State v. Valdez

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 121,053

STATE OF KANSAS,
Appellee,

v.

JOSEPH MIGUEL VALDEZ,
Appellant.

SYLLABUS BY THE COURT

1.
Under our four-part framework for analyzing jury instruction claims, a defendant's
failure to object at trial does not prevent appellate review—it simply requires a higher
degree of prejudice to be shown for reversal.

2.
A rebuttable presumption has a different legal effect than a permissive inference.

3.
In general, an appellate court will not address an issue raised for the first time on
appeal, although there are limited exceptions. An appellate court's refusal to invoke an
exception to this general rule will be reviewed for abuse of discretion. A court abuses its
discretion when its exercise is based on an error of law or fact, or when no reasonable
person would have taken the view adopted by the court.

4.
The invited error doctrine's application in the context of jury instructions turns on
whether the instruction would have been given—or omitted—but for an affirmative
request to the court for the outcome later challenged on appeal. The ultimate question is
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whether the record reflects a party's action in fact induced the court to make the claimed
instructional error.

5.
Appellate courts do not ordinarily consider an issue not raised by the parties, but
may do so sua sponte when the issue's consideration is necessary to serve the ends of
justice or prevent the denial of fundamental rights after notice to the parties and allowing
them an opportunity to address the issue raised by the court.

6.
A defendant's articulation of a substantial allegation about counsel's effective
assistance triggers a district court's duty to inquire into a potential attorney-client conflict.
This duty derives from the defendant's right to effective assistance of counsel under the
state and federal Constitutions. An appellate court reviews the district court's inquiry for
abuse of discretion.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 9, 2021.
Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed July 1, 2022. Judgment of
the Court of Appeals affirming the district court is affirmed in part, reversed in part, and vacated in part.
Judgment of the district court is affirmed in part, reversed in part, and vacated in part.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.

Alexander Driskell, assistant county attorney, argued the cause, and Amy E. Norton, assistant
county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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The opinion of the court was delivered by

BILES, J.: A jury convicted Joseph Miguel Valdez of possession of more than 3.5
grams of methamphetamine with intent to distribute, possession of a firearm within 10
years of a prior felony conviction, and two counts of drug paraphernalia possession. He
appealed raising various trial error claims. A Court of Appeals panel affirmed. State v.
Valdez, No. 121,053, 2021 WL 1324023, at *3-6 (Kan. App. 2021) (unpublished
opinion). We affirm in part and reverse in part. We hold the State presented insufficient
evidence to support the firearm possession conviction and vacate its associated sentence.
We affirm the remaining convictions and reject his challenge to the district court's
handling of complaints he had about his trial counsel.

FACTUAL AND PROCEDURAL BACKGROUND

Valdez came out of a house in Salina yelling for help. He told a neighbor he was
shot in the leg. The neighbor closed the front door to the house at his request and applied
a tourniquet before paramedics arrived. Valdez at first would not give police his name or
say what happened but denied shooting himself. He said he sometimes stayed at the
house and had no permanent address.

Officers swept the house to make sure no one was injured or hiding inside. They
saw a .380 handgun on a desk in the living room, a bullet hole in the door jamb, and
women's clothing in the only bedroom on the main floor. They got search warrants for
the house, a car parked in the driveway, and Valdez' cell phone.

Returning inside the house after securing the warrants, officers located a spent
.380 shell casing and a slug from the door jamb. On the floor near the desk with the
handgun, they found a sunglasses case with five baggies of a crystalline substance, a

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digital scale with white residue on it, syringes, and empty baggies. In the basement, they
discovered a bag with syringes, ammunition for a .45 caliber handgun, a water pipe, and
men's clothing next to a bed. In this same area, there was another bag with more empty
baggies.

Outside the house, police found a glass pipe on a chair. In the car, they came upon
a syringe under the driver's seat. And in the jeans paramedics removed from Valdez at the
scene, an officer found a baggie with a crystalline substance, money, and a syringe that
appeared used.

On Valdez' phone, police recovered a message exchange from the day of the
shooting in which Valdez said, "I want to shoot myself yo," and "stupid bitches man I
hate feelings man I try to be good people and all I do is get fucked so you know anyone
looking?" At trial, a detective with training in narcotics trafficking testified the phrase
"anyone looking" is asking whether anyone was looking for a controlled substance.

KBI lab tests confirmed 14.18 grams of methamphetamine in the largest bag in the
sunglasses case and 1 gram in the bag from the jeans pocket. A KBI forensic scientist
testified a DNA profile from the sunglasses case reflected Valdez' DNA, with an
estimated frequency in a random individual of 1 in 15 septillion in the southeast Hispanic
population and 1 in 332 sextillion in the southwest Hispanic population. And a partial
DNA profile from the gun also reflected a DNA sample from Valdez according to
another KBI scientist, who testified the estimated frequency of this partial sample in a
random individual would be extremely unlikely, e.g., 1 in 48 billion or 1 in 284 trillion
depending on race.

After the jury returned guilty verdicts, the district court sentenced Valdez to 104
months' imprisonment for possession with intent to distribute and a consecutive 8-month
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term for criminal possession of a firearm with 36 months' postrelease supervision. The
court also imposed concurrent sentences of 11 months' imprisonment and 6 months' jail
for the drug paraphernalia convictions. Valdez appealed. The panel affirmed. Valdez,
2021 WL 1324023, at *3-6.

This court granted Valdez' petition for review. He argues: (1) the panel erred by
refusing to consider his jury instruction challenge to a permitted inference about his
intent to distribute methamphetamine if the jury found he possessed more than 3.5 grams;
(2) the evidence does not support his conviction for possession with intent to distribute;
(3) the district court erred by not instructing on the lesser included offenses of possessing
lesser quantities of methamphetamine with intent to distribute; (4) the panel erred by
refusing to consider his constitutional challenge to the statute providing a rebuttable
presumption for intent to distribute; (5) the panel erred by refusing to consider his
constitutional challenge to the statute making a felon's possession of firearms illegal; and
(6) the district court erred by not appointing conflict-free counsel when inquiring into his
presentencing claims of ineffective assistance of trial counsel.

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of
Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to
review Court of Appeals decisions upon petition for review).

THE INTENT-TO-DISTRIBUTE INSTRUCTION

Valdez argues the panel erred when it refused to consider for the first time on
appeal the legal appropriateness of the intent-to-distribute instruction. He claims the
instruction, which provided a permissive inference of intent based on the quantity of
drugs he possessed, undermined his constitutional right to a conviction on proof of all the
elements of the offense beyond a reasonable doubt. In his view, there was no rational

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connection between the quantity of drugs possessed and any inference that he intended to
distribute those drugs. This, he claims, made the instruction legally inappropriate. He
makes no claim the jury instruction was factually inappropriate.

We approach this issue incrementally. First, we hold the panel should have
considered this as an instructional challenge using the clear error standard of review.
Second, we agree the instruction's permissive inference was legally inappropriate, but for
a different reason that arrives at the same result. See State v. Holder, 314 Kan. 799, 806-
07, 502 P.3d 1039 (2022) (holding instruction consistent with PIK Crim. 4th 57.022 was
legally inappropriate because it provided for a permissive inference instead of the
rebuttable presumption specified by statute). Finally, we explain why we are not
convinced the jury would have reached a different verdict without this instructional error.
As a result, we affirm the intent-to-distribute conviction.

Additional facts

The State charged Valdez with possession of methamphetamine with intent to
distribute. See K.S.A. 2018 Supp. 21-5705. Subsection (e) provides "[i]n 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 heroin or methamphetamine." (Emphasis
added.) At Valdez' trial, the court instructed the jury by first setting out the elements of
possession with intent to distribute. Then, consistent with PIK Crim. 4th 57.022 (2013
Supp.), the court instructed,

"If you find the defendant possessed 3.5 grams or more of methamphetamine, you
may infer that the defendant possessed with the intent to distribute. You may consider the
inference along with all 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." (Emphasis added.)
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 The trial court also instructed the jury that,

"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 unless 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 of the 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 each of the claims required to be proved by the State,
you should find the defendant guilty."

Valdez did not object to these instructions. But for the first time on appeal to the
panel, he argued the permissive inference of intent to distribute stated in the jury
instruction violated his due process rights because "there was no evidence of a rational
connection between possession of 3.5 grams of methamphetamine and an intent to
distribute." The panel refused to consider this newly raised constitutional issue because
the trial court did not have a chance to rule on it, explaining there was "insufficient
evidence in the record to give this court a foundation for meaningful review." Valdez,
2021 WL 1324023, at *3.

The panel should have considered this claim as an instructional error.

K.S.A. 2020 Supp. 22-3414(3) provides:

"No party may assign as error the giving or failure to give an instruction,
including a lesser included crime instruction, unless the party objects thereto before the
jury retires to consider its verdict stating distinctly the matter to which the party objects
and the grounds of the objection unless the instruction or the failure to give an

7
 instruction is clearly erroneous. Opportunity shall be given to make the objections out of
the hearing of the jury." (Emphasis added.)

Our usual four-part framework for analyzing jury instruction claims does not
prevent appellate review when a defendant fails to object at trial—it simply specifies a
higher degree of prejudice to warrant reversal. Under this framework,

"'First, [the reviewing court] considers the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
next, it applies unlimited review to determine whether the instruction was legally
appropriate; then, it determines whether there was sufficient evidence, viewed in the light
most favorable to the defendant or the requesting party, that would have supported the
instruction; and finally, if the district court erred, this court determines whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).'

"However, if a defendant fails to object to the instructional error below, the clear
error standard is applied to assess prejudice. Instructional error is clearly erroneous when
'"the reviewing court is firmly convinced that the jury would have reached a different
verdict had the instruction error not occurred."' [Citations omitted.]" State v. Owens, 314
Kan. 210, 235, 496 P.3d 902 (2021).

The crux of Valdez' argument is that the jury instruction relieved the State of its
burden to prove every element of the intent-to-distribute charge beyond a reasonable
doubt. See County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 157, 99 S. Ct.
2213, 60 L. Ed. 2d 777 (1979) (noting a "permissive presumption . . . affects the
application of the 'beyond a reasonable doubt' standard only if, under the facts of the case,
there is no rational way the trier could make the connection permitted by the inference");
State v. Johnson, 233 Kan. 981, 985, 666 P.2d 706 (1983) ("It has long been recognized

8
that any instruction which shifts the burden of proof or of persuasion to the defendant is
unconstitutional and is clearly erroneous.").

This court previously has treated arguments of this nature as jury instruction
challenges reviewable for the first time on appeal. See, e.g., State v. Cameron, 300 Kan.
384, 395, 329 P.3d 1158 (2014) (applying "a clearly erroneous standard of review" to
reject the defendant's argument, raised for the first time on appeal, that a jury instruction
"unconstitutionally shifted the burden to him to prove that he was not guilty"); State v.
Holt, 300 Kan. 985, 1005-06, 336 P.3d 312 (2014) (considering an issue raised for the
first time on appeal that the reasonable doubt instruction given at trial "was erroneous
because it lowered the State's burden of proof").

Valdez plainly disputes the legal appropriateness of the instruction permitting the
jury to infer that he intended to distribute methamphetamine based on proof of certain
quantities possessed. We hold the panel erred when it declined to address this claim's
merits because it was raised for the first time on appeal. Appellate courts must review a
jury instruction question even if it is unpreserved. The failure to object at trial simply
requires a higher degree of prejudice to be shown before reversal can be justified. See
K.S.A. 2020 Supp. 22-3414(3).

The permissive inference instruction was legally inappropriate.

"The Due Process Clause of the Fourteenth Amendment requires proof beyond a
reasonable doubt of each element of the crime charged." State v. Craig, 311 Kan. 456,
462, 462 P.3d 173 (2020). Because of that, evidentiary devices like presumptions and
inferences "must not undermine the factfinder's responsibility at trial, based on evidence
adduced by the State, to find the ultimate facts beyond a reasonable doubt." Allen, 442
U.S. at 156. Valdez concedes the challenged instruction describes a permissive inference.

9
 The Allen Court explained that "the entirely permissive inference . . . allows—but
does not require—the trier of fact to infer the elemental fact from proof by the prosecutor
of the basic one and which places no burden of any kind on the defendant." Allen, 442
U.S. at 157. It also noted,

"Because this permissive presumption leaves the trier of fact free to credit or reject the
inference and does not shift the burden of proof, it affects the application of the 'beyond a
reasonable doubt' standard only if, under the facts of the case, there is no rational way the
trier could make the connection permitted by the inference. For only in that situation is
there any risk that an explanation of the permissible inference to a jury, or its use by a
jury, has caused the presumptively rational factfinder to make an erroneous factual
determination." 442 U.S. at 157.

Valdez mostly argues in his brief that there was "no evidence of a rational
connection between possessing 3.5 grams or more of methamphetamine and an intent to
distribute," since "it is entirely possible that the person possesses some or all of the
amount for personal use or some other intent or no intent." But at oral argument, and to
some extent in his petition for review, he embraced an alternative path to error by
suggesting the instruction did not fairly and accurately state the applicable law. He noted
K.S.A. 2020 Supp. 21-5705(e) specifies a rebuttable presumption of intent to distribute
when certain quantities of a controlled substance are found in the defendant's possession
rather than the permissive inference instruction given at his trial. We generally agree with
this latter viewpoint as explained in Holder, in which we held:

"A rebuttable presumption has a different legal effect than a permissive
inference. [State v. Harkness, 252 Kan. 510, Syl. ¶¶ 13-14, 847 P.2d 1191 (1993)]. This
means that even if we consider the jury instructions as a whole, we cannot hold they

10
 fairly and accurately reflect the applicable law specified by K.S.A. 2020 Supp. 21-
5705(e), when measured narrowly against that statute." Holder, 314 Kan. at 806.

For the reasons discussed in Holder, the permissive inference instruction given at
Valdez' trial was legally inappropriate. Holder, 314 Kan. 799, Syl. ¶ 4 ("PIK Crim. 4th
57.022 [2013 Supp.] provides a jury instruction with a permissive inference the jury may
accept or reject about a defendant's possession with intent to distribute when that
defendant is found to possess specific quantities of a controlled substance. This
permissive instruction does not fairly and accurately reflect the statutory rebuttable
presumption specified in K.S.A. 2020 Supp. 21-5705[e]."); see State v. Plummer, 295
Kan. 156, 161, 283 P.3d 202 (2012) ("[A]n instruction must always fairly and accurately
state the applicable law, and an instruction that does not do so would be legally infirm.");
see also K.S.A. 20-203 ("A syllabus of the points of law decided in any case in the
supreme court shall be stated in writing by the judge delivering the opinion of the court,
which shall be confined to the points of law arising from the facts in the case, that have
been determined by the court.").

And based on this, it is unnecessary to consider other reasons why the instruction
might be legally inappropriate, such as Valdez' primary contention that the instruction
had no rational connection between the quantities specified and an intent to distribute. It
is enough to simply recognize, as we did in Holder, that the quantities stated in the
instruction do not align with the larger amounts the evidence demonstrated Valdez
possessed. See Holder, 314 Kan. at 806 ("But here the instructed permissive inference
was not only unmoored from any statutory basis, its 450-gram threshold [of marijuana]
had no connection to the evidence.").

Based on our determination that the instruction was legally inappropriate, we must
consider next whether this error requires reversal of the intent-to-distribute conviction.

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The jury would not have reached a different verdict.

Because Valdez did not object to the permissive inference instruction at trial, clear
error is required to reverse. Owens, 314 Kan. at 235 (under clear error analysis, a
reviewing court must be firmly convinced the trial's result would have been different
without the error). The instructional error identified does not meet this threshold.

First, the permissive instruction given at Valdez' trial did not impose any defense
burden to rebut the State's prima facie case, unlike the rebuttable presumption statute
apparently would. See Holder, 314 Kan. at 805 (explaining a "rebuttable presumption
means that once the State proved possession of [a certain amount of a controlled
substance], the jury must infer [the defendant's] intent to distribute unless [they] proved
otherwise. This suggests some burden shifting . . . ."). Also, the State presented ample
evidence Valdez not only possessed methamphetamine but intended to distribute it. For
example, the evidence involved much more methamphetamine than the minimum 3.5
grams specified in the instruction to trigger the permissive inference. Holder, 314 Kan. at
806 ("In this context, a defendant's possession of a large quantity of narcotics certainly
may support an inference that the defendant intended to distribute the narcotic."). And the
evidence included empty plastic baggies and a digital scale to facilitate distribution. A
detective experienced with drug trafficking also testified the text message Valdez sent to
a friend asking "anyone looking" commonly meant "are you looking for some type of
narcotic."

We are not firmly convinced the jury would have reached a different verdict if the
instructional error had not occurred.

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 THE CONSTITUTIONAL CHALLENGE TO K.S.A. 2020 SUPP. 21-5705(e)

As an alternative to his argument that the permissive inference instruction was
legally inappropriate, Valdez challenged for the first time on appeal K.S.A. 2020 Supp.
21-5705(e)'s constitutionality. As mentioned, that statute provides for a rebuttable
presumption on a defendant's possession with intent to distribute when that defendant is
found to have possessed specific quantities of a controlled substance. The panel declined
to consider this constitutional challenge. Valdez, 2021 WL 1324023, at *3.

In general, an appellate court will not address an issue raised for the first time on
appeal, although there are limited exceptions. See State v. Allen, 314 Kan. 280, 283, 497
P.3d 566 (2021). We review the panel's refusal to consider this constitutional statutory
challenge for an abuse of discretion. State v. Johnson, 310 Kan. 909, 912, 453 P.3d 281
(2019). A court abuses its discretion when that exercise is based on an error of law or
fact, or when no reasonable person would have taken the view adopted by the court.
Allen, 314 Kan. at 284.

Valdez acknowledges this issue is unpreserved and suggests the panel could have
reached it as being necessary to serve the ends of justice or to prevent a denial of
fundamental rights—a potential exception available when a party raises an issue for the
first time on appeal. But Valdez does not explain how the panel abused its discretion by
deciding not to address the merits, i.e., was there an error of law or fact, or does he
contend no reasonable person would have taken the view adopted by the court?

Instead, he just complains the panel erred since he asserted a recognized
exception. But this is not enough to carry the day. A reviewing court is not obligated to
consider the unpreserved issue even when a party asserts a preservation exception in a
procedurally correct way. The decision remains discretionary. Allen, 314 Kan. at 283-84.

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And the burden to show abuse of that discretion rests with the one who complains about
its exercise. State v. Randle, 311 Kan. 468, Syl. ¶ 4, 462 P.3d 624 (2020). Given that
Valdez does not better articulate his disagreement with the panel, we hold it did not abuse
its discretion in declining to consider K.S.A. 2020 Supp. 21-5705(e)'s constitutionality.

SUFFICIENCY OF THE EVIDENCE

As a separate issue challenging the intent-to-distribute conviction, Valdez
contends the evidence that he possessed methamphetamine was circumstantial and argues
the permissive inference instruction led to impermissible inference stacking. That is, he
claims the jury had to infer from circumstantial evidence that he possessed the drugs in
the first place, which then "stacked" the instructional intent-to-distribute inference onto
that. We disagree with this contention because the evidence shows different sets of
multiple proven circumstances supported both his possession of methamphetamine and
his intent to distribute it.

When the State asks a jury to make a presumption based on other presumptions, it
does not carry its burden to present sufficient evidence to sustain a criminal conviction.
State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017). But this impermissible
inference stacking does not occur when different circumstances are used to support
separate inferences, or when multiple pieces of circumstantial evidence separately
support a single inference. Banks, 306 Kan. 854, Syl. ¶ 3; see also State v. Colson, 312
Kan. 739, 753, 480 P.3d 167 (2021) (holding no inference stacking occurred when "the
evidence supporting each inference [was] separate and distinct; no inference was
necessarily presumed based on another presumption"). Rather,

"it is permissible for the State to rely on multiple circumstances to support an inference
. . . so long as each circumstance has been proved, rather than presumed from another
circumstance. In other words, while it is impermissible for a case to rely upon the theory
14
 that presumption A leads to presumption B leads to presumption C leads to fact D, it is
perfectly proper for the State's case to be grounded upon a theory that presumption A,
presumption B, and presumption C all separately point to fact D. [Citation omitted.]"
Banks, 306 Kan. at 860-61.

In rejecting Valdez' sufficiency argument, the panel reasoned:

"When we view this record, even without the statutory presumption, a rational
fact-finder could have found beyond a reasonable doubt that Valdez possessed the
methamphetamine with an intent to distribute. Officers found far more than 3.5 grams of
methamphetamine; the bag the KBI tested contained more than 14 grams and four other
untested bags contained a similar looking substance. Officers also discovered scales with
methamphetamine residue, many empty baggies, and some syringes. Valdez' DNA was
the only DNA on the outside of the glasses case containing the drugs and paraphernalia.
And Valdez sent a text shortly before he was shot asking an acquaintance if she knew of
'anyone looking,' which a detective testified was a phrase commonly used to refer to
someone looking for narcotics." Valdez, 2021 WL 1324023, at *5.

As this shows, and as reflected in our clear-error analysis above, Valdez'
possession of methamphetamine and his intent to distribute were independently supported
by multiple, proven circumstances. And even though the circumstances supporting each
element overlap, they are still different. Possession was supported by Valdez' DNA on
the sunglasses case, the case's contents, and the drugs in his pocket. His intent to
distribute was independently supported by his possession of the sunglasses case and its
contents, the drugs in his pocket, the extra baggies in the basement, the digital scale, and
the text message. We hold there was sufficient evidence to support the intent-to-distribute
conviction, and this conviction did not rest on impermissible inference stacking.

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 THE LESSER-INCLUDED-OFFENSE CLAIM

Valdez next argues the panel erred by refusing to consider his claim that the
district court should have instructed on the lesser included offenses covering possession
of less than 3.5 grams of methamphetamine with the intent to distribute it. He notes 1
gram of methamphetamine was found in his clothing, while multiple baggies were in the
sunglasses case with one containing more than 14 grams. He argues this was an adequate
factual basis to warrant the lesser included offense instructions. We agree with Valdez
that the panel erred by rejecting this claim under an invited error rationale, and that the
instructions should have been given. But we hold this does not warrant reversal.

Additional facts

At the jury instruction conference, Valdez' counsel asked that the jury be
instructed on simple possession of methamphetamine as a lesser included offense of
possession with intent to distribute. His theory was that the jury could conclude Valdez
did not possess the contents of the sunglasses case but did possess for personal use the 1
gram in his jeans. The State asked whether the intervening lesser included offenses of
possession with intent to distribute between 1 and 3.5 grams and possession with intent to
distribute less than 1 gram needed to be given too. Defense counsel clarified:

"MS. EFFENBECK: I'm just asking for the simple possession, the level 5.

"THE COURT: So the theory being, from the defense's perspective, because
there is a factual distinction between the pants located on the corner with one gram of
methamphetamine in the Baggie that the jury could factually distinguish that possession
from the 14 point some grams in the sunglass case located within the residence near the
handgun along with the other distribution paraphernalia of empty Baggies, multiple
syringes, et cetera? And so that factual distinction is what you're focusing on; is that your
request?
16
 "MS. EFFENBECK: Yes."

Defense counsel then offered,

"MS. EFFENBECK: I guess the jury could separate the pants from any items
found in the house.

"THE COURT: And there is nothing in the house that would indicate it was less
than 14 grams. That's the Court's thought initially, [prosecutor], is if they were to go with
that theory it's either all or nothing. It's either all one gram was in his pants or nothing. I
don't know any other way to characterize the evidence as less than 14 grams in the
house."

The prosecutor agreed. The court then recapped defense counsel's position:

"THE COURT: Okay. And Ms. Effenbeck, so you're asking for obviously the
level 2 [possession with intent to distribute] and then one lesser included for the simple
possession of a level 5?

"MS. EFFENBECK: Yes."

The district court instructed the jury on simple possession of methamphetamine as
a lesser included offense of the intent-to-distribute charge. It gave no other lesser
included offense instructions.

For the first time on appeal, Valdez argued the district court should have instructed
on possession of less than 3.5 grams of methamphetamine with intent to distribute as a
lesser included offense of possession of 3.5 grams or more of methamphetamine with
intent to distribute. But the panel refused, holding he invited the claimed error because

17
his "decision not to seek the lesser included instruction . . . was a strategic decision in line
with his theory of defense." Valdez, 2021 WL 1324023, at *4.

Valdez did not invite the claimed error.

This court recently synthesized its invited error caselaw relating to jury
instructions in State v. Douglas, 313 Kan. 704, 707-09, 490 P.3d 34 (2021). The Douglas
court explained that "the doctrine's application turns on whether the instruction would
have been given—or omitted—but for an affirmative request to the court for that
outcome later challenged on appeal." 313 Kan. at 708. The court recognized "[t]he
ultimate question is whether the record reflects the defense's action in fact induced the
court to make the claimed error." 313 Kan. at 708. The Douglas court noted,

"The [trial] court simply asked defense counsel, 'Do you believe any lesser included
offenses are applicable or are you requesting any?' Counsel replied: 'I know that I am not
requesting any lesser included offenses and indeed there may not be any applicable ones
either.' The State then confirmed it was not asking for any lesser included instructions,
and the court ruled, 'Based on the facts that we have today, I do not believe that there is
any applicable lesser [included offenses], so I concur with your comments.'" 313 Kan. at
709.

The Douglas court ruled that "[u]nder these facts, we cannot conclude defense
counsel induced the district court's decision not to give lesser included offense
instructions." 313 Kan. at 709. Likewise, the record here shows Valdez only requested a
simple possession instruction. And nothing establishes that the omitted instructions
would have been provided but for that limited request. Compare State v. Walker, 304
Kan. 441, 445, 372 P.3d 1147 (2016) (holding invited error did not occur when defendant
merely confirmed he had not requested any lesser included offense instructions), with
State v. Jones, 295 Kan. 804, 812-13, 286 P.3d 562 (2012) (determining invited error

18
occurred when the record depicted the district court showed its willingness to instruct on
the lesser included offense of the charged crime, but defendant objected to giving it). We
hold Valdez did not invite the claimed error on appeal. The panel erred in this regard.

Two lesser included offense instructions should have been given.

Having determined this is an unpreserved—though not invited—instructional
error, we move to the merits.

K.S.A. 2020 Supp. 21-5705(a)(1) provides: "It shall be unlawful for any person to
distribute or possess with the intent to distribute . . . any stimulant designated in
subsection . . . (d)(3) . . . of K.S.A. 65-4107." See K.S.A. 2020 Supp. 65-4107(d)(3)
("[m]ethamphetamine, including its salts, isomers and salts of isomers"). And K.S.A.
2020 Supp. 21-5705(d)(3) declares:

"Violation of subsection (a) with respect to material containing any quantity of
[methamphetamine] is a:

(A) Drug severity level 4 felony if the quantity of the material was less than 1
gram;

(B) drug severity level 3 felony if the quantity of the material was at least 1 gram
but less than 3.5 grams;

(C) drug severity level 2 felony if the quantity of the material was at least 3.5
grams but less than 100 grams; and

(D) drug severity level 1 felony if the quantity of the material was 100 grams or
more."

19
 This statute contains two lesser forms of intent-to-distribute, but Valdez did not
specify in his brief or petition for review which should have been given at trial. When
asked at oral argument, his counsel said both, so we consider each possibility.

The State correctly concedes instructions for both possession of at least 1 but less
than 3.5 grams of methamphetamine with intent to distribute it under K.S.A. 2020 Supp.
21-5705(d)(3)(B) and possession of less than 1 gram of methamphetamine with intent to
distribute it under subsection (d)(3)(A) would have been legally appropriate, as lesser
degrees of the crime charged under subsection (d)(3)(C). See K.S.A. 2020 Supp. 21-
5109(b)(1) ("Upon prosecution for a crime, the defendant may be convicted of either the
crime charged or a lesser included crime, but not both. A lesser included crime is . . . [a]
lesser degree of the same crime."); State v. Armstrong, 299 Kan. 405, Syl. ¶ 5, 324 P.3d
1052 (2014) ("The inquiry as to whether it would have been legally appropriate to give
the instruction is answered by whether the lesser crime is legally an included offense of
the charged crime.").

The nub of this question, then, is whether the trial evidence warranted these
instructions. "'To be factually appropriate, there must be sufficient evidence, viewed in
the light most favorable to the defendant or the requesting party, to support the
instruction.'" State v. Liles, 313 Kan. 772, 778, 490 P.3d 1206 (2021). And the facts here
make application of the factual appropriateness inquiry a bit more complicated because
the methamphetamine was found in two places: a 1-gram packet in Valdez' jeans pocket
and multiple packets in the sunglasses case, one of which weighed 14 grams.

An instruction for possession of "at least 1 gram but less than 3.5 grams" with
intent to distribute would have been factually supported on this record. The jury could
have concluded Valdez possessed only the 1-gram packet, and that he intended to
distribute it based on the supply of plastic baggies in the basement and his text to a friend
20
inquiring if the friend knew "anyone looking." And this is true even though the State
asserts the 1-gram packet in Valdez' jeans was "clearly tied back to the items in the
house," so it should be considered collectively with the other drugs. We hold this
instruction was both legally and factually appropriate. The district court erred by not
giving it.

But would an instruction for possession of less than 1 gram of methamphetamine
also have been factually appropriate? We resolved this in State v. Scheuerman, 314 Kan.
583, 589-93, 502 P.3d 502 (2022), by deciding that a defendant's stipulation to possessing
"at least 3.5 grams of methamphetamine" was enough to sustain his conviction for
possession of "at least 1 but less than 3.5 grams" of methamphetamine with intent to
distribute it under K.S.A. 2020 Supp. 21-5705(d)(3)(B). So based on Scheuerman, an
instruction for the less-than-1-gram offense was factually appropriate in Valdez' case as
well.

The jury would not have reached a different verdict.

Under the clear error standard, a jury instruction error is reversible only if "'the
reviewing court is firmly convinced that the jury would have reached a different verdict
had the instruction error not occurred.'" Owens, 314 Kan. at 235.

Valdez asserts three reasons why the trial outcome would have been different had
these instructions been given: (1) the evidence "is scant at best" about his intent related
to the methamphetamine; (2) any evidence of intent to distribute beyond the quantity
possessed "would support a finding of intent to distribute any amount" of the drug; and
(3) a jury unsure about whether Valdez intended to distribute the drugs could have
reached a compromise verdict by convicting him of possession of less than 3.5 grams of
methamphetamine with intent to distribute. He claims these reasons raise "a real

21
possibility" the jury could have returned a verdict for a lesser degree of intent-to-
distribute.

We disagree. As discussed earlier, the evidence strongly shows Valdez possessed
more than 3.5 grams of methamphetamine and intended to distribute it. We hold clear
error is not demonstrated. His arguments for reversal are speculative and insufficient to
carry his burden.

THE POSSESSION-OF-A-FIREARM CONVICTION

Valdez argues the panel abused its discretion when it refused to consider for the
first time on appeal his argument that a conviction for possessing a firearm within 10
years of a prior felony conviction violated his right to bear arms under section 4 of the
Kansas Constitution Bill of Rights.

As discussed earlier, this refusal would be reviewed for an abuse of discretion by
the panel, but before oral argument this court suggested sua sponte a more basic question
by asking whether the conviction is supported by sufficient evidence. See State v. Adams,
283 Kan. 365, 367, 153 P.3d 512 (2007) ("Appellate courts do not ordinarily consider
issues that are not raised by the parties. However, we have the power to address such
issues in exceptional circumstances, where the consideration of the issue is necessary to
serve the ends of justice or prevent the denial of fundamental rights."). We directed the
parties to address this at oral arguments.

We hold there is insufficient evidence to support the firearm conviction, so we
need not address the panel's avoidance of the unpreserved section 4 claim. Our
conclusion about the evidence comes from reviewing the applicable statutes, the
evidentiary stipulations at trial, and the jury instructions.

22
At the time of Valdez' crimes, K.S.A. 2018 Supp. 21-6304 provided,

"(a) Criminal possession of a weapon by a convicted felon is possession of any
weapon by a person who:

(1) Has been convicted of a person felony . . . and was found to have been in
possession of a firearm at the time of the commission of the crime;

(2) within the preceding five years has been convicted of a felony . . . and was
not found to have been in possession of a firearm at the time of the commission of the
crime; or

(3) within the preceding 10 years, has been convicted of a:

(A) Felony under K.S.A. 2013 Supp. 21-5402, 21-5403, 21-5404, 21-5405, 21-
5408, subsection (b) or (d) of 21-5412, subsection (b) or (d) of 21-5413, subsection (a) of
21-5415, subsection (b) of 21-5420, 21-5503, subsection (b) of 21-5504, subsection (b) of
21-5505, and subsection (b) of 21-5807, and amendments thereto; article 57 of chapter 21
of the Kansas Statutes Annotated, and amendments thereto; K.S.A. 21-3401, 21-3402,
21-3403, 21-3404, 21-3410, 21-3411, 21-3414, 21-3415, 21-3419, 21-3420, 21-3421, 21-
3427, 21-3442, 21-3502, 21-3506, 21-3518, 21-3716, 65-4127a, 65-4127b, 65-4159
through 65-4165 or 65-7006, prior to their repeal; an attempt, conspiracy or criminal
solicitation as defined in K.S.A. 21-3301, 21-3302 or 21-3303, prior to their repeal, or
K.S.A. 2013 Supp. 21-5301, 21-5302 or 21-5303, and amendments thereto, of any such
felony; or a crime under a law of another jurisdiction which is substantially the same as
such felony, has been released from imprisonment for such felony, or was adjudicated as
a juvenile offender because of the commission of an act which if done by an adult would
constitute the commission of such felony, was not found to have been in possession of a
firearm at the time of the commission of the crime, and has not had the conviction of such
crime expunged or been pardoned for such crime. The provisions of subsection (j)(2) of

23
K.S.A. 2013 Supp. 21-6614, and amendments thereto, shall not apply to an individual
who has had a conviction under this paragraph expunged; or

(B) nonperson felony . . . and was found to have been in possession of a firearm
at the time of the commission of the crime.

"(b) Criminal possession of a weapon by a convicted felon is a severity level 8,
nonperson felony.

"(c) As used in this section:

....

(2) 'weapon' means a firearm or a knife."

The jury instruction on this charge set out these elements:

"The defendant is charged in count three with criminal possession of a weapon
by a convicted felon. The defendant pleads not guilty[.]

"To establish this charge, each of the following claims must be proved:

"1. The defendant possessed a weapon.

"2. The defendant within ten years preceding such possession has been convicted
of a felony.

"3. The defendant was not found to be in possession of a firearm at the time of
the prior crime.

"4. This act occurred on or about the 30th day of June, 2018, in Saline County,
Kansas."

24
 At trial, the parties stipulated to Valdez' possession of a firearm within 10 years of
a prior conviction, and the jury was told:

"The following facts have been agreed to by the parties and are to be considered
by you as true:

"(1) The defendant within ten years preceding June 30, 2018 has been convicted
of a felony and has not had the conviction of such felony expunged or been pardoned for
such felony.

"(2) The defendant was not found to be in possession of a firearm at the time of
the prior felony.

"Evidence has been admitted tending to prove that the defendant had been
convicted previously of a felony. It may be considered solely as evidence of the
defendant's convicted felon status for count three and it should not be considered by you
for any other purpose."

We note parenthetically that before trial, the district court may have received into
evidence what is described in the record as a certified copy of Valdez' prior conviction.
But it appears the court withheld this document from the jury, so it could not have played
a role in its deliberations. Regardless, it is not in the appellate record.

Discussion

"'When the sufficiency of the evidence is challenged in a criminal case, we
review the evidence in a light most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt. An
appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on
the credibility of witnesses.'" State v. Pearce, 314 Kan. 475, 480, 500 P.3d 528 (2021).

25
 Applying this standard to the evidence before Valdez' jury, a rational fact-finder
could not have concluded all the elements of the statutorily defined crime had been
proven. As can be seen, neither the instruction nor the stipulation specifies what Valdez'
prior crime was, although the jury was told he was not found to be in possession of a
firearm while committing it. These stipulations preclude conviction under both K.S.A.
2018 Supp. 21-6304(a)(1) and (a)(3)(B). Similarly, the evidence does not establish the
prior crime was committed within five years, so this eliminates K.S.A. 2018 Supp. 21-
6304(a)(2).

This means the only remaining basis for conviction is K.S.A. 2018 Supp. 21-
6304(a)(3)(A), and it is limited to enumerated offenses. But the stipulation only specified
that Valdez committed "a felony," so again there is no factual basis or inference to
convince us the jury could have found the essential—yet missing—element from what it
was given.

We hold the evidence before the jury would not have supported the finding, even
if it were properly instructed. Valdez' conviction for criminal possession of a firearm by a
felon must be reversed because of insufficient evidence, which necessitates vacating the
associated sentence. But remand is not required because the firearm conviction was not
the primary crime at Valdez' sentencing, the applicable postrelease supervision term is
not affected, and the sentences for the remaining convictions all run concurrent.

THE CONFLICT-FREE COUNSEL CLAIM

Valdez argues the district court erred by failing to appoint substitute counsel to
assist him when discussing his claim of ineffective assistance of trial counsel, and that the
panel failed to apply the appropriate review to address that claim on appeal. We hold

26
neither the allegation of ineffective assistance of trial counsel mentioned by Valdez nor
the district court's questions to defense counsel required appointing substitute counsel.

Additional facts

Before sentencing, Valdez filed a pro se motion for downward dispositional
departure. In it, he alleged, "Defendant and his counsel have not been in agreement on
issues, and Defendant intends to [pursue] ineffective counsel options for appeal, hence
the pro se motion." He did not elaborate on his intended course of action, and the only
relief he requested was that he be afforded "treatment options versus imprisonment." The
next day, defense counsel filed a parallel motion also seeking dispositional departure to
probation.

At the sentencing hearing, the court first took up the pro se motion. It began by
asking defense counsel how the pro se motion and its ineffective assistance of counsel
assertion affected the hearing. Counsel responded,

"I guess that would be up to the Court. As you know Mr. Valdez has never been happy. I
guess it would be up to him if he wants to I guess rest on his motion for dispositional
departure or rely on mine. He's also made an argument regarding attorneys fee, which of
course the State will do a State v[.] Robinson analysis no matter what. So I don't know if
the Court feels—what the Court wants to do."

The court then had a long exchange with Valdez and defense counsel.

"THE COURT: Mr. Valdez, you assert ineffective assistance of counsel but
don't give any grounds for it. What's the purpose of that?

"THE DEFENDANT: The grounds for ineffective counsel is I've asked my
attorney to come speak to me on several occasions. She's not. I've asked her for motions
27
 of discovery for more evidence to see what they have to have—actually have grounds to
prosecute me guilty of this case. She has not answered my letters properly. She's trying to
say—she's threatened to say that she was going to have a mistrial because right before my
trial she said that she was going to—I was on the verge of having a mistrial while we
were picking the trial."

Valdez clarified the last remark referred to his attorney telling him before trial
"she was on the verge of just saying that she wanted to go for a mistrial." The court asked
how this affected his ineffective assistance claim, and Valdez responded: "[S]he has not
done anything that complied with anything that I have asked her to do for me." The court
asked for clarification as to "[w]hat specifically . . . she ha[d] not done that would render
her ineffective." He answered "she has not even stated the evidence, she has not given me
really evidence on any of this stuff. She has not given me a motion of discovery, a motion
of anything."

Defense counsel told the district court Valdez "received copies of the police
reports." Valdez agreed, saying: "That's it, that's all I've had." Defense counsel
responded, "Well, that would be the evidence, your Honor." The court sought more
clarification from Valdez:

"THE COURT: What specifically—what other evidence do you think—we've
been to a jury trial and the jury has convicted you beyond a reasonable doubt. All
evidence has been presented in open court. What is it that you think—

"THE DEFENDANT: She has not complied with none of my legal services. She
don't even come and visit with me about my stuff. She hasn't even tried to come over to
build a case for myself. Like she didn't even try to fight. She didn't even have an opening
for me."

28
 The court asked counsel if she had visited with Valdez. She responded she had not
since the trial and commented, "At that point there's not a lot I can do for him, your
Honor, we had a jury trial." When Valdez then said counsel only visited him three or four
times before trial, the court inquired of defense counsel:

"THE COURT: Ms. Effenbeck, I'd asked you that question. Did you see him
before the trial?

"MS. EFFENBECK: Yes. And the Court was here, the Court did the jury trial. I
was prepared for the jury trial, your Honor. The Court saw the evidence and saw what
happened with the jury. You know, I don't know that I could have changed the outcome
of this case."

Valdez then pointed out:

"THE DEFENDANT: Also at my preliminary we didn't even see the body cams
or anything. Aren't you supposed to reveal all of the evidence of body cams and
everything at your preliminary? We didn't see that at preliminary.

"THE COURT: Well, Mr. Valdez, I don't know where you're giving getting that
information from. There is no requirement that cameras or video be shown at any stage of
the proceeding. The State has the choice as to what evidence it presents in prosecuting
your case and then the defense can respond as it sees fit. But there is no requirement that
body cameras, video, anything be shown at preliminary hearing. In fact in Kansas the
State's prosecutors office could elect to not even have preliminary hearings, could use a
grand jury proceeding in which you would not have any ability to demand any of that. It
would simply be the police report being read by a police officer. That's one end of the
spectrum. And I don't know where you're getting this idea.

"THE DEFENDANT: I still believe I didn't have enough access to my attorney.

29
 "THE COURT: Okay. And Ms. Effenbeck has indicated that she visited you on
multiple occasions before the trial.

....

"THE COURT: Other than you believe her contact hasn't been sufficient and she
that has not given you the discovery, other than police reports,—

"THE DEFENDANT: I've called her number. She never answers her phone,
never. I've wrote letters. She never pretends to acknowledge any of my letters."

The court asked if there was "an issue with responding to letters," to which
counsel replied: "[M]ost of the letters aren't very constructive as you can imagine. So in
this regard I've written him back . . . and told him and explained to him that I can't file a
notice of appeal until after he's sentenced. I've gone through material like that."

The court then addressed Valdez, which led to a new complaint about defense
counsel's performance at the trial:

"THE COURT: Your attorney makes all the strategic decisions regarding how to
present the case. There are decisions you get to make, which is for example pleading not
guilty, whether you testify. But what motions to file, what evidence to present at the trial,
other than your testimony, that's the strategic decision of counsel.

"THE DEFENDANT: But she hasn't done none of that.

"MS. EFFENBECK: Your Honor, you were here for the jury trial. I participated,
I was prepared.

"THE DEFENDANT: She was not prepared and she over exaggerated, over
animated.

30
 ....

"THE COURT: What do you mean by that?

"THE DEFENDANT: Well, she was waving her hand, signaling and all that
stuff, you know what I'm saying?

....

"THE DEFENDANT: Like all that. And be honest too, be honest too, you guys
were all in cahoots, whatever. We had that little evidence thing. She wasn't even paying
attention to that.

"MS. EFFENBECK: I was writing my closing statement.

"THE COURT: What are you talking about?

"MS. EFFENBECK: When he accused the court reporter and the bailiff of—

"THE DEFENDANT: I didn't accuse, I seen it. I seen it.

"MS. EFFENBECK: Okay. When he said he saw the court reporter and the
bailiff tampering with the evidence."

After this exchange, the court ruled:

"There was no tampering. There is nothing there. It was just organizing exhibits, Mr.
Valdez. I haven't heard anything that would give rise to the counsel being removed from
the case. Mr. Valdez, everything the Court witnessed was that your attorney was
prepared, presented a good defense, a jury of unbiased individuals listened to the
evidence and found guilt beyond a reasonable doubt. It sounds like there may be some
misconception regarding what you are entitled to. If you want your own attorney you can
hire one and then you get to have more say in this situation possibly."
31
 This caused Valdez to assert he should have "every say so" in his case, to which
the court replied:

"[I]f you want to make every strategic decision you should have represented yourself.
Counsel is trained in the legal profession to make decisions and to strategically approach
your case. There are some decisions you and you alone can make, which I've gone over
those with you, but other than that the attorney is the one who's trained in the legal field
to make strategic decisions and to produce the evidence and prosecute the case as they
see fit."

Valdez replied that he had already "said [his] grounds," and the court ruled:

"I haven't heard sufficient grounds to have her withdrawn. I also don't see a need for
counsel to spend time post conviction. And preconviction it sounds like there was
sufficient preparation. The number of meetings though may not have been sufficient for
Mr. Valdez's liking but it was sufficient for the Court for competent counsel. And so for
that reason that portion of the motion is denied."

The court then moved to sentencing, during which defense counsel unsuccessfully
argued for a downward dispositional departure.

Before the panel, Valdez argued the trial court should have appointed new counsel
and held an evidentiary hearing at which he could present evidence of defense counsel's
deficiencies. But he also conceded new counsel likely would not have been necessary had
the court reviewed the claims and summarily denied them. His argument, though, is that
the colloquy transformed into an evidentiary hearing during which he was unrepresented
while the court "allowed appointed trial counsel to present evidence to rebut Mr. Valdez'
claims." He argued defense counsel "faced a conflict of interest and acted in her own self-
interest, by arguing and presenting evidence against" his interests. Valdez asked for
32
remand to the district court with instructions to appoint new counsel and conduct an
evidentiary hearing.

The panel disagreed. It reasoned the trial court properly discharged its duty to
inquire into potential conflict raised by the pro se motion, applying State v. Toothman,
310 Kan. 542, 448 P.3d 1039 (2019), and noting,

"The court asked a series of open-ended questions to understand Valdez' claim. Valdez
stated that his attorney had not visited him enough times, had not provided him with
evidence, had not complied with his wishes, and had not advocated fervently enough on
his behalf. The trial court asked Valdez' attorney several questions along the way, and she
informed the court that she had given Valdez copies of the police reports, had visited him
several times before the trial, and had replied to the letters that she had received from
him. The court found that Valdez' attorney had been well prepared, presented a good
defense, and adequately communicated with Valdez." Valdez, 2021 WL 1324023, at *5.

Discussion

A defendant's articulation of dissatisfaction with counsel triggers a district court's
duty to inquire into a potential conflict. See State v. Pfannenstiel, 302 Kan. 747, 760, 357
P.3d 877 (2015). This duty derives from the defendant's right to effective assistance of
counsel under the state and federal Constitutions. Toothman, 310 Kan. at 554. An
appellate court reviews a district court's inquiry about a defendant's dissatisfaction with
counsel for abuse of discretion. Toothman, 310 Kan. at 554.

As noted previously, an abuse of discretion occurs when judicial action is based on
an error of law or fact or is unreasonable. 310 Kan. at 554. An appropriate inquiry
requires the district court to investigate:

33
 "'(1) the basis for the defendant's dissatisfaction with counsel and (2) the facts necessary
for determining if that dissatisfaction warrants appointing new counsel, that is, if the
dissatisfaction is "justifiable."' But this inquiry does not require 'a detailed examination of
every nuance of a defendant's claim of inadequacy of defense and conflict of interest.'
Instead, '[a] single, open-ended question by the trial court may suffice if it provides the
defendant with the opportunity to explain a conflict of interest, an irreconcilable
disagreement, or an inability to communicate with counsel.' [Citations omitted.]" 310
Kan. at 554.

To obtain new counsel, a defendant must show justifiable dissatisfaction with
appointed counsel. Pfannenstiel, 302 Kan. at 759. To do that, the defendant may show "a
conflict of interest, an irreconcilable disagreement, or a complete breakdown in
communication between counsel and the defendant." 302 Kan. at 759-60. In Toothman,
the court held the trial court adequately inquired into the defendant's asserted discontent
with counsel when it investigated "the basis for his dissatisfaction and ask[ed the
defendant] an open-ended question to elicit additional facts." Toothman, 310 Kan. at 555.
The Toothman court noted that in resolving the complaint, the trial court expressed
confidence in defense counsel's judgment "but did not . . . simply assume she was correct.
On the contrary, the judge gave [the defendant] the last word and a full opportunity to
explain why he wanted new counsel." 310 Kan. at 555.

Here, the trial court gave Valdez an open-ended prompt to explain his ineffective
assistance allegation. Valdez told the court: he was unhappy with the level of
communication with defense counsel; he did not believe he had seen all the evidence; that
counsel was unprepared for trial; and he should have had more control over strategic
decisions. The court then explored each complaint in greater detail with both Valdez and
defense counsel. After doing so, it concluded there were insufficient grounds to remove
defense counsel, finding that her pretrial preparation and communication was "sufficient
for . . . competent counsel."
34
 Valdez does not appear to challenge the panel's conclusion that he had no right to
relief under Toothman. Instead, he argues only that his allegation of ineffective assistance
automatically created a conflict of interest with trial counsel, and by hearing defense
counsel's "evidence to rebut [his] claims" the district court deprived him of assistance of
counsel. He cites a portion of a concurring opinion in State v. Stovall, 298 Kan. 362, 380,
312 P.3d 1271 (2013) (Luckert, J., concurring), for the proposition that his and defense
counsel's interests were automatically in conflict. But this is not supported by that case
citation, and it is not a correct statement of law.

Neither an allegation of ineffective assistance nor defense counsel's participation
in the justifiable dissatisfaction inquiry alone—or in combination—requires appointment
of new counsel. See Pfannenstiel, 302 Kan. at 766 (holding inquiry into dissatisfaction
with counsel based on asserted ineffective assistance did not require appointment of
conflict-free counsel).

"Rather than require automatic substitution of counsel at the hint of a potential
conflict of interest, the United States Supreme Court has recognized that either a
defendant or defense counsel might raise a potential conflict as the basis for seeking new
counsel 'for purposes of delay or obstruction of the orderly conduct' of the proceedings.
Holloway v. Arkansas, 435 U.S. 475, 486, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). An
inquiry assures any delay is for good cause, thereby avoiding automatically delaying
proceedings by discharging the current counsel and appointing new counsel for all
motions seeking substitute counsel, regardless of the motion's merits." Pfannenstiel, 302
Kan. at 764.

When performing the justifiable dissatisfaction scrutiny "both the court and
defense counsel" must "walk a delicate line in making [that] inquiry." 302 Kan. at 766.
The judge must not improperly require disclosure of confidential communications, and

35
counsel may simply recount facts truthfully, but must not go "beyond factual statements
and advocat[e] against the client's position." 302 Kan. at 766. Otherwise, counsel's
responses may create a conflict of interest requiring new counsel. But the simple fact
there was a back-and-forth between counsel, the defendant, and the court does not
inevitably disqualify counsel and require a new attorney.

The Pfannenstiel court held the trial court properly rejected the defendant's claim
of ineffective assistance of counsel after an inquiry in which both the defendant and
defense counsel participated without a need for new counsel. 302 Kan. at 766. The
Pfannenstiel court observed defense counsel made two comments that "approached the
line of advocating against" the defendant's position: First, by making "an evaluative
statement regarding her strategy, indicating she felt Pfannenstiel's witnesses would not be
helpful and might undermine his testimony"; and second, by saying the defendant had
"'misunderstood some things'" she told him. 302 Kan. at 767. The Pfannenstiel court held
both comments were acceptable, reasoning the former concerned a strategic decision,
generally an appropriate area of inquiry; and the latter supported the defendant's
allegation that communications had broken down and was immediately followed by
counsel's request to grant defendant's motion. 302 Kan. at 767.

We hold the trial court did not err conducting this inquiry without appointing
substitute counsel to represent Valdez. His defense counsel largely gave only factual
responses during the colloquy but did offer some self-evaluation. She twice told the
district court she was "prepared" at trial and did not believe she could have changed the
outcome. She also told the court Valdez had "never been happy," and that his letters to
her were not "constructive." But these insignificant remarks did not require new counsel.

Convictions affirmed in part and reversed in part, and sentence vacated in part.

36
 ***

STEGALL, J., concurring: The majority badly misreads and misapplies our recent
decision in State v. Holder, 314 Kan. 799, 502 P.3d 1039 (2022). The majority cites to
Holder for the proposition that "the permissive inference instruction given at Valdez' trial
was legally inappropriate." Slip op. at 11. But Holder never held that a permissive
inference instruction based on PIK Crim. 4th 57.022 (2013 Supp.) (the instruction at issue
both here and in Holder) was legally inappropriate, and the majority is simply wrong to
suggest otherwise. The entire relevant passage from Holder is as follows:

"These definitions tell us Holder has a point when he complains about the
apparent discrepancy between the permissive inference instruction given in his case and
K.S.A. 2020 Supp. 21-5705(e)(1)'s rebuttable presumption of an intent to distribute if any
person possesses 450 grams or more of marijuana. Applying the definitions adopted in
Harkness, the statutory rebuttable presumption means that once the State proved
possession of 450 grams or more of marijuana, the jury must infer Holder's intent to
distribute unless he proved otherwise. This suggests some burden shifting, although the
operative impact in a given case would depend on the jury instructions as a whole. See
State v. Wimbley, 313 Kan. 1029, 1039, 493 P.3d 951 (2021) (when addressing a
challenged instruction's legal appropriateness, an appellate court does not view the
instruction's language in isolation but considers all the jury instructions as a whole).

"The panel correctly noted the instruction given to the jury 'conforms to the
instruction required under PIK Crim. 4th 57.020 . . . .' Holder, 2020 WL 6108359, at *6.
But that misses the point because it ignores what K.S.A. 2020 Supp. 21-5705(e) specifies.
And our law is clear that 'an instruction must always fairly and accurately state the
applicable law, and an instruction that does not do so would be legally infirm.' Plummer,
295 Kan. at 161.

"A rebuttable presumption has a different legal effect than a permissive
inference. Harkness, 252 Kan. 510, Syl. ¶¶ 13-14. This means that even if we consider
37
 the jury instructions as a whole, we cannot hold they fairly and accurately reflect the
applicable law specified by K.S.A. 2020 Supp. 21-5705(e), when measured narrowly
against that statute.

"But aside from that, we also should consider more broadly whether the
instruction—framed as it was as a permissive inference—was nevertheless legally
appropriate. To do this, we view the instructions as a whole to determine '"whether it is
reasonable to conclude that they could have misled the jury."' Wimbley, 313 Kan. at 1035
(quoting State v. Liles, 313 Kan. 772, 780, 490 P.3d 1206 [2021]). Instructions fail their
purpose if they omit words that may be considered essential to providing the jury with a
clear statement of the law. State v. Andrew, 301 Kan. 36, 42-43, 340 P.3d 476 (2014).

"In general, a jury may infer intent from '"acts, circumstances, and inferences
reasonably deducible therefrom."' State v. Ross, 310 Kan. 216, 224, 445 P.3d 726 (2019)
(quoting State v. Barnes, 293 Kan. 240, 264, 262 P.3d 297 [2011]). In this context, a
defendant's possession of a large quantity of narcotics certainly may support an inference
that the defendant intended to distribute the narcotic. See 1 Jones on Evidence § 5:42 (7th
ed.). But here the instructed permissive inference was not only unmoored from any
statutory basis, its 450-gram threshold had no connection to the evidence. Said
differently, the jury was simply told out of left field that Holder's possession of 'more
than 450 grams' of marijuana could support an intent-to-distribute inference—even
though the evidence showed a much larger quantity and no other evidence explained why
a 450-gram threshold to trigger this permissive inference was important to anything about
the case." Holder, 314 Kan. at 805-07.

There is nothing in this passage I disagree with. Let's recapitulate the analysis one
step at a time. First, the Holder court says a jury instruction must fairly and accurately
state the law. Second, the court says that PIK Crim. 4th 57.022 does not accurately reflect
K.S.A. 2020 Supp. 21-5705(e)(1) because while the statute includes a rebuttable
presumption, the PIK instruction only describes a permissible inference. So Holder

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deduced that "when measured narrowly against that statute" the permissive inference
instruction does not fairly and accurately state the law. 314 Kan. at 806.

But then, thirdly, the Holder court continued its analysis. We went on to "consider
more broadly whether the instruction—framed as it was as a permissive inference—was
nevertheless legally appropriate." 314 Kan. at 806. Why do that if we already decided the
PIK instruction did not accurately reflect the statute? The answer is that we recognized
that permissive inferences are perfectly legal and acceptable in criminal trials regardless
of whether a rebuttable presumption is on the books. In fact, such inferences, when
reasonable, are the operative principle of circumstantial evidence and are generally the
only way juries may use such evidence in criminal trials. See State v. Kriss, 232 Kan.
301, 304-05, 654 P.2d 942 (1982) ("Because [a] permissive [inference] leaves the trier of
fact free to credit or reject the inference and does not shift the burden of proof, it affects
the application of the 'beyond a reasonable doubt' standard only if, under the facts of the
case, there is no rational way the trier could make the connection permitted by
the inference. For only in that situation is there any risk that an explanation of the
permissible inference to a jury, or its use by a jury, has caused the presumptively rational
factfinder to make an erroneous factual determination.").

We said as much in Holder by explaining that the PIK permissive inference
instruction might be "nevertheless legally appropriate" because "a defendant's possession
of a large quantity of narcotics certainly may support an inference that the defendant
intended to distribute the narcotic." 314 Kan. at 806. So fourthly, in Holder, we
proceeded to analyze the permissive inference instruction given in that case
independently of K.S.A. 2020 Supp. 21-5705(e)(1). And in so doing, we found the
instruction to be error not because it was legally inappropriate (in fact we said the
opposite—that depending on the evidence it may be a correct statement of the law), but
rather because it was factually inappropriate. That is, we held that because the instruction
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did not match the evidence in the case, it was error to give it. That is a holding on factual
appropriateness.

We ought to follow the same analytical path in today's case. But the majority
chooses to simply say the instruction is legally inappropriate because it misstates the law.
This mystifies me as it throws into doubt a bedrock principle of how juries may consider
evidence. Does this mean a jury is no longer permitted to draw reasonable inferences
about intent from the amount of illegal drugs possessed by a defendant? If a prosecutor
tells a jury it may infer a defendant intended to sell drugs due to the large quantity in
evidence, does that prosecutor commit error for misstating the law?

Instead of sowing such confusion, we ought to ask if the permissive inference
instruction—standing alone—is a correct statement of the law. That is what we did in
Holder. Clearly, it is. We know this because permissive inferences are always lawful so
long as the facts make such inferences reasonable. We know that a prosecutor telling a
jury it is permitted to draw reasonable inferences from the evidence is not prosecutorial
error for misstating the law. See State v. Timley, 311 Kan. 944, 951, 469 P.3d 54 (2020)
("[W]e find it unnecessary to require the prosecutor to include the unspoken, but implicit,
disclaimer inherent in all opening arguments, i.e., 'If you look at the evidence,
a reasonable inference is that . . .'").

If I say "apples and bananas are fruit" and you reply "bananas are fruit," you have
not contradicted me. In the same way, if the Legislature says "a jury should presume
intent" and the trial judge says "a jury is permitted to infer intent," there is no
contradiction. Just as a banana remains a fruit regardless of whether an apple is also a
fruit, so too a permitted inference remains lawful even in the face of a statute declaring a
presumption to also be lawful.

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 The majority is correct that in the present case Valdez failed to properly raise a
factual appropriateness challenge to this instruction. Consequently, I would hold that the
permissive inference instruction was legally appropriate and there was no error. State v.
Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (issue not briefed is deemed waived or
abandoned).

LUCKERT, C.J., joins in the foregoing concurrence.

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