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 Aug. 6, 2021)(unpublished), obtaining a new trial in a Reno County prosecution for possession of methamphetamine and possession of drug paraphernalia.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.]