State v. Ornelas

• Decision Date: 07 November 2014
• Docket Number: 110,059.
• Citation: 337 P.3d 73 (Table)
• Parties: STATE of Kansas, Appellee, v. Billy ORNELAS, Appellant.
• Court: Kansas Court of Appeals

337 P.3d 73 (Table)

STATE of Kansas, Appellee

v.Billy ORNELAS, Appellant.

110,059.

Court of Appeals of Kansas.

Nov. 7, 2014.

Review Denied July 21, 2015.

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

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.

MEMORANDUM OPINION

SCHROEDER, J.

Billy Ornelas was convicted of possession of methamphetamine with intent to distribute and possession of methamphetamine with no tax stamp. He appeals claiming four errors. First, the district court violated his constitutional and statutory right to be present at the hearing on his motion for reconsideration of his motion to change venue. Second, the district court improperly instructed the prospective jurors on reasonable doubt regarding the State's burden of proof. Third, the evidence was insufficient to support his conviction for possession with intent to distribute methamphetamine. Finally, Ornelas raises a criminal history challenge in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We find no error by the district court and affirm.

Facts

Ornelas' Arrest and Charges

Ornelas was the passenger of a Cadillac pulled over for a traffic violation on August 9, 2011. The driver refused to allow the officers to search the car. A drug dog was brought to the location, and the dog alerted on the vehicle. The officers searched the vehicle and found:

• Two small plastic baggies in the passenger door pocket which contained a crystal-like substance;

• A bag behind the passenger seat which contained a handgun and two syringes; and

• A cloth sack in the vehicle's center console which contained a wallet with Ornelas' Kansas identification, three baggies of a crystal-like substance similar to what was found in the passenger door pocket, and seven loose, unused baggies.

The officers field tested the crystal substances; the bags found in the passenger door tested positive for methamphetamine in quantities of 1.43 grams and 1.36 grams. However, the baggies found in the center console, weighing 12.37 grams, 13.21 grams, and 2.37 grams, tested negative for controlled substances.

Brandon Lenzi, a narcotics officer, testified the baggies were instruments of drug trafficking. Lenzi testified they are commonly used to package drugs for sale and/or possession. However, Lenzi admitted the car did not contain scales or a log book of drug sales, which are often considered indicia of drug distribution. No money was found in the wallet with Ornelas' identification, but some cash was found on his person. Lenzi also testified the methamphetamine found in the car was suitable for distribution in baggies like those found in the car. Lenzi opined that based upon his training and experience, the nonnarcotic crystalline substance was likely added to the methamphetamine to add volume and weight for sale.

The second officer, Jamie Schepis, also a narcotics officer, stated Ornelas had $100 in $20 bills, which he considered consistent with drug distribution, as was the presence of a firearm, baggies, and the absence of tax stamps. Schepis also testified that the nonnarcotic crystalline substance found in the center console is what the police refer to as “jank or cut,” which drug dealers use to add weight to narcotic products so that more money can be made on less narcotic product.

Ornelas was charged with possession of methamphetamine with intent to distribute in violation of K.S.A.2011 Supp. 21–5705(a)(1), (c)(1) ; possession of a firearm within 5 years of being convicted of a felony in violation of K.S.A.2011 Supp. 21–6304(a)(2), (b) ; and possession of methamphetamine with no tax stamp in violation of K.S.A. 79–5208.

Ornelas' Limited Waiver of the Right to be Present

On November 14, 2011, Ornelas signed a limited waiver of his right to be present at pretrial hearings, which provided:

“The undersigned Defendant hereby waives the right to be present in person for the hearing of any motion or other proceeding in this case, including but not limited to trial scheduling, requests for continuance, and for any other pre-trial proceedings. I understand I must be personally present when my attorney requires it and/or when my case is assigned-out for preliminary hearing, for trial, for plea, and for sentencing. I agree to provide my attorney with current contact information and I further agree that notice to my attorney that my presence in court on a particular day at a particular time is required is notice to me of the requirement of my appearance at that time and place. I know this waiver/authorization applies only to pretrial matters and does not include jury trial waivers, probation violation hearings, or other post-trial proceedings.

“Accordingly, I hereby request the Court to proceed during my absence and authorize my attorney to act on my behalf. I understand that my interests will be deemed represented at all times by the presence of my attorney the same as if I were personally present.

“I understand that this waiver/authorization is permitted by K.S.A. 22–3405 and I agree to be present in person as required by the court or my attorney for trial or other proceeding. My failure to appear when required by the court will result in forfeiture of my bond and/or additional charges.”

Motions for Change of Venue

Pending trial, Ornelas was released on bond and filed a motion to change venue. Ornelas did not appear for the hearing, and the district court summarily denied the motion. Ornelas filed a motion to reconsider. The district court granted Ornelas' request for reconsideration of his motion to change venue and set it for hearing. Ornelas' counsel provided electronic notice to Ornelas regarding the date and time of the hearing.

Ornelas did not appear at the hearing. His attorney told the court, “[Ornelas] is not present but he has a waiver.” The district court was also told Ornelas wanted to appear at the hearing and present his evidence, although his attorney did not know what the evidence was. His attorney went on to say, “[Ornelas] now claims that he did not know [the hearing on the motion for reconsideration of his motion to change venue] was today and he is not present with his evidence.” The district court denied the motion for reconsideration of Ornelas' motion to change venue because his case had not been “plastered all over the 6 and 10:00 news, where anybody called in for jury duty would be predisposed or have a previous disposition on the weight and effect of the evidence .”

Jury Instructions

Prior to voir dire, the district court verbally gave a preliminary jury instruction to potential jury members using an outdated reasonable doubt instruction that follows:

“If you have reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) PIK Crim.3d 52.02 (1995 Supp.).

However, the district court provided the current reasonable doubt instruction verbally during the instruction phase of the trial and in writing for the jury during deliberations:

“If you have reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) PIK Crim. 4th 51.010.

Verdict, Sentencing, and Posttrial Motions

The jury found Ornelas guilty of possession of methamphetamine with intent to distribute and possession of methamphetamine with no tax stamp, but not guilty of criminal possession of a firearm. Ornelas filed a motion for judgment of acquittal or a new trial, which the district court denied. Ornelas also filed a motion for downward dispositional departure sentence, which the district court granted.

Ornelas timely appealed.

Analysis

Ornelas raises four issues on appeal. First, the district court violated his constitutional and statutory right to be present at the hearing on his motion for reconsideration of his motion to change venue. Second, the district court improperly instructed the voir dire panels on the State's burden of proof. Third, the evidence was insufficient to support his conviction for possession with intent to distribute methamphetamine. Finally, he raises a criminal history challenge in light of Apprendi. 530 U.S. 466.

Did the District Court Violate Ornelas' Constitutional and Statutory Right to be Present at the Hearing on His Motion for Reconsideration of His Motion to Change Venue?

Ornelas argues he filed his motion to reconsider the district court's denial of his motion to change venue so that he could be present to argue before the district court. However, Ornelas was not present at the hearing on the motion for reconsideration of his motion to change venue. The district court was told by Ornelas' attorney he had a waiver, and Ornelas' attorney questioned the merits of Ornelas' motion to change venue. The district court denied his motion to change venue for lack of evidence. Ornelas now argues he had a constitutional and statutory right to be present at the hearing on his motion for reconsideration of his motion to change venue. Interestingly, Ornelas was not present when the first motion to change venue was considered and denied by the district court, and he does not challenge the validity of that hearing taking place in his absence. Next, we note Ornelas failed to raise this issue below, thus the district court was deprived of the opportunity to address his complaint with the motion for reconsideration of his motion to change venue being denied in his absence. We will now consider whether this issue was preserved for appeal, the proper standard of...