NOT DESIGNATED FOR PUBLICATION
No. 119,791
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JAMES MICHAEL REISINGER,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed May 28, 2021.
Affirmed.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON and SCHROEDER, JJ.
PER CURIAM: James Michael Reisinger appeals his conviction and sentence for
possession of methamphetamine with intent to distribute, raising nine claims of error: (1)
The district court erred in denying his motion to suppress evidence resulting from a stop
of his vehicle; (2) the district court erred in admitting his statements regarding his prior
involvement in drug dealing; (3) K.S.A. 2020 Supp. 21-5705(e) is unconstitutional; (4)
the jury was improperly instructed regarding the statutory presumption of intent to
distribute under K.S.A. 2020 Supp. 21-5705(e); (5) the State committed prosecutorial
error in closing argument; (6) cumulative error denied him a fair trial; (7) at sentencing,
1
the State failed to establish his 1998 Kansas burglary conviction was a person felony; (8)
the use of his criminal history to determine his sentence violated his rights under section
5 of the Kansas Constitution Bill of Rights; and (9) the use of his criminal history to
determine his sentence violated his rights under the Sixth and Fourteenth Amendments to
the United States Constitution. After a thorough review of the record, we find no support
for Reisinger's arguments and affirm his conviction and sentence.
FACTS
In January 2016, Officer Charles Cottengim was working with the drug
interdiction unit in Lawrence. He was told to head to the interstate and look for a white
Lexus. Cottengim saw the vehicle and followed it for a few minutes. Based on the vehicle
lingering in the left lane of three lanes on I-70, Cottengim then initiated a traffic stop by
turning on his emergency lights. However, the vehicle did not immediately stop. Instead,
the vehicle accelerated, reaching over 90 miles per hour and, as Cottengim followed the
car, it weaved from the left-most lane to the outer right lane. When the car was in the far
right lane, Cottengim saw something thrown from the passenger's window. Cottengim
thought the item might be drugs and alerted nearby officers. The driver finally
acknowledged Cottengim's prior signal to stop and pulled over. Cottengim identified the
driver as Reisinger. Reisinger denied throwing anything from the vehicle, but another
officer quickly located the item close to the mile marker Cottengim identified when
something was thrown out of the passenger window of the white Lexus—a cellophane-
wrapped package containing what appeared to be methamphetamine. There was also
loose methamphetamine on the ground near the package, which officers collected. In
total, the officers collected 301.47 grams of methamphetamine.
In a postarrest interview after being given his rights under Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Reisinger admitted he had been
dealing methamphetamine for about three years. He provided many details about his
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involvement in drug dealing, including the people he worked for and sold drugs to. He
also explained how he used different cell phones to arrange drug sales and consented to a
search of the phones he had on him at the time of his arrest.
The State charged Reisinger with possession of methamphetamine with the intent
to distribute. Reisinger moved to suppress the evidence stemming from the stop of his
vehicle, arguing Cottengim caused him to linger in the left lane by following too closely
to his vehicle. The district court denied Reisinger's motion. The video of the car stop after
the emergency lights were turned on, the evidence of the methamphetamine, and the
video of Reisinger's postarrest statements were admitted over his objections at trial. The
video reflected Reisinger sped away and that something (suspected contraband) was
thrown from the vehicle before he responded to the order to stop based on Cottengim's
initiation of his emergency lights.
The jury convicted Reisinger of possession of methamphetamine with intent to
distribute. The district court sentenced Reisinger to 186 months' imprisonment.
Additional facts are set forth as necessary herein.
ANALYSIS
I. REISINGER'S MOTION TO SUPPRESS WAS PROPERLY DENIED.
Reisinger argues the district court erred in denying his motion to suppress
evidence. He asserts Cottengim's actions caused him to remain in the left lane; therefore,
Cottengim was not justified in stopping him for lingering in the left lane.
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A. Standard of Review and Applicable Legal Principles
When reviewing a district court's ruling on a motion to suppress evidence, the
factual underpinnings of the decision "are reviewed for substantial competent evidence
and the ultimate legal conclusion is reviewed de novo." State v. Cleverly, 305 Kan. 598,
604, 385 P.3d 512 (2016).
Warrantless searches and seizures are presumptively unreasonable, subject to a
few specific and well-established exceptions to the warrant requirement under the Fourth
Amendment to the United States Constitution. See State v. Neighbors, 299 Kan. 234, 239,
328 P.3d 1081 (2014). An officer may briefly stop and detain an individual without a
warrant when the officer has reasonable suspicion of criminal activity. To have
reasonable suspicion to detain an individual, "[a] police officer must be able to point to
specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968). "The United States Supreme Court has described 'reasonable
suspicion' as '"a particularized and objective basis" for suspecting the person stopped of
criminal activity.' Ornelas, 517 U.S. at [696]. Something more than an unparticularized
suspicion or hunch must be articulated. United States v. Sokolow, 490 U.S. 1, 7, 109 S.
Ct. 1581, 104 L. Ed. 2d 1 (1989)." State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276
(1998).
A routine traffic stop is a warrantless seizure under the Fourth Amendment;
therefore, an officer must have reasonable suspicion to initiate the stop. See State v.
Smith, 286 Kan. 402, 406, 184 P.3d 890 (2008). In evaluating whether reasonable
suspicion exists, a court must view the quantity and quality of the information known to
the officer under the totality of the circumstances. See DeMarco, 263 Kan. at 734. The
State bears the burden of proof on a suppression motion, so it must prove the lawfulness
of the warrantless seizure. See State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
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However, in California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L.
Ed. 2d 690 (1991), the United States Supreme Court held:
"The language of the Fourth Amendment, of course, cannot sustain respondent's
contention. The word 'seizure' readily bears the meaning of a laying on of hands or
application of physical force to restrain movement, even when it is ultimately
unsuccessful. ('She seized the purse-snatcher, but he broke out of her grasp.') It does not
remotely apply, however, to the prospect of a policeman yelling 'Stop, in the name of the
law!' at a fleeing form that continues to flee. That is no seizure."
The United States Supreme Court reiterated this point in Brendlin v. California,
551 U.S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007), stating: "A police officer
may make a seizure by a show of authority and without the use of physical force, but
there is no seizure without actual submission; otherwise, there is at most an attempted
seizure, so far as the Fourth Amendment is concerned."
Finally, our Supreme Court, in State v. Sharp, 305 Kan. 1076, 1084-85, 390 P.3d
542 (2017), held: "[A] 'totality of circumstances' standard recognizes that events and
conditions giving rise to reasonable suspicion are fluid rather than fixed, and the
existence of reasonable suspicion may change once new facts are observed by or become
known to law enforcement."
B. Discussion
As a preliminary matter, the State argues Reisinger waived his objection to the
admission of the methamphetamine because he did not timely object at trial. Prior to trial,
Reisinger moved to suppress the methamphetamine that was thrown from the vehicle,
evidence recovered from his person and the vehicle, as well as his statements made after
the stop, asserting they were fruits of an unlawful seizure. At trial, he timely renewed his
objection to the statements made in the postarrest interview and was granted a standing
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objection to "include the reasonable suspicion for the stop, the voluntariness of the
statements themselves, and everything that was . . . in the written motion." Upon our
review of the record we are convinced Reisinger timely preserved his objection and the
district court recognized his objection and overruled it, relying on its prior ruling to
denying suppression of the evidence obtained upon his arrest. The district court
considered Reisinger's objection and determined it was timely.
The methamphetamine was not discovered as the result of a seizure.
Reisinger's substantive argument is flawed because he essentially assumes the
methamphetamine was discovered because of Cottengim's decision to initiate a traffic
stop. We find it was not. Therefore, we need not consider whether Cottengim's actions
contributed to Reisinger's alleged left lane violation.
Before considering whether a search was lawful, a court should consider whether
the initial seizure was lawful, as an unlawful seizure may taint the fruits of the subsequent
search. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). As a logical
corollary, a reviewing court must consider whether a seizure within the meaning of the
Fourth Amendment had occurred before deciding whether such seizure was lawful. If
there was no seizure, the basis for the officer's actions is irrelevant. In Hodari D., a
suspect ran after seeing the officers' vehicle on patrol. One officer exited the vehicle and
chased Hodari on foot while the other officer continued driving. During his flight, Hodari
threw away what appeared to be a rock he had on his person, which the officer saw and
later recovered. The rock was found to be crack cocaine. The Supreme Court held the
cocaine was not obtained as the result of a seizure because Hodari was not seized—
despite his failure to stop while being pursued—when he discarded it. The Supreme
Court explicitly rejected Hodari's contention he was seized when the officer chased after
him and Hodari failed to stop. 499 U.S. at 626, 629.
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Here, Reisinger similarly failed to stop when Cottengim activated his emergency
lights. Instead, Reisinger changed lanes, sped up, pulled in front of another vehicle, and
threw what Cottengim believed to be drug evidence out the window before eventually
pulling over. The suspected drug evidence was later collected and determined to be a
package containing methamphetamine. This evidence was discovered apart from the
traffic stop, and none of this evidence was discovered on Reisinger's person or in his
vehicle. Because the evidence was discarded as Reisinger fled from Cottengim, it was not
obtained as the result of a seizure within the meaning of the Fourth Amendment. See
Brendlin, 551 U.S. at 254; Hodari D., 499 U.S. at 629. Therefore, we need not address
the legality of the basis for Cottengim to initiate the traffic stop. Because the evidence
was not obtained as the result of a seizure, we affirm the district court's ruling as correct
for any reason. See Gannon v. State, 302 Kan. 739, 744, 357 P.3d 873 (2015).
Reisinger's motion to suppress his post-Miranda statements was properly
denied.
Reisinger argues his post-Miranda statements bragging about his drug-related
sales and income came after he was improperly stopped and arrested for a traffic offense;
thus, they were fruit of the poisonous tree. However, under the totality of the
circumstances as discussed above, Reisinger did not immediately acknowledge the
officer's attempt to stop him. He instead accelerated, reaching speeds over 90 miles per
hour, switched lanes back and forth, and threw a package out the passenger window
along the side of the interstate. Reisinger's argument is flawed because at the time of his
statements, he had been arrested for discarding the package found along I-70 containing
methamphetamine. The package had been field tested and was found to be
methamphetamine. At that point, the officers had probable cause to arrest Reisinger for
possession of methamphetamine with the intent to distribute. This is a justification
separate and apart from the alleged left lane violation. And the methamphetamine, as
previously discussed, was not discovered as the result of a seizure. Therefore, the district
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court properly determined Reisinger's post-Miranda statements were not fruit of the
poisonous tree, and the statements were properly admitted at trial. We observe no error.
II. REISINGER'S STATEMENTS ABOUT PAST DRUG DISTRIBUTION WERE ADMISSIBLE.
Reisinger argues the district court erred in admitting his postarrest interview
regarding his prior involvement in drug distribution. He asserts the prejudicial effect of
the statements outweighs their probative value; therefore, the district court should not
have allowed the State to introduce them under K.S.A. 2020 Supp. 60-455(b).
A. Standard of Review and Applicable Legal Principles
Evidence of other crimes or civil wrongs by a defendant is inadmissible for
propensity purposes. See K.S.A. 2020 Supp. 60-455(a). However, if the evidence is
relevant to some other material fact, such as the defendant's intent in the instant case, it
may be admissible. See K.S.A. 2020 Supp. 60-455(b). Relevant evidence must have "any
tendency in reason to prove any material fact." K.S.A. 60-401(b). That is, the evidence
must be material and probative. State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543
(2016). And the probative value of the evidence must outweigh the evidence's prejudicial
effect. State v. McCune, 299 Kan. 1216, 1227, 330 P.3d 1107 (2014).
We review the district court's relevancy and materiality determinations de novo.
The district court's decision regarding the probative value of the evidence versus its
prejudicial effect is reviewed for an abuse of discretion. 299 Kan. at 1227. A judicial
action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2)
it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham, 308
Kan. 1466, 1469, 430 P.3d 931 (2018). The party asserting the district court abused its
discretion bears the burden of showing such abuse of discretion. State v. Thomas, 307
Kan. 733, 739, 415 P.3d 430 (2018).
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B. Discussion
As a threshold matter, the State again argues Reisinger has not properly preserved
the issue for appeal. However, we will assume without deciding he properly preserved
the issue for appeal, claiming the prejudicial effect of the evidence outweighed its
probative value. As the State points out, Reisinger filed a written objection to the State's
motion to admit K.S.A. 2020 Supp. 60-455(b) evidence.
Evidence is legally admissible as long as it is used for a permissible purpose under
K.S.A. 2020 Supp. 60-455(b) and its prejudicial effect does not outweigh its probative
value. The purpose for which the evidence is admitted is also a factual question, albeit
one not in dispute here. At trial, it is clear Reisinger and the district court were aware the
State intended to use Reisinger's statements to prove he possessed the methamphetamine
with the intent to distribute it.
To prove its case, the State needed to show Reisinger intended to distribute the
methamphetamine. Reisinger's defense was generally centered on how he did not display
the typical hallmarks of a drug dealer. On cross-examination, the officers admitted
Reisinger did not have any ledgers or scales in his vehicle. And in his closing argument,
Reisinger focused on a lack of intent to distribute. Based on Reisinger's theory of
defense, his subjective intent to distribute methamphetamine was the most critical
element of the State's case.
Contrary to Reisinger's arguments, as discussed below, the rebuttable presumption
of intent under K.S.A. 2020 Supp. 21-5705(e)(2) did not relieve the State of its burden to
show he intended to distribute. The jury was explicitly instructed it could reject an
inference of intent to distribute based solely on the amount of methamphetamine
Reisinger possessed. It heard testimony that drug users typically possess much smaller
amounts for personal use. The jury also heard Reisinger's admission to three years of
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continuous methamphetamine sales—strong circumstantial evidence of his present intent
to distribute, given the fact more than 300 grams was recovered.
The evidence was highly probative of the most disputed material fact at trial. Our
caselaw recognizes evidence that undercuts a defendant's theory of defense is prejudicial
to the defendant. State v. Mburu, 51 Kan. App. 2d 266, 276, 346 P.3d 1086 (2015).
However, "[t]he law favors the admission of relevant evidence and the exclusion of such
evidence is an extraordinary remedy that must be used sparingly." 51 Kan. App. 2d at
273. Here, the district court explicitly instructed the jury: "Evidence has been admitted
tending to prove that the defendant committed crimes other than the present crime
charged. It may be considered solely as evidence of the defendant's intent." We presume
the jury followed the instructions given by the district court. See State v. Seba, 305 Kan.
185, 204, 380 P.3d 209 (2016). Based on the district court's instruction to the jury to
consider only Reisinger's admission to past drug dealing as evidence of his intent, the
prejudicial effect of the evidence did not outweigh its probative value. Reisinger's claim
of error fails.
III. REISINGER HAS NO CLAIM K.S.A. 2020 SUPP. 21-5705 WAS
UNCONSTITUTIONALLY APPLIED AT TRIAL.
Reisinger argued K.S.A. 2020 Supp. 21-5705(e)(2) is unconstitutional before the
district court and now before us, claiming it creates a mandatory statutory presumption
that directs a verdict in favor of the State. The constitutionality of a statute is a question
of law subject to unlimited review. Statutes are presumed constitutional, and we resolve
all doubts in favor of a statute's validity. Only a statute that clearly violates the
Constitution may be stricken down. State v. Gonzalez, 307 Kan. 575, 579-80, 412 P.3d
968 (2018).
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Reisinger's argument is unpersuasive because any presumption arising under
K.S.A. 2020 Supp. 21-5705(e)(2) was never relied on at trial. K.S.A. 2020 Supp. 21-
5705(e)(2) provides in pertinent part: "In any prosecution under this section, there shall
be a rebuttable presumption of an intent to distribute if any person possesses . . . 3.5
grams or more of . . . methamphetamine." At no point was the jury instructed it must
presume Reisinger intended to distribute methamphetamine based on the amount he
possessed. Instead, the jury instruction, based on the language of PIK Crim. 4th 57.022
(2013 Supp.), provided in relevant part:
"If you find the defendant possessed 3.5 grams or more of methamphetamine,
you may infer the defendant possessed with intent to distribute. You may consider the
inference along with all the other evidence in the case. You may accept it 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."
This instruction did not mandate an unconstitutional evidentiary presumption.
Rather, it permitted an inference for the jury to consider and apply to the facts of the case.
Given the extent of Reisinger's bragging during his post-Miranda statements, the fact he
was in possession of more than 300 grams of methamphetamine, and the officers'
unrebutted testimony that possession of that much methamphetamine was not for
personal use, it was reasonable for the jury to apply the inference Reisinger possessed the
methamphetamine with the intent to distribute it.
We decline to consider the constitutionality of K.S.A. 2020 Supp. 21-5705(e)(2)
as Reisinger cannot show the statute was unconstitutionally applied to him; therefore, he
cannot demonstrate he was prejudiced. We do not render advisory opinions or answer
purely academic questions. See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866
(2012).
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IV. THERE WAS NO JURY INSTRUCTION ERROR.
Reisinger argues the district court erred in instructing the jury in accordance with
PIK Crim. 4th 57.022 regarding the statutory presumption of intent to distribute based on
the quantity of methamphetamine he possessed. His argument on this point is
unpersuasive. Reisinger acknowledges he did not object to the instruction at trial;
therefore, our review looks for clear error. See K.S.A. 2020 Supp. 22-3414(3).
In examining claims of jury instruction error,
"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.'
"'[W]hether a party has preserved a jury instruction issue will affect [the
appellate] court's reversibility inquiry at the third step.' [Citations omitted.]" State v.
McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).
At the second step, we consider whether the instruction was legally and factually
appropriate. 307 Kan. at 318. Appellate courts use unlimited review to determine whether
an instruction was legally appropriate then determine whether there was sufficient
evidence to support the instruction, viewed in the light most favorable to the defendant or
the requesting party. State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70 (2016). If the
challenging party did not object to the jury instruction below, an appellate court applies
the clear error standard at the third step and will only reverse if an error occurred and the
12
court is firmly convinced the jury would have reached a different verdict if the instruction
error had not occurred. The party claiming the instruction given resulted in clear error has
the burden to demonstrate the necessary prejudice. McLinn, 307 Kan. at 318.
As stated above, the jury instruction provided, in relevant part:
"If you find the defendant possessed 3.5 grams or more of methamphetamine,
you may infer the defendant possessed with intent to distribute. You may consider the
inference along with all the other evidence in the case. You may accept it 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."
Reisinger asserts this instruction was legally inappropriate because it does not accurately
reflect the statutory language of K.S.A. 2020 Supp. 21-5705(e)(2), which provides, in
pertinent part: "In any prosecution under this section, there shall be a rebuttable
presumption of an intent to distribute if any person possesses . . . 3.5 grams or more of
. . . methamphetamine." Reisinger argues the district court improperly instructed the jury
because "the instruction states that the burden never shifts to the defendant, whereas the
statute indicates that the burden does shift to the defendant."
Reisinger's contention on this point shows precisely why we cannot find the
instruction clearly erroneous. He argues the district court's "instruction issues a
permissive mandate, as opposed [to] the restrictive mandate of the statute." Based on this
reasoning, Reisinger cannot firmly convince us the jury would have reached a different
verdict had the instruction not been given. If, as Reisinger contends, a more restrictive
instruction is needed to comport with the relevant statutory language, giving such an
instruction would only make it more likely the jury would reach the same verdict. He
cannot on the one hand argue K.S.A. 2020 Supp. 21-5705(e)(2) unconstitutionally directs
a verdict in favor of the State, while also arguing the jury would have acquitted him had
13
the instruction more closely reflected the statutory language. His argument on this point
is misplaced.
Moreover, the evidence at trial included Reisinger bragging in his postarrest
interview regarding his involvement in drug distribution and testimony from law
enforcement officers indicating the amount of methamphetamine Reisinger possessed
was consistent with distribution as opposed to personal use. And this testimony was
unrebutted. Thus, even without the instruction, the evidence would amply support a
reasonable inference by the jury Reisinger possessed the methamphetamine with the
intent to distribute. Accordingly, we are not firmly convinced giving a different
instruction or, for that matter, not giving an instruction would have made a difference in
the jury's verdict.
The district court did not err. Our Supreme Court "'strongly recommend[s] the use
of PIK instructions, which knowledgeable committees develop to bring accuracy, clarity,
and uniformity to instructions.'" State v. Butler, 307 Kan. 831, 847, 416 P.3d 116 (2018).
While jury instructions must accurately reflect the law, nothing requires they be identical
to Kansas statutes. Here, the instruction was legally appropriate as the jury needed to be
instructed the burden never shifts to the defendant. We observe no clear error in the
instruction given.
V. THE PROSECUTOR'S COMMENTS IN CLOSING ARGUMENT DO NOT CONSTITUTE
REVERSIBLE ERROR.
Reisinger argues the State committed prosecutorial error in closing argument. In
State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016), our Supreme Court held:
"Appellate courts will continue to employ a two-step process to evaluate claims
of prosecutorial error. These two steps can and should be simply described as error and
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prejudice. To determine whether prosecutorial error has occurred, the appellate court
must decide whether the prosecutorial acts complained of fall outside the wide latitude
afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a
manner that does not offend the defendant's constitutional right to a fair trial. If error is
found, the appellate court must next determine whether the error prejudiced the
defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the
traditional constitutional harmlessness inquiry demanded by Chapman [v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is
harmless if the State can demonstrate 'beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable possibility that the error contributed to the
verdict.' State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 565
U.S. 1221 (2012). We continue to acknowledge that the statutory harmlessness test also
applies to prosecutorial error, but when 'analyzing both constitutional and
nonconstitutional error, an appellate court need only address the higher standard of
constitutional error.' State v. Sprague, 303 Kan. 418, 430, 362 P.3d 828 (2015)."
When considering whether an error is harmless under Chapman, appellate courts
must
"consider any and all alleged indicators of prejudice, as argued by the parties, and then
determine whether the State has met its burden—i.e., shown that there is no reasonable
possibility that the error contributed to the verdict. The focus of the inquiry is on the
impact of the error on the verdict. While the strength of the evidence against the
defendant may secondarily impact this analysis one way or the other, it must not become
the primary focus of the inquiry." Sherman, 305 Kan. at 111.
In his closing argument, Reisinger argued the evidence showed he embellished his
statements to law enforcement regarding his involvement in drug distribution. He
essentially asked the jury not to take his statements in the postarrest interview at face
value and suggested he may have exaggerated his involvement in drug trafficking in
order to gain leniency. In response, the State argued in its rebuttal:
15
"[T]here was absolutely no evidence that the defendant embellished his story. [Counsel]
is trying to say, 'Well, he might have, he could have.' Did you hear any evidence that he
embellished his story? The defense could subpoena witnesses.
....
". . . [T]here was no evidence that the defendant embellished his story. The
defendant has power to subpoena witnesses and could have presented evidence that the
defendant was embellishing his story. Instead, all you have is, what, comments from
counsel that maybe he did. You have no evidence before you that he did."
Reisinger objected to the prosecutor's comments, and the district court overruled
his objection. However, following the prosecutor's rebuttal argument, the district court
instructed the jury: "[D]uring the State's closing argument, there was an objection which
I overruled, but I want to emphasize the point that the burden never shifts from the State
to prove the defendant guilty beyond a reasonable doubt."
Reisinger argues the prosecutor's comments were legally erroneous as they were
an attempt to shift the State's burden of proof. The State asserts the prosecutor's argument
was a permissible comment on the evidence, or lack of evidence, supporting the defense's
theory of the case. The appropriateness of the prosecutor's comments is a close call.
A prosecutor may not "attempt to shift the burden of proof to the defendant or . . .
misstate the legal standard of the burden of proof." State v. Stone, 291 Kan. 13, 18, 237
P.3d 1229 (2010). However, merely pointing out a lack of evidence supporting the
defense is not burden shifting. Nor is it impermissible for the State to make arguments
countering the defendant's arguments regarding the State's evidence. See State v.
Haygood, 308 Kan. 1387, 1401, 430 P.3d 11 (2018); State v. Williams, 299 Kan. 911,
940, 329 P.3d 400 (2014). Even though prosecutors have wide latitude in presenting
arguments to the jury, the comments here appear to be near the line between a
permissible comment on the evidence and an impermissible suggestion the defense
needed to present evidence. In the interest of brevity and clarity, we assume without
16
deciding the prosecutor's comments were erroneous, but any such error was ultimately
harmless.
The objected-to comments were made in the middle of the State's rebuttal.
Following the comments, the prosecutor referred directly to the evidence that undermined
defense counsel's argument. Defense counsel attempted to argue Reisinger embellished
his claims regarding his involvement in drug trafficking because Reisinger did not have a
nice car, nice clothes, or expensive house; therefore, he could not have made the large
sums of money he claimed during the interview. Referring to the video of the interview,
the prosecutor responded:
"[T]here is a conversation about how much he's selling it for, how much he's paying. And
the defendant says to Detective Hanson, 'I am making them a lot of money. I don't got
much to show for it.' Those were his words, ladies and gentlemen. Those are his words.
How he spends his money, I don't have to prove that. Nowhere in those elements do I
have to prove how much money he made, how he spent it. It's immaterial."
While Reisinger acknowledges "the district court informed the jury that the burden
of proof never shifts from the State," he fails to persuasively explain to us how the district
court's instruction was insufficient. Without further explanation, he argues the instruction
"was inadequate to ameliorate the State's error, as it did nothing to discourage the jury
from considering what evidence [Reisinger] failed to produce, instead of determining his
intent from the evidence that was produced." We presume the jury followed the district
court's instruction. See Seba, 305 Kan. at 204. Reisinger has not shown the district court's
instruction on this point was erroneous.
Further, the jury could determine Reisinger's intent from the evidence produced at
trial. The jury heard testimony that recreational drug users typically possess much smaller
amounts of methamphetamine for personal use. The jury also saw the interview video
wherein Reisinger provided names of his employers and regular customers and revealed
17
he had their contact information in his cell phones. We find that even if the prosecutor's
comments were, in fact, erroneous, they were harmless and there is no reasonable
possibility the error contributed to the jury's verdict.
VI. THERE WAS NO CUMULATIVE ERROR.
Reisinger argues even if none of the errors are individually reversible, he should
be granted a new trial based on cumulative error. The test for cumulative error is whether
the totality of the circumstances establish the defendant was substantially prejudiced by
cumulative errors and was denied a fair trial. In assessing the cumulative effect of errors
during the trial, we examine 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. State v. Holt,
300 Kan. 985, 1007, 336 P.3d 312 (2014). But a single nonreversible error does not
constitute reversible cumulative error. See State v. Williams, 299 Kan. 509, 566, 324 P.3d
1078 (2014). Here, Reisinger has identified at most one individually harmless error—the
prosecutor's comments in closing argument. We observe no cumulative error.
VII. REISINGER'S PRIOR KANSAS BURGLARY CONVICTION WAS PROPERLY CLASSIFIED
AS A PERSON FELONY.
Reisinger argues the district court erred in counting a 1998 Kansas burglary
conviction as a person felony, which was listed on the presentence investigation (PSI)
report as a "residential burglary." The proper classification of a prior conviction as a
person or nonperson offense is a question of law subject to unlimited review. State v.
Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016).
Reisinger argues his prior burglary conviction should not have been scored as a
person offense because, in order to classify a prior burglary as a person offense, it must
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be a burglary of a dwelling. See K.S.A. 2020 Supp. 21-6811(d). The PSI does not
indicate under which subsection Reisinger was convicted. At the time of his prior
conviction, burglary was defined by K.S.A. 21-3715 as follows:
"Burglary is knowingly and without authority entering into or remaining within
any:
"(a) Building, manufactured home, mobile home, tent or other structure which is
a dwelling, with intent to commit a felony, theft or sexual battery therein;
"(b) building, manufactured home, mobile home, tent or other structure which is
not a dwelling, with intent to commit a felony, theft or sexual battery therein;
"(c) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance
of persons or property, with intent to commit a felony, theft or sexual battery therein.
"Burglary as described in subsection (a) is a severity level 7, person felony.
Burglary as described in subsection (b) is a severity level 7, nonperson felony. Burglary
as described in subsection (c) is a severity level 9, nonperson felony."
Reisinger argues because the PSI does not indicate whether the conviction
occurred under K.S.A. 21-3715(a), which would be a person felony, the State did not
meet its burden to prove his criminal history at sentencing by a preponderance of the
evidence. However, the State persuasively argues "it is clear from context that the PSI
writer simply used residence as a shorthand for dwelling." As the State points out, Kansas
statute defines "dwelling" as "a building or portion thereof, a tent, a vehicle or other
enclosed space which is used or intended for use as a human habitation, home or
residence." (Emphasis added.) K.S.A. 2020 Supp. 21-5111(k). The plain meanings of
"residence" and "dwelling" are synonymous. A "residence" is defined as "[a] house or
other fixed abode; a dwelling." Black's Law Dictionary 1565 (11th ed. 2019). A
"dwelling-house" is defined as "[t]he house or other structure in which one or more
people live; a residence or abode." Black's Law Dictionary 641 (11th ed. 2019).
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Reisinger's argument is unpersuasive. The district court did not err in scoring his
1998 Kansas burglary conviction as a person felony.
VIII. THERE WAS NO KANSAS CONSTITUTION VIOLATION.
For the first time on appeal, Reisinger asserts the district court's use of his criminal
history to determine his sentence violated his rights under section 5 of the Kansas
Constitution Bill of Rights. Whether a defendant's constitutional rights have been
violated raises a question of law subject to unlimited review. State v. Ivory, 273 Kan. 44,
46, 41 P.3d 781 (2002). Generally, constitutional issues raised for the first time on appeal
are not preserved. See State v. Parry, 305 Kan. 1189, 1191-92, 390 P.3d 879 (2017).
Reisinger acknowledges he did not raise this issue before the trial court but asserts
we should review it for the first time on appeal because (1) it is a pure question of law
arising on proven or admitted facts and is finally determinative of the case and (2)
consideration of the issue is necessary to serve the ends of justice or prevent the denial of
his fundamental rights. See State v. Jones, 302 Kan. 111, 117, 351 P.3d 1228 (2015)
(noting recognized exceptions for reviewing issues not raised below).
Under the facts of this case, even if we assume an exception might apply, the
decision to consider the issue is a prudential one. We have the discretion to decline to
consider issues raised for the first time on appeal, and we do so here. See State v. Gray,
311 Kan. 164, 170, 459 P.3d 165 (2020). However, we also note Reisinger's substantive
argument has been rejected by several other panels of this court. See, e.g., State v.
Albano, 58 Kan. App. 2d 117, 134, 464 P.3d 332, rev. granted 312 Kan. 893 (2020);
State v. Valentine, No. 119,164, 2019 WL 2306626, at *6 (Kan. App.) (unpublished
opinion), rev. denied 310 Kan. 1070 (2019).
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IX. THERE WAS NO APPRENDI VIOLATION.
Reisinger finally argues the district court violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution when it used his prior
convictions to enhance his sentence without proving those convictions to a jury beyond a
reasonable doubt, contrary to the United States Supreme Court's guidance in Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Reisinger
recognizes the Kansas Supreme Court rejected this argument, but he includes the issue to
preserve it for federal review. See Ivory, 273 Kan. at 46; see also State v. Raschke, 289
Kan. 911, 912, 219 P.3d 481 (2009) ("We reject this claim as controlled by . . . [Ivory]. It
requires no further discussion."). Because there is no indication the Kansas Supreme
Court is departing from this position, we are duty bound to follow established precedent.
State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). The district court
correctly determined Reisinger's criminal history to establish his sentence.
Affirmed.
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