State v. Brazzle

• Decision Date: 10 July 2020
• Docket Number: No. 116,649,116,649
• Citation: 466 P.3d 1195
• Parties: STATE of Kansas, Appellee, v. Anthony Michael BRAZZLE, Appellant.
• Court: Kansas Supreme Court

466 P.3d 1195

STATE of Kansas, Appellee,

v.Anthony Michael BRAZZLE, Appellant.

No. 116,649

Supreme Court of Kansas.

Opinion filed July 10, 2020.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Barry K. Disney, senior deputy county attorney, argued the cause, and James W. Garrison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Luckert, C.J.:

Anthony Michael Brazzle petitions this court for review of the Court of Appeals' decision affirming his drug-related convictions, including possession of methamphetamine with intent to distribute and possession of oxycodone. He argues the district court erred in admitting K.S.A. 60-455 evidence related to two prior methamphetamine sales to undercover detectives about a week before the events at issue, the district court clearly erred in instructing the jury on possession of oxycodone, and insufficient evidence supported his conviction for possession of oxycodone.

We find no reversible error and affirm Brazzle's convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Law enforcement officers arrested Brazzle after he drove away from the Royal Inn, a hotel in Riley County. Law enforcement officers had the Inn under surveillance because they had learned about an uptick in drug usage and distribution at the hotel. The officers saw a car come to the hotel and leave about 10 to 15 minutes later. As the car pulled out of the parking lot, the driver, later identified as Anthony Brazzle, committed a traffic infraction. The officers followed Brazzle and initiated a traffic stop. Brazzle was alone in the vehicle. Brazzle first reported his name was Marcus Brazzle, but he eventually admitted he was Anthony Michael Brazzle.

During the stop, K9 Officer Andrew Toolin arrived and walked his dog around the vehicle. After the dog alerted, Toolin searched the vehicle. He found a small, gray pill under the driver's floorboard. Toolin identified the pill, which had a "K 57" marking on it, as oxycodone hydrochloride by using "a common method of drugs.com." Toolin said law enforcement officers in the United States use this website to identify pills. Toolin also found a glass smoking device with white residue under the driver's seat and brass knuckles in the front driver's door panel.

Underneath the passenger seat, Toolin found a plastic baggie containing a Crown Royal bag. The Crown Royal bag contained two small ziplock baggies of a crystal-like substance Toolin believed was methamphetamine; another glass smoking device; U.S. currency totaling $128; more small, gray pills with a "K 57" marking; and unused, small ziplock plastic baggies. Toolin testified that the baggie containing the Crown Royal bag was easily within reach of the driver's seat.

Toolin testified the two baggies with the crystal-like substance weighed 3.4 grams and 5.7 grams. Toolin said this was "a lot" of methamphetamine and, in his training and experience, these amounts were consistent with a distributable amount of methamphetamine. He added that a normal amount for a user to possess is anywhere from a quarter gram to a gram at a time.

Later testing performed by a Kansas Bureau of Investigation (KBI) forensic scientist confirmed the bags contained methamphetamine with a net weight of 2.98 grams and 5.28 grams, respectively. One of the glass smoking devices also tested positive for methamphetamine. No evidence established that the gray pills were tested.

Toolin testified, citing his training and experience, that smaller ziplock baggies are used to package illegal drugs. He also testified the $128 found with the methamphetamine was in denominations allowing a distributor to make change and drug dealers commonly store money used for that purpose with the drugs the dealer plans to distribute.

The State originally charged Brazzle with possession with intent to distribute methamphetamine, possession of drug paraphernalia, and criminal use of a weapon. The State later added a charge of unlawful possession of a controlled substance, oxycodone.

Before trial, the State filed a motion to determine admissibility of K.S.A. 60-455 evidence. The State sought to admit testimony from an undercover detective who had purchased methamphetamine from Brazzle about a week before his arrest. Following a hearing, the district court permitted the State to present this evidence to show whether Brazzle intended to distribute the methamphetamine found during the car stop.

At trial, over objection from Brazzle's attorney, the undercover detective testified he and his undercover partner had connected with Brazzle through another person who told the detective to come to the Royal Inn hotel. Once there, Brazzle sold the detectives 3.5 grams of methamphetamine for $200. A few days later, Brazzle offered to again sell methamphetamine to the testifying detective at Royal Inn, but the detective asked to move to a different location. The detective said he also received unused plastic baggies from Brazzle and the only reason to have these baggies is to distribute methamphetamine.

Brazzle presented no evidence.

The district court instructed the jury that the prior crime evidence could "be considered solely for the purpose of proving the defendant's intent with the controlled substances." The district court also instructed the jury on the statutorily created rebuttable presumption of an intent to distribute if any person possesses 3.5 grams or more of methamphetamine. See K.S.A. 2015 Supp. 21-5705(e)(2). And at Brazzle's request, the district court instructed the jury that possession with intent to distribute includes the lesser offense of possession of methamphetamine. The jury convicted Brazzle on all counts as charged.

The district court denied Brazzle's motion for a departure sentence and sentenced Brazzle to 105 months' imprisonment for the primary offense of possession with intent to distribute methamphetamine. The district court ran Brazzle's other sentences concurrent with the 105-month sentence. During the same hearing, the district court ran the sentence concurrent with Brazzle's 55-month sentence in another case. And finally, the district court ran the concurrent sentences consecutive to Brazzle's 20-month sentence imposed based on a probation violation in an earlier case.

On direct appeal, the Court of Appeals affirmed Brazzle's convictions. State v. Brazzle , 55 Kan. App. 2d 276, 411 P.3d 1250 (2018). This court granted Brazzle's petition for review.

1. ADMISSION OF K.S.A. 2019 SUPP. 60-455 EVIDENCE NOT ERROR

As announced in State v. Gunby , 282 Kan. 39, 57, 144 P.3d 647 (2006), K.S.A. 2019 Supp. 60-455 governs the admissibility of all evidence of other crimes and civil wrongs. K.S.A. 2019 Supp. 60-455 provides in relevant part:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's 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.

"(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, 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."

This court has instructed district courts to use a three-prong test when applying this provision and has identified the standard of review for each step.

First, the district court must determine whether the fact to be proven is material. Courts answer this question by considering whether the "fact has some real bearing on the decision in the case." State v. Torres , 294 Kan. 135, 139, 273 P.3d 729 (2012). An appellate court reviewing this determination gives no deference to the district court, examining this prong independently. State v. Garcia-Garcia , 309 Kan. 801, 811, 441 P.3d 52 (2019).

Second, a district court "must decide whether the material fact is disputed, and if so, whether the evidence at issue is relevant to proving the disputed material fact. In doing so, the trial court considers if the evidence has any tendency in reason to prove the disputed material fact." Garcia-Garcia , 309 Kan. at 811, 441 P.3d 52. In Garcia-Garcia , as in most other recent cases, we have identified the appellate standard for review as whether the district court committed an abuse of discretion. 309 Kan. at 811, 441 P.3d 52 ; see, e.g., State v. Haygood , 308 Kan. 1387, 1392, 430 P.3d 11 (2018) ; State v. Richard , 300 Kan. 715, 721, 333 P.3d 179 (2014) ; Torres , 294 Kan. at 139-40, 273 P.3d 729.

In other decisions, we have emphasized the relevancy aspect of this inquiry requires two assessments: "the probative value of the evidence to be admitted and whether that evidence is being admitted for the purpose of proving a material fact." State v. Boggs , 287 Kan. 298, 308, 197 P.3d 441 (2008). Boggs and other cases listing these two assessments identify a standard of review for each: "The probative value of the evidence is reviewed for an abuse of discretion; the materiality question requires a legal determination as to the elements or a particular offense and is therefore reviewed de novo." 287 Kan. at 308, 197 P.3d 441. These statements track those we use in any context when examining relevance. See, e.g., State v. Robinson , 306 Kan. 431, 435, 394 P.3d 868 (2017) (citing State v. Shadden , 290 Kan. 803, 817, 235 P.3d 436 [2010] ).

Although not explaining the difference, the 60-455 cases that do not separately discuss the two aspects of relevance likely do not include the materiality review in this second prong simply because the court has already examined materiality in analyzing the first prong. Because we recognize that a side-by-side comparison of the two lines of cases might cause some momentary confusion, we...