Opinion
110,059.
11-07-2014
STATE of Kansas, Appellee, v. Billy ORNELAS, Appellant.
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.
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 review, and whether Ornelas' constitutional and statutory rights to be present were violated.
Was This Issue Preserved for Appeal?
Generally, issues not raised before the trial court, including those of a constitutional nature, cannot be raised for the first time on appeal. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014) ; State v. Cheffen, 297 Kan. 689, 696–98, 699–700, 303 P.3d 1261 (2013). Ordinarily, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). However, exceptions to this rule exist, including: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012). Here, Ornelas asserts the second exception to this rule applies. The State failed to challenge the preservation issue.
A defendant has the right to be present at all critical stages of the proceedings under the Confrontation Clause of the Sixth Amendment to the United States Constitution, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and K .S.A. 22–3405(1). The Kansas Supreme Court has interpreted K.S.A. 22–3405(1) to mean:
“ ‘[A] felony defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant's presence is essential to a fair and just determination of a substantial issue. The statutory command of K.S.A. 22–3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution that a criminal defendant be present at any critical stage of the proceedings against him or her.’ [Citation omitted.]” State v. Martinez, 288 Kan. 443, 449–50, 204 P.3d 601 (2009).
Ornelas argues his right to be present is a fundamental right that should not be denied and his claim should therefore be heard for the first time on appeal. However, Ornelas presents no caselaw or statute to support his argument that the hearing to reconsider the denial of his motion to change venue is a critical stage of the proceedings under the Confrontation Clause of the Sixth Amendment, the Due Process Clause of the Fourteenth Amendment, or K.S.A. 22–3405(1). Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013).
However, the Kansas Supreme Court has recently considered the merits of a claim regarding the right to be present when raised for the first time on appeal. State v. Bowen, 299 Kan. at 354–58 ; see State v. Hall, No. 102,117, 2014 WL 3843066, at *2–3 (Kan.App.2014) (unpublished opinion) (addressing defendant's absence from restitution hearing for first time on appeal). Even though Bowen involved the violation of a statutorily defined procedure and no such statute exists in this case, the Kansas Supreme Court's willingness to consider the issue for the first time on appeal guides our answer. Given our Supreme Court's guidance, we will proceed to address the merits of Ornelas' claim that his “presence [was] essential to a fair and just determination of a substantial issue.” Martinez, 288 Kan. at 449.
Ornelas also raises for the first time on appeal a claim under K.S.A.2011 Supp. 22–3208(7) that he has a statutory right to be present at and participate in a hearing on any motion. Ornelas fails to argue how this claim involves a fundamental right that should be heard for the first time on appeal. Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with Rule 6.02 [a][5] ). However, because Ornelas' brief was filed before Williams was issued and involves a mostly similar legal issue, we will consider his statutory claim under the larger rubric of whether he had a constitutional right to be present.
Standard of Review
Ornelas' claim raises both constitutional and statutory rights to be present at critical stages of proceedings against him. See U.S. Const, Amend. 6 ; U.S. Const. Amend. 14 ; K.S.A.2011 Supp. 22–3208(7) ; K.S.A. 22–3405(1). “Constitutional claims are questions of law subject to de novo review. [Citations omitted.]” Bowen, 299 Kan. at 354.
Were Ornelas' Rights Violated When the District Court Decided His Motion for Reconsideration of His Motion to Change Venue in Ornelas' Absence?
Ornelas points out that a defendant has a due process right to appear at all critical stages in a prosecution, a point of law we agree with. Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). The United States Supreme Court has observed a critical stage of trial entails “proceedings between an individual and agents of the State” with “ ‘trial-like confrontations,’ at which counsel would help the accused ‘in coping with legal problems or ... meeting his adversary.’ “ Rothgery v. Gillespie County, 554 U.S. 191, 212 n.16, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) (quoting United States v. Ash, 413 U.S. 300, 312–13, 93 S.Ct. 2568, 37 L.Ed.2d 619 [1973] ).
Ornelas supplements his argument on the right to be present pursuant to K.S.A.2011 Supp. 22–3208(7), which states:
“Any hearing conducted by the court to determine the merits of any motion may be conducted by two-way electronic audio-video communication between the defendant and defendant's counsel in lieu of personal presence of the defendant and defendant's counsel in the courtroom in the discretion of the court. The defendant shall be informed of the defendant's right to be personally present in the courtroom during such hearing if the defendant so requests. Exercising the right to be present shall in no way prejudice the defendant.”
Here, Ornelas is trying to expand the application of K.S.A.2011 Supp. 22–3208(7) to justify his right to be present. K.S.A.2011 Supp. 22–3208(7) refers to a defendant's right to appear by two-way electronic audio-video communication with the district court and his attorney or in person. The statute also provides the defendant has the right to appear in person if he or she wants. At the time of his hearing on his motion for reconsideration of his motion to change venue, Ornelas was out on bond and free to appear in person at the hearing. He knew the hearing was set and just failed to appear. The record reflects no request was made by Ornelas or his attorney for him to appear by two-way electronic audio-video communication, thus K.S.A.2011 Supp. 22–3208(7) does not provide support for Ornelas' claim the hearing should not have been conducted in his absence.
Next, we will discuss whether Ornelas waived his constitutional and statutory rights to appear by signing the waiver of right to appear and by failing to appear at the motion for reconsideration of his motion to change venue hearing.
Did Ornelas Waive His Right to Be Present at the Hearing on His Motion for Reconsideration of His Motion to Change Venue?
Ornelas admits he had previously signed a waiver for personal presence at pretrial matters. However, he points out that he changed attorneys twice after signing the waiver and expressly asserted to his attorney, Craig Robinson, his desire to be present for the motion for reconsideration of his motion to change venue hearing. Now he argues the waiver should not apply to this hearing. However, his waiver to be present at pretrial hearings remained unrevoked, was open-ended, and was not limited to any specific attorney. The waiver also required Ornelas to be in court when told to be there by his attorney. Ornelas was notified by his attorney of the hearing date; and with knowledge of the hearing, he failed to appear.
We pause to note at the start of the hearing on the motion for reconsideration of the motion to change venue, Robinson acknowledged to the district court Ornelas had a signed waiver when he said, “He is not present, but has a waiver, if I recall.” Then Robinson went on to say Ornelas wanted to be present but was not and he had not had a chance to review Ornelas' evidence to support the motion to change venue.
On appeal, Ornelas' now explains his absence by stating: “[I]t appears that there was some sort of misunderstanding between [him] and his counsel regarding the hearing date.” Despite this admission, Ornelas argues the district court erred in ruling on the merits of his motion for reconsideration of his motion to change venue based on assumptions of what Ornelas would present as evidence. Ornelas claimed he had clearly expressed to Robinson his desire to be present for the hearing; therefore, he argues the district court was instead required to continue the hearing so that he could appear in person and provide testimony.
Even without considering Ornelas' waiver, his argument fails. Robinson stated that Ornelas had been notified of the time and date of the hearing. Ornelas had the right to be present at his hearing, and with notice of the hearing date, he simply failed to appear. As the State notes, this failure to appear constitutes a voluntary waiver of his right to be present.
Factually, Ornelas' case is similar to the issues addressed by our Supreme Court in State v. Sandstrom, 225 Kan. 717, 721, 595 P.2d 324, cert. denied 444 U.S. 942 (1979), where the court said:
“[T]here was nothing to prevent the court from proceeding as it did in the absence of the defendant, provided the defendant had voluntarily absented herself from those proceedings. On the record from the trial court, we have no hesitancy in holding that the defendant did voluntarily waive her right to be present at the two hearings in question. The record before the trial court shows clearly that her counsel, Robert D. Hecht, a competent and able member of the Kansas Bar, advised the court that she had waived her right to be present. The record discloses that, at the time of the hearings, the defendant had been released on bond and was not in custody. There is nothing to show that she was prevented from being present or that she could not have been present had she desired to do so. Furthermore, it is clear from the record that the defendant, at her own request, did not appear at most of the pretrial proceedings and that in each instance Mr. Hecht advised the court that she had waived her right to be present.”
Ornelas was not in custody, he had been released on bond, and Ornelas provided no extenuating circumstances explaining why he could not appear at the hearing. While Ornelas now claims the district court was “required” to grant a continuance, K.S.A. 22–3401 provides that a district court may grant a continuance “for good cause shown,” and its refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Beaman, 295 Kan. 853, 862, 286 P.3d 876 (2012). A district court abuses its discretion when it makes a decision based on an error of fact, an error of law, or when it makes a decision so arbitrary or capricious that no reasonable person would agree with it. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). Here, Ornelas' counsel did not request a continuance and acknowledged to the district court Ornelas had signed a waiver of the right to be present. Ornelas knew the hearing was set and was not present. Without a request to continue, there was no good cause for the district court to consider one.
On appeal, Ornelas still does not provide an argument which would constitute good cause to show that the district court abused its discretion in failing to continue the hearing to allow his attendance. The district court did not abuse its discretion in failing to grant a continuance as one was not requested. Ornelas' constitutional and statutory right to be present at the hearing was not impeded.
Ornelas did not file another motion to reconsider before the district court stating why he failed to appear at the motion for reconsideration of his motion to change venue hearing. Ornelas' third motion would have given the district court another opportunity to address the merits of his motion to change venue with supporting evidence. On appeal, Ornelas makes no reference to the evidence he would have presented at the hearing, such as a change of venue study.
Finally, we note a change of venue motion is generally presented to claim it will be difficult to pick a fair and impartial jury because of pretrial publicity. Here, from our review of the record, we see the district court and counsel had no difficulty in selecting Ornelas' jury. During voir dire, only one prospective juror was excused and all the other prospective jurors had not heard of Ornelas or the charges pending against him.
Did the District Court Err with Its Verbal Instruction to the Prospective Jurors Prior to Voir Dire by Using an Outdated Reasonable Doubt Instruction on the Burden of Proof?
Prior to voir dire, the district court used an outdated pre–2005 version of PIK Crim.3d 52.02 to verbally inform the prospective jurors about the reasonable doubt required for the State's burden of proof. However, the district court later provided the current reasonable doubt instruction, PIK Crim. 4th 51.010, both verbally and in writing when the jury was instructed prior to closing arguments. Ornelas admits he did not object to the preliminary instruction, but he claims the instruction was clearly erroneous and requires reversal.
Standard of Review
A party cannot claim error for the district court's giving or failing to give a jury instruction unless (1) the party objects before the jury retires, stating distinctly the matter to which the party objects and the grounds for the objection; or (2) the instruction or the failure to give the instruction is clearly erroneous. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Here, Ornelas failed to object, and we will consider whether the instruction was clearly erroneous.
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” State v. Williams, 295 Kan. 506, Syl. ¶¶ 4–5, 286 P.3d 195(2012).
Was the Outdated PIK Instruction Given Prior to Voir Dire Clearly Erroneous?
Prior to voir dire, the district court gave the prospective jurors preliminary instructions which included the outdated reasonable doubt instruction that stated:
“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 any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
However, with its final instructions, the district court provided the correct PIK Crim. 4th 51.010 on reasonable doubt both verbally and in writing for the jury to use during deliberations. These instructions correctly stated to the jury the reasonable doubt test of any and each:
“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.” (Emphasis added.)
Ornelas argues the error of the original verbal instruction given to the prospective jurors, claiming the “any ... any” language is inherently confusing due to the nature of the word any. Ornelas' argument fails to acknowledge the district court provided the correct instructions prior to submitting the case to the jury and incorrectly argues the verbal instruction error was incurable. The State argues that in State v. Herbel, 296 Kan. 1101, 1124, 299 P .3d 292 (2013), our Supreme Court determined that while the “any ... any” language was not preferred when delivering reasonable doubt instructions, the instruction was still legally appropriate. Clearly, the jury's written instructions, pursuant to PIK Crim. 4th 51.010, which the jury had available to them and could refer to while deliberating, trumps the disfavored verbal statement made prior to voir dire. See People v. Osband, 13 Cal.4th 622, 717, 55 Cal.Rptr.2d 26, 919 P.2d 640 (1996) (“[A]s long as the court provides the jury with the written instructions to take into the deliberation room, they govern in any conflict with those delivered [verbally].”), cert. denied 519 U.S. 1061 (1997) ; People v. Gacy, 103 Ill.2d 1, 99–100, 468 N.E.2d 1171 (1984) (harmless error when verbal instruction was erroneous but written instructions and other verbal statements properly stated applicable law).
The State's application of Herbel is correct. The court in Herbel stated that even though the “any ... any” language for reasonable doubt was not preferred, it was legally appropriate, whereas a transposition of the words “any” and “each” would not be legally appropriate. 296 Kan. at 1122–24 (citing Miller v. State, No. 103,915, 2012 WL 401601, at *2 [unpublished opinion], aff'd 298 Kan. 921, 318 P.3d 155 [2014] ). Here, there was no transposition of the words “any” and “each.” The district court simply provided the “any ... any” language in its first verbal instruction to the prospective jurors. Finally, we note the elements instruction for the charged crimes stated each of the State's claims needed to be proven, which would also serve to correct any error the district court had previously made. Thus, the “any ... any” language used by the district court prior to empanelling the jury was not a misstatement of law and therefore not clear error. Because mere use of the word “any” did not constitute error under Herbel and the district court—in the final verbal and written instructions provided to the jury just prior to deliberations—used the current PIK Crim. 4th 50.010, we find no error and Ornelas' claim fails.
Finally, we note our Supreme Court just recently reaffirmed the use of the “any ... any” language in a reasonable doubt instruction and indicated while it was “not the preferred instruction, it was legally appropriate.” State v. Ortega, 300 Kan. ––––, Syl. ¶ 4, 335 P.3d 93 (2014).
Was the Evidence Sufficient to Convict Ornelas of Intent to Distribute Methamphetamine?
Ornelas argues the State failed to prove the methamphetamine found in the car was intended for distribution.
Standard of Review
“When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.”
“The weighing of a witness' credibility is solely within the province of the jury. An appellate court does not reweigh evidence, assess the credibility of a witness, or resolve conflicting evidence .” Ward, 292 Kan. 541, Syl. ¶¶ 1 1–12.
Ornelas wants this court to reconsider the evidence presented to the jury: a gun, loose baggies, methamphetamine, a noncontrolled crystalline substance, and $100 worth of $20 bills in his pocket. Ornelas challenges the sufficiency of the evidence to sustain a conviction of intent to distribute methamphetamine. Ornelas does admit large amounts of cash could indicate distribution as opposed to personal use; however, he argues the relatively small amount of $100 could have easily been from a recent ATM visit rather than indicative of the sale of narcotics. Ornelas points out he was found not guilty of possessing the firearm; thus, he argues the presence of the firearm in the car should not be used to support an inference of distribution of methamphetamine. Ornelas argues the baggies are “an exceedingly common item.” Although they are certainly used by drug dealers, Ornelas argues baggies have a multitude of other uses. Because no other indicia of distribution, such as logbooks or scales, were found in the car, Ornelas argues the baggies should simply be considered a “ubiquitous” item without nefarious connotation. Finally, Ornelas argues the State's reliance on the idea that the noncontrolled crystalline substance could be used to cut methamphetamine was improper. The State only demonstrated the substance was nonnarcotic and presented no evidence as to what the substance actually was. Without evidence as to what the substance was, Ornelas argues the officers had no evidentiary basis to testify that the substance could be used to cut methamphetamine.
The State replies that a conviction for possession with intent to distribute methamphetamine can be proved beyond a reasonable doubt by showing Ornelas had control over the drug and intended to transfer it from one person to another. This intent to sell can be shown by circumstantial evidence including the quantity of the narcotic, equipment found with it, where the narcotic was found, the manner of packaging, and the opinion of experts that the narcotic was packaged for sale. State v. Smith, 4 Kan.App.2d 149, 151, 603 P.2d 638 (1979). Here, the evidence showed that Ornelas' methamphetamine was divided into two baggies. Two officers testified that based on their training and experience the nonnarcotic crystalline substance could be used to cut the methamphetamine. The officers also testified that the presence of the baggies and a firearm enhanced that belief. The extra baggies were consistent with the kind used for narcotic sales and similar to the baggies found containing Ornelas' methamphetamine.
When viewed in the light most favorable to the prosecution, a reasonable jury could find Ornelas was guilty beyond a reasonable doubt of possession of methamphetamine with intent to distribute. Ornelas does not challenge he possessed methamphetamine, he only argues the intent to distribute was not proven at trial. However, the evidence reflects methamphetamine was found with extra loose baggies and a nonnarcotic crystalline substance which indicated intent to cut and distribute a diluted narcotic product. Furthermore, although Ornelas was found not guilty of possession of a firearm, the officers testified the presence of a firearm with drugs indicated intent to distribute.
The jury found the State's evidence to be compelling and credible. It is not proper for this court to reweigh the evidence or question the credibility determination of the trier of fact. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011) ; State v. Sanchez, No. 105,051, 2012 WL 1524067, at *3–4 (Kan.App .2012) (unpublished opinion) (contrary theory of intent does not indicate insufficiency of evidence when arresting officer testified circumstances supported intent to distribute based on training and experience), rev. denied 297 Kan. 1254 (2013). Here, based on the arresting officers' testimony, the jury determined that the way the drugs were packaged and found reflected intent to distribute. We cannot reweigh or resolve conflicts in the evidence. McCaslin, 291 Kan. at 710 ; see Smith, 4 Kan.App.2d at 151.
Did the District Court Violate Apprendi v. New Jersey When It Sentenced Ornelas?
In his final issue, Ornelas presents an Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), argument claiming the district court erred in using his criminal history to enhance his grid sentence without proving his criminal history to a jury. Ornelas recognizes this issue has previously been decided adversely to him by the Kansas Supreme Court in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), but he includes the issue to preserve it for federal review. Because there is no indication the Kansas Supreme Court is departing from this position, this court is duty bound to follow established precedent. State v.. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The district court properly used Ornelas' criminal history to establish his sentence.
Conclusion
On appeal, Ornelas has presented four issues of error seeking reversal of his conviction and remand for a new trial. 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. We find Ornelas signed a waiver of right to be present at pretrial hearings, which remained valid and unrevoked, and with knowledge of the hearing date he chose not to attend. Second, the district court improperly instructed the prospective jurors on the reasonable doubt required for the State's burden of proof. We follow our Supreme Court's guidance and find the language of “any ... any” was not the preferred language to be used when instructing the jury, but it was not legally inappropriate. Third, the evidence was insufficient to support his conviction for possession with intent to distribute methamphetamine. When viewed in the light most favorable to the State, we find the evidence supported the verdict and we will not reweigh the evidence. Finally, Ornelas raises a criminal history challenge in light of Apprendi, but we are duty bound to follow Supreme Court precedent. We find no error committed by the district court and affirm his two convictions.
Affirmed.
STANDRIDGE, J., concurring.
Although I concur in the decision to affirm Billy Ornelas' convictions, I respectfully disagree with the analysis used by the majority in resolving Ornelas' claim that the district court violated his constitutional right to be present at the hearing on his motion to reconsider a change of venue.
On November 14, 2011, Ornelas signed a limited waiver of his right to be present at pretrial hearings. After that waiver was signed, defense counsel filed an initial motion for a change of venue, which the court summarily denied. After learning that the district court denied the motion to change venue, Ornelas directed defense counsel to file a motion asking the court to reconsider its decision. Ornelas told counsel that he wanted to attend the hearing on the motion to reconsider because he intended to introduce evidence supporting a change in venue. Ornelas did not tell counsel what evidence he intended to introduce.
The district court granted Ornelas' request to reconsider his motion to change venue and set it for hearing. Ornelas did not attend the hearing. When the hearing started, counsel informed the court that (1) counsel electronically sent notice of the hearing to Ornelas, including the date and time; (2) Ornelas told counsel he did not know the hearing had been set for that day; (3) Ornelas wanted to attend the hearing on the motion to reconsider because he intended to introduce evidence supporting a change in venue; and (4) Ornelas previously had signed “a waiver [of his right to be present at pretrial hearings], if I recall.”
Ruling on the merits, the district court declined to change the venue for trial as requested in Ornelas' motion for reconsideration. In support of this decision, the court found the 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.” Notably, the court made no legal or factual finding with respect to whether the hearing was one at which Ornelas had a right to be present and/or whether that right had been relinquished by written waiver or by voluntary absence.
On appeal, Ornelas argues the district court violated his constitutional and statutory right to be present at the hearing on his motion for reconsideration of venue. Under both K.S.A. 22–3405 and the Sixth Amendment to the United States Constitution, a criminal defendant has the right to be present at every critical stage of his or her trial. K.S.A. 22–3405(1) ; State v. Herbel, 296 Kan. 1101, 1106, 299 P.3d 292 (2013). Our Supreme Court has interpreted K.S.A. 22–3405(1) to mean:
“[A] defendant in a felony case ‘shall be present ... at every stage of the trial ... except as otherwise provided by law .’ This statute has been interpreted to mean that the defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant's presence is “ ‘essential to a fair and just determination of a substantial issue.’ “ [Citations omitted.]
“In addition, the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment require a defendant's presence at every critical stage of the criminal proceedings against him or her. [Citations omitted.]
“We have previously determined that the statutory command of K.S.A. [ ] 22–3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution that a criminal defendant be present at any critical state of the proceedings against him or her. [Citation omitted.]” State v. Engelhardt, 280 Kan. 113, 122, 119 P.3d 1148 (2005).
Under certain circumstances, a defendant may waive the right to be present. A defendant's voluntary absence may be deemed a waiver of the right to be present. State v. Cromwell, 253 Kan. 495, 507, 856 P.2d 1299 (1993) ; State v. Kelly, 213 Kan. 237, 241, 515 P.2d 1030 (1973) ; State v. Galloway, 16 Kan.App.2d 54, 56, 817 P.2d 1124 (defendant cannot impede a trial by choosing to be absent; absence deemed waiver), rev. denied 249 Kan. 777 (1991); see K.S.A. 22–3405(1) (voluntarily absent from trial). But such a waiver must be both knowing and voluntary. See Taylor v. United States, 414 U.S. 17, 18–20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973). In deciding whether a waiver is knowingly and voluntarily made, however, the court “must indulge every reasonable presumption against the loss of constitutional rights.” Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353, reh. denied 398 U.S. 915 (1970).
To that end, our standard of review depends on whether the nature of the issue was presented for decision. If the defendant's right to be present during a critical stage of trial is at issue, the appropriate standard of review is a question of law over which the appellate court exercises unlimited review. Herbel, 296 Kan. at 1106–07. But if the issue presented is whether, by his or her actions, a defendant has waived or voluntarily relinquished his or her right to be present during a critical stage of trial, the question is a factual one subject to analysis under a substantial competent evidence standard of review. See State v. Sandstrom, 225 Kan. 717, 721–22, 595 P.2d 324, cert. denied 444 U.S. 942 (1979) ; State v. Acree, 22 Kan.App.2d 350, 353, 916 P.2d 61 (A defendant may voluntarily waive his or her right to be present, but if the record does not reflect that the defendant personally waived the right or his or her attorney waived it after consulting his or her client, then a waiver will not be presumed from a silent record.), rev. denied 260 Kan. 995(1996).
In this case, the majority dodges the issue of whether the hearing was one where Ornelas had a right to be present, concluding Ornelas was not entitled to relief because he knowingly and voluntarily relinquished any right he may have had to be present. Specifically, the majority finds that “Ornelas signed a waiver of right to be present at pretrial hearings, which remained valid and unrevoked, and with knowledge of the hearing date, he [voluntarily] chose not to attend.” Slip op. at 19. Given the district court made no findings of fact regarding waiver or voluntary relinquishment, however, I believe the majority improperly weighs conflicting evidence and resolves a disputed issue of fact. Although there is no question that Ornelas effectively waived his right to be present at the first hearing on the motion to transfer venue, his trial attorney's comments to the district court at the hearing on the motion to reconsider establish, at a very minimum, that a factual dispute exists regarding whether Ornelas effectively rescinded that waiver for purposes of appearing at the second hearing. The fact that Ornelas' trial counsel specifically told the district court that Ornelas “claims that he did not know [the hearing] was today” establishes another factual dispute, this time regarding whether Ornelas was voluntarily absent from the second hearing. In sum, I believe the analysis used by the majority in concluding that Ornelas is not entitled to relief is fatally flawed in that it improperly weighs conflicting evidence and resolves disputed issues of fact.
Nevertheless, I agree that Ornelas is not entitled to relief on this claim. As noted above, our Supreme Court has held that a criminal defendant has the right to be present at any stage of the criminal proceeding when “the jury is in the courtroom or when the defendant's presence is ‘ “essential to a fair and just determination of a substantial issue.” ‘ “ Engelhardt, 280 Kan. at 122. In State v. Bristor, 236 Kan. 313, 317–18, 691 P.2d 1 (1984), the court held that the critical stage analysis has extended the applicability of the Sixth Amendment right to counsel beyond the confines of the trial itself to various pretrial confrontations. The Bristor court noted, however, that some pretrial confrontations are not critical stages. 236 Kan. at 318–19. In this case, I would conclude that a hearing on a motion to reconsider the court's decision to deny a change in venue is not essential to a fair and just determination of a substantial issue. My conclusion in this regard is grounded in the undisputed fact that Ornelas validly waived his right to be present at the first hearing on the motion to transfer venue. As the majority states, Ornelas did not file another motion to reconsider before the district court to explain what evidence he intended to offer to support his request and fails to include such an explanation on appeal as well. Moreover, the record reflects that during voir dire only one prospective juror was excused and all the other prospective jurors had not heard of Ornelas or the charges pending against him.
Given the facts presented, the applicable law, and the procedural posture on appeal, I would decline to resolve a factual dispute regarding waiver and voluntary relinquishment and reject Ornelas' claim solely on the legal conclusion that the hearing on his motion to reconsider a change in venue was not a critical stage of the proceeding.