                         NOT DESIGNATED FOR PUBLICATION

                                            No. 120,944

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                   v.

                                        MYLES RICHMOND,
                                           Appellant.


                                  MEMORANDUM OPINION

       Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed March 27, 2020.
Affirmed.


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


       Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.


Before GARDNER, P.J., BUSER, J., and BURGESS, S.J.


       PER CURIAM: Myles Richmond was found guilty of possession of marijuana with
the intent to distribute, a drug tax stamp violation, possession of drug paraphernalia, and
possession of marijuana. He was sentenced to a controlling term of 30 months'
imprisonment. Richmond appeals, alleging there was insufficient evidence to sustain his
convictions, and the district court erred by not instructing the jury on Count 1 on a lesser
included offense of possession of marijuana. Finding no error, we affirm.




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                        FACTUAL AND PROCEDURAL BACKGROUND

       Shortly before midnight on August 27, 2017, Geary County Deputy Nate Clement
observed a Dodge Charger traveling east on I-70. Deputy Clement's radar clocked the
vehicle driving 90 miles per hour in a 75 miles per hour zone. Deputy Clement initiated a
traffic stop. When he initiated the traffic stop, Deputy Clement could see movement in
the car but could not see what the vehicle's occupants were doing because of the vehicle's
dark window tint. Deputy Clement identified the driver as Richmond and the passenger
as Kiara Jackson.


       Deputy Clement advised Richmond the reason for the traffic stop and asked
Richmond where they were coming from. Richmond told the deputy they were returning
to Grandview, Missouri, but could not tell the officer where they came from. While
talking to Richmond, Deputy Clement smelled the odor of raw marijuana. The deputy
asked Richmond if there was any reason why he could smell marijuana, to which
Richmond responded, "[M]aybe." Deputy Clement asked Richmond and Jackson to step
out of the vehicle. Because he was by himself, the officer patted both Richmond and
Jackson down for weapons and placed both in handcuffs for officer safety. After being
handcuffed, Richmond asked Deputy Clement if the officer could cut him a break. At
trial, Deputy Clement testified that he thought it was an odd request because he had not
yet started to search the vehicle.


       Before starting his search, Deputy Clement observed "marijuana shake" on the
floorboard and center console while standing at the driver's side window. When searching
the vehicle, the officer found a black container, labeled THC, on the driver's floorboard
containing shatter or wax. Beneath the radio, in the center of the dashboard, Deputy
Clement found a digital scale with marijuana on it. In the backseat were resealable plastic
bags, as well as a wallet inside a purse containing a leafy green substance Deputy
Clement believed was marijuana. On the backseat floorboard, the officer found a blue

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bag containing five plastic containers with marijuana, a plastic bag, and a plastic box
containing baggies. A black ashtray in the center console contained nine burnt marijuana
cigarettes. Deputy Clement also found plastic baggies and rubber bands in the backseat
center armrest. Another deputy arrived to assist with the vehicle search and found
suspected marijuana in the passenger front door panel. The deputies also found some
THC edibles.


       Richmond was charged with possession of marijuana with intent to distribute, a
drug tax stamp violation, possession of drug paraphernalia, and possession of marijuana.


       Deputy Clement testified regarding these events at trial. Deputy Clement also
testified that based on his training and experience, the amount of marijuana, the baggies,
rubber bands, and the scale was indicative of possession with the intent to distribute. The
officer testified that Richmond had multiple cell phones, which was a common practice
for drug dealers. Richmond was initially arrested for the black THC container before
Deputy Clement discovered the blue bag. Jackson was arrested when Deputy Clement
found marijuana in her purse. According to the officer, Jackson admitted the marijuana in
the purse was hers, but no one claimed possession of the marijuana in the blue bag. On
cross-examination, Deputy Clement acknowledged that a third-party who was not present
at the stop owned the car.


       Patrick Porubsky, a forensic chemist of the Kansas Bureau of Investigation (KBI),
also testified. Porubsky testified that the black container tested positive for THC. The
burnt cigarettes in the ashtray also tested positive for THC. The suspected marijuana in
the blue bag was confirmed to be marijuana and weighed 115.66 grams. There was no tax
stamp affixed to it.


       Richmond testified in his own defense. Richmond testified that the Charger was
not his. When Deputy Clement stopped him, Richmond had been driving for 16 hours

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that day. He and Jackson left Grandview, Missouri, that morning, drove to somewhere in
Colorado, and were driving back to Grandview when the officer stopped them. Richmond
admitted he asked Deputy Clement to give him a break but claimed he was talking about
a speeding ticket. Richmond testified that he told Deputy Clement that the vehicle
smelled like marijuana because Jackson smoked. Richmond denied ever seeing the
marijuana in the blue bag. He admitted seeing the burnt marijuana cigarettes found in the
ashtray but denied they were his. Richmond also admitted seeing the THC container but
denied it belonged to him. Richmond testified that Jackson had admitted to Deputy
Clement that all the marijuana in the vehicle belonged to her.


       The jury found Richmond guilty of marijuana with intent to distribute, a drug tax
stamp violation, possession of drug paraphernalia, and possession of marijuana.


       The district court sentenced Richmond to 30 months' imprisonment with 36
months' postrelease supervision for possession of marijuana with intent to distribute. The
district court also sentenced him to 6 months' imprisonment for the drug tax stamp
violation, 17 months' imprisonment for possession of paraphernalia, and 11 months for
possession of marijuana. The district court ordered the sentences to run concurrently.


       Richmond timely appeals.


      WAS THERE SUFFICIENT EVIDENCE TO SUSTAIN RICHMOND'S CONVICTIONS?

       Richmond argues the State failed to prove he knowingly possessed marijuana
because he denied knowing there was marijuana and drug paraphernalia in the vehicle.
Even if the State could prove he possessed the marijuana, Richmond asserts the State did
not prove intent to distribute because the quantity was insufficient to establish a
rebuttable presumption of possession with the intent to distribute. Because there was
insufficient evidence to prove Richmond possessed marijuana, he also argues there was

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also insufficient evidence to support his possession of drug paraphernalia, a drug tax
stamp violation, and possession of marijuana convictions. The State responds that there
was sufficient evidence because of Richmond's proximity to the marijuana, the digital
scale, and plastic baggies. Further, the State asserts Deputy Clement's testimony
regarding the weight of the marijuana, the plastic baggies, multiple cell phones, and quick
trip to Colorado provided sufficient evidence of intent to distribute.


Standard of Review

       When a defendant alleges the evidence is insufficient to sustain a conviction, the
issue is "whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations." State v. Lloyd,
299 Kan. 620, 632, 325 P.3d 1122 (2014). A guilty verdict is upheld, except "in rare
cases when the court determines that evidence was so incredulous no reasonable fact-
finder could find guilt beyond a reasonable doubt." State v. Torres, 308 Kan. 476, 488,
421 P.3d 733 (2018). A guilty verdict can be based on only circumstantial evidence and
any inferences reasonably deduced therefrom. See State v. Rosa, 304 Kan. 429, 433, 371
P.3d 915 (2016).


Analysis

       For sufficient evidence to exist, evidence must support each element of an offense.
State v. Chandler, 307 Kan. 657, 669, 414 P.3d 713 (2018). Here, Richmond was charged
with possession of marijuana with intent to distribute, possessing a controlled substance
without a drug tax stamp, possession of drug paraphernalia, and possession of marijuana.
These offenses require proof of possession of marijuana. Richmond's brief primarily
focuses on his conviction for possession of marijuana with intent to distribute and argues


                                              5
the lack of sufficient evidence for that conviction means there was not sufficient evidence
for his other convictions. K.S.A. 2017 Supp. 21-5705(a) makes it unlawful for a person to
possess marijuana with the intent to distribute. A rebuttable presumption of an intent to
distribute exists if the defendant possesses 450 or more grams of marijuana. K.S.A. 2017
Supp. 21-5705(e)(1). As Richmond points out, the 115.66 grams for which he was
arrested falls below the presumption level. Therefore, Richmond argues there must be
other evidence sufficient to support the element of possession and the element of intent to
distribute.


       Possession "requires specific intent to exercise control over the substances, with
knowledge of the nature of the substance." State v. Washington, 244 Kan. 652, 654, 772
P.2d 768 (1989). "[T]he crime of possession with intent to distribute a controlled
substance requires proof that the defendant possessed—meaning knowingly exercised
control—over any controlled substance with the intent to distribute it." State v. Rizal, 310
Kan. 199, 207, 445 P.3d 734 (2019). To act knowingly in this context, "a person must
know the essence of the substance possessed; the fundamental quality that distinguishes
that substance from another one." 310 Kan. at 207. To convict a defendant of possession
with intent to distribute, "the State must prove that the defendant had knowledge of the
nature of the controlled substance—meaning, that the defendant either knew the identity
of the substance or knew that the substance was controlled." 310 Kan. at 208. Possession
may be constructive, "as where the drug is kept by the accused in a place to which he has
some measure of access and right of control." Washington, 244 Kan. at 654.


       The State may prove knowledge and intent with circumstantial evidence. Rosa,
304 Kan. at 434. When a defendant is in nonexclusive possession of the area where
illegal drugs are found, "the mere presence of or access to the drugs, standing alone, is
insufficient to demonstrate possession absent other incriminating circumstances." 304
Kan. at 434. When a claim is made that a defendant had nonexclusive possession, courts
look to several factors to determine if the defendant had possession, including: the

                                             6
defendant's previous participation in the sale or use of drugs; the defendant's proximity to
the area where the drugs are found; the drugs being found in plain view; a defendant's
incriminating statements or suspicious behavior; and the proximity of a defendant's
possessions to the drugs. See 304 Kan. at 434; State v. Dean, 42 Kan. App. 2d 32, 39, 208
P.3d 343 (2009); State v. Gibson, 30 Kan. App. 2d 937, 953, 52 P.3d 339 (2002). None of
these factors, by themselves, may be sufficient to support a conviction, but, taken
together, they provide a sufficient inference of knowing possession. Rosa, 304 Kan. at
434.


       The jury instructions in this case provided the jury with a list of five factors to
consider to determine whether Richmond was in possession of the marijuana:


              "1. defendant's proximity to the area where the controlled substance was found;
              "2. the fact the controlled substance was found in plain view;
              "3. incriminating statements of the defendant;
              "4. suspicious behavior of the defendant; and
              "5. proximity of the defendant's possession to the controlled substance."


Both Richmond and the State rely on these factors in making their arguments.


       Richmond was in close proximity to the marijuana when Deputy Clement stopped
him. Richmond was sitting in the driver's seat. Deputy Clement observed "marijuana
shake" on the floorboard console around Richmond and found a cannister containing
THC on the driver's floorboard where Richmond was sitting. A digital scale with
marijuana residue was found beside him under the center dashboard console. The blue
bag containing 115.66 grams of marijuana and plastic baggies was found on the rear
passenger's side floorboard within arm's reach of Richmond.




                                                  7
       The only evidence of marijuana in plain view was the "marijuana shake." The
115.66 grams of marijuana was shielded from plain view in the blue bag. Deputy
Clement observed the digital scale and baggies when he searched the vehicle.


       The State argues Richmond made an incriminating statement by asking the officer
to "cut him a break." Richmond argues this statement was regarding a speeding ticket, not
the marijuana. Richmond twice asked Deputy Clement to cut him a break. Both times
occurred after the officer informed Richmond that he smelled marijuana in the vehicle
and that Deputy Clement was going to search the vehicle for drugs. When viewing the
evidence in the light most favorable to the State, a reasonable person could believe
Richmond's statements concerned the marijuana in the vehicle.


       Deputy Clement testified that Richmond's description of his travel was suspicious.
Richmond drove eight hours to Colorado before turning around and driving eight hours
returning the way he came again that same day. Richmond did not know where he
traveled to in Colorado. Richmond also had multiple cell phones. Deputy Clement
testified that, in his experience, these actions were indicative of drug trafficking.


       In the backseat of the vehicle near the blue bag containing marijuana was a pair of
Richmond's pants with a cell phone in the pocket and Jackson's purse. There was nothing
else in the vehicle besides the marijuana and drug paraphernalia.


       Taken together, the factors support a finding that Richmond was in constructive
possession of the marijuana. Richmond was within close proximity of the marijuana. He
asked Deputy Clement twice for a break after the deputy commented on the smell of
burnt marijuana and his intent to search the vehicle. The only factor that weighs in
Richmond's favor was the bulk of the marijuana was not in plain view. This is not enough
to overcome the high bar set by the standard of review. A reasonable person viewing the


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totality of the evidence in the light most favorable to the State could find Richmond
possessed the marijuana.


       As for the intent to distribute element, the evidence when viewed in a light most
favorable to the State supports the jury's finding. Richmond argues the 115.66 grams of
marijuana is below the statutory threshold for a presumption of possession with intent to
distribute and the State did not prove Richmond intended to distribute the marijuana. A
conviction for possession with intent to distribute may be upheld even if the quantity of
drugs is small. Gibson, 30 Kan. App. 2d at 953. Deputy Clement testified regarding
several factors that in his experience supported an intent to distribute. The weight of the
marijuana was 115.66 grams. Richmond had multiple cell phones. Deputy Clement found
plastic baggies, rubber bands, and other boxes of baggies in the car. Deputy Clement
testified that taking a short turnaround trip to Colorado in a third-party vehicle was
consistent with drug trafficking. Richmond did not contradict this evidence at trial.
Instead, Richmond relies on his denial of knowledge of the baggies in the vehicle and his
denial about an intent to use the baggies or scale in connection with the marijuana. When
viewed in a light most favorable to the State, there is sufficient evidence for a reasonable
fact-finder to find Richmond guilty of possession with intent to distribute.


       Richmond's insufficiency of the evidence arguments for his other convictions rely
on his argument that there was insufficient evidence to sustain his conviction for
possession with intent to distribute. Because there was sufficient evidence to support his
first conviction, sufficient evidence supports his other convictions as well. Richmond
does not dispute the marijuana lacked a tax stamp. Because he did possess more than 28
grams of marijuana, Richmond is guilty of a tax stamp violation. See K.S.A. 79-5204(a);
K.S.A. 2017 Supp. 79-5201(c). Regarding his drug paraphernalia conviction, the
evidence supports the fact that Richmond possessed the marijuana. A reasonable person
could find that the baggies in the vehicle and the digital scale could be used to distribute
that marijuana. As such, there was sufficient evidence Richmond possessed drug

                                              9
paraphernalia. See K.S.A. 2017 Supp. 21-5709(b)(1). He could also be found guilty of
possession regarding the other marijuana found in the vehicle for the same reasons as his
possession with the intent to distribute conviction. See K.S.A. 2017 Supp. 21-5706(b)(7).


       A sufficiency of the evidence challenge requires a court to view the evidence in a
light most favorable to the State. Lloyd, 299 Kan. at 632. When viewing the evidence in
this light, a reasonable fact-finder could find the evidence supported Richmond's
convictions.


    DID THE DISTRICT COURT ERR BY FAILING TO INSTRUCT THE JURY ON A LESSER
                INCLUDED OFFENSE OF POSSESSION OF MARIJUANA?

       For his second point, Richmond argues the district court erred when it did not
instruct the jury on the lesser included offense of possession of marijuana on the count of
possession with intent to distribute charge. Richmond argues the evidence supports a
lesser included offense instruction because the jury could have concluded from the
evidence that he possessed the 115.66 grams of marijuana but did not intend to distribute
it. Richmond asserts there is a "real possibility" that the jury would have returned a
different verdict if it had been instructed on the lesser included offense of possession of
marijuana. The State admits a lesser included offense instruction would have been legally
appropriate but argues it was not factually appropriate because the defendant denied
possessing the marijuana or that the marijuana was for personal use.


Standard of Review

               "'For jury instruction issues, the progression of analysis and corresponding
       standards of review on appeal are: (1) First, the appellate court should consider the
       reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
       an unlimited standard of review; (2) next, the court should use an unlimited review to
       determine whether the instruction was legally appropriate; (3) then, the court should
       determine whether there was sufficient evidence, viewed in the light most favorable to

                                                   10
       the defendant or the requesting party, that would have supported the instruction; and (4)
       finally, if the district court erred, the appellate court must determine whether the error
       was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
       Kan. 541, 256 P.3d 801 (2011).'" State v. Woods, 301 Kan. 852, 876, 348 P.3d 583
       (2015) (quoting State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 [2012]).


Analysis

       A trial court has an affirmative duty to instruct the jury on lesser included offenses
if there is evidence supporting the lesser offense. That affirmative duty exists even if the
defendant does not request the instruction. State v. Bowman, 252 Kan. 883, 892, 850 P.2d
236 (1993).


       When a defendant challenges the lack of a lesser included offense instruction, the
appellate court considers the reviewability of the issue de novo. Woods, 301 Kan. at 876.
To fully preserve a claim that the district court erred, the defendant must object on the
record to the omission before the jury begins its deliberations. State v. Wade, 295 Kan.
916, 924, 287 P.3d 237 (2012). Richmond acknowledges that he did not request a lesser
included offense instruction at trial. The lack of an objection does not foreclose
Richmond's challenge. See K.S.A. 22-3414(3). If a party fails to object at trial, the
appellate court will only reverse if the failure to give the instruction was clearly
erroneous. K.S.A. 22-3414(3). Whether a district court committed clear error only comes
into play if the appellate court determines the instruction was legally and factually
appropriate. State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195 (2012).


       The elements of possession are identical to some of the elements of possession
with intent to distribute making possession a lesser included offense of possession with
intent to distribute. State v. Gilmore, No. 97,362, 2008 WL 5234530, at *2 (Kan. App.
2008) (unpublished opinion). The State acknowledges possession is a lesser included
offense of possession with intent to distribute and the instruction would have been legally

                                                    11
appropriate. A lesser included offense instruction would have been legally appropriate
here.


        A lesser included offense instruction also must be factually appropriate. A
defendant is entitled to instructions applicable to his or her defense theory if sufficient
evidence exists from which a rational fact-finder could find for the defendant. An
appellate court views this evidence in a light most favorable to the defendant. Woods, 301
Kan. at 876. However, an appellate court also gives deference to any factual findings
made by the district court, and the court will not reweigh evidence or the credibility of
witnesses. Plummer, 295 Kan. at 162.


        The State relies on four unpublished Court of Appeals cases to argue that a lesser
included offense instruction was not factually appropriate. These cases are
distinguishable from this current case. In State v. Bates, No. 117,419, 2019 WL 1412600
(Kan. App. 2019) (unpublished opinion), rev. denied 310 Kan. ___ (December 6, 2019),
and State v. Jimenez, No. 111,659, 2015 WL 5036738 (Kan. App. 2015) (unpublished
opinion), the defendants were convicted of possessing controlled substances with the
intent to distribute where the amount of the controlled substance was sufficient to trigger
the statutory presumption for intent to distribute. A lesser included offense instruction
was not factually appropriate because the defendants in both cases failed to present any
evidence to overcome that presumption. Bates, 2019 WL 1412600, at *9; Jimenez, 2015
WL 5036738, at *3-4. Here, the weight of the marijuana was not enough to trigger the
statutory presumption. In State v. Coyan, No. 107,510, 2013 WL 4046399, at *6-7 (Kan.
App. 2013) (unpublished opinion), and State v. Rhyne, No. 106,313, 2012 WL 5205570,
at *3-4 (Kan. App. 2012) (unpublished opinion), the district courts were affirmed because
the district courts' failure to instruct the jury on a lesser included offense was not clearly
erroneous, not because a lesser included offense was not factually appropriate. None of
the State's cited cases support its argument.


                                                12
       If Richmond had made the claim that the marijuana was for his personal use, the
lesser included instruction would clearly have been factually appropriate. He did not. He
claimed total lack of knowledge of the marijuana.


       Assuming the instruction was factually appropriate, further analysis is required
before Richmond can prevail on his argument. It must be determined if it was clearly
erroneous to not give the instruction.


       Richmond did not object to the lack of a lesser included offense instruction for
possession of marijuana, nor did he ask for one. When no objection was made, an
appellate court will only reverse the district court if the failure to include the instruction
was clearly erroneous. See State v. Brooker, 27 Kan. App. 2d 396, 402, 4 P.3d 1180
(2000). To be clearly erroneous, Richmond must "firmly convince us that '"the jury
would have reached a different verdict"' had the instruction been given." State v. Carter,
305 Kan. 139, 163, 380 P.3d 189 (2016) (quoting State v. Smith-Parker, 301 Kan. 132,
164, 340 P.3d 485 [2014]).


       The jury found the necessary elements for possession of marijuana were present
when it convicted Richmond of possession of marijuana with the intent to distribute. The
fact that the jury could have found Richmond guilty of possession instead of possession
with intent to distribute does not mean that the jury would have convicted Richmond of
the lesser offense. See Williams, 295 Kan. at 523-24 ("[J]ust because we find that a
rational jury could have found Williams guilty of the lesser included offense does not
necessarily mean that we believe that the jury would have convicted her of the lesser
offense."). There is insufficient evidence to firmly establish that the jury would have
convicted Richmond of possession instead of possession with the intent to distribute if
the instruction had been given.




                                              13
       Coyan, used by the State to argue the instruction was not factually appropriate,
illustrates this idea. In Coyan, the Court of Appeals stated there was evidence that Coyan
possessed methamphetamine, the lesser included crime, but the court was firmly
convinced that the jury would not have convicted Coyan of the lesser crime. Coyan never
claimed the methamphetamine found in the vehicle was for his personal use and denied
possessing the drugs at all. Instead he claimed the drugs belonged to another person.
There was also evidence of scales and baggies found with the drugs. A KBI agent
testified the amount of methamphetamine was inconsistent with personal use and
suggested an intent to distribute. The court was "firmly convinced the jury would not
have found Coyan guilty of simple possession rather than the more serious crime of
possession with the intent to distribute had it been given that option." 2013 WL 4046399,
at *7. As a result, the court held the district court's failure to give the instruction was not
clear error. 2013 WL 4046399, at *7.


       As in Coyan, Richmond never argued the marijuana was for his personal use, and
he denied possessing it. Richmond claimed the marijuana belonged to Jackson. Along
with the marijuana, Deputy Clement found a digital scale and plastic baggies in the
vehicle. Deputy Clement testified that Richmond's trip to Colorado with a quick
turnaround time, not knowing where he traveled to in Colorado, and owning multiple cell
phones was indicative of drug trafficking.


       When looking at the totality of the evidence, we are not "firmly convinced" that
the jury would have reached a different verdict. The district court's failure to instruct the
jury on the lesser included offense of possession of marijuana was not clearly erroneous.


       Affirmed.




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