                           NOT DESIGNATED FOR PUBLICATION

                                              No. 119,831

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                        RICHARD E. TIMMONS,
                                             Appellant.

                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed July 10,
2020. Affirmed in part, reversed in part, sentence vacated, and case remanded with directions.


        Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.


        Lesley A. Isherwood and Lance J. Gillett, assistant district attorneys, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, for appellee.


Before ATCHESON, P.J., WARNER, J., and WALKER, S.J.


        PER CURIAM: Richard Timmons appeals his convictions for possession of
marijuana with intent to distribute, possession of drug paraphernalia, and criminal
possession of a weapon. After carefully reviewing the record before us, we reverse
Timmons' conviction for possession of paraphernalia because the State did not present
evidence that he possessed a food scale with the intent to store an illegal substance. We
affirm his remaining convictions. And we vacate Timmons' sentence and remand the case
to correct a sentencing error, as both parties agree that Timmons' criminal history was
calculated incorrectly.




                                                     1
                        FACTUAL AND PROCEDURAL BACKGROUND

       Detective Greg Feuerborn of the Wichita Police Department was staking out a
house looking for a suspect who had allegedly been involved in a shooting when a
maroon Mitsubishi Eclipse pulled into the driveway. Two men—Richard Timmons and
Traytwon Legreg Fowler—left the house and got in the car. Detective Feuerborn
followed the Mitsubishi and, after observing two traffic infractions, requested patrol
officers pull the car over.

       Officer Ryan Hudgins responded to the call and stopped the car. The officer
immediately smelled marijuana as he walked up to the car. He asked for identification
from the driver and front-seat passenger, returned to his patrol car, and ran a records-
check for warrants. He then contacted Detective Feuerborn. Once backup arrived, Officer
Hudgins returned to the Mitsubishi and asked the occupants to get out of the car so he
could search it in light of the marijuana odor. As Timmons, who was sitting in the front
passenger seat, got out of the car, Officer Hudgins noticed a folding pocketknife attached
to his belt. Officer Hudgins took the knife from Timmons, who then handed over a
foldout corkscrew that had a small blade on it.


       When the officers searched the car, they found two clear plastic bags (both with
one corner torn off) and a black backpack on the back seat containing marijuana and a
digital scale. The officers arrested Timmons for criminal possession of a weapon for
carrying the pocketknife and corkscrew and possession of paraphernalia for the scale and
two baggies. The officers also arrested Fowler.


       Later that day, Detective Feuerborn obtained a search warrant for the house
Timmons and Fowler had exited. The officers who executed the warrant noted a strong
smell of marijuana coming from the house's ventilation system. And once inside the
house, the officers found several bags full of marijuana, a digital scale, a glass pipe, and



                                              2
Timmons' identification. One of the bags of marijuana had Timmons' partial thumbprint
on it.


         The State initially charged Timmons with one count of criminal possession of a
weapon and one count of possession of drug paraphernalia. But while Timmons was in
jail pending trial, he made phone calls to two women, asking them to move "my weed"
out of the house. Based on those phone calls, the State filed an amended complaint,
charging Timmons with possession of marijuana with the intent to distribute; possession
of paraphernalia with the intent to distribute; criminal possession of a weapon; and
possession of paraphernalia with the intent to store, contain, conceal, or introduce
marijuana into the body.


         The case against Timmons proceeded to trial. Fowler—who was jailed with
Timmons and ultimately pleaded to possession of marijuana stemming from the same
incidents—testified that all the drugs in the house belonged to him, not Timmons, and
that he had asked Timmons to make the phone calls from the jail. The jury ultimately
found the State had not proved Timmons had possessed drug paraphernalia with the
intent to distribute. But the jury found Timmons guilty of possession of marijuana with
the intent to distribute, criminal possession of a weapon, and possession of paraphernalia
with the intent to store, contain, conceal, or introduce marijuana into the body.


         Before sentencing, the State submitted a presentence investigation report,
indicating Timmons had a criminal-history score of C. Timmons objected, arguing this
history misclassified a previous conviction as a person instead of a nonperson felony. The
court overruled his objection. Timmons received a controlling sentence of 68 months in
prison and 36 months of postrelease supervision.




                                              3
                                        DISCUSSION

        Timmons' appeal challenges his three convictions in several respects. First,
Timmons challenges his conviction for possession of drug paraphernalia, arguing the
State did not present evidence to support the charge and the court did not properly
instruct the jury on the elements of the crime. Second, he claims he should receive a new
trial on the possession of marijuana charge, asserting the district court erroneously
instructed the jury on an aiding-and-abetting theory. Third, Timmons challenges both the
evidence and the instructions leading to his conviction of criminal possession of a
weapon. Fourth, he maintains the verdict form submitted to the jury violated his right to a
fair trial.


        Having reviewed each of these arguments, we agree that the evidence was
insufficient to convict Timmons of possession of drug paraphernalia, a misdemeanor, and
reverse that conviction. We affirm Timmons' other convictions. And Timmons and the
State agree his criminal-history score should be classified as an E, not a C, under Kansas
Supreme Court precedent, so we remand the case for resentencing to correct this error.


    1. We reverse Timmons' conviction for possession of drug paraphernalia.

        Timmons challenges his conviction for possession of drug paraphernalia on two
grounds. He argues the State did not present sufficient evidence to convict him of that
crime in the manner the State chose to charge the offense. He also claims the court failed
to instruct the jury that its verdict must be unanimous as to all elements of the crime.
Because the evidence was insufficient to show Timmons possessed scales with the intent
to store, contain, conceal, or introduce marijuana into the body—the crime the State
charged he had committed—we do not reach his challenge to the court's instructions.
Instead, we reverse his conviction.




                                              4
       When a defendant challenges the sufficiency of the evidence in a criminal case,
appellate courts review all the evidence at the jury's disposal in a light most favorable to
the prosecution. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). For the
evidence to be sufficient, "there must be evidence supporting each element of a crime."
State v. Kettler, 299 Kan. 448, 471, 325 P.3d 1075 (2014). We will not set aside a
conviction for insufficient evidence so long as we "'[are] convinced a rational factfinder
could have found the defendant guilty beyond a reasonable doubt.'" Chandler, 307 Kan.
at 668. We do not reweigh evidence, resolve evidentiary conflicts, or make
determinations on witness credibility. 307 Kan. at 668.


       A jury must unanimously agree the defendant committed the charged crime before
it can find a defendant guilty of that offense. See K.S.A. 22-3421; State v. Brooks, 298
Kan. 672, 677, 317 P.3d 54 (2014). Here, the court instructed the jury on two crimes
relating to Timmons' possession of paraphernalia, both stemming from the scales and
baggies found in the car and house:


   • possession of "digital scales and baggies" with the intent to distribute marijuana, a
       felony, and


   • possession of "digital scales and baggies" with the intent to "store, contain,
       conceal, or otherwise introduce [marijuana] into the body," a misdemeanor.


The jury did not find Timmons had committed the felony but found him guilty of the
misdemeanor offense. The question now before us is whether the State introduced
sufficient evidence to convict Timmons of that crime—that is, whether he (1) possessed
"digital scales and baggies" (2) with the intent to "store, contain, conceal, . . . or . . .
introduce" marijuana "into the human body." See K.S.A. 2019 Supp. 21-5709(b)(2).




                                                5
       The State presented evidence of the first of these elements—that Timmons
possessed digital scales and baggies. At trial, Timmons contested the State's allegation
that he possessed the scale found during the car stop, but an officer testified that
Timmons could have easily reached back from the front seat and accessed the bag
containing the scale. Timmons presented his argument to the jury, who apparently found
the officer's testimony to be credible; we do not reweigh the evidence or redetermine
credibility. See Chandler, 307 Kan. at 668. With regard to the baggies, the State
presented two Ziploc bags found in the Mitsubishi—one under the front passenger seat
where Timmons had been sitting and one in the passenger side door. Both bags had the
bottom corner torn off and were accessible to Timmons. The State also produced pictures
of a box of sandwich bags next to a digital scale found in Timmons' house. This
evidence, when viewed in the light most favorable to the State, was sufficient to show
Timmons' possession.


       But because the State decided to charge Timmons with possessing both types of
paraphernalia—the scales and the baggies—in a single count, it was required to present
evidence that he possessed both with the intent to "store, contain, conceal, or introduce"
marijuana "into the body." Accord State v. Judd, No. 112,606, 2016 WL 2942294, at *3
(Kan. App. 2016) (unpublished opinion) (observing that the court's reversal was guided
by the "unusual" circumstance that the State "charged only one count of possession of
paraphernalia, lumping together [a] grinder and [an] altered plastic bottle as a single
offense"). In other words, there must be evidence that Timmons possessed baggies with
the intent to store, contain, conceal, or consume marijuana and that he possessed scales
with that same intent. There is not.


       Timmons argues the State presented no evidence that he possessed either digital
scale with the intent to store, contain, conceal, or consume marijuana. Instead, the State's
witnesses discussed how scales are frequently used by dealers to weigh out drugs to
prepare them for sale—that is, with the intent to distribute the drugs. An officer testified


                                              6
that the close proximity of the scales and baggies, in the car and the house, suggested
Timmons was selling marijuana. But the jury apparently did not find this testimony
compelling, as it found Timmons had not possessed paraphernalia with the intent to
distribute. The State introduced no evidence that Timmons possessed the digital scales
for any other purpose.


       On appeal, the State argues that a scale can be used to "store" or "contain"
marijuana in that a person might place drugs on top of the scale for some period of time.
But we do not find this argument persuasive. Indeed, taken to its logical end, the State's
argument would indicate any surface—such as a table or a counter—could be construed
as drug paraphernalia. We do not believe the legislature intended such a sweeping
application of K.S.A. 2019 Supp. 21-5709(b)(2). See State v. Frierson, 298 Kan. 1005,
1013, 319 P.3d 515 (2014) (courts construe statutes to void unreasonable or absurd
results).


       The State presented no evidence here that Timmons possessed the digital scales
with the intent to store, contain, conceal, or consume drugs. We thus reverse Timmons'
conviction for possession of paraphernalia under K.S.A. 2019 Supp. 21-5709(b)(2).


   2. The court's aiding-and-abetting instruction was factually and legally appropriate.

       Timmons next argues the district court erred by giving an aiding-and-abetting
instruction concerning the possession of marijuana offense. That instruction stated:


               "A person is criminally responsible for a crime if the person, either before or
       during its commission, and with the mental culpability required to commit the crime
       intentionally aids another to commit the crime or procures another to commit the crime.
               "The person is also responsible for any other crime committed in carrying out or
       attempting to carry out the intended crime, if the person could reasonably foresee the




                                                    7
       other crime as a probable consequence of committing or attempting to commit the
       intended crime.
               "All participants in a crime are equally responsible without regard to the extent of
       their participation. However, mere association with another person who actually commits
       the crime or mere presence in the vicinity of the crime is insufficient to make a person
       criminally responsible for the crime."


       Timmons objected to the court's instruction at trial. Thus, our review involves a
two-step analysis. We first consider whether the instruction was legally and factually
appropriate. If the instruction was erroneously given, we must decide whether that error
requires reversal. State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70 (2016); State v.
Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).


       A jury instruction "'must always fairly and accurately state the applicable law.'"
State v. Kleypas, 305 Kan. 224, 302, 382 P.3d 373 (2016). Timmons acknowledges the
aiding-and-abetting instruction given is identical to PIK Crim. 4th 52.140 and is an
accurate statement of Kansas law. But Timmons asserts the instruction did not apply in
this case—that is, he argues the instruction was factually inappropriate.


       An aiding-and-abetting instruction is factually appropriate if, from the totality of
the evidence, the jury could reasonably conclude the defendant aided and abetted another
in the commission of the crime. State v. Holt, 285 Kan. 760, Syl. ¶ 7, 175 P.3d 239
(2008); see State v. Francis, 282 Kan. 120, 144, 145 P.3d 48 (2006). When determining
whether such an instruction was factually warranted, we "employ[] an unlimited review
of the entire record." Williams, 295 Kan. 506, Syl. ¶ 4.


       In order to be guilty under an aiding-and-abetting theory, "'a defendant must
willfully and knowingly associate himself with the unlawful venture and willfully
participate in it as he would in something he wishes to bring about or to make succeed.'"
State v. Llamas, 298 Kan. 246, 253, 311 P.3d 399 (2013). "'[W]hen a person knowingly


                                                    8
associates with an unlawful venture and participates in a way that demonstrates willful
furtherance of its success, guilt as an aider and abettor is established.'" State v.
Betancourt, 299 Kan. 131, 134, 322 P.3d 353 (2014).


       Here, the State's primary theory of the case was that Timmons acted alone in the
possession of marijuana with intent to distribute. But the evidence presented at trial also
reasonably supported a conclusion that he had acted in concert with Fowler to distribute
those drugs. Timmons and Fowler lived together in the house where the marijuana was
recovered, and both men had equal access to all areas of the residence. And the evidence
surrounding the calls Timmons made from the jail—asking two women to retrieve
marijuana he had hidden around the house—also supports the conclusion that the pair
acted in concert or, at the very least, that Timmons knowingly associated and participated
in the crime.


       During those calls, Timmons described with some particularity the quantity of
marijuana in the house: "Altogether I got about 32 ounces of weed that's 2 pounds, that's
$6,500 dollars' worth of weed." Timmons stated the drugs were located inside a speaker
and in a bag in a cabinet—the locations where the police discovered the marijuana. But
Fowler testified that all the marijuana found in the house was his—not Timmons'—and
explained that he told the police where it was located throughout the house. Fowler said
he had asked Timmons to recruit someone to retrieve the marijuana before the police
could find it.


       This somewhat conflicting evidence could reasonably support several conclusions:
(1) The marijuana was Fowler's and Timmons was attempting to help him move it out of
their house, (2) the marijuana was Timmons' and Fowler was trying to cover for him after
taking a plea in his own case, or (3) the two men were acting in concert and both had
equal control over the marijuana in their home. Regardless of which theory was the truth,
the evidence reasonably supported the conclusion that the two men were working


                                               9
together or that Timmons willfully participated in Fowler's unlawful venture. As such,
the aiding-and-abetting instruction was factually appropriate.


       Because the aiding-and-abetting instruction was legally and factually appropriate,
the district court did not err in providing that instruction to the jury.


   3. We affirm Timmons' conviction for criminal possession of a weapon.

       Timmons brings two challenges to his conviction for criminal possession of a
weapon. He first asserts the State did not present sufficient evidence to support his
conviction. He also contends the court's instruction for the charge was clearly erroneous
because it failed to instruct the jury on the statutory definition of a "knife."

       In order to convict Timmons of criminal possession of a weapon, the State was
required to prove that, at the time of the incident, he knowingly possessed a weapon—
here, a knife—and had been convicted of a felony that prohibits the possession of a
weapon within the previous five years. See K.S.A. 2019 Supp. 21-6304(a)(2). Timmons
stipulated to his previous felony conviction. But he claims the two knives the State
presented to the jury—the folding knife and the corkscrew with a foil-cutting knife
attached—did not fall within the definition of a "knife" prohibited under K.S.A. 2019
Supp. 21-6304(c)(1). We disagree.


       K.S.A. 2019 Supp. 21-6304(c)(1) defines "knife" for purposes of criminal
possession of a weapon as "a dagger, dirk, switchblade, stiletto, straight-edged razor or
any other dangerous or deadly cutting instrument of like character." The State presented
evidence that the officer who stopped the Mitsubishi immediately saw the folding knife
on Timmons' belt when he stepped out of the car. When the officer told Timmons to hand
it over, Timmons also gave him the corkscrew with the foil cutter he had in his pocket.
The State submitted these items into evidence. In the calls Timmons made from jail, he



                                               10
acknowledged he "walked out the door [of the house] with a damn pocket knife . . . and
you know me being a convicted felon, I'm not supposed to have those."


       Timmons does not refute any of this evidence. Rather, he contends the folding
knife and corkscrew were not "knives" within the meaning of the statute. We disagree. A
juror could certainly look at the folding knife and the foil cutter and conclude these were
dangerous or deadly cutting instruments of like character to those listed in the statute; that
is, they could "inflict injury," have "at least one sharp edge," and are "capable of being
used as a weapon." See State v. Lucas, No. 120,510, 2020 WL 1484484, at *2 (Kan. App.
2020) (unpublished opinion), petition for rev. filed April 16, 2020. Indeed, Timmons
himself was aware that he carried the knives in violation of the law. Thus, the State
produced sufficient evidence for a rational fact-finder to conclude beyond a reasonable
doubt that Timmons possessed a knife in violation of K.S.A. 2019 Supp. 21-6304(a)(2).


       Perhaps recognizing the strength of the evidence against him on this charge,
Timmons also argues for the first time on appeal that he should receive a new trial based
on an instructional error. Specifically, he claims the district court erred by not instructing
the jury on the statutory definition of a knife under K.S.A. 2019 Supp. 21-6304(c)(1).


       There can be no serious question that the statutory definition of a "knife," which
explains one of the elements of criminal possession of a weapon, was legally and
factually appropriate in this case. See Johnson, 304 Kan. at 931. The definition of a
"knife" is included in the pattern jury instructions for that offense. See PIK 4th Crim.
63.040. Kansas courts "'strongly recommend the use of PIK instructions, which
knowledgeable committees develop to bring accuracy, clarity, and uniformity.'" State v.
Butler, 307 Kan. 831, 847, 416 P.3d 116 (2018). The better practice certainly would have
been to provide the statutory definition of a "knife" as part of the instruction here.




                                              11
       But there are two reasons the failure to provide the jury with that definition does
not require reversal—one practical and one legal. First, the instruction Timmons
proposed concerning criminal possession of a weapon, though slightly different from the
instruction the court ultimately gave, also lacked the statutory definition of "knife." The
proposal of an erroneous jury instruction does not preclude an appellate court's review if
the instruction was clearly erroneous unless the defendant "'actively pursues'" an
instruction that is "'later argued to be an error.'" State v. Cottrell, 310 Kan. 150, 162, 445
P.3d 1132 (2019); see K.S.A. 2019 Supp. 22-3414(3). We do not believe Timmons
proposal of an instruction that did not include the definition of "knife" is an active pursuit
of that instruction. But Timmons' failure to include the definition in his proposed
instruction is indicative of his previous practical recognition that the knives he possessed
fell within the scope of the statute.


       From a legal standpoint, the failure to define "knife" in the instruction does not
undermine our confidence in the jury's verdict. The evidence at trial was overwhelming
that Timmons possessed both the folding knife and the foil cutter, and Timmons himself
recognized that these knives fell within the statutory definition. See Neder v. United
States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (failure to instruct on an
element of a crime is harmless when the evidence is overwhelming); State v. Daniels, 278
Kan. 53, 62-63, 91 P.3d 1147 (2004) (same). As in Daniels, the evidence in this case
regarding Timmons' possession of the knives was "essentially uncontroverted." 278 Kan.
at 63. As such, the court's omission of the statutory definition of "knife" does not require
reversal.


   4. The verdict form did not violate the presumption of Timmons' innocence.

       Timmons points out that the verdict form placed the line where the jury could find
him "guilty" above the line where the jury could find him "not guilty." Timmons
contends this form, which mirrored PIK Crim. 4th 68.110 (2018 Supp.), inverted the



                                              12
presumption of innocence under the Sixth and Fourteenth Amendments to the United
States Constitution. Our review of the legality of a verdict form is unlimited. See
Johnson, 304 Kan. at 931-32.


       Courts have traditionally reviewed a verdict form using the same standard we use
to analyze jury instructions because the verdict form is part of the packet sent to the jury
with the jury instructions, once those instructions have been given by the court. Unruh v.
Purina Mills, 289 Kan. 1185, 1197-98, 221 P.3d 1130 (2009). We note, however, that a
verdict form is not a jury instruction. The two serve different purposes. The verdict form
does not instruct the jury on the laws it will apply. The jury merely uses that form—once
it has reached a decision—to record its decision on each count, claim, or question
presented. Given this difference, we question Timmons' underlying contention that the
arrangement of "guilty" and "not guilty" on the verdict form could cause the jury to
disregard the court's instructions on the burden of proof.


       More to the point, Timmons acknowledges that our Kansas Supreme Court
rejected his position in State v. Wesson, 247 Kan. 639, 652-53, 802 P.2d 574 (1990), cert.
denied 501 U.S. 1236 (1991), disapproved on other grounds by State v. Rodgers, 282
Kan. 218, 144 P.3d 625 (2006). But he claims Wesson was wrongly decided.


       This court is duty-bound to follow Kansas Supreme Court precedent unless the
court has indicated it is departing from its previous position. State v. Rodriguez, 305 Kan.
1139, 1144, 390 P.3d 903 (2017). For nearly 30 years, both this court and our Kansas
Supreme Court have consistently applied the holding in Wesson. See State v. Wilkerson,
278 Kan. 147, 159, 91 P.3d 1181 (2004); State v. Vargas, No. 119,741, 2019 WL
5485179, at *5 (Kan. App. 2019) (unpublished opinion), petition for rev. filed November
20, 2019; State v. Pack, No. 110,467, 2015 WL 1513974, at *5 (Kan. App.) (unpublished
opinion), rev. denied 302 Kan. 1018 (2015). We have no reason to conclude that our



                                             13
Supreme Court will retreat from its holding. The district court did not err in using the PIK
jury verdict form.


   5. We remand for resentencing based on a corrected criminal-history score.

       Timmons and the State agree that his sentence was rendered based on an incorrect
criminal-history score. Namely, the court classified Timmons' prior conviction for failure
to register as a person felony, but when Timmons committed his current crimes, it was a
nonperson offense. See State v. Keel, 302 Kan. 560, 590, 357 P.3d 251 (2015). Thus,
Timmons' conviction for failure to register should have been scored as a nonperson
felony, changing Timmons' criminal-history score from C to E. Accordingly, we vacate
Timmons' sentence and remand for resentencing to correct this error.


       In sum, we reverse Timmons' conviction for possession of paraphernalia. We
affirm his convictions for possession of marijuana with intent to distribute and criminal
possession of a weapon. And we vacate Timmons' sentence and remand for resentencing
consistent with this opinion.


       Affirmed in part, reversed in part, sentence vacated, and case remanded for
resentencing.


                                           ***


       ATCHESON, J., concurring: I concur in the result the majority reaches in reversing
Defendant Richard E. Timmons' conviction for possession of drug paraphernalia for
insufficient evidence; reversing, vacating, and remanding for resentencing with the
correct criminal history score; and otherwise affirming the jury's verdicts.




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