State v. Holder, No. 120,464
| Decision Date | 16 October 2020 |
| Docket Number | No. 120,464 |
| Citation | 473 P.3d 961 (Table) |
| Parties | STATE of Kansas, Appellee, v. Dominic O'Shea HOLDER, Appellant. |
| Court | Kansas Court of Appeals |
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Malone, P.J., Buser and Powell, JJ.
Dominic O'Shea Holder appeals his conviction of possession of marijuana with intent to distribute more than 450 grams and conviction of conspiracy to distribute marijuana. Holder claims: (1) the rebuttable presumption of intent in the distribution statute is facially unconstitutional; (2) the jury instruction given on possession of marijuana with intent to distribute did not accurately state the law; (3) there was insufficient evidence to support his conspiracy conviction; (4) there was insufficient evidence to support his possession of marijuana with intent to distribute conviction; (5) the district court abused its discretion by limiting his questioning during voir dire; (6) the prosecutor committed prosecutorial error in closing argument; and (7) cumulative error denied him a fair trial. Finding no reversible error, we affirm the district court's judgment.
In 2017, Holder, then 23, and Alyssa Holler, then 31, both lived in Arizona. Holler was working for Walmart and Holder was working for Coca-Cola, stocking the shelves of Holler's Walmart with product. They met at Walmart and struck up a friendship, although they did not identify themselves as boyfriend and girlfriend.
According to Holler's trial testimony, in March 2017, Holder started talking about an idea about delivering marijuana from Arizona to Indiana. The two discussed whether it would be safer to mail the marijuana or drive it. Holler said she thought it would be safer to drive it. Holder came up with a plan to drive marijuana from Arizona to Indiana in a rental car in Holler's name. The plan was to drive to Indiana in separate cars and then, after the delivery, Holler would ride back to Arizona in Holder's car. Holler got a new driver's license a few days before they left because Enterprise, the car rental business, required the renter's driver's license to have a current address.
On April 14, 2017, Holler rented the car with $600 Holder put on her credit card. She and Holder went to her apartment and loaded boxes into the rental car. Holder put downtown Indianapolis in Holler's GPS but did not put in a specific address. They left Arizona around 5 p.m. and stayed in contact through phone calls and text messages. During the drive, they pulled over in New Mexico to rest in their cars for a few hours.
Hutchinson Police Officer Jake Graber was driving west on Highway 50 around 2:50 p.m. on April 15, 2017, when he observed two cars speeding. One car was going 89 miles per hour (mph) and the other was going 92 mph. Graber pursued the cars, intending to pull them both over. He caught up to the first vehicle, a white car driven by a female, and motioned her to pull over. But the female did not stop. He did successfully pull over the second vehicle, a blue car driven by a male. Graber put a description of the white car out on the radio, stating that it was speeding and did not stop.
Holder, the driver of the blue car, gave Graber an Arizona driver's license and stated he was traveling to Chicago. Holder told Graber that he was from Tempe, Arizona, and left there around 6 p.m. the previous evening. Graber asked Holder about the white car, but Holder stated he did not know the other driver and they were not traveling together. During the stop, Graber noticed Holder's eyes were "extremely bloodshot." Graber asked about Holder's eyes and Holder stated he smoked marijuana before he left. Graber conducted field sobriety tests, which Holder passed.
Meanwhile, Reno County Sheriff's Deputy John Hendricks heard Graber's radio description of the white car that did not stop. Hendricks found the car making a U-turn about 3 miles east of where Graber stopped Holder. Hendricks followed the car, which was headed back towards Graber, and so did Reno County Sheriff's Deputy Jack Trussell. Trussell pulled the car over and Hendricks assisted. Trussell talked to the driver, Holler, and asked for her driver's license. Holler gave Trussell a paper license issued April 13, 2017. After hearing that Trussell had stopped the white car, Graber gave Holder a citation for speeding and headed to Trussell's traffic stop. Holder apparently returned to Arizona.
When Graber arrived at the other stop, Trussell identified Holler as the driver and stated she was from Arizona. Graber went to talk with Holler and noticed her driver's license was a temporary one issued two days before. Graber noticed Holler's hands were shaking throughout the stop. Holler told Graber she was headed to Indianapolis and that she left Arizona the day before. Graber asked Holler if she was traveling with Holder, but Holler denied knowing Holder. Graber learned the car was rented from Enterprise in Mesa, Arizona, and scheduled to be returned in Indianapolis. When asked, Holler could not give Graber the address of the place she was traveling to in Indianapolis. Holler also told Graber she would probably head back to Arizona on Monday by airplane but that she had not bought an airline ticket yet. Graber issued her a citation for speeding and asked her if she would consent to a search of her car. Holler gave him consent.
In the backseat of the car, Graber saw a suitcase and several boxes. On one of the boxes, for a ceiling fan, Graber noticed the tape looked like it had been opened. Upon opening the box, Graber noticed the strong smell of perfume, which, from his training, is a common technique used to mask the smell of drugs. Graber saw some fan parts but not enough, so he removed the parts and found a square item about a foot and a half long wrapped in green saran wrap. Graber cut into it and found "green vegetation" and detected the odor of marijuana. Graber had Holler detained and continued his search. In the hatchback area, Graber found a Craftsman box which was heavier than the vacuum it was purported to be carrying. Graber opened the box and found eight "odd-shape[d]" items wrapped in green saran wrap. Graber placed the evidence in Trussell's patrol car.
After arresting Holler, Graber read her Miranda rights and then talked to her about helping herself out in this case. But Graber made no promises to Holler that she would receive leniency if she cooperated. Graber also interviewed Holler at the detention center after the stop. Graber inventoried Holler's purse and found $921. Graber also seized her cellphone. Graber stated that he knew the guy she was traveling with had been calling her since he had stopped her. Holler said his name was Dominic and that he gave her the money. Holler told Graber the plan was for her to drive back in Holder's car.
The packages from Holler's vehicle weighed 44 pounds. Graber took two of the packages that weighed more than 450 grams and sent them to the Kansas Bureau of Investigation (KBI) for testing. He believed the packages were marijuana, and the amount suggested it was for distribution. Graber did not find any use paraphernalia in the car.
On July 18, 2017, the State charged Holder with possession of marijuana with intent to distribute at least 450 grams and conspiracy to distribute at least 450 grams of marijuana. Holder was arrested in Arizona and transported to Kansas. The State charged Holler with possession of marijuana with intent to distribute. Holler later pled guilty and, in exchange for testifying against Holder, the State promised not to oppose probation.
The district court held Holder's jury trial in September 2018. Graber testified that based on his training and experience the items seized were marijuana. The State admitted some text messages and two photos of Holder recovered from Holler's phone. Hendricks testified to helping stop Holler and detaining her after Graber found the marijuana. Trussell testified to stopping Holler. Trussell recalled noticing a blue lunch cooler in the front seat with various food wrappers and water bottles, which based on his training could suggest drug smuggling or criminal interdiction. Trussell also explained that drug smugglers commonly use two vehicles: one vehicle being the "load vehicle" and the other being the "enforcer" or "watch-out" vehicle used to distract the police.
KBI Forensic Drug Chemist Cynthia Wood testified that her job is to determine whether evidence contains controlled substances. She was qualified as an expert in the identification of controlled substances without objection. Wood testified that marijuana is a controlled substance. Wood received two bags of vegetation for testing, both of which tested positive for marijuana based on the presence of tetrahydrocannabinol (THC). Wood weighed each bag; one weighed 159.24 grams and the other weighed 441.72 grams.
Holler testified for the State. She identified Holder and explained how they met. Holler testified that she and Holder would text back and forth, and Holder had two phones. Holler reviewed the text messages and affirmed that she either sent them or received them. Holler identified the two photos from her phone as depicting Holder.
Holler testified that Holder told her they would be transporting marijuana, so she knew what they were doing. Holler said she was not getting paid to help him but she did it because she cared about him. She recalled seeing the officer pull Holder over. She said she drove for about 10 miles then pulled over to wait for Holder but it took a "really long time" so she turned around to find him. She then recalled being pulled over. She testified that Holder called when she was first pulled over and told her not to say anything.
Holler admitted that she had possession of marijuana and intended to...
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