BY THE COURT
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.
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.
from Riley District Court; Meryl D. Wilson, judge.
Kittel, of Kansas Appellate Defender Office, for appellant.
W. Garrison, assistant county attorney, Barry Wilkerson,
county attorney, and Derek Schmidt, attorney general, for
Pierron, P.J., Atcheson, J., and Walker, S.J.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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 ...