rev. denied 279 Kan. 1009 (2005)." Hanks, 2016 WL 4585620, at *3.

After setting forth the law, the Hanks court noted that the Legislature's definitions
of the terms "knowingly" and "with intent" did not "differ from the dictionary definitions
of those words or from how those words are used by nonlawyers in their everyday
conversations." 2016 WL 4585620, at *3-4. As a result, the court concluded, the district
court was not required to define the terms. See also, State v. Wol, No. 115,633, 2017 WL
3000839, at *4 (Kan. App. 2017) (unpublished opinion) (stating that a court's failure to
define the words "intent" and "knowingly" in jury instructions did not render the
instructions erroneous "because jurors are supposed to be capable of deciphering the
meaning of many difficult terms without their definitions").

Collins urges our court to impose a duty upon district courts to instruct juries on
the legal definitions of the terms "intentionally" and "knowingly." However, he provides
no explanation as to why the definitions are legally required when the definitions of the

12
words are commonly understood by jurors. See Bacon, 2017 WL 2403355, at *11 (noting
that appellant's argument failed to address "why the jury would not have understood the
phrase 'with the intent to' given that the phrase means the same thing under both its legal
definition and its layman's definition"). All things considered; the jury instructions given
by the district court were legally appropriate. The court did not err by failing to define the
terms "intentionally" and "knowingly."

FAILURE TO INSTRUCT ON NONEXCLUSIVE POSSESSION

For Collins' third issue, he contends the district court erred by failing to instruct
the jury on nonexclusive possession. As with the previous instructional issue, Collins did
not request this instruction at trial, nor did he object to its omission. In the prior section,
we have set forth our standard of review for jury instruction issues. See McLinn, 307
Kan. at 317. We will review this claim for clear error. K.S.A. 2017 Supp. 22-3414(3).

Kansas law provides: "When a defendant is in nonexclusive possession of the
premises upon which drugs are found, it cannot be inferred that the defendant knowingly
possessed the drugs unless there are other incriminating circumstances linking the
defendant to the drugs." State v. Marion, 29 Kan. App. 2d 287, 290, 27 P.3d 924 (2001).
Several factors relevant to nonexclusive possession are listed in PIK Crim. 4th 57.040 the
instruction Collins asserts the district court should have provided. This instruction states:

"[When a defendant is in nonexclusive possession of (the premises upon) (an automobile
in) which a controlled substance is found, it cannot be inferred that the defendant
knowingly possessed the controlled substance unless there are other circumstances
linking the defendant to the controlled substance. You may consider all factors supported
by the evidence in determining whether the defendant knowingly possessed the
controlled substance, including the following:
"1. whether the defendant previously participated in the sale of a controlled
substance;

13
 "2. whether the defendant used controlled substances;
"3. whether the defendant was near the area where the controlled substance was
found;
"4. whether the controlled substance was found in plain view;
"5. whether the defendant made any incriminating statements;
"6. whether the defendant’s behavior was suspicious;
"7. whether the defendant’s personal belongings were near the controlled
substance.]"

See Marion, 29 Kan. App. 2d at 290.

The first issue is whether the facts, when viewed in the light most favorable to
Collins, would support a nonexclusive possession instruction. The State argues this is an
exclusive possession case because Deputy Boling saw Collins drop the baggie of
methamphetamine into the tie-down port. Collins argues that the evidence was not so
clear, and that the instruction would have assisted the jury in considering his defense that
the methamphetamine belonged to Vandam.

We are not persuaded that a nonexclusive possession instruction was factually
warranted in this case. Eyewitness testimony by Deputy Boling provided strong
circumstantial evidence that the methamphetamine baggie found inside the tie-down port
of Vandam's truck was dropped there contemporaneously with the deputy's observation
of Collins' furtive hand gesture. In fact, there was no evidence that the baggie was ever in
the passenger compartment of the truck, only that it was found in a secreted location
inside the frame of the truck moments after Collins appeared to drop it there. Given these
facts, there was no one, other than Collins, who exercised possession or control over the
contraband.

Assuming there were sufficient facts when viewed in the light most favorable to
Collins to support an instruction for nonexclusive possession, however, we find no clear

14
error in the district court failing to give the instruction. Because Collins did not request
the instruction at trial, he must show the district court's failure to give the instruction was
clear error. But Collins cannot satisfy his burden of demonstrating that the jury would
have reached a different verdict if the nonexclusive possession instruction had been
given.

Many of the factors listed in the nonexclusive possession instruction would have
weighed against Collins, had it been provided to the jury. As just noted, Collins appeared
to drop something into the tie-down port. Collins stood near the area where the baggie
was later found and seemed reluctant to leave. When Deputy Boling began to arrest
Collins, he yelled to Vandam, "They found a baggie," even though the deputy had not
announced to anyone that he found the methamphetamine. Lastly, both officers thought
Collins tried to blow the baggie off the ledge inside the port.

Given these facts, we are not firmly convinced that the jury would have reached a
different verdict if the nonexclusive possession instruction had been provided to the jury.
K.S.A. 2017 Supp. 22-3414(3) On the contrary, had the instruction been given, it is
highly likely that the jury would have arrived at the same verdict. Collins has not shown
clear error.

CUMULATIVE TRIAL ERRORS

Collins also argues that cumulative errors denied him 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 substantially prejudiced by the errors and denied a fair trial. In assessing the
cumulative effect of errors during the trial, appellate courts examine the errors in the
context of the entire record, considering how the trial judge dealt with the errors as they

15
arose; the nature and number of errors and their interrelationship, if any; and the overall
strength of the evidence. State v. Hirsh, 310 Kan. 321, 345-46, 446 P.3d 472 (2019).

A single trial error may not support reversal under the cumulative error doctrine.
State v. Ballou, 310 Kan. 591, 617, 448 P.3d 479 (2019). Because we have found no trial
errors in this case, the cumulative trial error doctrine does not apply.

WHETHER THE COURT'S CRIMINAL HISTORY
FINDINGS VIOLATED THE KANSAS CONSTITUTION

Collins' final argument is that the Kansas Constitution guarantees the accused a
right to a jury trial to prove the existence of prior convictions. Collins argues that the
district court violated his constitutional right to a fair trial when it sentenced him based
on a criminal history score that was not proven to the jury. He asks this court to remand
the case for resentencing based on an I criminal history score, or for a jury trial on the
existence of his prior convictions.

Collins did not raise this argument in the district court. As we noted earlier
regarding the search and seizure question, constitutional grounds for reversal asserted for
the first time on appeal are not properly before an appellate court for review. Daniel, 307
Kan. at 430. More generally, apart from constitutional issues, litigants are not permitted
to assert a new legal theory for the first time on appeal. Collins claims two exceptions to
the general rule: (1) the newly asserted theory involves only a question of law arising on
proved or admitted facts and is finally determinative of the case; and (2) consideration of
the theory is necessary to serve the ends of justice or to prevent denial of fundamental
rights. See Johnson, 309 Kan. at 995.

Regarding the first exception, Collins asserts this issue presents a purely legal
challenge that "has nothing to do with the particular facts of this case." Second, he

16
contends that "review of this issue would ensure compliance with Section 5 of the Kansas
Constitution Bill of Rights."

We apply the general rule of preservation and decline to review this constitutional
claim. See Daniel, 307 Kan. at 430. Regarding the first exception claimed by Collins, we
note that in the event we agreed with his constitutional contention, our holding would not
be finally determinative of the case because it would require a remand for a jury to be
empaneled to consider Collin's criminal history and, based on the jury's findings,
resentencing by the district court.

Regarding the second exception, we do not find it necessary to consider this claim
to serve the ends of justice or prevent a denial of fundamental rights because the Kansas
Supreme Court and our court have considered and denied similar claims relating to the
5th Amendment to the Kansas Constitution in other criminal cases. See Levell v.
Simpson, 142 Kan. 892, 893-94, 52 P.2d 372 (1935); State v. Albano, 58 Kan. App. 2d
117, 133-34, 464 P.3d 332 (2020); State v. Smith, No. 121,267, 2020 WL 3022874 (Kan.
App. 2020) (unpublished opinion); State v. Valentine, No. 119,164, 2019 WL 2306626, at
*6 (Kan. App. 2019) (unpublished opinion).

Finally,

"[t]he decision to review an unpreserved claim under an exception is a prudential
one. State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017); State v. Frye, 294 Kan.
364, 369, 277 P.3d 1091 (2012). Even if an exception would support a decision to review
a new claim, we have no obligation to do so. Parry, 305 Kan. at 1192." State v. Gray, 311
Kan. 164, 170, 459 P.3d 165 (2020).

All things considered; we decline to review this constitutional claim for the first
time on appeal.

17
 Affirmed.

***
ATCHESON, J. concurring: I concur in the outcome here affirming Defendant Joel
Dean Collins' multiple convictions in a jury trial and the resulting sentences the Shawnee
County District Court later imposed. But I add two observations questioning (again) the
procedural bar to our considering the merits of his motion to suppress evidence and
pointing out what appears to be a flaw in the jury instruction on possession of illegal
drugs.

First, we are obligated to follow the Kansas Supreme Court's construction of the
contemporaneous objection rule codified in K.S.A. 60-404 to preclude appellate review
of the district court's denial of Collins' motion to suppress. I have previously outlined
why that approach ill serves the interests of basic fairness in criminal cases and promotes
no sound countervailing policy objectives. State v. White, No. 109,953, 2014 WL
5312873, at *8-15 (Kan. App. 2014) (unpublished opinion) (Atcheson, J., concurring). I
do not repeat the discussion here, but I remain of that view. I offer no opinion on the
merits of Collins' motion to suppress and suggest only that we ought to be permitted to
reach the merits.

Second, the district court's instruction on the elements of possession of
methamphetamine insufficiently apprised the jurors of a defendant's requisite mental state
to convict. But the defect cannot be considered clear error on the facts, so I am
comfortable affirming Collins' conviction. There are really two aspects of criminal
possession that require knowledge on the part of the defendant. In the phrasing of the jury
instruction, the defendant must know he or she possesses "an item"—here, that would be
the plastic bag containing white powder—without necessarily knowing the item to be
illegal drugs or similar contraband. Second, however, the defendant must also know the
item he or she possesses to be contraband, i.e., an illegal substance. That aspect of

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possession has been lost in both the jury instruction the district court used and PIK Crim.
4th 57.040, from which the instruction was crafted.[*]

[*]The district court's instruction stated:

"Instruction Number 9. The defendant is charged with unlawfully possessing
methamphetamine. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant possessed methamphetamine.
"2. This act occurred on or about the 21st day of April, 2018, in Shawnee
County, Kansas.
"Possession means having joint or exclusive control over an item with knowledge
of and the 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."

In those respects, the instruction matched PIK Crim. 4th 57.040.

The first aspect of possession goes to this sort of defense: "I didn't even know that
bag of white powder was in my gym bag; somebody must have slipped it in there when I
wasn't looking." That's a defense. And the instruction addresses it by requiring the jurors
to find the defendant had knowledge of and some degree of control over "an item." But
there is a second defense: "Sure, I had the bag of white power; a trainer at the gym gave
it to me that morning and told me it was a natural workout booster; I didn't even have a
chance to look closely at it before I was arrested." That, too, is a defense. It is a mistake
of fact that would require jurors to bring back a not guilty verdict if they believed it might
be true, thereby fostering a reasonable doubt about the defendant's unlawful possession of
the contraband. See State v. Rizal, 310 Kan. 199, 207-09, 445 P.3d 734 (2019).

The jury instruction fails to capture the mistake-of-fact defense at all. The
instruction tells jurors to convict so long as they are convinced beyond a reasonable doubt
the defendant knew he or she possessed "an item" that turned out to be methamphetamine

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or some other contraband. They do not have to find that the defendant actually knew "the
item" to be contraband and, therefore, ought to convict based on the instruction even if
they had reason to believe the defendant did not know. State v. Becker, 290 Kan. 842,
856, 235 P.3d 424 (2010) ("Appellate courts presume that a jury follow[s] the jury
instructions."). In that respect, the jury instruction was incorrect or at least seriously
incomplete in outlining the legal principles necessary for a conviction of possessing
methamphetamine or another illegal drug.

Given the trial evidence, however, the error could not have contributed to the
guilty verdict against Collins on the possession of methamphetamine charge. Collins did
not specifically present a mistake-of-fact defense. And his behavior, as described during
the trial, was consistent with his knowledge the plastic bag contained methamphetamine
or some other illegal substance. I am not firmly convinced the jury would have reached a
different verdict had the instruction properly addressed both aspects of possession. So I
join in affirming the conviction and sentence.

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