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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 98,629 STATE OF KANSAS, Appellee, v. BERNARD EUGENE PRESTON, Appellant.

SYLLABUS BY THE COURT 1. Under K.S.A. 60-455, evidence a defendant committed a crime or civil wrong is inadmissible to prove the defendant's propensity to commit the crime charged, but it is admissible if relevant to prove some other material fact.

2. A defendant's illegal use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455.

3. Under the nonconstitutional harmless error standard of K.S.A. 60-261, the burden of demonstrating harmlessness is on the party benefitting from the error. That party must show there is no reasonable probability the error affected the trial's outcome in light of the entire record.

Review of the judgment of the Court of Appeals in 41 Kan. App. 2d 981, 207 P.3d 1081 (2009). Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge. Opinion filed March 23, 2012.

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Judgment of the Court of Appeals affirming the district court is reversed in part. Judgment of the district court is reversed and remanded.

Christina M. Waugh, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, Phill Kline, former district attorney, and Steve Six, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: Drugs were discovered during a warrantless search inside a vehicle that Bernard Eugene Preston was driving. The only passenger was the car's owner. Preston claimed the drugs were not his. He seeks review of a Court of Appeals decision affirming his convictions. State v. Preston, 41 Kan. App. 2d 981, 207 P.3d 1081 (2009).

Preston alleges numerous trial errors, including his claim that the vehicle search was illegal, his prior drug conviction was improperly admitted, and his constitutional rights were violated when the State used his refusal to consent to a warrantless vehicle search to establish his guilt. We hold that evidence of Preston's prior drug conviction was admitted in violation of K.S.A. 60-455 and State v. Boggs, 287 Kan. 298, 197 P.3d 441 (2008) (prior drug use inadmissible when defendant asserts that he or she does not know there are drugs in the vehicle). We reverse and remand for a new trial on that issue, making it unnecessary to reach the remaining claims of error.

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FACTUAL AND PROCEDURAL BACKGROUND

Just before 1:30 a.m. on September 3, 2005, police dispatch notified patrolling officers someone had been stabbed. Dispatch advised that the suspect drove the victim to the Overland Park Regional Medical Center and left the hospital on foot. Someone driving a Cadillac, Suburban, or an Oldsmobile was expected to pick up the suspect near the hospital.

A Lenexa police sergeant, who was patrolling the area alone, immediately drove to a parking lot less than a mile from the hospital and waited. He testified there was very little traffic on the road and within 5 minutes Preston and a female passenger drove past him in a Cadillac. Preston was driving away from the hospital. The sergeant testified that Preston and the passenger both looked at him as they passed, raising the officer's suspicion.

The sergeant followed the vehicle because he was concerned Preston was either the aggravated battery suspect or picking up the suspect. Shortly thereafter, Preston made a left turn without activating his turn signal within 100 feet from the expected turn, in violation of K.S.A. 8-1548(b), which caused the sergeant to stop the vehicle. But the sergeant conceded the traffic stop, although lawfully based, was a pretext for the aggravated battery investigation because there were very few cars on the road at that time, Preston was driving a Cadillac, and the sergeant noticed the Cadillac had tags from a different county.

Once the vehicle was stopped, the sergeant approached the driver's side window, took Preston's driver's license, and questioned the occupants about what they were doing in the area. Preston said they were picking up a relative but refused to tell the officer the relative's name or where they were meeting. The officer testified he "felt certain . . . they 3

were involved in maybe picking up the suspect who was in the area." He then asked Preston to get out of the car and stand by the trunk but did not immediately administer a weapons pat-down. Instead, the sergeant walked around to speak with the passenger, Demicka Johnson, who said she did not know why they were driving around. She also said she owned the car but insisted that Preston's permission was needed to search it. The officer then returned to the rear of the car to speak with Preston.

At this point, the sergeant conducted a pat-down search for weapons and discovered in Preston's pocket $2,500 in cash folded into $100 increments. The sergeant testified that in his experience drug dealers often keep money in $100 increments, and he thought it was a suspicious amount of money because Preston had said he was unemployed. The sergeant then searched the vehicle's passenger compartment, which he justified at the suppression hearing on officer safety concerns.

The record does not firmly establish the exact sequence of the following events, but it is clear each happened before the initial car search: (1) The sergeant asked Johnson to get out of the car and stand next to it with another officer who had arrived for backup; (2) dispatch notified the sergeant that Preston was under federal supervision for a narcotics charge; (3) the sergeant observed a box of Swisher Sweets cigarillos in the back seat with loose tobacco inside the box, which suggested marijuana use based on his experience; and (4) the sergeant learned another officer had reported observing the aggravated battery suspect on foot nearby, but the sergeant could not remember whether that suspect was in custody before the car was searched. The sergeant claimed his initial protective search of the car for weapons was based on several factors that contributed to his safety concern, including his belief that Preston was picking up the aggravated battery suspect; the officer's experience that aggravated batteries are frequently related to narcotics sales; and the $2,500 found on Preston. 4

The sergeant testified that while checking the vehicle for weapons he detected a faint odor of burnt marijuana, so he contacted a K-9 unit to investigate further. After it arrived, the dog showed a strong interest along the front passenger seat but did not alert that it had located any drugs. Following the dog sniff, the sergeant personally conducted the second and more detailed search of the car. And it was at this time that cocaine and marijuana were found in an ashtray in the vehicle's right rear passenger side.

The State charged Preston with possession of cocaine with intent to sell, possession of marijuana, and possession of cocaine without a tax stamp. Preston filed a motion to suppress the drugs and money, challenging the pretextual traffic stop, the patdown search, and the two warrantless car searches. The district court upheld the constitutionality of the stop and subsequent searches and denied Preston's motion to suppress.

Before trial, the State filed a K.S.A. 60-455 motion seeking to admit evidence that Preston had a prior conviction for conspiracy to possess cocaine with intent to distribute. The State argued it was admissible to prove Preston's knowledge and intent to sell. Preston objected, arguing that the prior conviction was inadmissible because it was immaterial to guilt and overly prejudicial. The district court held the conviction was admissible because this was a constructive possession case and Preston's intent to possess was disputed.

At trial, the prior conviction was noted to the jury several times. The prosecutor referenced Preston's prior conviction during opening statements, the State introduced an affidavit establishing Preston's conviction for conspiracy to possess cocaine with intent to distribute, and the sergeant testified that Preston's prior conviction was one reason he suspected the drugs found in the car belonged to Preston and not Johnson. And while testifying in his own defense, Preston admitted he had pled guilty to the charge, served 5

time in federal prison, and was later released from supervision. Preston also testified he was very young when he committed the drug offense and regretted it.

Also at trial, the sergeant testified that Preston refused to consent to the car search. And during closing arguments, the prosecutor advised the jury that Preston's refusal to consent to the search was evidence Preston possessed the drugs. A jury convicted Preston of possession of cocaine with intent to sell, possession of marijuana, and possession of cocaine with no tax stamp.

Preston appealed and raised the following issues: (1) The drug evidence and money should have been suppressed because the traffic stop, the pat-down search, and the car searches were unconstitutional; (2) his right to a fair trial was violated because the State admitted evidence Preston refused to consent to the car search and argued this could be considered evidence of his guilt during closing argument; (3) his prior conviction was inadmissible under K.S.A. 60-455; and (4) his sentence was illegal because the State did not prove aggravating factors to the jury.

The Court of Appeals affirmed. Preston, 41 Kan. App. 2d 981. Preston petitioned for review with this court, which was granted under K.S.A. 20-3018(b) (review of Court of Appeals decision).

EVIDENCE OF PRESTON'S PRIOR DRUG CONVICTION WAS INADMISSIBLE

Preston argues evidence of his prior possession of cocaine conviction was admitted in violation of K.S.A. 60-455, citing Boggs. He argues the district court improperly held that the prior conviction was admissible to prove intent to sell, even though his intent was not disputed because he claimed the drugs were not his. Preston argues the only purpose for admitting the evidence was to establish a propensity for 6

possessing drugs, which is improper under Boggs, 287 Kan. at 317 ("If a person asserts that he or she does not know that there are drugs in a residence [or vehicle], prior use of drugs neither proves nor disproves the validity of that assertion.").

The State argues Preston's intent was disputed because this is a constructive possession case. In the alternative, the State argues admission of the prior conviction evidence was harmless. We hold that the prior conviction was inadmissible under K.S.A. 60-455 because Preston's intent was not in dispute, and we reverse his convictions because the error affected his substantial rights. See K.S.A. 60-261.

Standard of Review

The version of K.S.A. 60-455 in effect at the time of the alleged crime and Preston's trial stated:

"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." K.S.A. 60-455.

Parenthetically, we note this statute was amended, effective April 30, 2009. See L. 2009, ch. 103, sec. 12; K.S.A. 2010 Supp. 60-455. But we will not discuss the amendments because the parties do not argue they are relevant.

Under K.S.A. 60-455, evidence a defendant committed a crime or civil wrong is inadmissible to prove the defendant's propensity to commit the crime charged, but it is 7

admissible if relevant to prove some other material fact. State v. Inkelaar, 293 Kan. 414, 423, 264 P.3d 81 (2011) (quoting K.S.A. 60-455). Determining whether evidence was properly admitted under K.S.A. 60-455 requires several tests. State v. Wells, 289 Kan. 1219, 1226-27, 221 P.3d 561 (2009); State v. Gunby, 282 Kan. 39, Syl.

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