State v. Martinez, 092421 KSCA, 12, 1204

CourtCourt of Appeals of Kansas
JudgeBefore ATCHESON, P.J., GARDNER and WARNER, JJ.
Writing for the CourtATCHESON, J.
PartiesState of Kansas, Appellee, v. Michael Steven Martinez, Appellant.
Docket Number1204,12

State of Kansas, Appellee,

v.

Michael Steven Martinez, Appellant.

No. 12, 1204

Court of Appeals of Kansas

September 24, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Finney District Court; ROBERT J. FREDERICK, judge.

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

Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., GARDNER and WARNER, JJ.

MEMORANDUM OPINION

ATCHESON, J.

A jury sitting in Finney County District Court convicted Defendant Michael Martinez of possession of methamphetamine with the intent to distribute and several other crimes. On appeal, Martinez challenges that drug conviction on three grounds and the overall fairness of his trial on three other grounds. We find no bases for upsetting the guilty verdicts and, therefore, affirm the judgments of conviction and the resulting sentences.

FACTUAL AND PROCEDURAL HISTORY

Given the issues on appeal, we may sketch the salient facts with fairly broad strokes, recognizing the parties are familiar with the details outlined for the jurors during the three-day trial. Two Finney County Sheriff's officers were on routine patrol during the afternoon of November 10, 2017, in a residential area east of Garden City. They parked their patrol cars near what had been reported as a drug house. After seeing Monyai Lampkin at the front of the house, they drove around the block and returned as Lampkin came out of the house and got in an SUV. As the SUV drove away, one of the officers followed at a distance in what could be characterized as a low-speed, rolling surveillance of the vehicle.

The driver of the SUV, later identified as Martinez, made a series of seemingly random turns in the residential area in what the officer perceived to be an effort to shake the pursuit. At one point, the SUV pulled into the driveway of a house. As the officer drove by, Martinez and Lampkin got out and went to the front door. They told a resident of the home they were lost, asked for directions, and left. Contacted by law enforcement officers later, the resident provided a surveillance video of his encounter with Martinez and Lampkin. In the video, Martinez is wearing a stocking cap and a black jacket with a distinctive shoulder patch-a detail that momentarily turns significant in our narrative.

The Sheriff's officer resumed his rolling surveillance of the SUV as the second officer remained in the vicinity. Martinez then parked the SUV in an alleyway, and he and Lampkin ran from the vehicle through the residential area. The following officer began a foot pursuit of the two and requested assistance from other officers. As he fled, Martinez discarded his stocking cap, the black jacket, and his outer shirt. He and Lampkin split up as the officers closed in. Some of the officers nabbed Lampkin first, and others overtook Martinez shortly afterward. Martinez had hidden in the backseat of an unlocked car parked in a residential driveway.

Officers found the black jacket in the yard of another house on the route Martinez took as he ran. The residents of the house approached the officers and turned over a stocking cap they had found in the yard. The officers discovered a clear plastic bag containing what turned out to be about 111 grams of methamphetamine in a pocket of the jacket.

Shortly after his capture, Martinez spoke to law enforcement officers. He declined to talk about Lampkin. Although Martinez admitted that about 6 grams of marijuana investigators discovered in the SUV belonged to him, he disclaimed any connection to the methamphetamine found in the jacket. He suggested someone from the neighborhood might have stashed the drugs there.

The State charged Martinez with possession of methamphetamine with the intent to distribute, a severity level 1 drug felony violation of K.S.A. 2017 Supp. 21-5705; tampering with evidence, a severity level 8 felony violation of K.S.A. 2017 Supp. 21-5904(a)(2); criminal trespass, a misdemeanor violation of K.S.A. 2017 Supp. 21-5808; and possession of marijuana, a misdemeanor violation of K.S.A. 2017 Supp. 21-5706. During the trial in January 2019, law enforcement officers and residents from the area testified about their involvement in the surveillance, pursuit, and capture of Martinez and the identification and recovery of associated physical evidence. Pertinent to the issues on appeal, Detective Mike Tabor testified that based on his training and experience with drug cases, personal use quantities of methamphetamine are typically measured in fractions of a gram. He also told the jurors the comparatively large size of the individual methamphetamine crystals found in the jacket suggested they would be broken down for later sale.

Martinez testified in his own defense. He told the jurors he ran from the SUV because he had no driver's license and thought there was an outstanding warrant for his arrest in Texas. Martinez again acknowledged the marijuana was his and denied he had anything to do with the methamphetamine. He intimated Lampkin might have put the drugs in the jacket after he laid it on a seat in the SUV.

The jury convicted Martinez on the four charges. The district court later sentenced Martinez to a controlling 194-month term of imprisonment on the methamphetamine conviction followed by a 36-month period of postrelease supervision. The district court imposed considerably shorter terms of incarceration on the other convictions to be served concurrent with each other and with the 194-month sentence. Martinez has duly appealed.

LEGAL ANALYSIS

As we have indicated, Martinez had asserted an array of issues on appeal. We first take up those directly challenging the methamphetamine conviction and then turn to the more general attacks on the overall fairness of the trial and the resulting guilty verdicts. We add facts as necessary to those targeted discussions.

• Martinez first contends K.S.A. 2020 Supp. 21-5705(e)(2) creates an unconstitutional presumption that possession of 3.5 grams or more of methamphetamine establishes intent to distribute. K.S.A. 2020 Supp. 21-5705(e)(2) ("there shall be a rebuttable presumption of intent to distribute if any person possesses . . . 3.5 grams or more of . . . methamphetamine"). This has become a recurrent issue of late for our court. See State v. Reisinger, No. 119, 791, 2021 WL 2171093, at *6 (Kan. App. 2021) (unpublished opinion), rev. denied 313 Kan. (August 31, 2021); State v. Slusser, No. 121, 460, 2020 WL 7636318, at *1-2 (Kan. App. 2020) (unpublished opinion), petition for rev. filed January 26, 2021. In Slusser, we observed: "Presumptions favoring the State in criminal cases can be tricky creatures. See Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (mandatory presumption in jury instruction deprives criminal defendant of due process protections afforded under Fourteenth Amendment to United States Constitution); Sandstrom v. Montana, 442 U.S. 510, 523, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Even a nonconclusive presumption bearing on criminal intent may be constitutionally suspect depending on how it has been presented to a jury. 442 U.S. at 524. Conversely, a jury properly may be instructed on reasonable inferences at least in some circumstances. See Barnes v. United States, 412 U.S. 837, 840-41, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973) (instruction that jury may infer knowledge from defendant's unexplained possession of recently stolen property constitutionally permissible); United States v. Harrison, 585 F.3d 1155, 1159-60 (9th Cir. 2009) (instruction that jury may infer consciousness of guilt from flight constitutionally permissible)." 2020 WL 7636318, at *1.

Similarly, in County Court of Ulster County, New York v. Allen, 442 U.S. 140, 167, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Court recognized that a rebuttable presumption may be constitutionally infirm if it is the sole basis the government uses in a given case to establish an element of a charged crime.

Here, however, whatever legal shortcomings there might be with K.S.A. 2020 Supp. 21-5705(e)(2) as a presumption of intent, they amount to debatable academic points and nothing more. The statutory presumption did not affect Martinez' trial. That's because the jury was never instructed on-and, therefore, could not have considered-the statutory presumption. Rather, the district court instructed the jury this way: "Under Kansas law, if you find the defendant possessed 3.5 grams or more of methamphetamine, you may infer that the defendant possessed with intent to distribute. You may consider the inference along with all the other evidence in the case. You may accept or reject it in determining whether the State has met the burden of proving the intent of the defendant. This burden never shifts to the defendant."

Apart from the introductory phrase, the instruction matches PIK Crim. 4th 57.022 word for word. The pattern instruction permits jurors to draw an inference that they may make or not. An evidentiary inference hasn't anywhere near the evidentiary force of rebuttable presumption. Typically, a rebuttable presumption requires jurors to assume fact B to be true if evidence establishing fact A has been admitted. See K.S.A. 60-413 (defining evidentiary presumption). The presumption may be overcome if a party presents evidence disproving fact A. See K.S.A. 60-414; see also Brown v. Vannoster, No. 120, 376, 2019 WL 5485149, at *4-5 (Kan. App. 2019) (unpublished opinion) (discussing evidentiary presumptions and inferences), rev. denied 312 Kan. 890 (2020). Conversely, jurors may draw an inference or not as they choose in exercising their role as...

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