Opinion
No. 106,123.
2013-01-18
STATE of Kansas, Appellee, v. David OBREGON, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge. Rachel Pickering, Corrine E. Johnson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Vernon E. Buck, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Rachel Pickering, Corrine E. Johnson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Vernon E. Buck, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted David Obregon of selling, delivering, or distributing methamphetamine after he participated in a controlled drug buy with an undercover informant. On appeal, Obregon contends the trial court committed reversible error when it denied his motion to dismiss the drug charge because of a violation of the compulsory joinder provisions of K.S.A. 21–3108(2)(a). Obregon also argues that the State violated his right to a unanimous jury verdict because there was insufficient evidence to convict him of the delivery of methamphetamine. Finding no error, we affirm the conviction.
Factual and Procedural Background
Timothy Lewis was a confidential informant who facilitated controlled drug buys for the Lyon County Sheriff's Department. For 2 to 3 years, Lewis participated in about 15 to 30 controlled drug buys for the sheriff's department. He also assisted in multiple other narcotics investigations in Lyon, Shawnee, and Osage Counties.
On May 28, 2009, Lewis exchanged text messages with Obregon, arranging to purchase “an eight ball, an eighth [of an] ounce of methamphetamine for $275.” Lewis informed Detective Travis Mishler and Deputy Danny Broyles of the planned drug transaction. While Lewis was speaking with the officers, Obregon sent Lewis a text message instructing him to meet him at April Miller's home—“a very popular drug house in Emporia”—to complete the drug purchase.
According to Lewis, the text messages originated from Obregon's cell phone because they came from the same number Lewis had in his phonebook for Obregon. Lewis also testified that other text messages originated from the cell phone of a female acquaintance of Obregon's from whom Lewis had purchased methamphetamine in the past. Lewis explained that he was certain Obregon was using her phone to text him because of prior contacts he had with Obregon.
After thoroughly searching Lewis and his vehicle, Deputy Broyles equipped Lewis with an audio transmitting device and a digital voice recorder, and Detective Mishler gave Lewis $275 in bills with recorded serial numbers. The detective then drove to the agreed-upon location for the drug buy and parked a short distance away to conduct surveillance of the house. Shortly thereafter, Deputy Broyles followed Lewis to the location, and according to the deputy, he watched Lewis' vehicle until Detective Mishler radioed him to indicate he could see Lewis. Deputy Broyles parked some distance away and waited for Lewis to return.
Lewis parked his vehicle in the driveway and entered the residence. Lewis testified the drug transaction occurred in the “main room of the house,” and that Obregon, Miller, and Virgil Dillard were present, while some other people may have been “in another room or out back.” Lewis explained that upon his arrival, a very short conversation ensued: “[Obregon] really didn't say much of anything and [Dillard] made some small talk.” Detective Mishler monitored the conversation during the drug buy, and he only heard the voices of Lewis and Dillard. According to Lewis, he put the $275 down on a counter and Obregon threw a bag towards him, which Lewis said contained “a ball of meth” or about 3 1/2 grams of methamphetamine. Lewis took the bag and left the residence. The transaction only took about a minute.
After the transaction was complete, Deputy Broyles followed Lewis' vehicle back to the sheriff's office. Upon arrival, Lewis handed the deputy a plastic baggie containing 3.3 grams of methamphetamine. Deputy Broyles then performed a thorough search of Lewis' person which did not result in the discovery of any money or contraband.
Detective Mishler remained at the residence after Lewis' departure, and shortly thereafter, he observed Obregon and Dillard leave the house and enter a minivan parked in front of the residence. Detective Mishler followed the minivan because he was aware that Obregon had an outstanding warrant for his arrest. Driving an undercover vehicle, the detective followed the minivan. Detective Mishler discontinued following the vehicle, however, when it began traveling at a high rate of speed. A short time later, Detective Mishler contacted the Emporia Police Department to report Obregon's outstanding warrant, and to provide a description of the minivan.
Later that day, Emporia officers stopped the minivan and arrested Obregon. Officer D.J. Dragonas searched Obregon's pocket and seized $275. The serial numbers on this currency matched the serial numbers on the currency Lewis had been given earlier for the drug buy.
During a search of Obregon and the minivan, officers also discovered methamphetamine and various drug related items. As set forth in State v. Obregon, No. 104,584, 2011 WL 5526551, at *1 (Kan.App.2011) (unpublished opinion), petition for review filed December 12, 2011:
“During a search of Obregon incident to his arrest, an officer discovered a sock tucked in his waistband. The sock contained a small clear plastic bag containing a white crystal-like substance later identified to be 4.04 grams of methamphetamine. Obregon was also carrying $356 in cash, two cell phones, and a small picture of Jesus Malverde, a reputed patron saint of drug dealers. A police officer searched Dillard and found a small set of electronic weight scales on his person. Additionally, the police found a small clear plastic bag containing a white crystal-like substance later identified to be 1.73 grams of methamphetamine located in the center console of the van.”
Police also recovered numerous text messages from cell phones found on Obregon. These messages included slang terms to request methamphetamine to purchase and to describe amounts of drugs. Outgoing text messages were also sent to a phone number associated with a known drug user and distributer.
Based on the stop of the minivan and resultant searches and seizures of drugs and related drug materials, the State charged Obregon with “multiple drug-related offenses, including possession of methamphetamine with intent to sell and conspiracy to sell methamphetamine” in District Court Case No. 09 CR 517 (2009 case). 2011 WL 5526551, at *1. At Obregon's jury trial, three police officers who were present at Obregon's arrest—Officer Dragonas, Sergeant Kevin Risley, and Officer Scott Stormont—testified on behalf of the state. Obregon testified on his own behalf, and “[h]e admitted to possessing the methamphetamine found on his person, but he denied any intent to sell the drugs.” 2011 WL 5526551, at *1.
Obregon was convicted of possession of methamphetamine with intent to sell, conspiracy to sell methamphetamine, possession of drug paraphernalia, and failure to affix a drug tax stamp. The district court sentenced Obregon to a controlling prison term of 49 months in the 2009 case.
Later, the State filed charges against Obregon related to the controlled drug buy involving Lewis in District Court Case No. 10 CR 159 (2010 case). In particular, the State charged Obregon with selling, delivering, or distributing methamphetamine in violation of K.S.A.2008 Supp. 65–4161(a), unlawfully arranging the sale of a controlled substance using a communication facility in violation of K.S.A. 65–4141, and possession of methamphetamine without a drug tax stamp in violation of K.S.A. 79–5208.
Prior to trial in the 2010 case, Obregon filed a motion to dismiss on double jeopardy grounds pursuant to K.S.A. 21–3108(2)(a). Obregon contended that the compulsory joinder rule barred the State from pursuing a second prosecution related to the events that occurred on May 28, 2009. The State countered that the compulsory joinder rule was not applicable because the 2009 and 2010 cases involved different criminal conduct and no evidence regarding the controlled drug buy in the 2010 case was presented in Obregon's first prosecution in the 2009 case.
On January 19, 2011, the district court held an evidentiary hearing to consider Obregon's motion to dismiss. At the hearing, Obregon presented the testimony of Detective Mishler, Deputy Broyles, Officer D.J. Dragonas, Sergeant Kevin Risley, and Officer Scott Stormont. At the conclusion of the testimony, the district court denied Obregon's motion, finding that no evidence, other than vague references to another investigation and Obregon's involvement in the drug business, was presented during the first trial which would have substantially proven that Obregon sold methamphetamine to a particular individual on a specific date in the 2010 case.
Obregon's second trial resulted in the jury finding him guilty of the sale, delivery, or distribution of methamphetamine and not guilty of the criminal use of a communication facility and possession of methamphetamine without a drug tax stamp. As a result, the district court sentenced Obregon to 49 months' incarceration followed by 24 months' postrelease supervision. The district court ordered this sentence to run consecutive to Obregon's sentence in the 2009 case. Obregon timely appealed.
Motion to Dismiss for Violation of the Compulsory Joinder Statute
Obregon contends the district court committed reversible error when it denied his motion to dismiss on double jeopardy grounds, pursuant to K.S.A. 21–3108(2)(a). He argues that the compulsory joinder rule barred the State from pursuing a second prosecution related to the events that occurred on May 28, 2009.
K.S.A. 21–3108 is a codification of the double jeopardy prohibition articulated in the Fifth Amendment of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Schroeder, 279 Kan. 104, 108, 105 P.3d 1237 (2005). This statute, which is commonly referred to as the “compulsory joinder rule,” provides:
“A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began.” K.S.A. 21–3108(2)(a).
As our Supreme Court has explained: “Under the compulsory joinder rule, if evidence is admitted of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution.” State v. Wilkins, 269 Kan. 256, Syl. ¶ 1, 7 P.3d 252 (2000).
The purpose of the compulsory joinder rule is “simply to prevent the prosecution from substantially proving a crime in a trial in which that crime is not charged and then prosecuting the defendant in a subsequent trial using evidence presented in the earlier trial. The compulsory joinder rule furthers the constitutional guarantee against multiple trials.” Wilkins, 269 Kan. 256, Syl. ¶ 2. Whether the compulsory joinder provision of K.S.A. 21–3108 is applicable in a given case is a question of law subject to de novo review. Schroeder, 279 Kan. at 108.
A prosecution is barred under the compulsory joinder rule if the following three requirements are met:
“(1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.” Schroeder, 279 Kan. 104, Syl. ¶ 4.
Obregon and the State agree that the first and third factors of this test have been met. As a result, the key question presented for resolution is whether the evidence presented in Obregon's first trial was sufficient to trigger application of the compulsory joinder rule. In order to make this determination, we must determine if “the evidence presented at the first trial, when viewed in a light most favorable to the defendant, would lead a rational factfinder to find the defendant guilty beyond a reasonable doubt of the crimes in the second trial.” 269 Kan. at 263.
It is Obregon's burden to establish the sufficiency of the evidence, and there must “be more than a mere scintilla of evidence .” 269 Kan. at 263. Moreover, “[a] slight or passing reference to evidence will not be enough to trigger the application of K.S.A. 21–3108(2)(a)[,][and][t]he fact that some evidence used in the first trial is also used in the second trial does not necessarily bar prosecution.” 269 Kan. 256, Syl. ¶ 3. The essential question is “whether the second crime was proved by the admission of evidence of the second crime in the first trial.” 269 Kan. at 263.
At the outset, Obregon asserts that Wilkins was wrongly decided because the sufficiency of the evidence standard articulated earlier is inconsistent with the plain language of K.S.A. 21–3108(2)(a). As acknowledged by Obregon, however, we are duty bound to follow precedent from the Kansas Supreme Court absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869,rev. denied 284 Kan. 949 (2007). There is no showing that our Supreme Court is considering a departure from its holding in Wilkins. See Schroeder, 279 Kan. 104.
In denying the applicability of the Kansas compulsory joinder rule in this case, the district judge explained:
“There was no testimony elicited or offered about the controlled purchase in the jury trial. The only potential evidence that could overlap is evidence of the defendant being in the drug business, i.e., suspicious text messages, cell phones, multiple cell phones, certain sum of cash, and the fact that he had drugs in his possession.
....
“... I don't believe that [K.S.A. 21–3108(2)(a) ] gives rise to a defense for this particular defendant under the facts of this case because that crime was not substantially proved in the trial. And in fact, there was no reference particularly to that crime at all except for a passing reference about another investigation. Certainly, a jury couldn't—would not have any idea what that investigation entailed or whether it was a drug crime or some other kind of crime.”
In short, the district court found that the evidence cited by Obregon to prove the applicability of K.S.A. 21–3108(2)(a) was essentially “peripheral in nature” and would not have substantially proven that Obregon sold methamphetamine to a particular individual on a May 28, 2009.
On appeal, Obregon contends the State presented “ample evidence” during his first trial which would have led a rational factfinder to find him guilty beyond a reasonable doubt of selling methamphetamine. Specifically, Obregon claims the following evidence was sufficient to establish his guilt: (1) his possession of methamphetamine; (2) his possession of items that indicated his intent to sell methamphetamine in the future; (3) the currency that was admitted in both of his trials; (4) a passing reference by one of the officers that some of the currency found on his person was “part of ‘another investigation’ “; and (5) testimony regarding his use of text messages to facilitate drug deals.
On the other hand, the State emphasizes that no evidence pertaining to the controlled drug buy involving Obregon and Lewis was introduced at Obregon's first trial. According to the State, the evidence relied upon by Obregon consists of nothing more than “vague, indirect, non-specific references” to drug-related activities.
Our review of the record reveals that at Obregon's first trial the State did not introduce any direct evidence about the controlled drug buy. In fact, at the motion to dismiss hearing, the three officers who testified at Obregon's first trial emphatically denied any involvement in or knowledge of the drug buy. Their testimony at Obregon's first trial was limited to their own investigation of the stop of the minivan and discovery of methamphetamine and other contraband which suggested that Obregon possessed the drug with the intent to conduct future illicit sales.
Moreover, the only evidence referenced by Obregon at the motion to dismiss hearing which conceivably could relate to the 2010 case was a vague reference to the discovery of currency found on Obregon after the traffic stop as being “part of another investigation.” As the State points out, however, Obregon's counsel acknowledged that other than this vague, passing reference, no evidence of the controlled drug buy was introduced.
Based on our review of the evidence cited by Obregon, viewed in the light most favorable to him, we conclude the evidence introduced in the first trial was insufficient to sustain a conviction for the sale of methamphetamine for which Obregon was ultimately convicted in the second trial. Although there was evidence presented in the first trial that Obregon possessed methamphetamine with the intent to sell, there was no basis for a jury to find beyond a reasonable doubt that Obregon had, in fact, sold, delivered, or distributed the controlled substance on May 28, 2009, in Lyon County, Kansas. Under these circumstances, we find no error in the district court's determination that the compulsory joinder rule set forth in K.S.A. 21–3108(2)(a) was not violated.
Failure to Prove Delivery of Methamphetamine
As noted earlier, Obregon was convicted of the unlawful sale, delivery, or distribution of methamphetamine in violation of K.S.A.2008 Supp. 65–4161(a). On appeal, Obregon claims there was insufficient evidence presented to prove that he delivered the methamphetamine.
Obregon's argument is predicated on the assumption that there are three alternative means—sale, distribution, and delivery—to commit a violation of K.S.A.2008 Supp. 65–4161(a). Under the circumstances of this case, however, we do not need to resolve the question of whether delivery is one of three separate alternative means for which the State was required to prove guilt beyond a reasonable doubt.
A criminal defendant has a statutory right to a unanimous jury verdict. State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). However, in an alternative means case, unanimity is only required as to guilt for the single crime charged; unanimity is not required as to the means by which the crime was committed as long as each alternative means is supported by substantial evidence. State v. Becker, 290 Kan. 842, 855, 235 P.3d 424 (2010). Assuming without deciding that delivery is one of three alternative means to commit the offense, our review of the trial evidence convinces us that there was sufficient proof that Obregon delivered the drugs to Lewis.
“When the sufficiency of the evidence is challenged in a criminal case, this court reviews all the evidence viewed in the light most favorable to the prosecution, to determine whether the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009). When reviewing the sufficiency of the evidence, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. Duncan, 44 Kan.App.2d 1029, 1034, 242 P.3d 1271 (2010).
In particular, Obregon claims the “[S]tate's evidence may have proved that Mr. Obregon sold the methamphetamine to [Lewis], but no evidence showed that he merely delivered it.” On the other hand, the State contends that sufficient evidence supported both the sale and delivery of methamphetamine because the evidence demonstrated “the exchange between [Obregon] and Tim Lewis on May 28, 2009 qualifies both as a sale and as a delivery.” We agree with the State.
At the time of this offense, the Kansas Legislature had defined “ ‘[d]eliver’ “ or “ ‘delivery,’ “ to mean “the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship .” K.S.A.2008 Supp. 65–4101(g). Given this definition, the State presented sufficient evidence to convince a rational factfinder that Obregon was guilty beyond a reasonable doubt of delivering methamphetamine. According to Lewis, he put the $275 in marked money down on a counter and Obregon threw a bag towards him, which was later determined to contain 3.3 grams of methamphetamine. Lewis took the bag containing the drugs and later surrendered it to Deputy Broyles. This evidence tended to prove that Obregon not only sold the methamphetamine but he also personally delivered it when he made an “actual, constructive or attempted transfer” of the methamphetamine by throwing it towards Lewis. See K.S.A.2008 Supp. 65–4101(g).
When viewed in the light most favorable to the prosecution, there was sufficient evidence upon which a rational factfinder could have found Obregon guilty beyond a reasonable doubt of delivering methamphetamine.
Affirmed.