State v. Castleberry, 106,600.

• Decision Date: 18 January 2013
• Docket Number: No. 106,600.,106,600.
• Citation: 293 P.3d 757,48 Kan.App.2d 469
• Parties: STATE of Kansas, Appellee, v. Brandon CASTLEBERRY, Appellant.
• Court: Kansas Court of Appeals

48 Kan.App.2d 469

293 P.3d 757

STATE of Kansas, Appellee,

v.Brandon CASTLEBERRY, Appellant.

No. 106,600.

Court of Appeals of Kansas.

Jan. 18, 2013.

Review Granted Oct. 17, 2013.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.

STANDRIDGE, J.

Brandon Castleberry appeals from convictions against him for obstruction of official duty, distribution of methamphetamine, unlawful use of a communication facility to arrange a drug sale, failure to affix a drug tax stamp, and fleeing or attempting to elude a police officer. For the reasons stated below, we affirm each of Castleberry's convictions.

FACTS

On June 10, 2010, Emporia Police Officer Lance Delgado stopped a vehicle driven by Mark Foltz and discovered that Foltz and his passenger were in possession of methamphetamine. In order to prevent his own prosecution, Foltz agreed to make a controlled purchase of methamphetamine from Castleberry. From the Emporia police station, Foltz used his cell phone to place two calls to Castleberry, both of which were monitored and recorded by law enforcement. During the course of the first conversation, Foltz and Castleberry discussed "going fishing," which Foltz explained to police was code for a methamphetamine purchase. During the second conversation, Foltz and Castleberry agreed to meet at Peter Pan Park in Emporia.

The police set up video camera surveillance at the park, secured a wireless transmitter on Foltz, and provided him with $600 in cash to purchase the methamphetamine. An officer followed Foltz to the park and, in addition to that officer, several other officers later observed Castleberry pull up next to Foltz. After 3 to 5 minutes, Foltz and Castleberry parted ways and separately left the park. Both Foltz and Castleberry were followed by the police. When Foltz arrived back at the Emporia police station, he turned over a Marlboro cigarette box containing two plastic baggies with a substance that was later confirmed to be methamphetamine. Foltz reported he had given Castleberry $600 in exchange for the drugs.

When the police officers following Castleberry attempted to pull him over, he sped up and led the officers on a high-speed chase outside the city limits. The chase lasted approximately 45 minutes, during which Castleberry ran multiple stop signs and traffic lights. Castleberry eventually came to a stop and exited his vehicle. He ignored officers' warnings to get down on the ground, put his hands up in what officers believed to be a taunting and aggressive manner, and told the officers to shoot him. Officer Delgado ultimately tased Castleberry and took him into custody.

Castleberry was charged with one count each of aggravated assault of a law enforcement officer, obstructing legal process or official duty, distribution of methamphetamine, unlawful use of a communication facility to arrange a drug sale, failure to affix a drug tax stamp, fleeing or attempting to elude a law enforcement officer, and reckless driving.

At trial, Castleberry denied that he provided methamphetamine to Foltz in exchange for money. Castleberry testified that he and Foltz occasionally went fishing together and that he believed both of their June 10, 2010, phone conversations were related to fishing. Castleberry claimed they always met at an agreed upon location before going fishing because they would take Foltz' car. Castleberry testified that before meeting Foltz at the park on the day in question, he received a text from Foltz' girlfriend, Stacy Ragsdale, who said Foltz had been "busted" by police and was in jail. On his way to the park, Castleberry called Ragsdale and told her that Foltz could not be in jail because he was on his way to meet Foltz. When he pulled up beside Foltz in the car, Castleberry gave the phone to Foltz so Foltz could talk to Ragsdale. After Foltz got off the phone, he told Castleberry that he could not go fishing that day and suggested they go another time. Castleberry reported that they each left the park separately.

As Castleberry was leaving the park, he noticed a police officer following him and "panicked" because he just then realized he had associated with someone who allegedly had been caught with drugs. Castleberry decided to "take off" and leave town; he finally stopped his car after talking to his mother and a friend, who convinced him that he needed to pull over. Castleberry testified that after he stopped his car, he found himself surrounded by five or six police cars and could not hear anything due to all the sirens. Castleberry reported that he threw his keys down, put his hands up in the air, and told the officers not to shoot. Castleberry denied resisting arrest and claimed that his large size, combined with the stress of being tased, made it hard to get his hands behind his back, which caused the officers difficulties in trying to handcuff him.

After the close of evidence, the State dismissed the reckless driving charge. After deliberation, the jury acquitted Castleberry of aggravated assault of a law enforcement officer but found him guilty of obstructing official duty, distributing methamphetamine, illegal use of a communication facility, failure to affix a drug tax stamp, and fleeing or attempting to elude a police officer. The district court sentenced Castleberry to a controlling prison term of 61 months.

ANALYSIS

On appeal, Castleberry argues: (1) The evidence was insufficient to convict him of unlawful use of a communication facility to arrange a drug sale; (2) the district court erred in failing to instruct the jury on the specific offenses that constitute moving violations for the fleeing and eluding charge; (3) the district court erred in failing to give a unanimity instruction on the obstruction of official duty charge; (4) the State failed to present sufficient evidence on each of the alternative means of committing the crime of distribution of methamphetamine; and (5) the district court erred in enhancing his sentence based on criminal history without proving it to a jury beyond a reasonable doubt. We address each of Castleberry's arguments in turn.

I. Sufficiency of the Evidence: Unlawful Use of a Communication Facility

Castleberry challenges the sufficiency of the evidence supporting his conviction in Lyon County of unlawfully using a communication facility to distribute methamphetamine. Specifically, he contends the State failed to prove that he committed this crime in Lyon County, which necessarily renders Lyon County an improper venue for the charge against him.

Venue is a necessary jurisdictional fact that must be proven along with the elements of the actual crime. See State v. Rivera, 42 Kan.App.2d 1005, 1008–10, 219 P.3d 1231 (2009), rev. denied 290 Kan. 1102 (2010). Because venue is jurisdictional and implicates the district court's subject matter jurisdiction, our standard of review is de novo. State v. Jackson, 280 Kan. 16, 20, 118 P.3d 1238 (2005), cert. denied 546 U.S. 1184, 126 S.Ct. 1363, 164 L.Ed.2d 73 (2006) ; see State v. Calderon–Aparicio, 44 Kan.App.2d 830, 836–41, 242 P.3d 1197 (2010), rev. denied 291 Kan. 913 (2011). In this case, resolution of the venue issue also involves interpretation of K.S.A.2010 Supp. 21–36a07, which is subject to de novo review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

We begin our discussion of venue with K.S.A. 22–2602, the statutory authority for conferring venue in criminal prosecutions. This statute authorizes the State to prosecute a crime in the county where the crime was committed. Where two or more acts are requisite to the commission of the crime charged and such acts occur in different counties, however, K.S.A. 22–2603 authorizes the State to prosecute the crime "in any county in which any of such acts occur."

In this case, Castleberry was charged in Lyon County with unlawful use of a communication facility in violation of K.S.A.2009 Supp. 21–36a07. This statute prohibits the knowing or intentional use of a communication facility to commit, cause, or facilitate the unlawful manufacture, distribution, cultivation, or possession of a controlled substance. At the close of evidence, the jury was instructed that in order to find Castleberry guilty of this crime, the State was required to prove:

"1. That the defendant intentionally used a cell phone in committing, causing the actual commission of, or facilitating the actual commission of distribution of Methamphetamine; and

"2. That this act occurred on or about the 10th day of June, 2010, in Lyon County, Kansas."

Castleberry argues the second part of this jury instruction requires the State to prove that he was physically present in Lyon County when he used the cell phone. In support of this argument, Castleberry cites State v. Price, No. 92,012, 2005 WL 823912 (Kan.App.) (unpublished opinion), rev. denied 280 Kan. 989 (2005). In Price, the defendant was charged with illegal use of a communication facility to arrange a sale of a controlled substance. At trial, the State presented evidence that Denise Mullins had called the defendant from an apartment in Atchison County, but the record was silent as to the defendant's location when he received the call. The State alleged that Mullins' use of a telephone in Atchison County was sufficient to satisfy the venue element, relying on K.S.A. 22–2603. A panel of this court rejected the State's argument, stating:

"Apparently, the argument is that Mullins' use of the Atchison County telephone to call Price was a required element to convict him of unlawful use of a telephone to commit or facilitate the commission of possession of marijuana with intent to sell. We are unpersuaded that Mullins' act in Atchison County was an element of Price's crime." 2005 WL 823912, at *3.

The Price court reversed the defendant's conviction, holding that the...