NOT DESIGNATED FOR PUBLICATION. No. 113,969 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee, DAVID GARCIA, Appellant.

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1 NOT DESIGNATED FOR PUBLICATION No. 113,969 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. DAVID GARCIA, Appellant. MEMORANDUM OPINION Appeal from Ford District Court; E. LEIGH HOOD, judge. Opinion filed June 17, Affirmed. Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant. J. Scott James, assistant county attorney, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee. Before BRUNS, P.J., POWELL and GARDNER, JJ. Per Curiam: Following the execution of a search warrant, the State charged David Garcia with numerous drug-related offenses. During trial, at the close of the State's evidence, Garcia moved for a judgment of acquittal, which the district court denied. The jury found Garcia guilty on all counts but one. On appeal, Garcia claims that the district court erred in denying his motion and that one of his convictions was not supported by sufficient evidence. Because we find no error on the part of the district court and because a rational factfinder could have found Garcia guilty beyond a reasonable doubt, we affirm his convictions. 1

2 FACTUAL AND PROCEDURAL BACKGROUND In 2013, the KBI began working with a confidential informant who had been helping the Garden City Police Department and the Finney County Sheriff's Office. When this informant came forward with knowledge of a drug dealer in Dodge City, Kansas, the information was passed along to the KBI. The informant told the KBI that he could buy drugs from Garcia, his dealer. According to the informant, he had recently bought drugs from Garcia. By contacting locals, checking water records, reviewing past investigations, and using information provided by the informant, the KBI was able to find where Garcia lived. Because Garcia's location had been determined, the plan was to set up a drug deal by phone and then execute a search warrant without ever purchasing any drugs. Instead of calling Garcia, the informant called Garcia's girlfriend, Mickashell Knapp, because an arrangement had been made that he should call Knapp if Garcia was unavailable. The phone call was made from a KBI special agent's phone in the late afternoon of August 13, 2013; Knapp answered. The informant asked for an ounce of methamphetamine, but Knapp replied that she could only get a half an ounce, or about 14 grams. The informant agreed to that amount, and the buy was scheduled for later that evening. Knapp said she could also get some cocaine. When the informant asked about Garcia, Knapp said he was dealing with some problems, and the informant understood that he was trying to stay clean or out of trouble. The KBI paid the informant $300 for his participation in the investigation. At trial, the recorded phone call was played for the jury. The KBI applied for a search warrant and set up surveillance on the house where Garcia was staying. Before the search warrant could be executed, Garcia and Knapp were observed leaving. Law enforcement officers continued watching the house until Garcia and Knapp returned less than an hour later. While waiting, one of the KBI special agents began texting Knapp from the agent's phone used to make the initial call. He eventually 2

3 received a text message from Knapp stating that she and Garcia were back at the house. At the same time, other surveillance units observed a black car pull into the driveway. A male and a female, later identified as Garcia and Knapp, got out of the car. Law enforcement officers then swarmed the house. As the officers approached the house, several people, including Knapp, were outside, but Garcia was seen entering the house. Everyone had stopped when it was clear that law enforcement officers were pulling up, but Garcia continued into the house. After arresting Knapp, officers knocked on the front door and announced their presence. Garcia was told to come out and was seen coming from the area near the bedroom in the northeast part of the house. As he was being placed under arrest, Garcia said that he no longer lived at the house and that he had moved out or was moving out. Law enforcement officers then began searching the house. A glass tray, snort tube, digital scale, and black box were found in the northeast bedroom. The glass tray, which had a white powdery substance on it, and the snort tube were found in plain view on a TV stand. The digital scale was also in plain view and was found to the right of the glass tray. A KBI special agent testified that a snort tube is a tube used to snort drugs. The same special agent testified that a digital scale can be evidence of drug distribution. The snort tube was tested, and traces of methadone and oxycodone were found. Methamphetamine, cocaine, and a synthetic cannabinoid, known as K2 or spice, were detected on the digital scale. Inside the black box, which was found near the rest of the items, was a plastic bag with a crystalline substance and a prescription bottle. Garcia's name was on the prescription, and a white powdery substance was found inside the bottle. The crystalline substance in the plastic bag weighed grams and tested positive for methamphetamine and cocaine. The white powdery substance found in the pill bottle weighed 1.48 grams and also tested positive for methamphetamine and cocaine. No mail 3

4 or anything else tied to Garcia except for the pill bottle with the prescription in his name was found. After Knapp was arrested, a KBI special agent read Knapp her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and began speaking with her. Immediately, Knapp stated that it was not her deal and that she did not think there were drugs in the house. Knapp then agreed to continue speaking with the special agent at the police department. During the interview, Knapp said she did not deal drugs except for when Garcia was in jail and that he was in charge now that he was out. She said that if methamphetamine was found in the house it was Garcia's. Knapp also admitted that the digital scale was Garcia's and that he snorted oxycodone. Knapp said she spoke with the informant on the phone and sent the text messages, but Garcia told her what to say and was aware of everything. She also said that Garcia's supplier was listed in his phone as Bueno and that the number was also in her phone under the same name. Knapp did admit that she and Garcia were having problems and that he was moving out. She said that he had taken his TV and some clothes but that she was unsure how long he would be gone. She also stated that Garcia had stayed with her the night before the search warrant was executed and 2 nights before then and that Garcia had stayed with his father the night in between. The two of them also paid $300 in rent. At several points in the interview, Knapp exclaimed that she would do anything to maintain custody of her son. Each time the special agent conducting the interview told her that she needed to be honest. The interview was recorded, a portion of which was played for the jury. As a result of the fruits from the search warrant and the investigation that followed, the State charged Garcia with possession of methamphetamine with intent to distribute within 1,000 feet of school property; conspiracy to distribute at least 3.5 grams of methamphetamine within 1,000 feet of school property; possession of cocaine with 4

5 intent to distribute within 1,000 feet of school property; distribution of a naphthoylindolebased controlled substance of less than 3.5 grams within 1,000 feet of school property; conspiracy to distribute cocaine of less than 3.5 grams within 1,000 feet of school property; unlawful use of a communication facility; distributing or possessing methamphetamine without a tax stamp; distributing or possessing cocaine without a tax stamp; and two counts of possession of drug paraphernalia. The State later dismissed the distribution of a naphthoylindole-based controlled substance charge. At trial, several of the law enforcement officers involved in the execution of the search warrant and the investigation described their respective roles. The KBI special agent who interviewed Knapp also testified that he had spoken with Knapp on several previous occasions and it seemed like during the interview she was being honest with him for the first time. Testimony was also presented that the house where the drugs were found was located within 1,000 feet of a middle school. Garcia's and Knapp's roommate testified that Garcia had been sharing the northeast bedroom with Knapp for several months and that any testimony that he was living on the couch was inaccurate. Knapp testified at trial, recanting most of what she said in her KBI interview. Knapp said that Garcia stayed with her only occasionally, that he slept on the couch most of the time, and that the bedroom was never his. Knapp testified she had been dishonest during her KBI interview, claiming she substituted Garcia for things that she had actually done and would have said anything to be home with her son. Knapp testified that Garcia was not with her when she spoke with the informant on the phone, and she claimed to have bought the drugs from Bueno. Knapp also said she was under the influence during the interview. In short, Knapp claimed that during the interview she had tried to throw Garcia under the bus and thought she could lie her way out of what she had done. At the close of the State's evidence, Garcia moved for a judgment of acquittal. The district court denied the motion, finding the State had presented sufficient evidence to 5

6 allow the jury to decide. Garcia then presented Knapp as a defense witness. On direct examination, she testified that Garcia had been involved in an incident 2 days before and that he had been staying at his father's house the day before the search warrant was executed. When the State cross-examined Knapp, she continued to claim that she had lied during her KBI interview and that her trial testimony was the truth. Garcia did not renew his motion for a directed verdict at the close of all the evidence. The jury found Garcia guilty on all counts, except for unlawful use of a communication device. Before sentencing, Garcia filed a motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial on the basis that the State did not present sufficient evidence to support his convictions. Garcia also filed a motion for dispositional and durational departure. At the sentencing hearing, the district court denied both of Garcia's motions and sentenced Garcia to a total of 356 months in prison, plus 36 months of postrelease supervision. Garcia timely appeals. DID THE DISTRICT COURT ERR IN DENYING GARCIA'S MOTION FOR A DIRECTED VERDICT? Garcia first claims that the district court erred by not granting him a judgment of acquittal because the evidence was insufficient to establish that he possessed drugs or drug paraphernalia. When reviewing a district court's denial of a judgment of acquittal, "we consider all the evidence in the light most favorable to the prosecution and determine if a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.] In doing so, we do not reweigh the evidence, assess the credibility of witnesses, or resolve conflicting evidence." State v. Llamas, 298 Kan. 246, 254, 311 P.3d 399 (2013). 6

7 "'Possession' is having control over a place or thing with knowledge of and the intent to have such control." State v. Faulkner, 220 Kan. 153, Syl. 3, 551 P.2d 1247 (1976). Circumstantial evidence may prove both possession and intent. 220 Kan. 153, Syl. 13. A possession conviction requires a jury to find that the defendant had both control and intent. State v. Graham, 244 Kan. 194, 205, 768 P.2d 259 (1989). "[C]ontrol may be immediate and exclusive, jointly held with another or it may be constructive possession where the drug is kept by the accused in a place to which he [or she] has some measure of access and right of possession and control." State v. Woods, 214 Kan. 739, 744, 522 P.2d 967 (1974), disapproved on other grounds by Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978). If a defendant's possession of an area where drugs are found is nonexclusive, "there must be other incriminating circumstances linking the defendant to the drugs.... [T]aken together, [these circumstances have] been held sufficient to support an inference of possession." State v. Anthony, 242 Kan. 493, , 749 P.2d 37 (1988). Such incriminating circumstances include the defendant's prior participation in the sale of drugs, the defendant's use of drugs, the defendant's proximity to the area where the drugs were found, the fact the drugs were in plain view, the defendant's incriminating statements and suspicious behavior, and the proximity of the defendant's belongings to the drugs. See State v. Boggs, 287 Kan. 298, 313, 197 P.3d 441 (2008). Garcia argues that the evidence was insufficient to support a finding of constructive possession and only showed that at some time Garcia lived or frequently stayed with Knapp. He points to the fact that he was moving out; none of his mail or other possessions were found in the bedroom; the evidence did not provide any indication that he had control over the pill bottle; the roommate's testimony was uncorroborated; he was not found in close proximity to the drugs; the only item in plain view was the snort tube; the only evidence of sales was the informant's testimony; and he did not act suspiciously. 7

8 However, our review of the record, with a view of the evidence in the light most favorable to the State and remembering that it is not our job to reweigh the evidence or to make credibility determinations, points to four of those seven incriminating circumstances being present in this case. First, the informant testified that Garcia was his dealer, that in the past he had paid Garcia for drugs, and that he had bought drugs from Garcia 2 to 3 weeks before the events in question. In her KBI interview, Knapp also described Garcia's participation in the sale of drugs. at trial. Second, Knapp said that Garcia snorted oxycodone, which she also testified about Third, the glass tray, the snort tube, and the digital scale were found in plain view. The black box that contained the drugs and the pill bottle (with Garcia's name on it) was in plain view as well, but the drugs and the pill bottle were not apparent until the box was opened. Fourth, Garcia was also found in close proximity to the drugs. Moments before the search warrant was executed, Knapp and Garcia pulled up to the house. When law enforcement officers approached the house, they saw Garcia go inside through the front door. After apprehending those who remained outside, the law enforcement officers knocked on the screen door and announced their presence. They called for Garcia to come out. Garcia was seen coming from the area near the bedroom where the drugs were found. He did not come from the living room, and he did not come from off the couch. The State also presented evidence that Garcia was generally in close proximity to drugs because he had not only been staying at the house but also in the bedroom where the drugs were found. In her KBI interview, while Knapp mentioned that Garcia was in the process of moving out and had taken his TV and some clothes, she also said that she was not sure how long he would be gone. Knapp further stated that Garcia had been 8

9 staying with her and had stayed with her the night before they were arrested. Knapp also disclosed that she and Garcia paid $300 in rent. Perhaps most significantly, their roommate testified that Garcia had been living with Knapp in the bedroom where the drugs were found and that he had been doing so for several months. The roommate declared any testimony indicating that Garcia had been sleeping on the couch would be inaccurate. Taken together, these circumstances are sufficient to create an inference of possession. See Anthony, 242 Kan. at Garcia also appears to argue that the jury should not have relied on the statements Knapp made in her KBI interview because of her recantation at trial, that Knapp clearly had a motive to deceive investigators when she was first arrested, and no reasonable juror could have taken her initial statements as proof beyond a reasonable doubt. But the KBI special agent who interviewed Knapp testified that he had spoken with Knapp several times in the past and that interview was the first time he felt like she was being honest with him. Further, the jury watched the video of Knapp's KBI interview and heard her testimony at trial. Kansas law is well settled that "it is entirely up to the jury to determine the weight and credibility to be given the testimony of any witness." State v. Watie, Heard and Heard, 223 Kan. 337, 346, 574 P.2d 1368 (1978). Again, on review, we do not assess witness credibility. Llamas, 298 Kan. at 254. Finally, Garcia argues that because the informant did not testify about the timeframe of his past dealings with Garcia and the arrangement to deal with Knapp was not mentioned in the recorded phone call, the informant did not provide any evidence showing that Garcia possessed or had access to drugs. On redirect, however, the informant testified that 2 or 3 weeks before this case began Garcia told him to deal with Knapp. The informant's testimony was also corroborated by Knapp's KBI interview, in which she said that she had dealt for Garcia while he was in jail. 9

10 In summary, the evidence showed the existence of several incriminating circumstances and was sufficient to create an inference of possession. As a result, viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have found Garcia guilty beyond a reasonable doubt of possessing drugs and drug paraphernalia. The district court therefore did not err in denying Garcia's motion for judgment of acquittal. DID THE STATE PRESENT SUFFICIENT EVIDENCE TO SUPPORT GARCIA'S CONVICTIONS OF CONSPIRACY TO DISTRIBUTE? Garcia also claims that his conspiracy to distribute convictions were not supported by sufficient evidence. As we have already explained above, when the sufficiency of the evidence is challenged in a criminal case, we review "all the evidence in a light most favorable to the prosecution, [and] must be convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). We also will not reweigh the evidence or the credibility of witnesses. 299 Kan. at 525. Only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt will a guilty verdict be reversed. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983). To support a conspiracy conviction, the prosecution must present evidence that the defendant agreed with another person to commit or assist in committing a crime and that the defendant or the coconspirator committed an overt act to further the conspiracy. See K.S.A Supp (a). "An overt act which completes the crime of conspiracy is something apart from the conspiracy. It is an act to effect the object of the conspiracy but it need be neither a criminal act, nor the crime that is the object of the conspiracy. However, it must accompany or follow agreement and must be done in furtherance of the object of the agreement." 10

11 "Conversations among co-conspirators in forming and planning the conspiracy are not overt acts...." State v. Crockett, 26 Kan. App. 202, Syl. 4, 5, 987 P.2d 1101 (1999). The prosecution must show that "'defendant took a step beyond the mere preparation so that some appreciable fragment of the crime was committed.'" 26 Kan. App. 2d at 204 (quoting State v. Chism, 243 Kan. 484, 490, 759 P.2d 105 [1988]). In this case, the State presented sufficient evidence to prove both elements. First, the evidence showed that Garcia entered into an agreement with Knapp to sell or assist in the sale of drugs. The informant testified that Garcia was his dealer and that an arrangement had been made that if Garcia was not available, was not around, or was indisposed, the informant could deal with Knapp. When asked how recently that arrangement had been made, the informant said Garcia told him to deal with Knapp 2 or 3 weeks before the search warrant was executed. In her KBI interview, Knapp also stated that she had dealt for Garcia while he was in jail. She was also able to provide specific details about the deal with the informant. Although Knapp denied it at trial, she said that Garcia had been with her and told her what to say when she spoke with the informant on the phone and sent the text to the KBI special agent's phone. As it was for the jury to determine whether Knapp had been truthful during the interview or at trial, we cannot say as a matter of law that there was not sufficient evidence to support an agreement between Garcia and Knapp. See Llamas, 298 Kan. at 254; Watie, Heard and Heard, 223 Kan. at 346. The State also presented evidence of an overt act: the use of a phone to arrange a time and place to sell drugs. Garcia notes the evidence did not show that he spoke with the informant on the phone and that he was acquitted on a separate charge of using a communication device in a drug transaction. But the overt act does not have to be committed by the defendant in order to convict the defendant of conspiracy evidence 11

12 that the defendant's coconspirator committed the overt act is also sufficient. See K.S.A Supp (a). In this case, Garcia's coconspirator was Knapp. And the evidence in support of her using a telephone to arrange a time and place to sell drugs to the informant is overwhelming. In fact, Garcia does not dispute that Knapp used a cell phone to arrange a deal with the informant. Instead, Garcia argues that State failed to present sufficient evidence of an agreement between him and Knapp. But as we have already explained above, the State presented sufficient evidence to establish this agreement. In conclusion, the State presented evidence that when viewed in its most favorable light was sufficient to show that Garcia and Knapp had an agreement that Knapp would help Garcia sell drugs when Garcia was unavailable. This agreement was evidenced by corroborative circumstantial evidence. The State also presented evidence showing that Knapp committed the overt act of using a telephone to arrange a time and place to sell drugs, in furtherance of their conspiracy. Thus, a rational factfinder could have found Garcia guilty beyond a reasonable doubt of conspiracy to distribute. Affirmed. 12