State v. Valdez

Decision Date01 July 2022
Docket Number121,053
Citation512 P.3d 1125
Parties STATE of Kansas, Appellee, v. Joseph Miguel VALDEZ, Appellant.
CourtKansas Supreme Court

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Alexander Driskell, assistant county attorney, argued the cause, and Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Biles, J.

A jury convicted Joseph Miguel Valdez of possession of more than 3.5 grams of methamphetamine with intent to distribute, possession of a firearm within 10 years of a prior felony conviction, and two counts of drug paraphernalia possession. He appealed raising various trial error claims. A Court of Appeals panel affirmed. State v. Valdez , No. 121,053, 2021 WL 1324023, at *3-6 (Kan. App. 2021) (unpublished opinion). We affirm in part and reverse in part. We hold the State presented insufficient evidence to support the firearm possession conviction and vacate its associated sentence. We affirm the remaining convictions and reject his challenge to the district court's handling of complaints he had about his trial counsel.


Valdez came out of a house in Salina yelling for help. He told a neighbor he was shot in the leg. The neighbor closed the front door to the house at his request and applied a tourniquet before paramedics arrived. Valdez at first would not give police his name or say what happened but denied shooting himself. He said he sometimes stayed at the house and had no permanent address.

Officers swept the house to make sure no one was injured or hiding inside. They saw a .380 handgun on a desk in the living room, a bullet hole in the door jamb, and women's clothing in the only bedroom on the main floor. They got search warrants for the house, a car parked in the driveway, and Valdez' cell phone.

Returning inside the house after securing the warrants, officers located a spent .380 shell casing and a slug from the door jamb. On the floor near the desk with the handgun, they found a sunglasses case with five baggies of a crystalline substance, a digital scale with white residue on it, syringes, and empty baggies. In the basement, they discovered a bag with syringes, ammunition for a .45 caliber handgun, a water pipe, and men's clothing next to a bed. In this same area, there was another bag with more empty baggies.

Outside the house, police found a glass pipe on a chair. In the car, they came upon a syringe under the driver's seat. And in the jeans paramedics removed from Valdez at the scene, an officer found a baggie with a crystalline substance, money, and a syringe that appeared used.

On Valdez' phone, police recovered a message exchange from the day of the shooting in which Valdez said, "I want to shoot myself yo," and "stupid bitches man I hate feelings man I try to be good people and all I do is get fucked so you know anyone looking?" At trial, a detective with training in narcotics trafficking testified the phrase "anyone looking" is asking whether anyone was looking for a controlled substance.

KBI lab tests confirmed 14.18 grams of methamphetamine in the largest bag in the sunglasses case and 1 gram in the bag from the jeans pocket. A KBI forensic scientist testified a DNA profile from the sunglasses case reflected Valdez' DNA, with an estimated frequency in a random individual of 1 in 15 septillion in the southeast Hispanic population and 1 in 332 sextillion in the southwest Hispanic population. And a partial DNA profile from the gun also reflected a DNA sample from Valdez according to another KBI scientist, who testified the estimated frequency of this partial sample in a random individual would be extremely unlikely, e.g., 1 in 48 billion or 1 in 284 trillion depending on race.

After the jury returned guilty verdicts, the district court sentenced Valdez to 104 months' imprisonment for possession with intent to distribute and a consecutive 8-month term for criminal possession of a firearm with 36 months' postrelease supervision. The court also imposed concurrent sentences of 11 months' imprisonment and 6 months' jail for the drug paraphernalia convictions. Valdez appealed. The panel affirmed. Valdez , 2021 WL 1324023, at *3-6.

This court granted Valdez' petition for review. He argues: (1) the panel erred by refusing to consider his jury instruction challenge to a permitted inference about his intent to distribute methamphetamine if the jury found he possessed more than 3.5 grams; (2) the evidence does not support his conviction for possession with intent to distribute; (3) the district court erred by not instructing on the lesser included offenses of possessing lesser quantities of methamphetamine with intent to distribute; (4) the panel erred by refusing to consider his constitutional challenge to the statute providing a rebuttable presumption for intent to distribute; (5) the panel erred by refusing to consider his constitutional challenge to the statute making a felon's possession of firearms illegal; and (6) the district court erred by not appointing conflict-free counsel when inquiring into his presentencing claims of ineffective assistance of trial counsel.

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).


Valdez argues the panel erred when it refused to consider for the first time on appeal the legal appropriateness of the intent-to-distribute instruction. He claims the instruction, which provided a permissive inference of intent based on the quantity of drugs he possessed, undermined his constitutional right to a conviction on proof of all the elements of the offense beyond a reasonable doubt. In his view, there was no rational connection between the quantity of drugs possessed and any inference that he intended to distribute those drugs. This, he claims, made the instruction legally inappropriate. He makes no claim the jury instruction was factually inappropriate.

We approach this issue incrementally. First, we hold the panel should have considered this as an instructional challenge using the clear error standard of review. Second, we agree the instruction's permissive inference was legally inappropriate, but for a different reason that arrives at the same result. See State v. Holder , 314 Kan. 799, 806-07, 502 P.3d 1039 (2022) (holding instruction consistent with PIK Crim. 4th 57.022 was legally inappropriate because it provided for a permissive inference instead of the rebuttable presumption specified by statute). Finally, we explain why we are not convinced the jury would have reached a different verdict without this instructional error. As a result, we affirm the intent-to-distribute conviction.

Additional facts

The State charged Valdez with possession of methamphetamine with intent to distribute. See K.S.A. 2018 Supp. 21-5705. Subsection (e) provides "[i]n any prosecution under this section, there shall be a rebuttable presumption of an intent to distribute if any person possesses ... 3.5 grams or more of heroin or methamphetamine." (Emphasis added.) At Valdez' trial, the court instructed the jury by first setting out the elements of possession with intent to distribute. Then, consistent with PIK Crim. 4th 57.022 (2013 Supp.), the court instructed,

"If you find the defendant possessed 3.5 grams or more of methamphetamine, you may infer that the defendant possessed with the intent to distribute. You may consider the inference along with all 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." (Emphasis added.)

The trial court also instructed the jury that,

"The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
"The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a 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."

Valdez did not object to these instructions. But for the first time on appeal to the panel, he argued the permissive inference of intent to distribute stated in the jury instruction violated his due process rights because "there was no evidence of a rational connection between possession of 3.5 grams of methamphetamine and an intent to distribute." The panel refused to consider this newly raised constitutional issue because the trial court did not have a chance to rule on it, explaining there was "insufficient evidence in the record to give this court a foundation for meaningful review." Valdez , 2021 WL 1324023, at *3.

The panel should have considered this claim as an instructional error.

K.S.A. 2020 Supp. 22-3414(3) provides:

"No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous . Opportunity shall be given to make the objections out of the hearing of the jury." (Emphasis added.)

Our usual four-part framework for analyzing jury instruction claims does not prevent appellate review when a defendant fails to object at trial—it simply specifies a higher degree of prejudice to warrant...

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3 cases
  • State v. Berkstresser
    • United States
    • Kansas Supreme Court
    • 2 Diciembre 2022 is firmly convinced the jury would have reached a different verdict had this instructional error not occurred. State v. Valdez , 316 Kan. 1, 6, 512 P.3d 1125 (2022). But here, after the panel found error, it reversed the conviction because it held the jury "could have reasonably determin......
  • State v. Winter
    • United States
    • Kansas Court of Appeals
    • 27 Enero 2023
    ...its burden of proof by relying upon inference or presumption stacking. As our Supreme Court recently explained in State v. Valdez , 316 Kan. 1, 11-12, 512 P.3d 1125 (2022) :"When the State asks a jury to make a presumption based on other presumptions, it does not carry its burden to present......
  • State v. Berkstresser
    • United States
    • Kansas Supreme Court
    • 2 Diciembre 2022
    ...the reviewing court is firmly convinced the jury would have reached a different verdict had the instructional error not occurred. Valdez, 316 Kan. at 6. Berkstresser the burden to show this. State v. Solis, 305 Kan. 55, 65, 378 P.3d 532 (2016). The panel began its prejudice analysis by corr......

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