1 NOT DESIGNATED FOR PUBLICATION

No . 121,717

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee ,

v.
S COTT P ITTENGER , Appellant

.

MEMORANDUM OPINION

Appeal from Pottawatomie District Court; J EFF REY R. E LDER , judge. Opinion filed October 30 , 2020

. Affirmed

.

Blake A. Robinson , of Manhattan , for appellant.

Michael J. Duenes , assistant solicitor general , and Derek Schmidt , attorney general, for appellee.

B efore G ARDNER , P.J., B USER and B RUNS , JJ.

P ER C URIAM : After a bench trial, Scott Pittenger was convicted of misdemeanor possession of drug paraphernalia. On appeal, Pittenger contends that his conviction must be vacated because he was deprived of his constitutional right to a jury trial. However, a review of the record reflects that Pittenger did not properly preserve this issue for appeal because he failed to raise it with the district court. Moreover, he has failed to provide a reason why this court should address the issue for the first time on appeal as required by
Kansas Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 3 4 ). In addition, even if Pittenger had preserved this issue for appeal, we find that he was not entitled to a jury trial due to the nature of the crimes charged . Thus, we aff irm.2 F ACTS

On September 2, 2018, Officer Jason Powell served a warrant on P i tt e nger while he was painting the Columbian Theater in Wamego . In a search incident to arrest, Officer Powell found a small object

— identified as a thimble

— that appeared to have d rug residue inside. Officer Powell also noticed that the thimble had a hole that appeared to be drilled in t he bottom.

T he State charged Pittenger with possession of drug paraphernalia in violation of K.S.A. 2018 Supp. 21

- 5709(b)(2). Although he initiall y waived his right to counsel , an attorney was appointed to represent him after the State amended the complaint to add a charge of possession of Tetrahydrocannabinol (THC) in violation of K.S.A. 2018 Supp.
21

- 5706(b)(7) and (c)( 3 )(A). On June 26, 2019, the district court held a bench trial on both charges

.

At trial, a forensic scientist with the Kansas Bureau of Investigation testified that the residue inside the thimble tested positive for THC . Likewise , his laboratory report was ad mitted into evidence. In addition, Officer Powell testified regarding the execution of the warrant and his observations of the items confiscated during the arrest. He also testified about his training and experience that led him to believe the thimble cont ained residue of burnt marijuana and that it had been modified for use as drug paraphernalia.

After hearing the testimony presented at trial , the district court convicted Pittenger
of possession of drug paraphernalia but acquitted him on the possession o f THC charge

. T he district court then sentenced Pittenger to 48 hours in jail and imposed courts costs of $158

. Thereafter, Pittenger filed a timely notice of appeal

.3 A NALYSIS

On appeal, Pittenger contends for the fi rst time that he was denied his

con stitutional right to a jury trial. As a general rule, we d o not review constitutional grounds for reversal raised for the first time on appeal. See State v. Becker , 311 Kan. 176, 186, 459 P.3d 173 (2020). However, there are several exceptions to thi s rule, including: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the judgment of the district court may be upheld on appeal despite its reliance o n the wrong ground or having assigned a wrong reason for its decision. State v. Patterson , 311 Kan. 59, 62, 455 P.3d 792 (2020).

In order to invoke an exception to the general rule, Kansas Supreme Court Rule 6.02(a)(5) requires an appellant to explain why an issue was not raised below and to provide a reason why it should be considered for the first time on appeal. In State v. Williams , 298 Kan . 1075, 1085, 319 P.3d 528 (2014), the Kansas Supreme Court warned that an appellant who fail s to comply with this rule risk s having the newly asserted argument deemed to be waived or abandoned. Furthermore , our Supreme Court has held that Rule 6.02(a)(5) is to be s trictly enforced. State v. Godfrey , 301 Kan. 1041, 1044, 350 P.3d 1068 ( 2015).

Here, Pittenger has fa iled to comply with Rule 6.02 (a)(2). First, h e has failed to offer any explanation why he did not raise this issue below . Second, he has failed to provide a reason why we should consider this issue for the first time on appeal. Accordingly, we find that Pittenger failed to preserve the jury trial issue for appeal and we deem this argument to be waived or abandoned

.4

Even if Pittenger had preserved this issue for appeal, we also find that his argument fail s on the merits. In particular , Pittenger has failed to show that he had the right to a trial by jury for these charges under the circumstances presented in this case

. Although b oth t he Sixth Amendment of the United States Constitution a s well as § 5 of the Kansas Constitution Bill of Rights grant a criminal defendant the right to a jury trial , it is important to recognize that t his right is not unlimited.

As the United States Suprem e Court has held, when defendant s are charged with "serious" crime s , they have a right to a jury trial. See Baldwin v. New York , 399 U.S. 66,
68

- 69, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970). In contrast, when defendant s are charged with "petty" offense s , th ey have no right to a trial by jury . Se e Duncan v. State of
Louisiana , 391 U.S. 145, 160, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968 ); State v. Shannon , 258 Kan. 425, 435

- 36, 905 P.2d 649 (1995). Moreover, t he seriousness of a crime is
based on the possible punishment that could be imposed

. Duncan , 391 U.S. at 159

- 61.

In the present case, t he State charged Pittenger with two misdemeanors . Each of
these offences carried a maximum punishment of six months in jail. See K.S.A. 2 018 Supp. 21

- 5709(b)(2) (possession of drug paraphernalia); K.S.A. 2018 Supp. 21

- 5706(b)(7) and (c)( 3 )(A) (possession of THC); K.S.A. 2018 Supp. 21

- 6602(a)(2) (restricting the maximum term of confinement for class B misdemeanors to six months). As such, be cause the charges brought against Pittenger were "petty offenses" a s defined by Kansas law, he did not have a constitutional right to a jury trial for these offenses. See
Duncan , 391 U.S. at 159

- 61; Shannon , 258 Kan. at 435

- 36; State v. Woolverton , 52 Kan. App. 2d 700, 701

- 02, 371 P.3d 941 (2016).5

Although Pittenger suggests that he should be entitled to a jury trial because he was facing a possible sentence of up to 12 months if he had been convicted of both charges , an aggregation of sentences from several offenses which surpasses 6 months is not sufficient to establish the right to a jury trial. See Lewis v. United States , 518 U.S. 322, 330, 116 S

. Ct. 2163, 135 L. Ed. 2d 590 (1996). We note that the presumption that an offense is a petty offense can be rebutted when an offense carries extra penalties that
could transform a charge into a serious offense

. See B lanton v. North Las Vegas , 489 U.S. 538, 543, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989). To do so, it must be shown that the extra penalties are severe enough to result in a serious offense. Blanton , 489 U.S. at
543.

In this case, Pittenger has not attempted to make such a showing. Instead, he argues that the crime of possession of THC should be considered a ser ious offense because a conviction could possibly affect his criminal history should he be convicted in the future of possession of THC or marijuana. However, we find this argument to be

moot under the circumstance presented in this case because the distric t court acquitted Pittenger of the charge of possession of THC. Thus, he does not face this risk.

We recognize that had Pittenger complied with the provisions of K.S.A. 22

- 3404 , he could have requested a jury trial in this case . K.S.A. 22

- 3404(1) provides that a defendant must affirmatively request a jury trial for a petty offense "not later than seven days after first notice of trial assignment is given to the defendant or such defendant's counsel." Here, Pittenger makes no claim that h e requested a jury trial under K.S.A. 22

- 3404(1) , and we find no such request in the record on appeal.

In summary, we find that Pittenger has failed to explain why he did not raise the issue in front of the district court. Likewise, we find that he has n ot p rovide d any reasons why th is issue should be considered for the first time on appeal. As such, pursuant to Rule 6.02(a)(5) , we conclude that Pittenger has waived or abandoned his claim of a6

constitutional right to a jury trial in this case

. We also fin d that Pittenger's argument fails on the merits because he has failed to establish that he had the right to a jury trial on the

c rimes c harge d in this case . For these reasons, we affirm Pittenger's conviction.

Affirmed.