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NOT DESIGNATED FOR PUBLICATION

No. 125,191

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JOSEPH P. WHITEKER,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Submitted without oral argument. 

Opinion filed March 22, 2024. Affirmed.

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

Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, 

attorney general, for appellee.

Before BRUNS, P.J., PICKERING, J., and TIMOTHY G. LAHEY, S.J.

PICKERING, J.: This is a direct appeal from Joseph P. Whiteker's jury trial which 

resulted in two drug convictions. He challenges the voluntariness of his post-Miranda

statements and asserts the district court's failure to provide a limiting instruction 

regarding his statements of prior drug use resulted in clear error. Finding his statements 

were voluntary and no clear error when the jury received the case without a limiting 

instruction, we affirm.
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WHITEKER'S ARREST AND JURY TRIAL

Officers David Howard and Joey Husen of the Wichita Police Department saw 

Whiteker riding his bicycle eastbound on Skinner Street in Wichita. Whiteker was 

wearing all black, a backpack, and a dark colored hat with a white logo. As he 

approached the Skinner and Topeka Street intersection, he failed to stop and ran a stop 

sign. Due to this infraction, the officers tried to stop Whiteker. A chase began after 

Whiteker turned onto a side road and sped up. The officers lost sight of Whiteker during 

this chase. However, 10 minutes after the attempted stop, the officers apprehended him.

The officers noticed that Whiteker no longer had his hat or backpack with him. They did 

locate a black backpack, hat, and Bluetooth speaker in a trash can close to where they had 

initially lost sight of Whiteker. The short 10-minute chase was captured on the officers'

Axon body cameras, which is a small camera worn by an officer and provides video 

footage from their patrols.

Once apprehended, Whiteker was handcuffed and placed in the back of the 

officers' patrol car. Husen questioned Whiteker while Howard stood at the car's 

hatchback searching the backpack. Howard found two small bags of methamphetamine, a 

mirror with white residue, and another empty small bag in the backpack's top pouch. 

Howard also found a straw which he believed was used to load drugs into a drug pipe.

Husen read Whiteker his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 

16 L. Ed. 2d 694 (1966), pausing after each right to ask if Whiteker understood. Whiteker 

acknowledged each right and agreed to speak to Husen. Whiteker said that he discarded 

the backpack because it was heavy. During the interrogation, Whiteker admitted that he 

was a methamphetamine user and had used it that morning but claimed he did not put the 

drugs in the backpack. The State charged Whiteker with one count of possession of 

methamphetamine and one count of use or possession of drug paraphernalia.
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The State moved for a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 84 S. 

Ct. 1774, 12 L. Ed. 2d 908 (1964), which is a hearing to determine whether a defendant's 

statements, particularly a confession or an admission, may be admitted at trial. The State 

sought the admission of Whiteker's post-Miranda statements made to Husen after he was 

arrested and seated in the patrol car. At the hearing, the State presented evidence that 

Whiteker's statements to Husen were voluntary. Husen, testifying for the State, remarked 

how Whiteker appeared "pretty mellow," tired, and sweating from running. Husen also 

testified that he observed Whiteker slumped over during the interrogation and was aware 

that Whiteker had used meth earlier that day. Husen said that Whiteker's drug use gave 

him no concern about continuing the interrogation because Whiteker appeared to be 

"tracking along with the conversation" and gave no indication that he did not understand 

what was going on. Husen testified that Whiteker answered his questions coherently.

Whiteker testified on his own behalf at the hearing. He recalled that he was high at 

the time he spoke to Husen and he had used methamphetamine about 20 minutes before 

the officers encountered him. Whiteker, however, did not recall much of his statements 

and the interrogation.

The defense challenged the voluntariness of Whiteker's statements, asserting that 

his statements were not voluntary because of his mental state. The district court ruled that 

Whiteker's statements were voluntary, stating that there was no unlawfully coercive 

behavior and Whiteker's methamphetamine use did not render his statements involuntary.

In a pretrial motion, the State moved under K.S.A. 2021 Supp. 60-455 to admit 

Whiteker's statement about using methamphetamine the morning of his arrest to show 

intent, knowledge, or lack of mistake or accident regarding drug possession. The State

argued that Whiteker offered an innocent explanation for his drug possession; he did not 

deny possession. The district court also granted this pretrial motion.
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At Whiteker's jury trial, Howard and Husen testified to the events leading up to 

and after Whiteker's arrest and Whiteker's post-Miranda statements made following his 

arrest and during the interrogation. Lana Goodson, a forensic scientist at the Sedgwick 

County Regional Forensic Science Center, testified to her lab testing process and the lab 

results showing that the drugs were methamphetamine. The State's evidence included 

Axon video footage of the officers' attempted stop of Whiteker and photos of the 

backpack, hat, Whiteker's wallet and his identification card, bags of methamphetamine 

with the straw, the other small empty bag, and the mirror. Additionally, the State 

admitted Goodson's forensic drug-testing report that identified the substance to be

methamphetamine. The jury found Whiteker guilty of methamphetamine possession and 

use or possession of paraphernalia.

At the sentencing hearing, the district court imposed a controlling term of 34

months in prison for the possession of methamphetamine conviction, imposed 6 months 

in jail for the use or possession of paraphernalia conviction, and ordered the two 

sentences to run concurrent to each other and consecutive to a suspended sentence in 

another case.

REVIEW OF WHITEKER'S TWO APPELLATE CHALLENGES

I. The District Court Did Not Err in Admitting Whiteker's Post-Miranda Statements

Whiteker contends that his drug use and exhausted condition rendered his 

statements involuntary. He maintains that the totality of the circumstances show that the 

officers aimed to manipulate his condition to obtain incriminating statements. Whiteker 

also contends that the statements prejudiced him because the State heavily used the 

statements to prove that he had possession of the backpack and items within it. The State 

responds that substantial competent evidence supports the district court's finding that the 
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statements were voluntary under the totality of the circumstances. Moreover, if the 

district court erred, the error was harmless.

We will review all factors in determining the voluntariness of Whiteker's 

statements.

At the Jackson v. Denno hearing, after considering the testimonial evidence and 

viewing the Axon video footage of the interrogation, the district court found Whiteker's 

statements were voluntarily made. The district court did not detect unlawful, coercive 

behavior by the officers that would render Whiteker's statements involuntary. At trial, 

Whiteker made a standing objection to the admittance of his statements.

The State contends that Whiteker only contested his mental state during the 

Jackson v. Denno hearing and trial and thus improperly raises the other five factors for 

the first time on appeal. In support, the State cites to State v. Johnson, No. 107,086, 2013 

WL 5303512, at *8 (Kan. App. 2013) (unpublished opinion), wherein another panel 

denied review of appellant's challenge of the admission of his post-Miranda statements

because he did not raise the issue in district court. Whiteker responds that the district 

court had to review all factors to determine the voluntariness of Whiteker's statements 

whether or not he contested any factors, and thus review of all factors is necessary.

Notably, State v. Lowery, 308 Kan. 1183, 427 P.3d 865 (2018), also concerns a 

defendant's challenge of the voluntariness of his interrogation statements. There, after the 

district court ruled to admit Lowery's statements—which he asserted were involuntarily 

made—he sought appellate review. On appeal, Lowery added an argument that the 

detective did not provide him with a complete Miranda warning and, thus, his statements 

were involuntary. The Kansas Supreme Court noted that this argument was raised for the 

first time on appeal but considered this new argument regarding whether the defendant's 
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statements were involuntary. Lowery, 308 Kan. at 1219-22. Likewise, we will review all 

factors rather than limiting review to the first factor, namely Whiteker's mental state.

The rules that we follow

Our standard of review is as follows: The factual underpinnings of the district 

court's decision are reviewed under a substantial competent evidence standard, and the 

legal conclusion drawn from the facts is reviewed de novo. State v. Parker, 311 Kan. 255, 

257, 459 P.3d 793 (2020). We cannot reweigh evidence, assess witness credibility, or 

resolve conflicting evidence. State v. Gibson, 299 Kan. 207, 216, 322 P.3d 389 (2014).

"'When a defendant claims his or her statement was not voluntary, the prosecution 

has the burden of proving by a preponderance of the evidence that it was voluntary.'"

Lowery, 308 Kan. at 1218. The district court looks at the totality of the circumstances 

surrounding the statements to determine whether the statements were voluntarily, 

intelligently, and knowingly made by considering nonexclusive factors, including the 

defendant's mental condition; the manner and duration of the interrogation; the ability of 

the defendant to communicate on request with the outside world; the defendant's age, 

intellect, and background; the fairness of the officers when conducting the interrogation; 

and the defendant's fluency with the English language. State v. Bentley, 317 Kan. 222, 

228-29, 526 P.3d 1060 (2023).

These factors, however, are not weighed against one another, "'with those 

favorable to a free and voluntary confession offsetting those tending to the contrary.'"

State v. Mattox, 305 Kan. 1015, 1043, 390 P.3d 514 (2017). A confession may be found 

not to be free and a voluntary act if "'a single factor or a combination of factors 

considered together may inevitably lead to a conclusion that under the totality of 

circumstances a suspect's will was overborne.'" 305 Kan. at 1043.
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Whiteker challenges the voluntariness of his post-Miranda statements.

Whiteker argues that his earlier drug use affected his mental condition, thus 

rendering his statements involuntary. In State v. Walker, 304 Kan. 441, 451, 372 P.3d 

1147 (2016), our Supreme Court held that intoxication does not per se render a person's 

statements involuntary. To determine if the intoxication prevented a defendant from 

voluntarily making a statement, all circumstances must be examined. Courts must 

examine factors such as manifestations of being under the influence, whether others who 

interacted with the accused thought the accused seemed under the influence, the district 

court's evaluation based on observing or hearing the accused in a video or audio 

statement, the accused's familiarity with police interviews, and the accused's familiarity 

with Miranda rights. 304 Kan. at 451.

At the Jackson v. Denno hearing, Husen testified that Whiteker appeared to be 

"pretty mellow. He was tired from running, because he was sweating." To make Whiteker 

more comfortable, the officer turned on the air conditioning. During police questioning, 

Whiteker admitted to Husen that he had used methamphetamine earlier that day. Husen

noticed that Whiteker was slumped over and leaning against the glass in the back seat 

with his eyes closed for much of the interrogation. Husen also testified that Whiteker was 

"very cooperative after he was taken into custody."

Whiteker also testified at the hearing. He confirmed that he had admitted to Husen 

that he had smoked methamphetamine. Specifically, he had smoked a couple of bowls of 

methamphetamine and was high during the interrogation. He estimated that 20 minutes 

passed between smoking and the officers' attempted stop.

Other evidence suggests that Whiteker was coherent during the interrogation. 

Husen asked Whiteker if he understood each Miranda right, to which Whiteker 

responded by either saying "yes" or nodding his head. Whiteker was able to sit himself 
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upright at various points of the interrogation. Whiteker appeared to give coherent answers 

and at various points looked up at Husen while answering questions. Husen also testified 

that it did not give him any cause for concern about continuing the interrogation after 

Whiteker informed him that he had smoked methamphetamine that day. Husen detected 

no signs of Whiteker having trouble following the conversation or failing to understand 

what was happening. He found that Whiteker coherently answered his questions. As to 

Whiteker's first factor, his mental state, his earlier methamphetamine use did not render 

his statements involuntary.

When we consider the additional factors in Walker—manifestations of 

intoxication, others' impressions of whether the defendant seemed intoxicated, the district 

court's conclusion from watching the interrogation, and the defendant's familiarity with 

police interviews and Miranda rights—being under the influence did not render 

Whiteker's statements involuntary. See 304 Kan. at 451. Whiteker appeared slumped over 

with his eyes closed and at times did not answer questions verbally. He also informed 

Husen that he had smoked methamphetamine that day. Husen believed that Whiteker 

understood the situation, was "tracking" with the conversation, and answered his 

questions coherently.

Kansas courts have routinely found statements voluntary in cases where officers 

perceived the defendant as answering questions coherently and understanding the 

situation. See State v. Galloway, 311 Kan. 238, 249-50, 459 P.3d 195 (2020). Statements 

were also found as voluntary even with conflicting evidence of the defendant's 

intoxication level and coherence. See State v. Gilliland, 294 Kan. 519, 530-32, 276 P.3d 

165 (2012) (conflicting officer testimony on defendant's ability to walk and communicate 

clearly).
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The second factor in determining whether Whiteker's statements were voluntary is 

the manner and duration of the interrogation. Here, the interrogation occurred while 

Whiteker was handcuffed in the back of the police car, which, according to Husen, lasted 

"maybe 15, 20 minutes at the most." Whiteker was questioned by only one officer, 

Husen, while Howard was nearby searching the backpack during the interrogation. In 

terms of comfort, Husen turned on the car's air conditioning to make Whiteker more 

comfortable, and he stopped questioning Whiteker once Whiteker said he was done with 

the interview.

Husen, without first asking Whiteker if the backpack found in the trash can was 

his, assumed it was Whiteker's and asked why Whiteker threw his "property" in the trash 

can. After Whiteker said he discarded the backpack because it was too heavy, Howard 

found a knife in the backpack, and Husen told Whiteker, "I don't think you're gonna ditch 

something unless you think something's in it." Husen later asked Whiteker whose 

backpack it was after telling Whiteker they found a crystal substance in the backpack. 

The second factor supports a finding that the statements were voluntary.

The third factor is the defendant's ability to communicate with the outside world. 

Whiteker did not ask to speak with anyone else during the interrogation. This factor and 

the fourth factor—the defendant's intellect, age, and background—also support a finding 

of voluntariness. Whiteker was 37 years old the day of his arrest. The district court 

recalled that it was familiar with Whiteker's background from prior cases. And Husen 

detected no inability by Whiteker to understand the situation.

The fifth factor is the fairness in conducting the interrogation. The district court 

found no unlawfully coercive behavior by Husen. At the start of the interrogation, Husen 

told Whiteker he would read Whiteker his rights and that if Whiteker wanted to talk, 

Husen appreciated it, and if Whiteker did not want to talk, that was his right. When 
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Whiteker asked for water, Husen told him that he would get him some, and the officers 

also provided Whiteker with a cigarette at his request.

The sixth factor, fluency in English, is not at issue here. There is no indication in 

the record that Whiteker had any difficulty speaking or understanding English.

We hold that Whiteker's statements were voluntarily made in consideration of the 

totality of circumstances. Whiteker's coherence in his answers to police, Husen's 

perception of Whiteker as understanding and communicating clearly, and the district 

court's conclusions upon reviewing the interrogation indicate a voluntary Miranda

waiver. We conclude that the district court did not err in finding Whiteker's statements 

voluntary as the district court's findings of fact are supported by substantial competent 

evidence. The district court's reasons in support of its decision are substantial and 

compelling, and we affirm the district court's ruling.

II. The District Court's Failure to Include a Limiting Instruction Was Not Clearly 

Erroneous

Whiteker contends that a limiting instruction on his statement admitting to using 

methamphetamine was both legally and factually appropriate under K.S.A. 2023 Supp. 

60-455, thus establishing error. Whiteker maintains that the failure to give the limiting 

instruction was clear error warranting reversal, contending that there was a "real 

possibility" that the jury improperly used the statement considering that all charges 

against Whiteker were drug charges. Whiteker, however, did not request a limiting 

instruction at trial.

In our analysis of this jury instruction issue, we follow a three-step process. First,

we determine whether we can or should review the issue. In other words, "'whether there 

is a lack of appellate jurisdiction or a failure to preserve the issue for appeal.'" State v. 
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Holley, 313 Kan. 249, 253, 485 P.3d 614 (2021). Second, we consider the merits of the 

claim to determine whether error occurred below. At this step, we consider whether the 

instruction was "legally and factually appropriate, using an unlimited standard of review 

of the entire record." 313 Kan. at 254. And third, we assess whether the error requires 

reversal. That is, "'whether the error can be deemed harmless.'" 313 Kan. at 253.

When a party asserts a jury instruction error for the first time on appeal, "the 

failure to give a legally and factually appropriate instruction is reversible only if the 

failure was clearly erroneous." State v. Butler, 307 Kan. 831, 845, 416 P.3d 116 (2018); 

see K.S.A. 22-3414(3). "Instructional error is clearly erroneous when '"the reviewing 

court is firmly convinced that the jury would have reached a different verdict had the 

instruction error not occurred."'" State v. Owens, 314 Kan. 210, 235, 496 P.3d 902 

(2021). The "'clearly erroneous'" principle is not a standard of review; "[r]ather, it 

supplies a basis for determining if an error requires reversal [of a conviction]." State v. 

Lewis, 299 Kan. 828, 856, 326 P.3d 387 (2014).

Whiteker's prior statements were admitted into trial without a limiting instruction.

K.S.A. 2023 Supp. 60-455(b) allows evidence that a person committed prior bad 

acts when used to prove "motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake." When a trial court admits evidence under K.S.A. 2023 

Supp. 60-455, the court should provide the jury with a limiting instruction. State v. 

Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006). "[A] limiting instruction is both legally 

and factually appropriate if any 60-455 evidence is presented at trial." State v. Molina, 

299 Kan. 651, 656, 325 P.3d 1142 (2014).

In response, the State agrees that a limiting instruction was both legally and 

factually appropriate and the district court erred by not giving the instruction. This error, 

the State contends, does not warrant reversal, maintaining that the record establishes that 
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the same verdict would have resulted without the instructional error. The State further 

argues that a limiting instruction would have confused the jury, considering another jury 

instruction allowed the jurors to consider Whiteker's drug use in deciding whether 

Whiteker had nonexclusive possession of the items.

Having established that this is a reviewable claim and that an instructional error 

occurred, we turn to the third step to determine whether this error was clearly erroneous.

Here, the jury saw the body camera video of Whiteker's interrogation with Husen where 

Whiteker admitted to using methamphetamine earlier that day. Husen also testified that 

he asked Whiteker if he used meth and that Whiteker admitted that he used it and smoked 

it that day. Jury instruction No. 3, which instructed the jury on the possession of 

methamphetamine charge, stated that in deciding whether Whiteker knowingly possessed 

methamphetamine, the jury could consider, among other factors, whether he used 

controlled substances.

The record indicates that aside from Whiteker's admission of using 

methamphetamine, other evidence similarly indicated that Whiteker knowingly possessed 

methamphetamine. Howard testified that the zipper to the backpack's top pouch was 

unzipped before he began searching and he could see a small bag containing a crystal 

substance inside it. Howard also found another bag with a crystal substance and a mirror 

with white residue in that same pouch. Howard further testified that the cigarettes 

Whiteker had asked for were also in that same pouch. Finally, Whiteker's wallet and 

identification card were found in the backpack's side pouch. Thus, the record indicates 

that while the district court committed instructional error by failing to give a limiting 

instruction regarding Whiteker's drug use, there is no clear error. We are not firmly 

convinced that the jury would have returned a different verdict had the error not occurred.
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To conclude, we disagree with Whiteker's argument that his statements were 

involuntary, and we find the district court did not err in admitting his statements. We also 

find the district court's failure to provide a limiting instruction was not clearly erroneous. 

Therefore, we affirm Whiteker's convictions and sentences.

Affirmed.