Failure to give jury instruction on non-exclusive possession of a vehicle requires new trial.

 Randall Hodgkinson and Washburn student intern (now Wichita PD) Daniel Beall-Hall won in State v. Douglas, No. 122,583 (Kan. App. Aug. 6, 2021)(unpublished), obtaining a new trial in a Reno County prosecution for possession of methamphetamine and possession of drug paraphernalia. The case arose in 2017 when a deputy stopped Mr. Douglas for speeding. Mr. Douglas was driving a truck that belonged to a contractor he worked for, which four or five other employees also regularly drove. While searching the truck the deputy found a clear pill containing methamphetamine as well as a spoon and syringe. The deputy would testify at trial that he saw the pill fall from Mr. Douglas’ pocket, while Mr. Douglas would testify that there was no pill in his pocket at all. Consistent with his defense that the pill and paraphernalia belonged to one of the other users of the truck, Mr. Douglas requested a jury instruction on non-exclusive possession of the vehicle (See PIK Crim. 4th 57.040), which the district court denied. The COA found the failure to give the instruction was erroneous:

A criminal defendant generally is entitled to an instruction on the law applicable to his or her theory of defense if the instruction would be both legally and factually appropriate. State v. Dupree, 304 Kan. 377, 397, 373 P.3d 811 (2016). Douglas' sole defense at trial was that the methamphetamine and drug paraphernalia found in the truck must have belonged to another person with access to the truck. Based on the record before us, Douglas' requested instruction on nonexclusive possession was legally and factually appropriate and the district court erred by failing to give the instruction.

In finding the error required a new trial, the COA emphasized the factual dispute over where the pill was located:

Douglas' entire defense at trial was that the methamphetamine and drug paraphernalia found in the truck must have belonged to another person with access to the truck, and there was evidence at trial that supported this defense. Douglas had a right to receive his requested jury instruction on nonexclusive possession of the vehicle, and we conclude the State has failed to meet its burden of showing that the instructional error was harmless.

[Update: the state did not file a PR and the mandate issue on September 15, 2021.]

No evidence of provocation to support attempted manslaughter conviction

Peter Maharry won in State v. Boldridge, No. 121,942 (Kan. App. August 13, 2021)(unpublished), obtaining reversal in a Atchison County attempted voluntary manslaughter prosecution. The prosecution stemmed from an Atchison police officer's investigation of potential theft of services and the resultant exchange of gunfire between between Mr. Boldridge and the officer.  In particular, Mr. Boldridge argued that there was no evidence in the record to support a finding of provocation  required for the form of attempted voluntary manslaughter as the jury was instructed. Mr. Boldridge argued that he could not have been acting with legally sufficient provocation because he was reacting to an attempt to make an arrest, which cannot be lawfully resisted, even if the arrest itself is unlawful. The COA reluctantly agreed:

We find Boldridge's argument is correct even if the result it mandates feels wrong. Generally, the existence of legally sufficient provocation would make Boldridge's actions less culpable, i.e., the jury could convict him of attempted voluntary manslaughter as opposed to attempted second-degree murder. But, the jury had the option to convict Boldridge of attempted second-degree murder and declined to do so. Its verdict, therefore, stands or fails based on the sufficiency of the evidence for attempted voluntary manslaughter. Our role is to resolve issues of law, not questions of fact or matters of equity. Here, an essential element of the offense—legally sufficient provocation—is lacking.

The COA rejected the state's primary claim that Mr. Boldridge was barred from raising this issue because it was invited error. Recognizing that there is a difference between an instructional issue and a sufficiency issue, the COA reiterated that the state has to prove every element of the charged crime, regardless of the requested instructions. As a result, the COA reversed the attempted voluntary manslaughter conviction.

[Update: the state did not file a PR and the mandate issued on September 21, 2021.]