Opinion
110,892.
03-27-2015
STATE of Kansas, Appellee, v. George William SMITH, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Joe E. Lee, county attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Joe E. Lee, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MCANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
George William Smith, III, appeals from his convictions for distributing a controlled substance, misdemeanor possession of marijuana, and two counts of possession of a controlled substance with the intent to distribute. Smith's troubles started with an acquaintance of his, Adam Bates.
Bates, who had prior burglary and forgery convictions, was arrested in Chautauqua County for possession of marijuana. He agreed to cooperate with law enforcement in exchange for leniency on the new drug charge. He told the authorities he knew a man named “George” who was selling illegal prescription drugs to people in Elk County. The Chautauqua County authorities contacted the Elk County Sheriff's Office, where arrangements were made for Bates to make a controlled buy of 10 Xanax (generic name is Alprazolam) pills from “George.”
On the day of the controlled buy in July 2012, the officers searched Bates to make sure that he did not have any drugs on his person. Bates was taken to an area close to Smith's apartment and given $50 as “buy money.” He also was given a small digital audio recorder to record his interaction with Smith. Bates entered the apartment and returned after a of couple minutes with 10 green pills in a baggie and the recorder. He said he had purchased the pills from Smith for $50. Bates was searched again, and he did not have any other drugs or cash on his person. The drugs Bates obtained in the transaction contained Alprazolam. According to the deputy sheriff, someone on Bates' recording stated that he would have “tabs” available on Friday. “Tabs” is a slang terms for Lortabs, a brand name for Hydrocodone.
Based on the control buy, the authorities obtained a search warrant for Smith's apartment. During the execution of the search warrant, four unmarked pill bottles containing different color pills were found in a jacket draped across a divan in the living room. Lab results later confirmed that the pills in these unmarked pill bottles were Hydrocodone and Alprazolam.
Additional pills were found in pharmacy bottles which displayed Smith's name in a suitcase in the bedroom closet. One bottle was marked as Hydrocodone and the other Alprazolam. In the marked bottles there were 119 Hydrocodone remaining of a prescription of 168 filled just 6 days earlier. There were 22 of 56 Alprazolam remaining on a prescription also filled 6 days earlier. The officer returned to Smith the prescriptions found in the suitcase because Smith had a valid prescription for Hydrocodone and Alprazolam.
The pills found in the jacket in the living room were consistent with the color and size of the pills found in the suitcase in the bedroom closet. These pills were not returned to Smith because they were not in proper containers. Also, a small silver canister containing burnt residue was also found in Smith's jacket.
Smith said that all of the pills found in his jacket were his prescribed medications, but he did not explain why the pills were located in unmarked bottles. He said the pills stored in the suitcase were hidden in order to prevent theft. Smith also said that the residue found in a burnt canister was marijuana that was; given to him by a friend. This was confirmed by later lab tests of the residue.
At trial, Smith testified that Bates came by his apartment at the time of the controlled buy in order to pick up a pack of cigarettes that he had left behind the previous weekend. Smith was suffering from an infection in his amputated leg that he needed to keep elevated. With respect to the pills found his living room at the time of the search, Smith testified he kept his prescription medications in a nearby jacket so that he would not have to keep getting up and down throughout the day. Smith denied selling drugs to Bates or to anyone else.
Smith admitted that he told Bates that he would have “tabs” on Sunday, but he claimed the statement was intended to confirm rumors that Bates was working with the police. Smith said that he was “baiting” Bates in their conversation about Lortabs being available. Smith opined that Bates was framing him for the crime so that Bates would get better treatment by the authorities. It was Smith's theory that Bates had stashed the pills in his apartment and then retrieved them at the time of the claimed controlled buy.
Tyson Tillspaugh testified he was at Smith's apartment at the time of the controlled buy. According to Tillspaugh, Bates did not buy drugs from Smith but rather came to the apartment, used the bathroom, had a brief conversation, and left.
The jury found Smith guilty of distributing Alprazolam based on the controlled buy transaction, possession with the intent to distribute Hydrocodone, possession with the intent to distribute Alprazolam, and misdemeanor possession of marijuana based on the drugs found in the later search of Smith's apartment.
Smith appeals.
Playing of Audio Recording
For his first point of error, Smith argues that the district court denied his right to a fair trial by prohibiting him from replaying Bates' audio recording of the claimed controlled buy, thereby denying Smith his right to present his theory of defense. The recording was played once for the jury. Smith sought to replay the recording for the jury during his direct examination using better audio equipment and with commentary provided by Smith, but the district court refused the request. We review this issue for any abuse of discretion. See State v. Huddleston, 298 Kan. 941, 959–60, 318 P.3d 140 (2014).
After the recording was played during the testimony of one of the law enforcement witnesses, Smith sought to replay the recording during his own testimony. The following discussion occurred:
“[DEFENSE COUNSEL]: Your Honor, I would request, uh, to play that tape through its entirety. I think we have a better sound system for the jury to hear. And I want to play that a couple of times, um, and have Mr., uh, Smith comment on it....
“THE COURT: Well, counsel, this, uh, audiotape has been played in its entirety for the jury once already. I don't know what the State's position is on this request, but I think we've already been there and done that. The—the audio is what it is. Um, you're sayin' you want to have your client comment on it?
“[DEFENSE COUNSEL]: Yes, Your Honor. One, Adam Bates testified that he did not go to the bathroom. We have two witnesses that have testified that he did. The tape now—and I don't think it was apparent yesterday—shows a 50–second blank spot where there was no conversation. Mr. Bates testified that he started talking immediately. It's another indication that Mr. Bates is not telling the truth. It's reflected on the tape that I (interrupted) ... um, that I had introduced as an exhibit, even though I obtained that from the State.
“THE COURT: ... [T]he Court ... sees that there is little purpose to replaying the audio. However, this does not preclude you from examining this witness regarding his construction of that conversation or what he believes took place.
Defense counsel asked Smith questions about what was said and the context of what was recorded. Smith testified that there was a 50–second blank spot on the recording during which time Bates was in the bathroom.
Smith argues that the district court denied his right to a fair trial by prohibiting him from replaying the audiotape because he was denied his right to present his theory of defense. See State v. Meeks, 301 Kan. 114, Syl. ¶ 1, 339 P.3d 766 (2014). He also contends that the district court erred in ruling that the evidence was cumulative, citing State v. Rodriguez, 295 Kan. 1146, 1157–58, 289 P.3d 85 (2012), and State v. Altum, 262 Kan. 733, 744, 941 P.2d 1348 (1997), cases which involved multiple autopsy photographs admitted into evidence because each photo was distinctive and relevant to the issues.
The issue in Rodriguez and Altum is very different than the issue currently before us. Rodriguez and Altum dealt with different exhibits. Here, Smith asserts that the audio recording was hard to understand and a replay of the audio recording would assist the jury in understanding Smith's theory of defense. We are dealing with only one exhibit, the recording, which Smith sought to play for the jury twice. Smith had ample opportunity to testify about his observations of what was going on in the recording.
Smith also relies on State v. Dale, 293 Kan. 660, 663, 267 P.3d 743 (2011), in which the Kansas Supreme Court held that a slow-motion version of a previously admitted video exhibit was not repetitive because it allowed the jury to review the actual sequence of events more carefully. But here, Smith sought to replay the same recording that had already been played for the jury. During closing argument, the State invited the jury to listen to the recording again during their deliberations. We have nothing to indicate that the jury did not have ample opportunity to replay the recording during deliberations.
The district court did not abuse its discretion in permitting the recording to be played only once in the courtroom. The recording was admitted into evidence, and Smith testified concerning the content of the audio recording. No relevant or probative evidence was excluded. We are satisfied that replaying the recording in the courtroom would not have made a difference in the outcome of the case.
Sufficiency of the evidence of intent to distribute Alprazolam
Next, Smith argues that there was insufficient evidence that he intended to distribute Alprazolam in order to sustain his conviction for possession with the intent to distribute a controlled substance. This conviction was based on the Alprazolam found in his jacket pocket in his living room during the execution of the search warrant at Smith's apartment.
In considering this issue we review all the evidence in the light favoring the prosecution to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In doing so, we do not reweigh the evidence or the credibility of the witnesses at trial. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). It is only in rare cases in which the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt so as to require that the guilty verdict be reversed. State v. Matlock, 233 Kan. 1, 5–6, 6(50 P.2d 945 (1983).
At the time of the controlled buy, Smith told Bates that he would have some “tabs” available later in the week. Although Smith kept his Alprazolam in the same jacket as his Lortabs, also known as Hydrocodone, he argues that he never indicated that he intended to sell the Alprazolam. Smith argues that his conviction here for possession with the intent to distribute is based on speculation and inferences stacked on inferences. See State v. Cruz, 15 Kan.App.2d 476, 490, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991).
A conviction for possession with the intent to distribute a controlled substance requires the showing that the defendant intended to distribute the substance. See K.S.A.2013 Supp. 21–5705(a)(l). Here, there was evidence that Smith sold Alprazolam to Bates in the controlled buy. When the search warrant was executed, Smith had fewer drugs in his possession than he would have had if the pills had only been used for his personal consumption.
Smith cites Cruz in support of his argument that the State provided no evidence that he intended to distribute the Alprazolam. In Cruz, the defendants' presence in the house where cocaine was found was explained by the fact that they were asked to hang curtains in the residence. The court found the State impermissibly based its case on “an inference of lawful behavior to be contradictorily drawn from direct evidence of lawful behavior.” 15 Kan.App.2d at 492. The court concluded:
“There was no showing of knowledge of the drags. There was no showing of dominion or control over the drugs. The drugs were not in plain view or located near the defendants. In order to justify both convictions, it is necessary to infer findings and inferences which the limited facts presented do not justify. To sustain the convictions we must condone inferences upon inferences upon inferences. This we will not do.” 15 Kan.App.2d at 492.
But circumstantial evidence can be sufficient to sustain a conviction for distribution of a controlled substance. This court has held:
“In order to sustain a conviction for possession of narcotics or dangerous drugs for purpose of sale, there must be sufficient proof of possession of such drugs and proof that the possession was the for purpose of sale. Such proof may be circumstantial and may consist of evidence as to quantity of the narcotic, equipment found with it, place it was found, manner of packaging, and opinion of experts that the narcotic was packaged for sale. [Citation omitted.]” State v. Gibson, 30 Kan.App.2d 937, 953, 52 P.3d 339, rev. denied 274 Kan. 1115 (2002).
Here, Bates bought Alprazolam from Smith in the controlled buy. Just 6 days later, the State seized additional Alprazolam, packaged separately from Smith's prescription bottle, in Smith's jacket in his living room. Smith had told Bates earlier that he would have additional prescription drugs for sale later in the week. Although he stated that he would have “tabs,” it is not impermissible for the jury to infer that the Alprazolam found near the Lortabs was also intended for distribution. The drugs relied on by the State in support this conviction were found in close proximity and in similar circumstances to the controlled buy of Alprazolam only 6 days prior.
When viewing the evidence in a light favoring the State, we find sufficient evidence to support this conviction for possession with intent to distribute Alprazolam.
Sufficiency of the evidence for distribution and possession with intent to distribute controlled substances
In his final argument, Smith argues there was insufficient evidence to support his convictions of distributing and possessing with intent to distribute controlled substances because the State failed to prove that he was not a pharmacist, common carrier, warehouse worker, or otherwise permitted to possess and distribute controlled substances.
Smith was convicted under K.S.A.2013 Supp. 21–5705, which prohibits the distribution of various controlled substances. The statute itself does not provide any exceptions. But K.S.A.2013 Supp. 21–5702(b) provides: “The prohibitions of this act shall apply unless the conduct prohibited is authorized by the pharmacy act of the state of Kansas, the uniform controlled substances act or otherwise authorized by law.” Under K.S.A.2013 Supp. 65–4116(c), pharmacists, common carriers, warehouse workers, and those lawfully prescribed medications may lawfully possess controlled substances. Thus, Smith argues that the Kansas Pharmacy Act adds an element to K .S.A.2013 Supp. 21–5705 and the State failed to prove that he did not fall under one of the listed exceptions.
Our Supreme Court rejected a similar argument during the time of Prohibition. At that time, the Bone–Dry Law criminalized giving away or furnishing “intoxicating liquors to another, except druggists or registered pharmacists as hereinafter provided.” State v. Perello, 102 Kan. 695, 696, 171 P. 630 (1918). The court rejected the defendant's claim that the State must prove that the defendant was not a registered pharmacist, reasoning that such proof is not required when the exception was not a part of the description of the offense. 102 Kan. at 697–98.
Perello has been cited by this court as recently as 1995. In State v. Bennett, 20 Kan.App.2d 767, 771, 892 P.2d 522 (1995), the defendant argued that the State failed to prove an element of criminal possession of a firearm when it did not include evidence that he was not a law enforcement officer at the time of the offense. This court rejected the defendant's argument that the exception must be proven by the State:
“Kansas law is clear that
‘if a criminal statute prohibits certain conduct, but contains an exception permitting the conduct if performed under certain conditions or by certain classes of persons, the prosecution does not have to include a negative averment of the matter of the exception in the information, unless the “matter enters into and becomes a material part of the description of the offense.’ “ State v. Shouse, 8 Kan.App.2d 483, 485, 660 P.2d 970 (1983).” Bennett, 20 Kan.App.2d at 771.
Here, Smith never claimed that he was authorized to dispense medications to others. It was not the State's burden to prove that Smith did not fall under an exemption under the pharmacy act (or the Kansas Uniform Controlled Substances Act) when such an exemption was never asserted at trial and is not part of the statute defining the crime. There was sufficient evidence to prove that Smith was not authorized by law to distribute the controlled substances under K.S.A.2013 Supp. 21–5705.
Affirmed.