                         NOT DESIGNATED FOR PUBLICATION

                                            No. 120,197

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                     NORMAN RAY HARRIS,
                                         Appellant.


                                  MEMORANDUM OPINION


       Appeal from Crawford District Court; LORI BOLTON FLEMING, judge. Opinion filed March 27,
2020. Affirmed.


       Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.


       Michael Gayoso Jr., county attorney, and Derek Schmidt, attorney general, for appellee.


Before WARNER, P.J., POWELL, J., and LAHEY, S.J.


       PER CURIAM: Norman Ray Harris was convicted by a jury of his peers of
unlawful possession of a controlled substance and possession of drug paraphernalia.
Harris now appeals, claiming the district court erred by denying his motion to suppress.
He also claims the district court improperly instructed the jury on the definition of
"recklessly." After a careful review of the record, we find no reversible error on the part
of the district court and affirm Harris' convictions.




                                                  1
                       FACTUAL AND PROCEDURAL BACKGROUND


      Corporal Quentin Turner of the Pittsburg Police Department was on patrol in the
early morning hours of May 25, 2017. Due to a recent burglary at the Shamrock Mini
Storage, officers periodically checked this property. At approximately 2:30 a.m., Turner
observed a truck parked in front of an open storage unit; the truck's hood was open, and
two people were standing by the truck—Tonya Denman-Johnson at the rear and Harris
by the driver's door. Turner parked near the truck and approached Johnson, identified
himself, and explained that he stopped because of the recent burglary. He asked Johnson
for her identification; Johnson walked out to meet him, stated she owned the storage unit,
showed Turner the unit's lock and key, and said she was removing blankets. However,
Turner did not observe any blankets. Johnson provided her driver's license, and Turner
confirmed her identity through dispatch.


      Turner then asked Johnson for Harris' name; she identified him as Floyd Harris.
Turner asked Harris to come to the back of the truck, and Harris provided the same name.
Although he could not produce identification, Harris gave Turner a date of birth. When
dispatch found no results, Harris said he was from Michigan. Dispatch again found no
results. Harris eventually gave his real name and provided his social security number and
correct date of birth. He explained to Turner that he gave false information because he
had outstanding arrest warrants. Dispatch confirmed Harris' identity and found two
outstanding arrest warrants. Turner arrested Harris and, while searching him, found a
small pipe in his pocket containing a residue Turner believed, and which Harris stated,
was methamphetamine. Jeffrey Ryder, a forensic scientist with the KBI, subsequently
confirmed the residue to be methamphetamine.


      The State charged Harris with unlawful possession of a controlled substance and
possession of drug paraphernalia. Harris sought to suppress the pipe and drug residue
evidence, arguing Turner had seized Harris without probable cause. At the motion to


                                            2
suppress hearing, Turner testified he did not draw his weapon, use his emergency lights,
speak in a harsh or commanding tone or threaten, intimidate, or physically restrain
anyone; and neither Johnson nor Harris attempted to leave. The district court denied
Harris' motion, finding the encounter voluntary based on the factors listed in State v.
Young, 37 Kan. App. 2d 700, 157 P.3d 644 (2007). Alternatively, the district court found
Turner had reasonable suspicion to investigate due to Johnson and Harris' presence at the
storage unit in the early morning hour and the prior burglary.


       At trial, Turner and Ryder testified, and the parties presented evidence. At the
close of evidence, the district judge read jury instruction 8, which defined "intentionally,"
"knowingly," and "recklessly." The judge also read jury instructions 10 and 11, which
described the elements of each crime but did not include the term "recklessly." A jury
convicted Harris on both counts.


       Harris timely appeals.


                                         ANALYSIS


       Harris raises two points of error on appeal. First, he claims the district court erred
by denying his motion to suppress. Second, he claims the district court committed clear
error by incorrectly defining "recklessly" in jury instruction 8. We will address each point
in order.


I.     DID THE DISTRICT COURT ERR IN REFUSING TO SUPPRESS THE EVIDENCE?


       Harris first argues the district court wrongly concluded his encounter with law
enforcement was a voluntary one and Turner's search and seizure of him was supported
by probable cause. Harris asserts Turner's multiple displays of authority indicated he was
not free to leave. Harris also argues Turner lacked probable cause to detain him, claiming


                                              3
probable cause evaporated when Johnson stated she was removing blankets and showed
Turner the storage unit's lock and key.


       A.     Harris preserved his objection to the admission of the State's evidence.


       The State's first response to Harris' argument is that he failed to preserve this issue
on appeal, claiming Harris' continuing objection during voir dire instead of during the
presentation of evidence was insufficient. The State argues Harris prematurely requested
his continuing objection at voir dire; he should have waited until the district court swore
in the jury and the parties presented evidence. Because he did not, the State claims the
request was untimely, making the issue not properly before us.


       "Preservation is [a] question of law subject to plenary review." State v. Campbell,
308 Kan. 763, 770, 423 P.3d 539 (2018). To preserve an argument for appeal, a party
must make a timely and specific objection on the record. K.S.A. 60-404. "[A] pretrial
objection must be contemporaneously renewed during trial or preserved through a
standing objection." State v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352 (2010). The
purpose of this contemporaneous objection rule is to provide the trial court the
opportunity to avoid error by prohibiting improper evidence. State v. Parker, 277 Kan.
838, 845, 89 P.3d 622 (2004). As the materiality of a piece of evidence may become
apparent only after the admission of other evidence, courts should wait until the evidence
is offered to determine admissibility. See State v. Holman, 295 Kan. 116, 126, 284 P.3d
251 (2012), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332
(2016). A district court satisfies the contemporaneous objection rule's purpose by
granting a continuing objection and can avert error by excluding improper evidence. See
Parker, 277 Kan. at 845.


       The question arises that if a party must renew an objection at trial, when does trial
begin? The State asserts voir dire is not part of a trial. K.S.A. 2019 Supp. 22-3405(a)


                                              4
suggests: "The defendant in a felony case shall be present . . . at every stage of the trial
including the impaneling of the jury and the return of the verdict." Our Supreme Court
has noted: "As used in this statute, 'impaneling of the jury' means jury selection." State v.
Baker, 249 Kan. 431, 442, 819 P.2d 1173 (1991). If a trial includes impaneling the jury
and impaneling includes jury selection, then a party who requests a continuing objection
during voir dire does so during trial. Harris objected before the State introduced its
evidence. Harris' objection allowed the district court to consider whether to exclude the
State's evidence at the trial scheduled later that day. The district court fulfilled the
contemporaneous objection rule's purpose by granting Harris a continuing objection
during voir dire. Harris preserved his challenge to the admission of the State's evidence.


       B.     Turner did not violate Harris' Fourth Amendment rights.


       Harris primarily contends the district court erred in denying his motion to
suppress. When a district court denies a motion to suppress, we review the factual
underpinnings for substantial competent evidence and the ultimate legal conclusion de
novo. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). For substantial
competent evidence, a court reviews the evidence in a light most favorable to the
prosecution. "'Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or
make witness credibility determinations.'" State v. Chandler, 307 Kan. 657, 668, 414 P.3d
713 (2018).


       The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights protect individuals from unreasonable searches and seizures.
Thompson, 284 Kan. at 772. "A seizure occurs when there is a 'show of authority which,
in view of all the circumstances surrounding the incident, would communicate to a
reasonable person that he or she is not free to leave and the person submits to the show of
authority.'" State v. Smith, 286 Kan. 402, 406, 184 P.3d 890 (2008). A seizure may result
when a person interacts with a law enforcement officer; whether a seizure arises depends


                                               5
on the type of interaction. There four types of citizen-law enforcement encounters:
consensual or voluntary encounters; investigatory detentions; public safety stops; and
arrests. State v. Andrade-Reyes, 309 Kan. 1048, 1052, 442 P.3d 111 (2019). Only the
voluntary encounter and investigatory detention are relevant here.


       A voluntary encounter is not a seizure under the Fourth Amendment. State v.
Andrade-Reyes, 309 Kan. 1048, Syl. ¶ 2. But an investigatory detention is a seizure that
must be supported by a "reasonable suspicion the person 'is committing, has committed
or is about to commit a crime.' K.S.A. 22-2402(1)." State v. Martinez, 296 Kan. 482, 488,
293 P.3d 718 (2013). "Reasonable suspicion means a particularized and objective basis
for suspecting the person stopped is involved in criminal activity." State v. Thomas, 291
Kan. 676, Syl. ¶ 9, 246 P.3d 678 (2011). Reasonable suspicion is determined from the
view of an objective officer. 291 Kan. 676, Syl. ¶ 10.


       To differentiate a voluntary encounter from an investigatory detention—that is,
whether a person has been seized—we consider whether, "under the totality of the
circumstances, the law enforcement officer's conduct conveys to a reasonable person that
he or she was free to refuse the requests or otherwise end the encounter." Thompson, 284
Kan. at 775. However, that line is not always clear. Young, 37 Kan. App. 2d at 704. To
demarcate that line, our court set forth a nonexhaustive list of factors indicative of a
seizure: "activation of sirens or flashers, a command to halt, a display of weapons, or an
attempt to control the suspect's ability to flee or the direction of travel during a chase."
Young, 37 Kan. App. 2d at 713. We look to these factors as a whole; the presence or
absence of an individual factor is not determinative. See Thompson, 284 Kan. at 811.


       The Kansas Supreme Court has discussed additional relevant factors. Those
tending to show a voluntary encounter include "knowledge of the right to refuse, a clear
communication that the driver is free to terminate the encounter or refuse to answer
questions, return of the driver's license and other documents, and a physical


                                               6
disengagement before further questioning." 284 Kan. at 811. Other factors tend to show a
seizure, such as


       "the threatening presence of several officers, the display of a weapon by an officer, some
       physical touching of the person, the use of aggressive language or tone of voice
       indicating that compliance with an officer's request is compulsory, the prolonged
       retention of a person's personal effects such as identification, a request to accompany the
       officer somewhere, interaction in a nonpublic place, absence of other members of the
       public, or the display of emergency lights." 284 Kan. at 811.


       The time frame of the encounter can also indicate a seizure. See State v. Williams,
297 Kan. 370, 380, 300 P.3d 1072 (2013) (defendant walking alone on deserted street's
sidewalk at 2:30 a.m. was relevant factor). Finally, an officer's subjective intent in
stopping a person is relevant only if the person is made aware of that intent. See State v.
McGinnis, 290 Kan. 547, 555, 233 P.3d 246 (2010).


       The interaction between Turner, Johnson, and Harris had at least three phases:
Turner's questioning of Johnson, Turner's questioning of Harris, and dispatch's
confirmation of Harris' warrants. A different type of encounter may attach to each phase.
For example, during the third phase, Turner had probable cause to arrest Harris based on
the outstanding arrest warrants. The question is whether Turner violated Harris' Fourth
Amendment rights before the arrest.


       The first phase—questioning Johnson—lasted from Turner's initial contact to his
running her name for a warrant check. The district court, when applying the Young
factors to Harris, found they all weighed in favor of a voluntary encounter. The more
expansive Thompson factors also point towards a voluntary encounter. Turner was the
only officer at the scene. He did not draw his weapon or touch Johnson. He did not use an
aggressive tone or language, and he did not retain Johnson's license for a prolonged
period. Nor did Turner turn on his emergency lights or request that Johnson accompany


                                                    7
him anywhere. The stop occurred in a public space even though it was on private
property.


       Other factors run against a voluntary encounter. There is no indication Johnson or
Harris knew they could refuse Turner's requests for information, and Turner never told
them they could refuse. The stop occurred at 2:30 a.m. with no one else present. While
Turner may have conveyed his subjective intent for initiating the encounter—at trial
Turner stated he stopped to identify Johnson and Harris—he did not suspect them of
committing a crime. But Turner approached them because of the prior burglary at the
storage facility; his intent in stopping them was presumably to determine whether they
were burglarizing the storage unit. Turner conveyed this intent to Johnson when he
mentioned the past burglary and asked for her identification.


       Weighing these factors, we find the encounter was voluntary. Turner did not
exhibit his authority, nor did the circumstances indicate a reasonable person would not
feel free to leave. Because of the time of the stop and the absence of other factors, the
detention was not investigatory. Turner communicated his subjective intent by
mentioning the prior burglary to Johnson before requesting her identification, but an
investigative detention surely does not arise every time an officer discloses his or her
purpose for talking with a person.


       In State v. Walker, 292 Kan. 1, 8, 251 P.3d 618 (2011), the Kansas Supreme Court
concluded an officer seized a man by conveying his subjective intent. There, a man
approached a police officer because a thief had recently burglarized his truck. The man
described the thief as a black man wearing a black shirt and shorts who left heading east.
The officer drove east and saw the defendant, who matched that description, sitting at a
bus stop. The officer approached the defendant, stated he fit the thief's description, and
asked for identification. The Kansas Supreme Court held this constituted an investigatory
detention: the officer approached the defendant to determine whether the defendant was


                                              8
the thief, the officer communicated that intention, and he requested the defendant's
identification. 292 Kan. at 7-8.


       In certain respects, this case is like Walker. Turner approached Johnson to
determine why she was at the storage unit so early; he mentioned the previous burglary
and he requested her identification. But unlike Walker, Turner was not investigating a
crime that had just occurred; he was checking on the property based on a previous crime.
And his mentioning the prior burglary conveyed the reason he stopped more than it
communicated a suspicion Johnson was burglarizing the storage unit.


       If this were an investigatory detention, reasonable suspicion made it lawful.
Turner knew of a prior theft at the self-storage facility. And he saw a truck parked in
front of and two people standing by an open storage unit at 2:30 a.m. Turner had a
particularized and objective basis for stopping. A few dynamics changed during the
second phase—the questioning of Harris. The second phase was largely a continuation of
the first; apart from running Johnson's name through dispatch, there was no physical
disengagement. On one hand, this may indicate a continuation of the type of interaction
preceding it; however, the absence of an interruption may also indicate a voluntary
encounter has turned into an investigatory detention. See generally Thompson, 284 Kan.
at 811 (officer’s physical disengagement before further questioning of suspect suggestive
of voluntary encounter). Turner's requests towards Harris (to come to the back of the
truck, to provide and clarify his identification, etc.) do not indicate a detention. Finally,
unlike with Johnson, no evidence indicates Harris knew Turner's subjective intent for
stopping them. Though Harris was standing on the other side of the truck during the first
phase, no evidence indicates whether Harris overheard Turner's explanation. But it would
be a reasonable inference to presume Harris knew of Turner's intent. All other factors
remained the same.




                                               9
       Harris argues the stop became a seizure when Turner "commanded Mr. Harris to
come to his location at the back of the truck and required Mr. Harris to remain there
while he was asked questions about his identity and while the officer ran warrant checks."
But Harris overstates the evidence. Turner testified he did not use a harsh or commanding
tone. Nor does running a name through dispatch indicate Turner required Harris to
remain, particularly because Harris only provided verbal information, not an
identification card. Given that only Turner testified about what happened, under a
substantial competent evidence standard, Turner's description controls.


       We conclude the second phase remained a voluntary encounter. Turner made no
show of authority towards Harris, and his shift to questioning Harris continued the first
stage's voluntary encounter. Even if Harris knew Turner was questioning him because of
the prior burglary, that does not necessarily communicate a subjective belief Harris was
committing a crime.


       Harris attempts to analogize his case to State v. Grace, 28 Kan. App. 2d 452, 458,
17 P.3d 951 (2001), where a panel of our court held a voluntary encounter transformed
into an investigatory detention when officers took and retained the defendant's
identification for 25 minutes while running a warrant check. But unlike Grace, Turner
did not take anything from Harris, nor is there evidence about how long Turner
questioned Johnson and Harris. Grace is not instructive. Even if questioning Harris
became an investigative detention, Turner still had reasonable suspicion. The same facts
supporting reasonable suspicion to question Johnson apply to Harris. But Johnson gave a
reasonable explanation for her and Harris' presence at the storage unit—they were
removing blankets from her rental, and she showed Turner the lock and key. This shows
they were not burglarizing the unit and satisfied Turner's reason for stopping. Although
Turner stated he did not question Johnson's explanation, an officer does not need to
accept a person's explanation. See generally State v. Schooler, 308 Kan. 333, 347, 419
P.3d 1164 (2018) (noting "disconnect between the driver's explanations and the vehicle


                                            10
documentation available on the scene warranted additional inquiries"). Turner did not
observe any blankets, and, apart from the lock and key, Johnson did not prove it was her
storage unit. And given the prior burglary, Harris and Johnson may have intended to
burglarize another storage unit. Although these reasons are much weaker, they support
reasonable suspicion to question Harris.


       Turner did not unreasonably seize Harris. Based on the Thompson factors, Harris'
interaction was voluntary. Alternatively, Turner had reasonable suspicion to believe
Harris was committing a crime. The district court did not err by denying Harris' motion to
suppress.


II.    WAS THE DISTRICT COURT'S JURY INSTRUCTION ON THE DEFINITION OF
       "RECKLESSLY" CLEAR ERROR?


       For his last point, Harris challenges the inclusion of the definition of "recklessly"
in jury instruction 8 because the charged crimes require a higher mens rea. The State
charged Harris with unlawfully possessing methamphetamine and unlawfully possessing
drug paraphernalia with the intent to use. Jury instructions 10 and 11, which were taken
from PIK Crim. 4th 57.040 (2018 Supp.) and PIK Crim. 4th 57.100 (2015 Supp.),
respectively, define "possession" as intent or knowledge. But jury instruction 8, taken
from PIK Crim. 4th 52.010 (2015 Supp.), addresses culpable mental states generally and
defined "recklessly" in addition to "intentionally" and "knowingly." The State
acknowledges the error but argues it was not so egregious to warrant reversal.


       As a preliminary issue, the parties disagree about what standard applies on review.
Harris argues the harmless error standard applies because defining the incorrect mens rea
violated Harris' constitutional rights by lowering the State's burden of proof. The State
argues, as does Harris in the alternative, the clearly erroneous standard applies.



                                             11
       K.S.A. 2019 Supp. 22-3414(3) provides two methods to preserve an instructional
error for appeal: A party must timely object to the instruction, providing the basis for
that objection, or the instruction must be clearly erroneous. K.S.A. 2019 Supp. 22-
3414(3). Our standard of review concerning the propriety of the instruction depends on
the preservation method.


       When reviewing whether a district court erroneously gave or withheld a jury
instruction, we apply a three-step analysis: (1) Was the issue preserved? (2) Based on the
claim's merits, did error occur? and (3) Was the error harmless? See State v. Williams,
295 Kan. 506, 510, 286 P.3d 195 (2012). We use a de novo standard for the second step,
applying a de novo standard for legal appropriateness and a sufficiency of the evidence
standard for the factual appropriateness. See State v. Plummer, 295 Kan. 156, 161-62,
283 P.3d 202 (2012). The third step involves a de novo review of the entire record.
Williams, 295 Kan. at 516; Plummer, 295 Kan. at 163. Because the first step depends on
the existence of error, we must perform the second step analysis to determine whether
clear error exists. Williams, 295 Kan. at 515-16.


       The standard for the third step differs depending on whether a party objected
below. If a party did not object to an instruction, the clearly erroneous method applies.
Under the clearly erroneous standard, we must be "firmly convinced that the jury would
have reached a different verdict had the instruction error not occurred" to reverse. 295
Kan. at 516. The burden of proof rests with the party claiming error. 295 Kan. at 516. If a
party did object and the error involves a constitutional interest, we "'must be persuaded
beyond a reasonable doubt that there was no impact on the trial's outcome . . . . If a right
guaranteed by the United States Constitution is not implicated, [we] must be persuaded
that there is no reasonable probability that the error will or did affect the outcome of the
trial.'" Plummer, 295 Kan. at 162-63 (quoting State v. Ward, 292 Kan. 541, 565, 256 P.3d
801 [2011], cert. denied 565 U.S. 1221 [2012]). With a constitutional interest, the party
who benefited from the error carries the burden of production. Williams, 295 Kan. at 516.


                                             12
       Although Harris alleges a constitutional violation, he did not object to the
instruction at trial; instead, he argues the instruction was clearly erroneous. Accordingly,
we apply the clearly erroneous framework.


        Under the first and second steps, it is readily apparent that the district court erred
by defining "recklessly" because the crimes for which Harris was charged and convicted
require knowledge or intent. K.S.A. 2019 Supp. 21-5706(a) criminalizes possession of
methamphetamine, and K.S.A. 2019 Supp. 21-5709(b) criminalizes possession of drug
paraphernalia. "'Possession' means having joint or exclusive control over an item with
knowledge of and intent to have such control or knowingly keeping some item in a place
where the person has some measure of access and right of control." K.S.A. 2019 Supp.
21-5701(q). To be found guilty of possessing drugs and drug paraphernalia, the
possession must be intentional or knowingly; recklessness is insufficient to support a
conviction.


        The parties dispute whether a jury would have reached a different decision had
the district court omitted the definition of "recklessly." Harris contends the jury would
have because the State had weak evidence supporting the possession of
methamphetamine. Harris claims that because the pipe contained only a residual amount
of methamphetamine, he may not have been able to perceive the residue; if he could not
perceive it, carrying the pipe residue would be reckless, not knowing. The State counters
by noting that Harris acknowledged, and the KBI confirmed, the pipe contained
methamphetamine; since Harris carried the pipe, he either intended to have control over
the methamphetamine or knew the pipe contained methamphetamine. No evidence
supports Harris' reckless control argument.


        Harris fails to firmly convince us that the jury would have reached a different
verdict had the instruction error not occurred. The error was harmless; the jury would
have reached the same result had jury instruction 8 not defined "recklessly." Turner found


                                              13
the pipe in Harris' pocket, and Harris told Turner the pipe contained methamphetamine.
Harris' statement shows he could perceive and knew of the pipe's residual contents. Since
he carried the pipe in his pocket, Harris had a measure of access over it, which satisfies
the "knowingly" avenue of possession. And carrying the pipe in his pocket, combined
with knowing about the residue, indicates Harris intended to maintain joint or exclusive
control over the methamphetamine residue; this satisfies the "intentionally" element. No
evidence indicates Harris was unaware of the pipe's contents or that he did not know he
carried the pipe. Absent that evidence, we cannot be firmly convinced the jury would
have reached a different result had the court not defined "recklessly."


        The misconception that "recklessly" is a relevant mens rea ran throughout the
case. The State's complaint included "recklessly." At the beginning of trial, the judge
mentioned "recklessly" when reading the charges from the complaint. And during closing
arguments, the State stated the jury could convict Harris if he recklessly possessed the
methamphetamine. But even under this more expansive view, ample evidence indicates
Harris knew the pipe contained methamphetamine residue. Accordingly, we are still not
firmly convinced the jury would have reached a different conclusion absent the mention
of "recklessly." Although the district court erred, the error was harmless. The district
court did not commit clear error.


        Affirmed.




                                             14
