                           NOT DESIGNATED FOR PUBLICATION

                                              No. 120,770

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                          COLIN R. SCHMIDT,
                                              Appellant.

                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed May 29, 2020.
Affirmed.


        Peter Maharry, of Kansas Appellate Defender Office, for appellant.


        Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before GARDNER, P.J., WARNER, J., and ROBERT J. WONNELL, District Judge, assigned.


        PER CURIAM: After he sold methamphetamine to an undercover Wichita police
officer on two occasions, the State charged Colin Schmidt with two counts of distribution
of methamphetamine, each charge corresponding to the separate controlled buys. A jury
convicted him of one count of distribution of methamphetamine and acquitted him of the
other. On appeal, Schmidt claims his case should be remanded for a new trial due to the
admission of a partially redacted mugshot photograph and the district court's denial of his
pretrial motion for new counsel. We disagree and affirm.




                                                     1
                        FACTUAL AND PROCEDURAL BACKGROUND

       The State charged Schmidt with two counts of distribution of methamphetamine
after he sold about a 1/4 pound of the drug to an undercover Wichita detective. The
charges were identical, stemming from two controlled buys that occurred one week apart.


       A confidential informant told the Wichita detective she could help him set up a
drug purchase with a local dealer. The detective agreed and the informant set up the deal,
which was to occur at the informant's house in Wichita. Before the arranged meeting, the
detective familiarized himself with several photographs to help identify the seller; some
of the photographs were mugshots and some were taken from Facebook. On the day of
the appointed meeting, the man from the photographs—later identified as Schmidt—
arrived at the informant's house. Schmidt and the detective exchanged 2 ounces of
methamphetamine in a Styrofoam cup for cash. The detective used a body wire to record
the interaction; this recording would later be played for the jury.


       Later that week, the detective set up a second controlled buy with Schmidt in a
parking lot. Schmidt arrived on a motorbike and offered to sell the detective up to 4
ounces of methamphetamine, but the detective only purchased 2. Once again, the
detective wore a body wire throughout the transaction. Not long after, the State filed the
distribution charges against Schmidt.


       Before trial, Schmidt filed a "Motion for Ineffective Counsel" alleging his
attorney, Jama Mitchell—who represented him on a number of concurrent cases—was
not giving him all of the discovery materials he requested. On the morning of the trial, the
court held a hearing on Schmidt's motion before beginning jury selection. Schmidt
claimed Mitchell was withholding evidence, had failed to secure a promised bond
modification, and had not prepared for trial; he indicated he did not believe she was
representing his best interests. Mitchell denied Schmidt's allegations, stating the only



                                              2
information she had withheld concerned personal information about witnesses. Mitchell
further explained that she and Schmidt had formed a strategy for trial and she did not
think the motions he wanted to file were necessary. For its part, the State asked the court
to deny his motion and any continuances. The court denied Schmidt's motion, explaining
he had failed to show justifiable dissatisfaction with Mitchell's representation.


       Before the jury was sworn in, Schmidt objected to the State's plan to introduce his
mugshots as evidence. He contended the mugshots, which the State intended to offer to
show how the detective identified Schmidt during their meetings, were unduly
prejudicial, and the State could simply use the Facebook photos the detective referenced
instead. In the alternative, Schmidt's attorney suggested the State could redact portions of
the mugshots if those redactions would prevent the jury from recognizing the
photographs as mugshots. The court determined the two side-view mugshots should be
removed but the front-view photograph was admissible:


       "I will order that the side views be removed. I tend to agree that they look like mugshots.
       The straight-on view, frankly, it looks like a driver's license photo. The demographic
       information, race, hair, eyes, sex, height, weight and such is information that would be
       found on a driver's license. The others are not.


                 "So the name on the top, the frontal photo of his face, the demographic
       information will remain, but I will ask the State before this is proffered to redact the side
       views."


       Ultimately, the jury found Schmidt guilty of the first count of distribution and not
guilty on the second. Schmidt was sentenced to 80 months' incarceration with 36 months'
postrelease supervision. He appeals.




                                                     3
                                        DISCUSSION

   1. The district court did not err in admitting Schmidt's redacted, front-view mugshot.

        Schmidt contends the trial court erred by admitting the redacted version of his
mugshot into evidence, claiming it was highly prejudicial and had limited probative
value. We review a trial court's decision to exclude or admit evidence for an abuse of
discretion. State v. Miller, 308 Kan. 1119, 1166-67, 427 P.3d 907 (2018); State v. Soto,
299 Kan. 102, 112, 322 P.3d 334 (2014) (when a party claims an otherwise relevant
photograph should have been excluded as unduly prejudicial, appellate courts review for
an abuse of discretion). A district court abuses its discretion if (1) no reasonable person
would take the view it adopted, (2) the decision is based on an error of law, or (3) the
decision is based on an error of fact. Miller, 308 Kan. at 1138. Reversal is only required
when the erroneous admission of evidence "'is of such a nature as to affect the outcome
of the trial and deny substantial justice.'" State v. Engelhardt, 280 Kan. 113, 130, 119
P.3d 1148 (2005). Schmidt, as the party challenging the court's evidentiary ruling, bears
the burden of proving the abuse of discretion. See Miller, 308 Kan. at 1138.

       Because Schmidt argues the mugshot was unduly prejudicial and therefore
erroneously admitted, we begin by determining whether the redacted mugshot was
relevant—i.e., probative and material. See Soto, 299 Kan at 112. "Photographic evidence,
like other evidence offered at trial, is relevant and generally admissible if the photographs
have a reasonable tendency to prove a material fact in the case." State v. Rodriguez, 295
Kan. 1146, 1157, 289 P.3d 85 (2012). Evidence is material if "the fact it supports is in
dispute or in issue in the case." Miller, 308 Kan. at 1167. And evidence is probative if it
has any tendency to prove a material fact. 308 Kan. at 1167. But even when evidence is
relevant, a trial court is vested with discretion, under K.S.A. 60-445, to exclude it from
trial if "its probative value is substantially outweighed by its potential for producing
undue prejudice." 308 Kan. at 1167.




                                              4
       Here, the State presented evidence that the detective used Schmidt's redacted
mugshots—though he did not refer to the photograph as a mugshot at trial—to familiarize
himself with Schmidt's appearance before the first controlled buy. The State correctly
notes that it was required to prove Schmidt's identity as the individual who sold the
methamphetamine to the detective and that this matter was disputed; Schmidt refused to
stipulate to the question of identity at trial. On appeal, Schmidt argues that the State could
have used the photos from Facebook for this purpose and that the mugshot was
"unnecessary." But the fact that the State also had Facebook photographs of Schmidt at
its disposal does not alter the redacted mugshot's relevance.


       Schmidt's primary argument is that the redacted photograph was unduly
prejudicial because it suggested previous criminal activity. See K.S.A. 2019 Supp. 60-
455. But the district court, not an appellate court, is charged with the task of weighing the
evidence's probative value against its potential prejudice under K.S.A. 60-445; we will
only reverse a district court's decision to admit evidence if it abused that discretion. Soto,
299 Kan. at 112. The court did not do so here.


       We recognize, as Schmidt argues on appeal, that mugshots or line-up photographs
can indicate to a jury that the defendant has a criminal history and can therefore be
prejudicial as indirect evidence of prior crimes—leading the jury to believe the defendant
is a wrongdoer. See State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 (1973). But our review
of the record, and particularly the redacted mugshot, shows the district court took
sensible, preventative steps to minimize any potentially prejudicial effect the photograph
might have had. In its redacted state, the photograph might be recognized as a mugshot,
but it also resembles a driver's license photo or other identification. And the picture was
never referenced as a mugshot by any attorney or witness at trial.


       We note, moreover, that the jury's actions belie Schmidt's arguments concerning
the photograph's prejudicial effect. Though the redacted mugshot was admitted into


                                               5
evidence, the jury nevertheless concluded Schmidt was not guilty of one of the crimes
charged. While this information was not available to the court when it ordered the
mugshot be redacted, this knowledge undermines the force of Schmidt's arguments
concerning that photograph's impact on the jury. The district court did not abuse its
discretion in admitting the redacted, front-view mugshot.


   2. The district court did not err in denying Schmidt's motion to substitute counsel on
      the eve of trial.

       Schmidt also argues the district court committed reversible error when it denied
his pretrial motion to appoint new counsel. As with Schmidt's evidentiary claims, we
review a district court's decision to deny a criminal defendant's request to appoint new
counsel for an abuse of discretion; the defendant bears the burden to prove the trial court
abused its discretion. State v. Brown, 305 Kan. 413, 423-24, 382 P.3d 852 (2016). Our
Kansas Supreme Court has on several occasions noted that "'as long as the trial court has
a reasonable basis for believing the attorney-client relation has not deteriorated to a point
where appointed counsel can no longer give effective aid in the fair presentation of a
defense, the court is justified in refusing to appoint new counsel.'" 305 Kan. at 425; State
v. Sappington, 285 Kan. 176, 196, 169 P.3d 1107 (2007).


       The Sixth Amendment's right to counsel is not absolute and does not guarantee a
criminal defendant the right to choose the attorney appointed to represent him. State v.
Pfannenstiel, 302 Kan. 747, 759, 357 P.3d 877 (2015). When a defendant files a motion
requesting new counsel, he or she is required to show "'justifiable dissatisfaction'" with
appointed counsel. 302 Kan. at 759 (quoting State v. Brown, 300 Kan. 565, 575, 331 P.3d
797 [2014]). Justifiable dissatisfaction may be demonstrated by showing a conflict of
interest, an irreconcilable disagreement, or a complete breakdown in communication
between counsel and the defendant. Pfannenstiel, 302 Kan. at 759-60.




                                              6
       On the morning of Schmidt's trial, the court heard argument on his motion for new
counsel. Schmidt voiced his concerns that his attorney was withholding evidence, had
promised bond modifications that did not come to fruition, failed to file any motions on
his behalf, and had not developed a trial strategy or consulted with him about potential
defenses. Schmidt's attorney stated that she had not withheld any evidence and that she
had discussed her trial strategy with Schmidt. The court denied Schmidt's motion, finding
he had not demonstrated justifiable dissatisfaction with his attorney's representation.


       On appeal, Schmidt points to his discovery disagreement with counsel and
contends there was a lack of trust between them that undermined their relationship. He
adds that his counsel failed to prepare for trial—or at least that Schmidt felt unprepared
for trial and did not think he had a fair chance of providing a meritorious defense.
Schmidt asserts that his lack of trust and confidence in his attorney warranted the
appointment of new counsel and rendered the district court's failure to do so an abuse of
discretion. We disagree.


       Rather, Schmidt's claims are not supported by the record. Even if he was unhappy
with his attorney when she failed to provide him with personal information relating to the
State's witnesses, there is nothing to suggest this disagreement affected the quality of
representation he received. Indeed, Schmidt has not pointed to anything in the record
showing that his attorney failed to advocate on his behalf or provided less than adequate
representation. In fact, Schmidt's attorney successfully argued that the jury should not
convict him of one of the two crimes charged.


       The district court did not abuse its discretion in denying Schmidt's motion to
substitute counsel.


       Affirmed.



                                              7
