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NOT DESIGNATED FOR PUBLICATION

No. 123,988

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

BRANDON M. BLACKMON,

Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed January 13, 2023. Affirmed.

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

Jamie L. Karasek, assistant district attorney, Thomas Stanton, district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., MALONE, J., and TIMOTHY G. LAHEY, S.J.

LAHEY, J.: Brandon Blackmon was charged with one count of possession of a

controlled substance under K.S.A. 2018 Supp. 21-5706(a) after one of the pills found in 

his car tested positive for methamphetamine. Blackmon's defense was that he had no 

knowledge the pill contained methamphetamine and he never intended to possess 

methamphetamine. At trial, Blackmon testified that he purchased the pills believing they 

were "ecstasy" or "mollies" containing MDMA, which is a different controlled substance. 

The jury, which was dispersed throughout the courtroom as part of COVID-19 protocols,

convicted Blackmon of methamphetamine possession. He raises five issues in this appeal 

that we address below. We find no reversible error and affirm his conviction.
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FACTUAL AND PROCEDURAL BACKGROUND

During the evening of February 8, 2019, Deputy Eric DeLaCruz of the Reno 

County Sheriff's Office was parked and running a stationary radar on US-50. Around 10

p.m., Deputy DeLaCruz observed a black Lincoln SUV heading west. The Lincoln was 

travelling at 94 miles per hour in a 65-mile-per-hour zone. 

Deputy DeLaCruz initiated a traffic stop, and the vehicle pulled over without 

incident. Deputy DeLaCruz noticed the vehicle had a temporary tag, approached the 

vehicle, and spoke to the driver, Brandon Blackmon. Blackmon told the deputy that he 

was heading from Wichita to the Boot Hill Casino in Dodge City. During this initial 

conversation, Deputy DeLaCruz smelled the odor of raw marijuana and observed what he 

believed to be a cigarillo filled with marijuana—commonly referred to as a blunt—

sticking out of a cup holder in the center console. 

Deputy DeLaCruz returned to his patrol vehicle and called for backup. He then 

went back to the Lincoln and asked Blackmon to join him in the front seat of his patrol 

car. Blackmon complied and, while the two were sitting in Deputy DeLaCruz' vehicle, 

the deputy ran Blackmon's license and registration. Deputy DeLaCruz informed 

Blackmon that he was being detained, placed him in handcuffs, and had Blackmon move 

to the backseat of the patrol car. Deputy DeLaCruz explained that Blackmon was being 

detained because his Kansas driver's license was revoked, his Arkansas driver's license 

was suspended, he possibly had a warrant out of Sedgwick County, the Lincoln smelled 

like marijuana, the deputy had observed what he believed to be a marijuana-filled 

cigarillo, and Blackmon's movements suggested he may have been intoxicated. 

Deputy Mikel Bohringer arrived on the scene, and both deputies searched 

Blackmon's vehicle, finding two open vodka bottles in the car, one in the center console 
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and one on the floor in front of the passenger seat. But they did not find the blunt initially 

observed by Deputy DeLaCruz or any other marijuana. However, the officers found six 

pills in the center console. The pills were different colors and had various designs. At the 

time of the discovery, both deputies believed the pills contained ecstasy because, based 

on their training and experience, it was normal for ecstasy pills to have "[f]un designs, 

weird imprints, different colors." Ecstasy is chemically known as MDMA. 

The State charged Blackmon with possession of a hallucinogenic drug under 

K.S.A. 2018 Supp. 21-5706(b)(3), (c)(2)(B) and other misdemeanor offenses not related 

to this appeal. But when the Kansas Bureau of Investigation (KBI) tested two of the pills

found in Blackmon's vehicle, no MDMA was present. The KBI found one pill did not 

contain any controlled substance while the other contained methamphetamine. As a 

result, the State amended its complaint, charging Blackmon with one count of possession 

of methamphetamine under K.S.A. 2018 Supp. 21-5706(a), (c)(1). 

Blackmon pled not guilty in August 2019, and his trial occurred on February 22, 

2021. Because of COVID-19 protocols, the jury was spread throughout the courtroom, 

with two jurors seated behind the bar and the defense counsel table. 

The State called four witnesses. Deputies DeLaCruz and Bohringer testified 

regarding the stop and search of Blackmon's vehicle. Ray Delahoy, a Hutchinson Police 

Department evidence custodian, described the pills' chain of custody, and Courtney 

Feldbauer, a forensic chemist at the KBI, testified about the pills' chemistry. Feldbauer 

explained that while the pills were initially suspected to be ecstasy, the lab results 

revealed that one included methamphetamine. Feldbauer testified that the two substances 

are completely different, with ecstasy being a hallucinogenic and methamphetamine 

being a central nervous stimulant.
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Blackmon then testified in his defense. He conceded that he possessed the pills, he 

knew they were illegal, and explained that he purchased the pills believing they were

"ecstasy" or "mollies" containing MDMA. He testified that he had no intention of 

possessing methamphetamine. He admitted he did not know the "major chemicals or 

components" in the pills he purchased, testifying that you never "know exactly what 

you're going to get" and "that's the chance you're taking at the time."

The jury was instructed that it could convict if it found that Blackmon "either 

knew the identity of the controlled substance, or that the substance was controlled." The 

prosecutor highlighted that instruction in her rebuttal argument telling the jury that it did 

not matter if Blackmon intended to possess MDMA or methamphetamine—he was guilty 

either way. The jury found Blackmon guilty of possession of methamphetamine, and he 

was sentenced on April 23, 2021. After denying Blackmon's motion for new trial, the

district court granted Blackmon's motion to depart and sentenced him to 40 months in the 

Department of Corrections for the possession of methamphetamine conviction but 

suspended the sentence and imposed 12 months of probation. 

ANALYSIS

The five issues raised in this appeal are: (1) Sufficiency of the evidence; (2) 

improper jury instruction; (3) prosecutorial error in closing argument; (4) violation of 

Blackmon's Sixth Amendment right to counsel because of the placement of two jurors 

near defense counsel table; and (5) cumulative error. The first three issues raised by 

Blackmon are directly related to his defense that he did not "knowingly" possess 

methamphetamine because he believed he possessed MDMA, a different illegal 

substance. The parties agree that resolution of the first three issues largely turns on a legal 

interpretation of K.S.A. 2018 Supp. 21-5706(a). Blackmon identifies the legal question as 

"whether K.S.A. 2018 [Supp.] 21-5706(a) requires a knowing culpable mental state 

regarding the identity of the substance possessed or whether generally knowing that a 
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substance is controlled meets the element[s] of the offense." Although he intended to 

possess the pill containing methamphetamine, Blackmon contends he did not knowingly 

possess methamphetamine because he did not know the pills contained 

methamphetamine—he believed the pills contained a different controlled substance—

MDMA. To be convicted of possession of methamphetamine, Blackmon argues the State 

must prove he knew the specific substance he possessed was methamphetamine.

I. Was there sufficient evidence to support Blackmon's conviction of possession of 

methamphetamine?

(a) Knowledge required for possession under K.S.A. 2018 Supp. 21-5706(a)

This issue involves statutory interpretation, which is a question of law over which 

this court has unlimited review. Jarvis v. Department of Revenue, 312 Kan. 156, 159, 473 

P.3d 869 (2020). "All Kansas courts use the same starting point when interpreting 

statutes: The Legislature's intent controls. To divine that intent, courts examine the 

language of the provision and apply plain and unambiguous language as written." 312 

Kan. at 159. When doing so, courts must give "common words their ordinary meaning."

State v. Ryce, 303 Kan. 899, 906, 368 P.3d 342 (2016). "If the Legislature's intent is not 

clear from the language, a court may look to legislative history, background 

considerations, and canons of construction to help determine legislative intent." Jarvis,

312 Kan. at 159. 

Blackmon was charged under K.S.A. 2018 Supp. 21-5706(a), titled "Unlawful 

possession of controlled substances," which provided: "It shall be unlawful for any 

person to possess any opiates, opium or narcotic drugs, or any stimulant designated in 

K.S.A. 65-4107(d)(1), (d)(3) or (f)(1), and amendments thereto, or a controlled substance 

analog thereof." Methamphetamine falls within the substances designated in K.S.A. 2018 

Supp. 65-4107(d)(3). With few exceptions, "a culpable mental state is an essential 
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element of every crime" defined in the Kansas Criminal Code. K.S.A. 2021 Supp. 21-

5202(a). But the language of K.S.A. 2018 Supp. 21-5706, on its face, appears silent as to 

the required mental state for possession of a controlled substance. Although there is no 

published case analyzing the required mental state for possession of a controlled 

substance under K.S.A. 21-5706(a), a similar circumstance involving K.S.A. 21-5705, 

possession of a controlled substance with intent to distribute, was analyzed by the Kansas 

Supreme Court in State v. Rizal, 310 Kan. 199, 445 P.3d 734 (2019). 

Rizal owned a gas station in Shawnee, and law enforcement received a tip that she 

was selling synthetic cannabinoids. Officers discovered packages that later tested positive 

for the synthetic cannabinoid naphthoylindole, also known as K2. Among other things, 

the State charged Rizal under Kansas' possession with intent to distribute statute, K.S.A. 

2011 Supp. 21-5705(a)(7), which provided: "It shall be unlawful for any person to 

cultivate, distribute or possess with the intent to distribute" controlled substances. Rizal 

was convicted, and her conviction was upheld by our court before making its way to the 

Kansas Supreme Court.

On appeal, Rizal argued the evidence was insufficient to support her conviction 

because of a mistake of fact—she believed the packets she sold contained lawful incense, 

not a controlled substance. One of the issues addressed by Rizal was the lack of culpable 

mental state in K.S.A. 21-5705. While our court found K.S.A. 21-5705 lacked a culpable 

mental state, the Supreme Court recognized the culpable mental state is "imbedded in the 

definition of the word 'possession'" in K.S.A. 21-5701(q). 310 Kan. at 206-07. This 

determination is significant because the same statutory definition is applicable to the 

possession charge faced by Blackmon.

The term "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. 2021 Supp. 
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21-5701(q). Next, the statutory definition of "knowingly" provides: "A person acts 

'knowingly,' or 'with knowledge,' with respect to the nature of such person's conduct or to 

circumstances surrounding such person's conduct when such person is aware of the 

nature of such person's conduct or that the circumstances exist." K.S.A. 2021 Supp. 21-

5202(i). The term "nature" means "[a] fundamental quality that distinguishes one thing 

from the other; the essence of something." Black's Law Dictionary 1238 (11th ed. 2019). 

Accordingly, the court explained that "a person must know the essence of the 

substance possessed; the fundamental quality that distinguishes that substance from 

another one." 310 Kan. at 207. As such, the ultimate test for K.S.A. 2011 Supp. 21-

5705(a) was whether "the defendant had knowledge of the nature of the controlled 

substance—meaning, that the defendant either knew the identity of the substance or knew 

that the substance was controlled." 310 Kan. at 208. The court recognized that this 

interpretation may give rise to mistake-of-fact defenses when a defendant possessed a 

controlled substance but believed the substance was lawful, stating: "We agree with Rizal 

that a mistake of fact about the nature of a controlled substance—meaning the actual 

belief that it is 'some other lawful substance' that is not controlled—could negate the 

knowledge requirement. [Citation omitted.]" (Emphasis added.) Rizal, 310 Kan. at 209.

Blackmon first seeks to distinguish Rizal because it interprets the distribution 

statute, K.S.A. 21-5705, rather than the possession statute, K.S.A. 21-5706. But 

possession is an element of the distribution statute, subject to the same definitions of 

"possession" and "knowingly" that apply to the possession statute. Thus, we find Rizal's

analysis of culpable mental state is applicable to crimes charged under K.S.A. 21-

5706(a). The Rizal court found the "State must prove the defendant had knowledge of the 

nature of the controlled substance." 310 Kan. 199, Syl. The "knowledge" requirement for 

possession "can be established by proving the defendant either knew the identity of the 

substance or knew that the substance was controlled." (Emphasis added.) 310 Kan. 199, 

Syl. Ultimately, based on circumstantial evidence, the Supreme Court found that Rizal 
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was aware that the substance was controlled and affirmed her conviction and sentence. 

310 Kan. at 210. 

Like the defendant in Rizal, Blackmon argues that he made a mistake of fact—he 

thought he was buying pills containing MDMA but "apparently bought at least one pill 

containing methamphetamine." But the mistake-of-fact defense operates to shield a 

person from being convicted on the basis of innocent or otherwise lawful behavior. 310 

Kan. at 209. Blackmon's actions were undertaken with the knowledge he was buying an 

illegal controlled substance. Possession of a controlled substance is a general intent 

crime, and Blackmon intended to and did knowingly possess a controlled substance. See

K.S.A. 2021 Supp. 21-5202(i). Any mistake by Blackmon about the specific controlled 

substance he possessed does not transform possession of methamphetamine into a 

specific intent crime. Blackmon knowingly possessed a controlled substance, and that 

establishes the required culpable mental state under K.S.A. 2021 Supp. 21-5706(a).

Blackmon also seeks to distinguish Rizal by contending that K.S.A. 2018 Supp. 

21-5705(a) prohibits distribution of any controlled substance, while K.S.A. 2018 Supp. 

21-5706(a) only prohibits possession of the specific controlled substances listed in 

subsection (a)—many other controlled substances are listed in K.S.A. 2018 Supp. 21-

5706(b). He argues that "[b]ecause K.S.A. 2018 Supp. 21-5706 provides divisible 

offenses related to possession of different types of controlled substances, the state must 

prove a knowing culpable mental state with regard to the type of controlled substance 

allegedly possessed." The argument is that to establish the culpable mental state of 

"knowingly," the State must prove that Blackmon knowingly possessed one of the 

substances specifically listed in K.S.A. 2018 Supp. 21-5706(a), "any opiates, opium or 

narcotic drugs, or any stimulant designated in K.S.A. 65-4107(d)(1), (d)(3) or (f)(1)."

MDMA is a hallucinogen and is unlawful under K.S.A. 2018 Supp. 21-5706(b).
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We are unpersuaded by this argument. The "knowing" portion of the culpable 

mental state for "possession" is the same regardless of the subsection of the statute being 

applied. The "nature" of the substance, for purposes of determining culpable mental state,

is that the substance is controlled in Kansas, and that fundamental nature does not change 

based on the subsection of the statute in which the controlled substance is listed. A 

conviction for possession of a controlled substance does not depend on the defendant 

having specific knowledge of the precise chemical composition of the controlled 

substance he or she possesses. Knowledge that a substance contains a prohibited 

controlled substance is sufficient to establish the required culpable mental state. When 

interpreting the imbedded knowledge requirement in K.S.A. 2018 Supp. 21-5706(a)'s 

possession definition, we find an individual meets the knowledge requirement if the

individual knows the specific chemical substance, or that the substance is controlled. As 

in Rizal, this holding allows for a mistake-of-fact defense if a defendant possessed a 

controlled substance but believed the substance was lawful. 310 Kan. at 209 (citing State 

v. Rosa, 304 Kan. 429, 437, 371 P.3d 915 [2016]). 

(b) Sufficiency of the evidence

"When reviewing the sufficiency of the evidence," this court must "decide

whether, after reviewing all the evidence in a light most favorable to the prosecution, [it 

is] convinced that a rational fact-finder could have found the defendant guilty beyond a 

reasonable doubt." State v. Shields, 315 Kan. 814, 826, 511 P.3d 931 (2022). 

Additionally, this court does "not reweigh evidence, resolve evidentiary conflicts, or 

make witness-credibility determinations." 315 Kan. at 826.

Blackmon argues that there was insufficient evidence to convict him of 

methamphetamine possession under K.S.A. 2018 Supp. 21-5706(a) because the State did 

not "present any evidence that [he] knowingly controlled methamphetamine." He points to 

the testimony of both deputies that they believed the pills to be MDMA to bolster his own 
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testimony. And because the pills he purchased did not actually contain MDMA, 

Blackmon argues he could only be convicted of attempted possession of MDMA, a crime 

not charged by the State. 

In his testimony, Blackmon admitted to possession of the pill containing 

methamphetamine. He also admitted to buying the pills with the knowledge and 

expectation the pills would contain a controlled substance, MDMA. Though described as 

a mistake-of-fact defense, Blackmon does not present any innocent or lawful explanation 

for his possession of methamphetamine, and we note he did not request a mistake-of-fact 

instruction. A mistake of fact is a defense if it negates the crime's required mental state.

K.S.A. 2021 Supp. 21-5207(a). "Although termed a 'defense,' the mistake-of-fact doctrine 

merely reflects the State's burden to prove every element of the offense: the State cannot 

convict the defendant if it fails to show that the defendant had the required mental state 

when committing the crime." State v. Diaz, 44 Kan. App. 2d 870, Syl. ¶ 1, 241 P.3d 1018 

(2010). Blackmon's "mistake" here does not show that he lacked the required mental 

state. Instead, by admitting that he believed the pills contained a controlled substance—a 

belief that was true—he established the required culpable mental state. 

Finally, the jury was not obligated to believe Blackmon's claim he did not know 

the pills had methamphetamine. He first told deputies that the pills were "candy."

Circumstantial evidence shows he knew the pills might contain methamphetamine. At 

trial, he testified he knew he was buying an illegal substance and admitted that it was not 

possible to be certain regarding the specific chemical composition of the substances

purchased. As such, he was aware that he could be receiving methamphetamine and he 

intended to possess the pills despite that knowledge. Viewing the evidence in the light 

most favorable to the State, we find the State presented sufficient evidence to establish 

Blackmon's culpable mental state—the only element challenged by Blackmon.
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II. Did the district court err when it overruled Blackmon's objection to jury instruction 

nine?

This court applies a multi-step process to review jury instruction errors. First, this

court must determine whether the issue was preserved. State v. Randle, 311 Kan. 468,

471, 462 P.3d 624 (2020). Second, reviewing courts must consider "whether the

instruction was legally and factually appropriate." 311 Kan. at 471. This court has

unlimited review over the first two steps. Third, if this court finds error, then the standard

of review depends on whether the party objected at trial. 311 Kan. at 471. If the party

objected, then "the State must establish there is no reasonable probability the absence of

the error would have changed the verdict." 311 Kan. at 471. If, on the other hand, the

party did not object, then this court applies the clear error standard and determines 

"whether it is 'firmly convinced that the jury would have reached a different verdict had 

the instruction error not occurred.'" State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448

(2018) (quoting State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 [2012]). 

Discussion

Following the close of evidence, Blackmon objected to jury instruction nine, 

which provided: "The State must prove that Brandon Blackmon had knowledge of the 

nature of the controlled substance, that Brandon Blackmon either knew the identity of the 

substance or that the substance was controlled." Blackmon argued that the instruction was 

coming from caselaw, was not part of the Pattern Instructions for Kansas (PIK), and was 

covered by instruction number eight. Instruction eight provided: "A defendant acts 

knowingly when the defendant is aware of the nature of his conduct that the State 

complains about or of the circumstances in which he was acting or that his conduct was 

reasonably certain to cause the result complained about by the State."
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On appeal, Blackmon first argues that the instruction was not legally appropriate. 

"To be legally appropriate, the instruction must fairly and accurately state the applicable 

law." State v. Wimbley, 313 Kan. 1029, 1034, 493 P.3d 951 (2021). Blackmon suggests 

that the law was not fairly and accurately stated because the law came from Rizal, which 

dealt with a different statute, K.S.A. 21-5705, which criminalizes possession with intent 

to distribute. While Blackmon is correct that the distribution and possession statute

punish different crimes, the knowledge requirements of the distribution and possession 

statutes are coterminous because they arise from the same statutory definitions found in

K.S.A. 21-5701(q) and K.S.A. 21-5202(i). Accordingly, the jury instruction was legally 

appropriate. 

Blackmon suggests that the instruction reduces the State's burden by eclipsing the 

intent element. But Blackmon confuses two different elements of possession—intent and 

knowledge. Possession of a controlled substance requires intent to exercise control over 

the substance, with knowledge of the nature of the substance. State v. Keel, 302 Kan. 560, 

Syl. ¶ 1, 357 P.3d 251 (2015). The jury was instructed on this intent to control in 

instruction six, which reads, in relevant part, "'Possession' means having joint or 

exclusive control over an item with knowledge of and the 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." Jury instruction nine did not affect the intent section of instruction 

six. Instead, instruction nine clarified the knowledge requirement set forth in instructions 

six and eight. It did not reduce the State's burden because regardless of whether 

Blackmon believed the substance was MDMA, methamphetamine, or something else, the 

State was required to prove beyond a reasonable doubt that Blackmon intended to control 

the illicit substance. Furthermore, intent to control was not an issue. Blackmon admitted 

he intended to have control over the pills—he only challenges the level of knowledge he 

must have regarding the specific content of the pills. We disagree with Blackmon that

instruction nine "gutted" the otherwise appropriate instructions. 
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Blackmon also argues that jury instruction nine was erroneous because it 

undermined his theory of defense. As authority, Blackmon cites to State v. White, 55 

Kan. App. 2d 196, 206, 410 P.3d 153 (2017). In White, this court explained "'trial courts

should not interfere with a defendant's chosen defense theory by giving an instruction 

which neither party requested and which may undermine defendant's chosen theory.'" 55 

Kan. App. 2d at 206 (quoting State v. Trussell, 289 Kan. 499, 505, 213 P.3d 1052 

[2009]). Here, the State specifically requested jury instruction nine. Following 

Blackmon's objection, the court asked the State if it was requesting instruction nine, to 

which the State responded, "Yes, Your Honor."

Blackmon appears to suggest that an instruction is impermissible if it would 

undermine his defense, even if the instruction is an accurate statement of law. Jury 

instruction nine did not eliminate any legitimate defense because Blackmon does not 

claim that he had a lawful substance—he believed he possessed a controlled substance, 

but not methamphetamine. Blackmon's belief he possessed MDMA is sufficient to 

establish the culpable mental state for possession of methamphetamine and is not a 

legitimate defense. We find that the district court did not err by overruling Blackmon's 

objection to jury instruction nine.

III. Did the prosecutor err in closing argument by explaining jury instruction nine?

This court may always review for prosecutorial error regardless of whether a 

contemporaneous objection is made. State v. Blevins, 313 Kan. 413, 428, 485 P.3d 1175

(2021). Accordingly, the issue is properly preserved. This court applies a two-step 

process for evaluating prosecutorial error claims:

"'[T]he appellate court must decide whether the prosecutorial acts complained of fall 

outside the wide latitude afforded prosecutors to conduct the State's case and attempt to 

obtain a conviction in a manner that does not offend the defendant's constitutional right to 
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a fair trial. If error is found, the appellate court must next determine whether the error 

prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we 

simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman

[v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, 

prosecutorial error is harmless if the State can demonstrate "beyond a reasonable doubt 

that the error complained of will not or did not affect the outcome of the trial in light of 

the entire record, i.e., where there is no reasonable possibility that the error contributed to 

the verdict."' [Citations omitted.]" State v. Timley, 311 Kan. 944, 949, 469 P.3d 54 

(2020). 

Discussion

A prosecutor commits error by misstating the law. State v. Watson, 313 Kan. 170, 

179, 484 P.3d 877 (2021). Here, Blackmon's closing argument ended with the following 

three sentences: "He had no knowledge it was methamphetamine. So ask you find him 

not guilty. Thank you." In rebuttal, the prosecutor said: "It doesn't matter whether the 

substance was methamphetamine or MDMA." Furthermore, the prosecutor stated: "I'd 

ask you draw your attention to jury instruction No. 9. The State must prove that Brandon 

Blackmon had knowledge of the nature of the controlled substance. That Brandon 

Blackmon either knew the identity of the controlled substance, or that the substance was 

controlled." The prosecutor's comments accurately stated the knowledge requirement 

underlying K.S.A. 2018 Supp. 21-5706(a) and are not a misstatement of the law. We find 

no prosecutorial error.

IV. Did the district court abuse its discretion in denying Blackmon's motion for a new 

trial because two jurors were seated behind Blackmon and defense counsel during 

the trial?

On appeal, Blackmon argues that his Sixth Amendment right to counsel was 

violated because two jurors were seated behind the defense table, thereby hindering his 
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ability to communicate with defense counsel. The State replies that the jurors' location 

did not amount to a constitutional violation. 

Relevant facts

Blackmon's jury trial occurred in February 2021. As part of the COVID-19

protocols, jurors were not only seated in the jury box, but were also spread throughout the 

courtroom. Two jurors were sitting directly somewhere behind the bar. At the close of the 

State's case-in-chief, defense counsel told the court the following:

"Judge, I—just because I needed to get the jury out. Just for the record, we're in a very 

weird situation here with regard to jury placement and stuff. They are directly behind me 

and my client and which makes conversation very difficult. Passing notes kind of worries 

me because we—I'm not sure what they can see back there. I just wanted to note for the 

record two jurors are kind of like right over our shoulders. It's a difficult situation and 

makes conversation with my client—and that may be something we reconsider as we get 

further in this process."

The court replied: "Your statement is noted. I will note jurors are spread around 

the courtroom. There are two or three that are fairly much behind you and Mr. Blackmon. 

So go ahead." Shortly after, defense counsel moved for a directed verdict, which the court 

denied, and then the court emptied the courtroom to allow Blackmon and defense counsel 

to confer about whether Blackmon would testify. 

After the trial was complete, Blackmon filed a motion for a new trial. Paragraph 

seven of the motion reads:

"The placement of two jurors immediately behind defense counsel and the defendant 

hampered an already strained relationship and communication with the defendant. There 

was no way to talk to the client without being overheard by jurors. The passing of written 
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communication was also circumscribed by the worry of the jurors seeing communications 

that they should be no part of."

At sentencing, the district court denied Blackmon's motion for new trial. The court 

explained:

"All right. The constitution doesn't guarantee a perfect trial. Certainly that's, I don't 

believe that is even possible but I think Mr. Blackmon was afforded a fair trial even 

though we've had to institute different protocols due to the Covid 19 virus so I am 

denying the motion for new trial."

Standard of review

K.S.A. 2021 Supp. 22-3501 provides that "[t]he court on motion of a defendant 

may grant a new trial to the defendant if required in the interest of justice." This court 

reviews a district court's denial of a motion for new trial for an abuse of discretion. State 

v. Rojas-Marceleno, 295 Kan. 525, 539, 285 P.3d 361 (2012). "A court abuses its 

discretion (1) if no reasonable person would take the view it adopted; (2) if it commits a 

legal error; or (3) if its decision is based on factual findings unsupported by substantial 

competent evidence in the record." King v. Casey's General Stores, Inc., 57 Kan. App. 2d 

392, 400, 450 P.3d 834 (2019). Additionally, this court has unlimited review over 

constitutional claims. State v. Vonachen, 312 Kan. 451, 457, 476 P.3d 774 (2020). 

Discussion

"The Sixth Amendment to the United States Constitution provides that in all 

criminal prosecutions, the accused shall have the right to the assistance of counsel for his 

or her defense. The Sixth Amendment right to counsel is made applicable to the states 

through the Fourteenth Amendment." State v. Long, 43 Kan. App. 2d 328, Syl. ¶ 2, 225 
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P.3d 754 (2010). On appeal, Blackmon argues the district court made an error of law by 

not finding that a Sixth Amendment violation occurred.

Blackmon supports his argument by citing to Geders v. United States, 425 U.S. 80, 

96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976). There, the trial court ordered Geders to not 

discuss the case with anyone during a 17-hour overnight recess between Geders' direct 

examination testimony and the cross-examination the following morning. Though the 

admonition was based on a concern regarding witness coaching, the United States 

Supreme Court explained that overnight recesses 

"are often times of intensive work, with tactical decisions to be made and strategies to be 

reviewed. The lawyer may need to obtain from his client information made relevant by 

the day's testimony, or he may need to pursue inquiry along lines not fully explored 

earlier. At the very least, the overnight recess during trial gives the defendant a chance to 

discuss with counsel the significance of the day's events. Our cases recognize that the role 

of counsel is important precisely because ordinarily a defendant is ill-equipped to 

understand and deal with the trial process without a lawyer's guidance." 425 U.S. at 88.

The Court went on to note that concerns about coaching could be allayed through 

other methods such as cross-examination. 425 U.S. at 90. The Court explained that if a 

tension emerged between the Sixth Amendment right to counsel and concerns about 

coaching, then the conflict must be resolved in favor of the right to counsel. 425 U.S. at 

91. Accordingly, the Court found that prohibiting a defendant from speaking to counsel

about any topic during a 17-hour recess between direct and cross-examination violated 

the Sixth Amendment. 425 U.S. at 91. 

Blackmon also cites to Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594, 102 L. Ed. 2d 

624 (1989), for the proposition that prejudice is not required for reversal when the 

constitutional right to an attorney was violated. In Perry, the Court found that the Geders

rule did not apply to an order directing Perry to not speak with his attorney during a 15-
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minute afternoon recess between Perry's direct and cross-examination. 488 U.S. at 274, 

284. The Court explained:

"[T]he normal consultation between attorney and client that occurs during an overnight 

recess would encompass matters that go beyond the content of the defendant's own 

testimony—matters that the defendant does have a constitutional right to discuss with his 

lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of 

negotiating a plea bargain. It is the defendant's right to unrestricted access to his lawyer 

for advice on a variety of trial-related matters that is controlling in the context of a long 

recess." 488 U.S. at 284. 

Because similar discussions would not occur during a 15-minute recess, the Court 

concluded that Geders was not applicable. Perry, 488 U.S. at 284. The Court clarified

that if Geders applied, then prejudice was not required to show a constitutional violation.

Perry, 488 U.S. at 280.

Finally, Blackmon cites to Moore v. Purkett, 275 F.3d 685 (8th Cir. 2001). In 

Moore, the district court ordered that Moore was not allowed to speak with his attorney, 

even in a whisper, during the trial proceedings. Though the court allowed Moore to 

communicate via writing, it was undisputed that Moore was nearly illiterate and unable to 

communicate his thoughts via writing. Moore was allowed to speak with counsel during 

recesses. Applying the principles of Geders and Perry to a prohibition on client-attorney 

communications during trial, the Eighth Circuit explained that "the Sixth Amendment 

guarantees a defendant the right to confer with counsel in the courtroom about the broad 

array of unfolding matters, often requiring immediate responses, that are relevant to the 

defendant's stake in his defense and the outcome of his trial." Moore, 275 F.3d at 688. 

Furthermore, the court explained that defendants have a right of unrestricted access to 

counsel unless the defendant is testifying. 275 F.3d at 688. The court concluded:
19

"In our view, the state trial court ran afoul of these principles in prohibiting 

Moore from talking quietly with his attorney in the courtroom during the trial. Because of 

Moore's uncontroverted limited writing skills, the trial court's ban on Moore speaking 

quietly with his attorney effectively prevented Moore from communicating with his 

attorney at all while court was in session." 275 F.3d at 688-89.

Citing Perry, the Eighth Circuit found Moore was actually or constructively 

denied his right to counsel and granted a new trial without a finding of prejudice. Moore,

275 F.3d at 689.

We first note that all of the cases relied upon by Blackmon involve an order by the 

trial court prohibiting a defendant from communicating with counsel. The district court 

here made no such order. But Blackmon argues his case is akin to Moore. He contends he 

was impeded from communicating with counsel during trial because of concerns that 

jurors would overhear any conversation or see any written communication. He suggests 

that the effect of the juror's placement behind the bar was to constructively deny him the 

right to counsel. 

The State replies that neither Geders, Perry, nor Moore are applicable to 

Blackmon. First, the State correctly argues that Geders and Perry dealt with prohibitions 

on attorney communication during recesses or breaks. See Leerdam v. State, 891 So.2d 

1046, 1049 (Fla. Dist. Ct. App. 2004) (explaining that a "denial of access to counsel 

during a recess of the character in Geders . . . is a per se deprivation of the Sixth 

Amendment right to effective assistance of counsel, but the denial of access to counsel 

during a recess of the character in Perry . . . is not a constitutional deprivation at all"). 

Therefore, the instant facts are not controlled by Geders or Perry. The State argues that 

Blackmon did not mention the placement of the jurors until after the State's case-in-chief, 

persuasively suggesting that their location was not an impediment to communication 

because Blackmon's defense counsel actively participated in the trial by cross-examining 
20

the State's witnesses without mentioning to the court that there were communication 

issues. 

Moreover, the State notes that Blackmon did not make a record regarding how far 

the jurors were from Blackmon and what they could see or hear. The record reveals that 

Blackmon's counsel explained that the jurors in question were seated "right behind the 

bar," were "directly behind me and my client," and were "kind of like right over our 

shoulders." The district court agreed that two or three jurors were "fairly much behind 

[Blackmon's counsel] and Mr. Blackmon."

Though these comments provide some context for the jurors' location, Blackmon 

is asking this court to make a supposition that the jurors were sufficiently close to affect 

Blackmon's constitutional rights. Notably, defense counsel explained that she could not 

tell if the jurors were close enough to read written communications. At the time she 

raised the issue, Blackmon's counsel did not claim communication was impossible, just 

that the placement of the jurors "makes conversation very difficult," suggesting it "may 

be something we reconsider as we get further in this process." Blackmon's complaint, in 

his motion for new trial and in this appeal, is different and exponentially more significant 

than the complaint he presented to the district court during trial. It has blossomed from 

conversation being "very difficult" at the time of trial to "[t]here was no way to talk to the 

client without being overheard by jurors." The issue was brought to the district court's 

attention only at the conclusion of the State's case-in-chief, after all the State's witnesses 

were done testifying. Blackmon made no request for any specific relief, and he was the 

only witness who testified after the issue was raised.

The record is devoid of any explanation of the distance between Blackmon and the 

jurors, and counsel for Blackmon did not point to any specific time when she was unable 

to actually communicate with Blackmon. "A party asserting error has the burden to 

designate a record which affirmatively shows prejudicial error in the trial court, and, 
21

without such a record, this court presumes the trial court's action was proper." State v. 

Goodson, 281 Kan. 913, Syl. ¶ 3, 135 P.3d 1116 (2006). We presume that the district 

court, with its knowledge of the particulars of the courtroom and placement of the jurors, 

found that the jurors were not so close as to prevent Blackmon from communicating with 

counsel.

Our review of the Sixth Amendment issue is unlimited, so we are not constrained 

by the limited comments made by the judge when ruling on the motion for new trial. See 

State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010). And it is not the district judge's 

obligation to develop the record. An adequate factual record is required to conduct 

meaningful appellate review of an issue. A party challenging the ruling of the district 

court is responsible for developing an adequate record for appeal. State v. Carr, 314 Kan. 

744, Syl. ¶ 19, 502 P.3d 511 (2022). The record does not show that whispering was not 

an option. It does not provide any information about the size of the courtroom, the 

distance between the gallery seating and counsel table, the location or row in the gallery 

in which the jurors were seated, and it does not show how far counsel table and chairs 

were located in front of the gallery seating. There is also no suggestion as to the distance 

from counsel table to the actual jury box in the courtroom to use as a comparative 

standard to assist in evaluating the claim. In the end, we are left to guess, based on the 

subjective assertion by counsel, that the jurors "are kind of like right over our shoulders." 

We see no basis in the record to determine that the district court committed error in its 

placement of jurors in the courtroom or otherwise. See State v. Gutierrez-Fuentes, 315 

Kan. 341, 347, 508 P.3d 378 (2022) ("Fact-finding is simply not the role of appellate 

courts."); State v. Kahler, 307 Kan. 374, 386, 410 P.3d 105 (2018) ("The trial judge has 

broad discretion in controlling the courtroom proceedings."); Friedman v. Kansas State 

Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013) ("When facts are necessary 

to an argument, the record must supply those facts and a party relying on those facts must 

provide an appellate court with a specific citation to the point in the record where the fact 

can be verified."); Sall v. T's, Inc., 281 Kan. 1355, 1362, 136 P.3d 471 (2006) ("The 
22

Court of Appeals sits not as a finder of fact but as an appellate court."). We find no abuse 

of discretion by the district court in denying Blackmon's motion for new trial, and no 

violation of Blackmon's Sixth Amendment right to communicate with counsel.

V. Did cumulative error deprive Blackmon of a fair trial?

When considering whether cumulative error requires reversal, reviewing courts 

consider "'the errors in the context of the record as a whole,'" the ways in which the trial 

judge handled the errors, the number and nature of the errors, how the errors are 

interrelated, and the strength of evidence. State v. Hirsh, 310 Kan. 321, 345-46, 446 P.3d 

472 (2019). Cumulative error may require reversal if, under the totality of the

circumstances, the defendant was substantially prejudiced and denied a fair trial. State v. 

George, 311 Kan. 693, 709, 466 P.3d 469 (2020). Finding no error by the trial court, the 

cumulative error doctrine does not apply.

Affirmed.

* * *

MALONE, J., concurring in part and dissenting in part: I concur with the majority 

opinion on all issues except I must reluctantly dissent on the issue about the district 

court's placement of jurors directly behind the defense table impeding Brandon 

Blackmon's ability to communicate with his counsel during the trial. Based on the record, 

I believe the trial judge failed to sufficiently respond to Blackmon's assertion that he 

could not communicate with counsel after being alerted about the problem. Thus, I would 

find the district court erred in denying Blackmon's motion for new trial on this issue.

The majority opinion correctly states the facts. As part of the COVID-19 

protocols, jurors were spread around the courtroom and two jurors were seated directly 
23

behind the defense table. At the close of the State's case-in-chief, defense counsel told the 

district court that two jurors "are directly behind me and my client and which makes 

conversation very difficult. Passing notes kind of worries me because we—I'm not sure 

what they can see back there." The trial judge noted the objection and acknowledged that 

"[t]here are two or three [jurors] that are fairly much behind you and Mr. Blackmon."

After the trial was complete, Blackmon's attorney filed a motion for new trial that 

more specifically asserted: "There was no way to talk to the client without being 

overheard by jurors. The passing of written communication was also circumscribed by 

the worry of the jurors seeing communications that they should be no part of." The trial 

judge's only response in denying Blackmon's motion for new trial on this issue was that 

"[t]he constitution doesn't guarantee a perfect trial. . . . I think Mr. Blackmon was 

afforded a fair trial even though we've had to institute different protocols due to the 

COVID 19 virus so I am denying the motion for new trial."

I have some concerns about the timeliness of Blackmon's objections and whether 

he may have waived this issue by not asserting his rights at trial. Blackmon's counsel 

made no record of the problem until the end of the State's case-in-chief, and even then, 

counsel was vague about the extent of the communication problem with Blackmon. But I 

think we can assume it took some time during the trial before counsel realized there was a 

communication problem, so in the absence of any meaningful response from the judge, I 

think counsel sufficiently brought the problem to the court's attention. Likewise, I think 

Blackmon has designated a sufficient record on appeal to show prejudicial error. The 

problem here is not an insufficient record to support Blackmon's claim—it's the judge's 

meager response to Blackmon's assertion that he could not communicate with counsel.

Blackmon's motion for new trial asserted that the placement of the jurors 

precluded any meaningful communication between counsel and Blackmon. The motion 

asserted there "was no way to talk to the client without being overheard by jurors." The 
24

motion also asserted that Blackmon and his counsel could not pass written notes without 

worrying about the jurors seeing the communication. The Sixth Amendment to the 

United States Constitution guarantees a defendant the right to confer with counsel in the 

courtroom. Moore v. Purkett, 275 F.3d 685, 688 (8th Cir. 2001). In Moore, the district 

court ordered the defendant not to speak with his attorney, even in a whisper, during trial 

proceedings—we have no such order here. But if Blackmon's assertions in his motion for 

new trial are correct—and the record does not reflect otherwise—then the placement of 

jurors directly behind the defense table effectively prevented Blackmon from conferring 

with his counsel during trial and amounted to a Sixth Amendment violation.

The majority "presume[s]" that the district court "found that the jurors were not so 

close as to prevent Blackmon from communicating with counsel." Slip op. at 20. But that 

is the problem—the district court never made such a finding. Instead, the district court's 

only response to Blackmon's motion for new trial on this issue was to say that "[t]he 

constitution doesn't guarantee a perfect trial." That is the same thing as saying that any 

error was harmless. But Kansas caselaw establishes that a violation of a defendant's Sixth 

Amendment right to counsel is structural error and is not subject to harmless error 

analysis. State v. Jones, 290 Kan. 373, Syl. ¶ 7, 228 P.3d 394 (2010).

To me, the trial judge failed to sufficiently respond to Blackmon's assertion that he 

could not communicate with his counsel after being alerted about the problem. I have a 

sense the district court could have explained that based on the court's observations at trial 

and knowledge of the courtroom, Blackmon could communicate with his lawyer during 

the trial—at least by whispering—but the court never provided this explanation. Instead, 

the district court's only response to Blackmon's concerns was to agree that jurors were 

seated directly behind the defense table because of COVID protocols and to say that 

Blackmon had no right to receive a perfect trial.
25

I am especially sensitive to the trial court's broad discretion in controlling 

courtroom proceedings and the fact the court was dealing with problems caused by the 

COVID pandemic in affording Blackmon his right to a jury trial. The worldwide COVID 

pandemic presented the Kansas judicial branch with unprecedented issues in delivering 

access to justice to the people of Kansas. The district courts were on the frontline of this 

extraordinary effort. Judges, court reporters, clerks, court service officers, and other 

judicial staff made sure that court hearings continued for Kansas citizens, even at great 

personal sacrifice. The district courts made special accommodations to protect jurors and 

to conduct jury trials, and there was nothing wrong with the court's protocol of spreading 

jurors throughout the courtroom provided Blackmon still received a fair trial.

We are stuck with the record we have in this case, and it reflects that Blackmon 

sufficiently asserted that he was precluded from communicating with his counsel during 

trial by the placement of two jurors directly behind the defense table. The trial judge did 

not adequately address this issue to ensure that Blackmon's Sixth Amendment right to 

counsel was protected. As a result, I would find the district court erred in denying 

Blackmon's motion for new trial on this issue.