                         NOT DESIGNATED FOR PUBLICATION

                                            No. 121,042

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                    VICTOR MARK SIMMONS,
                                          Appellant.


                                  MEMORANDUM OPINION

       Appeal from Crawford District Court; MARY JENNIFER BRUNETTI, judge. Opinion filed July 24,
2020. Affirmed.


       Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.


       Michael Gayoso Jr., county attorney, and Derek Schmidt, attorney general, for appellee.


Before SCHROEDER, P.J., HILL and GARDNER, JJ.


       PER CURIAM: A jury convicted Victor Mark Simmons of possession of
methamphetamine with intent to distribute and misdemeanor fleeing and eluding. On
appeal, Simmons argues the State failed to show he possessed the methamphetamine
found in the glove box of the car he was driving. Yet the State introduced multiple
incriminating circumstances that show Simmons constructively possessed the narcotics.
Simmons also contends the reasonable doubt jury instruction was clearly erroneous. But
our Supreme Court has found that the language Simmons complains of does not
constitute clear error. As a result, we affirm.


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Factual and Procedural Background


       A jury convicted Simmons of possessing methamphetamine with intent to
distribute more than 100 grams, see K.S.A. 2019 Supp. 21-5705(a)(1), (d)(3)(D), and
misdemeanor fleeing or eluding a police officer, see K.S.A. 2019 Supp. 8-1568(a)(1),
(c)(1)(A). The district court sentenced him to 196 months in prison.


       At trial, the State presented evidence that Simmons fled, first in a car and then on-
foot, from a law enforcement officer conducting a traffic stop on December 2, 2016.
During a search of the car, police found methamphetamine in the car's glove box. We
summarize the trial testimony below.


       Dustin McDaniel and Jeremy Karlinger, two drug enforcement unit detectives,
saw Simmons waiting outside a residence in the driver's seat of a green Cadillac. They
confirmed with dispatch that he had a suspended license. They then asked Officer Joe
Noga to wait around the corner in case Simmons decided to drive away. Noga was
familiar with Simmons, knew his nickname was "Dash," and knew he did not have a
valid license.


       Karlinger saw Anthony Logan get in the Cadillac but he did not see Logan bring
anything with him. In his testimony, Logan confirmed he took nothing into the Cadillac.
Logan also denied carrying narcotics or knowing narcotics were in the Cadillac. And no
one touched the glove box while he was in the car.


       Simmons drove away. When he passed Noga, Noga followed, activating his
emergency lights to conduct a traffic stop for driving while suspended. But Simmons
responded by speeding away. A chase ensued. Simmons drove through several stop signs
and, at one point, sped through a 30-mph residential area going 70 mph. During the
chase, Noga could not see what was happening inside the Cadillac.
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       The chase ended when Simmons pulled into an alley, jumped out of the Cadillac,
and ran away through a backyard. Yet Logan stayed around. Noga stayed with Logan and
the Cadillac rather than chase Simmons. Noga saw a cell phone on the ground next to the
driver's door. He asked Logan if it was his, but Logan showed him another phone stating,
"No. Here is mine."


       Lieutenant Benjamin Hendersen arrived, and the officers towed the car. During an
inventory search, Henderson found in the backseat a box for an aerial drone and a black
jacket. Inside the black jacket was a prescription pill bottle for "Victor Simmons." Inside
the unlocked glove box Hendersen found a black batter's glove with an item inside—a
plastic bag containing 111.42 grams of methamphetamine.


       Upon finding the methamphetamine, the officers stopped the inventory search,
towed the vehicle, and got a search warrant. McDaniel and Karlinger again searched the
Cadillac. This time they found another cell phone and, in the jacket pocket, a plastic bag
with smaller baggies inside. Both testified that, based on their training and experience as
drug enforcement officers, multiple cell phones and small plastic baggies were
indications of drug distribution. Both also testified that the amount of methamphetamine
found in the car showed an intent to distribute it.


       Seven days later, the police found Simmons and arrested him. While searching
him, they found a cell phone and an operating manual for a drone. The operating manual
matched the drone box found in the backseat of the Cadillac. Simmons asked why the
police were arresting him, and they responded it was for drug charges and running from
police. Although the police had not mentioned the Cadillac, Simmons replied, "I wasn't in
that car."


       After the evidence was presented, the district court instructed the jury, including
this jury instruction about the burden of proof: "The State has the burden to prove the
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defendant is guilty. The defendant is not required to prove he is not guilty. You must
presume that he is not guilty until you are convinced from the evidence that he is guilty."
(Emphasis added.) Neither Simmons nor the State objected to this instruction at that time.


       The jury found Simmons guilty of possessing methamphetamine with intent to
distribute more than 100 grams and of fleeing or eluding a police officer.


       Simmons timely appeals.


Was the Evidence Sufficient to Find Simmons Guilty of Possession of Methamphetamine
With the Intent to Distribute?


       Simmons first argues that the State's evidence was insufficient to show he
possessed the methamphetamine. Simmons concedes that the State presented enough
evidence to show that he was driving the Cadillac and that the police found
methamphetamine in its glove box. Yet, relying on State v. Rosa, 304 Kan. 429, 434, 371
P.3d 915 (2016), he contends the State showed only that he was in the same car as the
methamphetamine and failed to present other incriminating circumstances as is necessary
to prove nonexclusive possession.


       Standard of Review

       When we review a defendant's challenge to the sufficiency of the evidence, we
review the evidence in a light most favorable to the prosecution to determine whether a
rational fact-finder could have found the defendant guilty beyond a reasonable doubt. We
do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility
determinations. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). A guilty
verdict can be based on only circumstantial evidence and any reasonable inferences the
jury could deduce from that evidence. Rosa, 304 Kan. at 433.

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       Analysis

       Simmons challenges only the sufficiency of the evidence regarding possession.
Our Supreme Court has recently held that to convict "a defendant of possession with
intent to distribute a controlled substance under K.S.A. 2011 Supp. 21-5705(a), 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." State v. Rizal, 310 Kan. 199, 208, 445 P.3d 734 (2019). Yet
Simmons does not argue any lack of knowledge. Rather, he argues solely that the State
failed to show he constructively possessed the drugs.


       K.S.A. 2019 Supp. 21-5701(q) defines possession as "having joint or exclusive
control over an item with knowledge of and intent to have such control or knowingly
keeping some item in a place where the person has some measure of access and right of
control." Because Simmons and Logan both could have had access to or control of the
drugs in the glovebox, this is a nonexclusive possession case. In nonexclusive possession
cases, "the mere presence of or access to the drugs, standing alone, is insufficient to
demonstrate possession absent other incriminating circumstance." Rosa, 304 Kan. at 434.
Simmons focuses on this premise, arguing that the State showed only that he and Logan
were near the drugs.


       We thus examine whether the State showed "other incriminating circumstances"
showing possession, as Rosa requires. These circumstances include:


          • the defendant's proximity to the narcotics;
          • the defendant's previous sale of narcotics;
          • the defendant's previous use of narcotics;
          • the police finding the narcotics in plain view;
          • the defendant's ownership of the area where the police found the narcotics;

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             • the proximity of the defendant's belongings to the narcotics;
             • the defendant's incriminating statements; and
             • the defendant's suspicious behavior.


See Rosa, 304 Kan. at 434 (citing State v. Boggs, 287 Kan. 298, 317, 197 P.3d 441
[2008]; State v. Bockert, 257 Kan. 488, 494, 893 P.2d 832 [1995]; State v. Beaver, 41
Kan. App. 2d 124, 129, 200 P.3d 490 [2009]).


       Viewed in the light most favorable to the State, the record includes several
incriminating circumstances showing Simmons constructively possessed the
methamphetamine. First, Simmons, sitting in the driver's seat, was within arm's reach of
the glove box. He was close to the drugs.


       Second, the State presented circumstantial evidence that Simmons may have been
engaged in the sale or distribution of narcotics. Police found a black jacket with a pill
bottle inside with Simmons' name on it. Inside that jacket was a plastic bag with smaller
plastic baggies inside. Both McDaniel and Karlinger testified that based on their training
and experience the collection of the smaller baggies indicates the sale of narcotics. See
United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002) (in
the reasonable suspicion context, allowing "officers to draw on their own experiences and
specialized training to make inferences from and deductions about the cumulative
information available"); State v. Johnson, No. 111,215, 2015 WL 4366448, at *4 (Kan.
App. 2015) (unpublished opinion) (including, as an incriminating circumstance, the
presence of rolling papers, commonly used to roll marijuana blunts, found in the
defendant's pants). And police found multiple cell phones in or near the car. Daniel and
Karlinger also testified that the presence of multiple cell phones indicates the sale of
narcotics.




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       Third, the State introduced evidence of Simmons' suspicious behavior. Simmons
led officers on a high-speed chase through a residential neighborhood and eventually fled
on foot. See State v. Griffin, 279 Kan. 634, 647, 112 P.3d 862 (2005) ("'Evidence of flight
may be admissible to establish the consciousness of guilt, the commission of the acts
charged, and the intent and purpose for which those acts were committed.'"); State v.
Westmoreland, No. 117,833, 2018 WL 3198410, at *4 (Kan. App. 2018) (unpublished
opinion); State v. Miller, No. 116,482, 2017 WL 4560968, at *3 (Kan. App. 2017)
(unpublished opinion) (including the defendant's flight as an incriminating circumstance
of possession of narcotics).


       Viewing the evidence in the light most favorable to the State, we find that a
rational jury could have found Simmons guilty beyond a reasonable doubt of possession
of methamphetamine with intent to distribute.


Did the District Court Clearly Err in Instructing the Jury?


       Next, Simmons argues the reasonable doubt jury instruction was legally
inappropriate because it misled the "jury into believing that they should expect to be
convinced of the defendant's guilt" by using the word until, instead of unless. Simmons
asserts this error was clearly erroneous.


       Preservation and Standard of Review


       When a defendant alleges that a jury instruction is erroneous, we apply a multi-
step process. First, we consider the reviewability of the issue from both jurisdiction and
preservation viewpoints, exercising an unlimited standard of review. Next, we use an
unlimited review to determine whether the instruction was legally appropriate. Then, we
determine whether sufficient evidence, viewed in the light most favorable to the
defendant or the requesting party, supported the instruction. State v. Butler, 307 Kan.
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831, 845, 416 P.3d 116 (2018). And finally, if the district court erred, we conduct a
reversibility inquiry. The standard for that inquiry depends on whether the defendant
objected to the instruction during the trial. State v. Williams, 308 Kan. 1439, 1451, 430
P.3d 448 (2018).


       Simmons did not object to this instruction during trial. So the district court's
failure to give a legally and factually appropriate instruction is reversible only if that
failure was clearly erroneous. See K.S.A. 2019 Supp. 22-3414(3); Butler, 307 Kan. at
845. To establish clear error, "'the defendant must firmly convince the appellate court that
the giving of the instruction would have made a difference in the verdict.'" State v.
Cooper, 303 Kan. 764, 771, 366 P.3d 232 (2016). In determining clear error, we review
the effect of the erroneous instruction in light of the entire record, including the other
instructions, counsel's arguments, and whether the evidence is overwhelming. In re Care
and Treatment of Thomas, 301 Kan. 841, 849, 348 P.3d 576 (2015).


       Analysis

       Simmons objects on appeal to this reasonable doubt instruction:


               "The State has the burden to prove the defendant is guilty. The defendant is not
       required to prove he is not guilty. You must presume that he is not guilty until you are
       convinced from the evidence that he is guilty.


               "The test you must use in determining whether the defendant is guilty or not
       guilty is this: If you have a reasonable doubt as to the truth of any of the claims required
       to be proved by the State, you must find the defendant not guilty. If you have no
       reasonable doubt as to the truth of any of the claims required to be proved by the State,
       you should find the defendant guilty." (Emphasis added.)




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       Our Supreme Court has addressed this issue many times, consistently finding no
clear error. See, e.g., State v. Smith, 299 Kan. 962, 980, 327 P.3d 441 (2014); State v.
Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009); State v. Gallegos, 286 Kan. 869, 876-
78, 190 P.3d 226 (2008). Simmons is correct that the language used here is not
preferable—the instruction would have been improved by using the word "unless"
instead of the word "until." Smith, 299 Kan. at 980. But our Supreme Court has
consistently held that this error does not constitute clear error where the whole of the
instructions given in the case, when read together, accurately stated the law and could not
reasonably have misled the jury. See, e.g., Smith, 299 Kan. at 980; Gallegos, 286 Kan. at
877; State v. Wilkerson, 278 Kan. 147, 158, 91 P.3d 1181 (2004).


       Here, as in Smith, the whole of the instructions in this case, read together,
accurately stated the law and the jury could not reasonably have been misled by them.
Simmons raises no new arguments as to why this error is clearly erroneous. The Kansas
Court of Appeals is duty-bound to follow Kansas Supreme Court precedent unless we
find some indication that the Kansas Supreme Court is departing from its previous
position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). We find none
here. We thus follow our Supreme Court's precedent in rejecting this "oft-made, always
rejected, argument." State v. Davis, 284 Kan. 728, 739, 163 P.3d 1224 (2007).


       Affirmed.




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