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No. 102,375 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. DANIEL RAY COOK, Appellant. SYLLABUS BY THE COURT 1. Subject to K.S.A. 60-447, evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and K.S.A. 60-448, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident under K.S.A. 60-455.

2. At least three types of prejudice can follow from the improper admission of evidence of other crimes or civil wrongs. First, a jury might well exaggerate the value of other wrongful acts as evidence proving that because the defendant has committed a similar wrongful act before, it might properly be inferred that he or she committed this one. Second, the jury might conclude that the defendant deserves punishment because he or she is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Third, the jury might conclude that because the defendant is a criminal, the evidence put in on his or her behalf should not be believed. 1

3. An error in the admission of or instruction upon K.S.A. 60-455 evidence is not automatically reversible; it is evaluated under a harmless error analysis.

4. Under K.S.A. 60-421, evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purposes of impairing his or her credibility. If the witness is the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.

5. A criminal defendant does not place his or her credibility in issue merely by taking the witness stand.

Appeal from Montgomery District Court; FREDRICK WILLIAM CULLINS, judge. Opinion filed March 4, 2011. Reversed and remanded.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Ruth A. Ritthaler, assistant county attorney, and Steve Six, attorney general, for appellee.

Before PIERRON, P.J., MARQUARDT and HILL, JJ.

PIERRON, J: Daniel Ray Cook appeals his conviction for felony possession of marijuana. He argues the trial court erroneously admitted evidence of his prior marijuana conviction, the trial court failed to fully investigate his requests for a new attorney, the prosecutor committed prosecutorial misconduct during closing argument, the cumulative

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effect of the trial errors denied him a fair trial, and the trial court erred in not requiring his criminal history to be proven to a jury beyond a reasonable doubt.

On September 30, 2008, Officer Brandon Pursley of the Coffeyville Police Department responded to a "shots fired" call from dispatch. The time was nearly midnight. Dispatch reported three suspects, all black males, each by one distinguishing characteristic: (1) heavy set; (2) small; and (3) wearing a light colored hoodie. As he approached, Officer Pursley spotted a black male wearing a light colored hoodie running from the scene. Officer Pursley pursued the suspect on foot and saw the suspect remove a light colored hoodie behind a laundromat and then continue running. Officer Pursley caught the suspect and at gun point ordered him to the ground. During a weapons and contraband search, Officer Pursley found a bag of marijuana in the suspect's right, front pants pocket.

On cross-examination, Officer Pursley testified he had not witnessed the shooting but had heard the shots. He was 50 yards away from the suspect when he first saw him and he never lost eye contact. When he caught the suspect, he knew it was Cook because he was familiar with most people in town and had several contacts with Cook in the past.

Officer Nick Reed also responded to the "shots fired" dispatch. He saw Officer Pursley chase Cook. He lost contact briefly but then saw Officer Pursley search Cook and discover the bag of marijuana. Officer Reed asked Cook why he was running away, and Cook responded that he saw flashlights, got scared, and decided to run. Cook also said that his jacket just fell off while he was running.

Officer Daniel Belbot testified he was one of the first officers on the scene and saw a black male wearing a light hoodie running away. He reported this to dispatch. The next time he saw the suspect was after Officer Pursley had taken him into custody.

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Officer Belbot said Cook was the same individual he had seen earlier and the officers had the same light hoodie he had seen as well.

Cook testified in his own defense. He testified he was meeting friends at the apartment complex in question. He never heard any shots, but he saw people with flashlights. He was afraid and ran. However, he stopped when he saw the police. After he was arrested, he told the officers the light colored hoodie was not his. The first time the officers showed him the jacket was the first time he had seen it. Cook claimed the officers were fabricating the marijuana possession charge and had planted the bag on him.

Cook said the officers questioned him about the shooting at the station. He told them he did not know anything about it. Cook indicated the officers told him they knew who did the shooting and they needed Cook to testify. Cook said he could not testify to what he did not know. Cook claimed the officers told him that since he was not cooperating and they knew he had a prior possession conviction, they were going to charge him with possession of marijuana.

Cook was convicted of felony possession of marijuana. At trial, evidence of his prior marijuana conviction was allowed to come before the jury. Cook's presumptive sentence was 18-22 months' imprisonment. The trial court sentenced him to 20 months' imprisonment, with the sentence served consecutive to the incarceration term of his prior sentence. Cook appeals.

Cook argues the trial court erred in admitting evidence of his prior conviction for possession of marijuana. We find that while this evidence may have been probative for the prosecutor's questioning, it was clearly immaterial in Cook's trial under our understanding of Kansas evidentiary law.

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The following questioning occurred during the prosecution's cross-examination of Cook:
"Q. How do you know you're not supposed to use it [marijuana]? "A. It's against the law. "Q. How do you know that? "A. Watching TV. "Q. That's the only way you know it? "A. As far as-- "Q. Well, you know you're under oath? "A. Yes, Sir. "Q. Okay. So how do you know it's illegal to have it [marijuana]? "MR. BERNHART [Defense Counsel]: Your Honor, we're going to object. I think it's been asked and answered. "MR. MARKLE [Prosecutor]: I have the right to follow up, Your Honor. "THE COURT: If counsel would approach the bench. (At the Bench, on the record, outside the hearing of the jury. Defendant present at the Bench.) "THE COURT: Are you about ready to get into prior convictions? "MR. MARKLE: Uh-huh. Two reasons: Number one, this is the only--this shows he's biased. Second thing is, he testified on Direct that he doesn't have a place to live, and doesn't have any place in Kansas. He's--we are entitled to cross-examine his credibility. "THE COURT: Mr. Bernhart? "MR. BERNHART: Well, I would think--again, the objection was: It's been asked and answered. He's asking for another answer, and I don't think-- "MR. MARKLE: I'm giving him his opportunity to come clean. "THE COURT: Do you have any objection to what Mr. Markle is going to try to get into? "MR. BERNHART: Well, I mean, if he tries to get into prior convictions, yeah, I am going to object to that. It's outside the scope of Direct examination. "THE COURT: Okay. "MR. MARKLE: The Defendant is not allowed to just get up there and lie.

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"THE COURT: Okay. Well, the objection is overruled. You can continue Mr. Markle. "THE REPORTER: Give me a second, please. "THE COURT: Mr. Markle, if you'll give Ms. Smith a few moments to-- "THE REPORTER: Okay. I'm ready."

The prosecutor proceeded to question Cook about documents pertaining to Cook's prior conviction in July 2007 for possession of marijuana and that he was still on probation for that conviction. Defense counsel repeatedly objected to the prosecutor's questions.

There was also a second instance where K.S.A. 60-455 evidence came before the jury. Cook does not cite to this testimony on appeal. During the State's rebuttal, Officer Reed testified that he knew Cook from executing a prior search warrant for narcotics. Defense counsel objected. The prosecutor responded that the testimony was relevant not for Cook's involvement, but rather for the officer's knowledge of Cook. The trial court sustained the objection and held that the only testimony the jury needed to know was that Officer Reed had met Cook three times in the past.

When reviewing a trial court's decision to admit evidence, an appellate court first determines whether the evidence was relevant. There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan. 252, 261-62, 213 P.3d 728 (2009). Evidence is relevant and probative if it has "'any tendency in reason to prove'" a fact. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008) (quoting K.S.A. 60-401[b] ). Whether evidence has probative value is reviewed for abuse of discretion. In determining whether the evidence is "material," the analysis focuses on whether the fact to be proved is "'"significant under the substantive law of the case and properly at issue. [Citation omitted.]"'" 286 Kan. at 505. Appellate review for materiality is de novo. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009). Nevertheless, even if evidence is both probative and material, the trial court must still determine whether the probative value of the evidence outweighs its potential for producing undue prejudice. 6

Appellate courts review this determination for abuse of discretion. 289 Kan. at 1227; see also State v. Dixon, 289 Kan. 46, 69-70, 209 P.3d 675 (2009) (applying the above standards of review to an evidentiary issue involving non-K.S.A. 60-455 evidence).

Once relevance is established, the trial court must then apply the statutory rules controlling the admission and exclusion of evidence. These statutory rules are treated either as a matter of law or as an exercise of the trial court's discretion, depending upon the rule in question. Therefore, the standard of review that is applicable on appeal will depend upon which rule the court applied to determine the admissibility of the evidence at issue. State v. Riojas, 288 Kan. 379, 383, 204 P.3d 578 (2009).

At the time of Cook's crime, K.S.A. 60-455 provided as follows:
"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."

The problem in the case at bar is that the trial court did not inquire of, nor did the prosecutor cite, a provision of K.S.A. 60-455 for how Cook's prior conviction was admissible. The prosecutor's rationale for admitting Cook's prior conviction was that it showed that Cook was biased, that he lied about not having a place to live in Kansas as required by the conditions of his probation, and that Cook could not just get up on the stand and lie. The court did not determine whether the evidence was relevant to prove a material fact under K.S.A. 60-455 such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

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The State argues Cook chose to testify and his version of events differed significantly from the testimony of the police officers. The State contends his veracity was subject to scrutiny by the jury, the prior conviction was relevant in the context of Cook's responses to questions as a witness testifying under oath, and it was reasonable to believe that the limited information regarding Cook's prior conviction did not influence the jury any more than any other testimony presented by Cook. The State also contends the evidence against Cook was overwhelming and admission of the prior conviction was harmless.

The State fails to establish the relevance of Cook's prior conviction under Kansas law. His prior conviction is probative because it has a tendency to prove the fact that he knew possessing marijuana was illegal. However, his prior conviction is not material because the fact that Cook knew possessing marijuana was illegal was already established by his testimony and any other way that he knew it was illegal was not a fact that is significant under the law of the case and properly at issue. See Reid, 286 Kan. at 505. Without establishing the materiality prong of the relevance test, the trial court erred in admitting Cook's prior conviction.

Both Cook and the State cite State v. Boggs, 287 Kan. 298, 197 P.3d 441 (2008), for our consideration. However, as the State points out, Boggs was a case of nonexclusive possession of a glass marijuana pipe discovered under the passenger seat of the car where Boggs had been previously sitting. The court stated:"Because Boggs' only defense was that he did not possess the glass pipe, the element of intent--and the related elements of knowledge and absence of mistake or accident--were not at issue in this case." 287 Kan. at 315. The Boggs court agreed with the Kansas Court of Appeals that the admission of Boggs' statement to detectives that he had smoked marijuana about a month before the arrest was reversible error in violation of K.S.A. 60-455. 287 Kan. at 315-19.

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The Boggs court reemphasized the dangers in allowing prior crimes evidence when it does not fall within the admissibility standards of K.S.A. 60-455:

"At least three types of prejudice can follow from the improper admission of evidence of other crimes or civil wrongs. First, a jury might well exaggerate the value of other wrongful acts as evidence proving that because the defendant has committed a similar wrongful act before, it might properly be inferred that he or she committed this one. Second, the jury might conclude that the defendant deserves punishment because he or she is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Third, the jury might conclude that because the defendant is a criminal, the evidence put in on his or her behalf should not be believed." 287 Kan. 298, Syl.

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