                         NOT DESIGNATED FOR PUBLICATION

                                            No. 120,659

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                        ADRIAN STEWART,
                                           Appellant.


                                  MEMORANDUM OPINION

       Appeal from Geary District Court; MARITZA SEGARRA, judge. Opinion filed March 20, 2020.
Affirmed.


       Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.


       Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.


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


       PER CURIAM: Adrian Stewart admitted during a traffic stop the marijuana in his
possession was his and he was taking it back to South Carolina to sell it. He now appeals
his conviction of possession with intent to distribute marijuana, arguing the district court
erred by not instructing the jury on simple possession of marijuana, which is a lesser
included offense of possession with the intent to distribute. The State responds the lesser
included offense instruction was factually inappropriate. The State's argument is
persuasive. Finding no error by the district court, we affirm.




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                                          FACTS

       On November 17, 2016, Highway Patrol Trooper Derek Carr stopped Stewart for
driving 80 miles per hour on I-70 where the speed limit was 75 miles per hour. While
Carr collected Stewart's license and proof of insurance, he started a conversation with
Stewart and his passenger to learn about their travel plans. They informed Carr they were
traveling home to South Carolina. During the conversation, Carr smelled raw marijuana
coming from the interior of the car.


       Carr ran the license information and prepared the speeding ticket. Carr then
returned to the car and asked Stewart and his passenger to get out of the car. He informed
Stewart he smelled marijuana and was conducting a probable cause search of the car.


       During the search, Carr located a business card related to marijuana sales and 10
vacuum-sealed bags of marijuana. After finding the marijuana, Carr tried to place Stewart
under arrest. Stewart slapped down Carr's hands and ran away. Following Stewart's lead,
the passenger also fled.


       Stewart and the passenger were apprehended about an hour later. Carr read
Stewart his rights under Miranda v. Arizona, 384 U.S. 437, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966), and Stewart waived his rights and agreed to talk. Stewart informed Carr he
had bought the marijuana for $9,000 in Colorado and was taking it to Charleston, South
Carolina, to sell it.


       Carr field tested the bags and confirmed they contained marijuana. The bags were
then sent to the Kansas Bureau of Investigation (KBI) for testing, where each bag tested
positive for marijuana containing tetrahydrocannabinol. Stewart was charged with
possession of marijuana with the intent to distribute and interference with a law
enforcement officer for running off.


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       At trial, Carr testified about the traffic stop and related events including Stewart's
postarrest statements. The KBI forensic scientist testified the bags contained marijuana
with tetrahydrocannabinol. Stewart testified in his defense and admitted to possessing the
large quantity of marijuana. He also admitted to all the evidence against him.


       At the end of the evidence, Stewart requested a jury instruction for the lesser
included offense of simple possession of marijuana. The State objected, stating the
instruction was factually inappropriate. The district court agreed with the State and
refused to instruct the jury on the lesser included offense.


       The jury convicted Stewart of possession of marijuana with intent to distribute and
interference with law enforcement. The district court sentenced Stewart to a controlling
sentence of 98 months in prison. The district court then granted a downward dispositional
departure to 36 months of probation.


                                                ANALYSIS


       Stewart's only argument on appeal is the district court erred in not granting his
request for the lesser included instruction.


               "When analyzing jury instruction issues, we follow a three-step process:


       "'(1) determining whether the appellate court can or should review the issue, i.e., whether
       there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
       considering the merits of the claim to determine whether error occurred below; and (3)
       assessing whether the error requires reversal, i.e., whether the error can be deemed
       harmless.' [Citation omitted.]" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).


       "Our first and third steps are interrelated in that whether a party has preserved a
jury instruction issue will affect our reversibility inquiry at the third step." State v. Bolze-


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Sann, 302 Kan. 198, 209, 352 P.3d 511 (2015). At the second step, we "'consider whether
the subject instruction was legally and factually appropriate, employing an unlimited
review of the entire record. McLinn, 307 Kan. at 318.


       The record reflects Stewart requested the lesser included instruction of simple
possession. Therefore, the issue was preserved, and we will review the district court's
decision for harmlessness; otherwise, Stewart would have the burden to show the
decision was clearly erroneous. See 307 Kan. at 318.


       A lesser included offense is legally appropriate when "all elements of the lesser
crime are identical to some of the elements of the crime charged." K.S.A. 2019 Supp. 21-
5109(b)(2). The elements of a crime are determined by general principles of criminal
liability and by the language of statutes which criminalize specific actions. See generally,
K.S.A. 2019 Supp. 21-5102 (crimes defined).


       To convict Stewart of possession with intent to distribute in violation of K.S.A.
2019 Supp. 21-5705(a)(4), the State had to prove Stewart: (1) possessed marijuana; (2)
with the intent to distribute; (3) on or about November 17, 2016; (4) in Geary County,
Kansas. By contrast, to convict Stewart of simple possession in violation of K.S.A. 2019
Supp. 21-5706(b)(3), the State would have had to prove Stewart: (1) possessed
marijuana; (2) on or about November 17, 2016; (3) in Geary County, Kansas.


       Simple possession in violation of K.S.A. 2019 Supp. 21-5706(b)(3) is a legally
appropriate lesser included offense because all of its elements are identical to some of the
elements of possession with intent to distribute in violation of K.S.A. 2019 Supp. 21-
5705(a)(4). Possession with intent to distribute merely adds one additional element to the
crime of simple possession—the intent to distribute.




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       "Generally, a defendant is entitled to instructions on the law applicable to his or her
       defense theory if the evidence suffices for a rational factfinder to find for the defendant
       on that theory. If that defendant requests an instruction at trial, the court must view the
       evidence in the light most favorable to the defendant. This court examines jury
       instructions as a whole, without focusing on any single instruction, to determine whether
       they properly and fairly state the applicable law or whether it is reasonable to conclude
       that they could have misled the jury. Murrin, 309 Kan. at 391-92." State v. Claerhout,
       310 Kan. 924, 936, 453 P.3d 855, 863-64 (2019).


       Here, Carr and the KBI forensic chemist testified the quantity of marijuana in the
bags exceeded 6 pounds, more than 2,700 grams. K.S.A. 2019 Supp. 21-5705(e)(1)
establishes a rebuttable presumption that quantities of marijuana over 450 grams are
possessed with intent to distribute. The jury was instructed on this presumption. Stewart
testified in front of the jury that Carr's evidence was accurate. Carr testified Stewart
admitted he was taking the marijuana to South Carolina to sell it. Under these facts, even
when considered in a light most favorable to Stewart, there was no evidence presented for
a rational fact-finder to find Stewart was in simple possession of the marijuana and not in
possession with the intent distribute, i.e., sell when he arrived back in Charleston, South
Carolina. The lesser included offense was factually inappropriate under these facts.


       Even if it were error to exclude the lesser included offense instruction, the error
was harmless beyond a reasonable doubt.


       "The United States Supreme Court held that 'before a federal constitutional error can be
       held harmless, the court must be able to declare a belief that it was harmless beyond a
       reasonable doubt.' Chapman, 386 U.S. at 24. The Court explained that this means that the
       'beneficiary of [the] constitutional error . . . [must] prove beyond a reasonable doubt that
       the error complained of did not contribute to the verdict obtained.' Chapman, 386 U.S. at
       24." State v. Ward, 292 Kan. 541, 556, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221
       (2012).




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Because the intent to distribute was so clearly and obviously proven to the jury, any
possible error would be harmless beyond a reasonable doubt. When viewed in a light
most favorable to Stewart, the evidence here does not support the jury being instructed on
the lesser included offense of simple possession of marijuana. He admitted he bought the
six plus pounds of marijuana in Colorado with the intent to distribute it in South Carolina.


       Affirmed.




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