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State v. Brazzle

Court of Appeals of Kansas

January 12, 2018

State of Kansas, Appellee,
v.
Anthony Michael Brazzle, Appellant.

         SYLLABUS BY THE COURT

         1. When a criminal defendant challenges the sufficiency of the evidence regarding a conviction for possession of a controlled substance, uncontroverted testimony by a witness identifying the substance through consultation with www.drugs.com is sufficient to support the jury's conclusion beyond a reasonable doubt that the substance was that identified by the witness.

         2. Possession of a controlled substance is unlawful under K.S.A. 2016 Supp. 21-5706. Lawful possession of a controlled substance by prescription is an affirmative defense. A criminal defendant charged with unlawful possession of a controlled substance must claim legal authorization to possess the controlled substance at issue before the State is obligated to disprove that claim beyond a reasonable doubt.

         Appeal from Riley District Court; Meryl D. Wilson, judge.

          Rick Kittel, of Kansas Appellate Defender Office, for appellant.

          James W. Garrison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Pierron, P.J., Atcheson, J., and Walker, S.J.

          PIERRON, J.

         Anthony Michael Brazzle appeals from several drug-related convictions. He argues the district court erroneously admitted K.S.A. 60-455 evidence related to a prior drug sale with undercover police detectives; the district court erroneously instructed the jury on possession of oxycodone; and the evidence produced at trial was insufficient to support his conviction for possession of oxycodone.

         Just after midnight on December 12, 2015, police officers Ryan Doehling and Lusk were staking out the Royal Inn in Manhattan, Kansas. The officers suspected that drug transactions were being conducted at the Inn, based on undercover operations conducted at the Inn by other officers.

         The officers saw a dark-colored sedan drive into the Inn parking lot and remain for 10-15 minutes. They could not see whether any passengers were in the vehicle when it arrived. As the vehicle left the Inn, it failed to stop completely at the parking lot exit before turning onto the street, a violation of a Manhattan city ordinance. Not wanting to draw undue attention by conducting a traffic stop in front of the Inn, the officers followed the sedan for a couple blocks before stopping it at a traffic signal.

         Lusk contacted the driver, who could not provide identification. The driver originally identified himself as Marcus Brazzle, but when the officers challenged the identification because his tattoos did not match, Brazzle admitted that his name was actually Anthony Brazzle.

         While Brazzle was detained to run his identification, a K-9 unit arrived and conducted a canine search outside the vehicle. The dog alerted at the passenger side door and at the driver's side door. The canine handler, Officer Andrew Toolin, conducted a search of the vehicle. Under the front passenger seat, he discovered a Crown Royal bag. Inside this bag were two plastic baggies with substantial amounts of what appeared to be crystal methamphetamine, a glass smoking device, U.S. currency totaling $128, some blister packs containing gray pills marked "K 57, " and some small, unused plastic baggies. Under the driver's seat, Toolin discovered an unpackaged gray pill marked "K 57" and a glass smoking device with white residue. Along the driver's side front door panel, Toolin found a pair of "brass knuckles." Toolin later looked up the gray pill on www.drugs.com and determined that it was oxycodone hydrochloride.

         Testing by the Kansas Bureau of Investigation confirmed that the crystalline substance in the two baggies was methamphetamine, one bag contained a net weight of 2.98 grams and the other baggie contained 5.28 grams.

         The State originally charged Brazzle with possession with the intent to distribute methamphetamine, felony possession of drug paraphernalia, and criminal use of a weapon. The State later added a charge of unlawful possession of a controlled substance, i.e., oxycodone. The court conducted a preliminary examination hearing and found probable cause to bind Brazzle for trial on all counts.

         The State filed a motion seeking admission of K.S.A. 60-455 evidence that Brazzle was involved in an undercover drug transaction a week before the incident which supported the charges in this case. Brazzle had not yet been convicted of the former criminal activity, but the district court found the evidence sufficiently probative to establish Brazzle's intent to distribute methamphetamine and to outweigh the evidence's potential for unfair prejudice.

         At a single-day jury trial, Brazzle presented no evidence. The jury convicted Brazzle of all counts. The district court denied Brazzle's motion for judgment of acquittal on the possession with intent to distribute charge. Prior to sentencing, Brazzle moved for a downward dispositional and/or durational sentencing departure based on his relatively young age and acknowledgement of a drug problem requiring treatment. At sentencing on August 22, 2016, the district court denied the departure motion and imposed a controlling sentence of 105 months in prison for possession with the intent to distribute methamphetamine. The court ran Brazzle's other sentences concurrent with the base offense of possession with the intent to distribute methamphetamine.

         On appeal, Brazzle first contends the district court committed reversible error in admitting evidence that, one week before his arrest in this case, two undercover police detectives had purchased methamphetamine from Brazzle in two controlled drug transactions. He contends that the evidence was not probative to demonstrate intent because he never claimed his possession of the methamphetamine was innocent and because the potential prejudice from the evidence substantially outweighed its probative value.

         The issue was properly preserved by argument against the State's motion to admit the evidence under K.S.A. 2016 Supp. 60-455 and by a contemporaneous and continuing objection to the detectives' testimony at trial.

         Materiality

         K.S.A. 2016 Supp. 60-455 provides for exclusion of evidence of criminal wrongdoing to establish the defendant's propensity to commit such acts but also provides a rule of inclusion when such evidence is relevant to prove a material fact. See State v. Seacat, 303 Kan. 622, 629, 366 P.3d 208 (2016). The list of material facts included in K.S.A. 2016 Supp. 60-455(b) is not exhaustive. See State v. Barber, 302 Kan. 367, 374, 353 P.3d 1108 (2015). The test for inclusion of this evidence consists of three inquiries: (1) Does the evidence address a material fact, i.e., does it have some real bearing on the ...


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