                          NOT DESIGNATED FOR PUBLICATION

                                             No. 120,702

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                      v.

                                 RYAN CHRISTOPHER MITCHELL,
                                         Appellant.


                                   MEMORANDUM OPINION

       Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed May 1, 2020.
Affirmed.


       Kristen B. Patty, of Wichita, for appellant.


       Brock R. Abbey, assistant county attorney, and Derek Schmidt, attorney general, for appellee.


Before HILL, P.J., BUSER and BRUNS, JJ.


       PER CURIAM: This is an appeal by Ryan Christopher Mitchell upon his conviction
for possession of methamphetamine with intent to distribute, two counts of possession of
drug paraphernalia, and possession of a firearm by a convicted felon. Mitchell contends
there was insufficient evidence to support the convictions.


       Upon our review of the record on appeal, the trial transcript, and the parties'
appellate briefs, we find no error and, therefore, affirm the convictions.




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                           FACTUAL AND PROCEDURAL BACKGROUND

       On February 1, 2018, Salina police officers were dispatched to the Ambassy Motel
to assist in arresting Mitchell for a parole violation. When the officers encountered
Mitchell in the motel parking lot, they observed him attempting to open the driver's side
door of a Chevrolet Equinox with a coat hanger. Mitchell informed the officers that the
vehicle was his but that he had locked the keys inside. Later, he denied any ownership
interest in the vehicle.


       The officers placed Mitchell under arrest for the parole violation and personally
searched him incident to the arrest. The officers seized a small zippered bag containing a
smaller, plastic bag with 93.4 grams of methamphetamine inside Mitchell's coat.
Additionally, the officers seized from Mitchell's front jeans pocket $2,328 in cash rolled
up and secured with a tie.


       Upon Mitchell's arrest, he asked the officers to contact his girlfriend, Arasely
Duron, who was in motel room 33. The officers located Duron in the motel room,
arrested her for a parole violation, and brought her to the parking lot. When Mitchell
realized the officers were arresting Duron, he told the officers that everything in the
motel room belonged to him.


       The officers executed a search warrant for the motel room and found a so-called
"stash can" containing various amounts of methamphetamine weighing a total of 9.2
grams and packaged in three separate plastic baggies; two glass smoking pipes with
residue; two digital scales with residue; a notepad/owe sheet found inside a brown purse
with the identification card of Arasely Duron; a loaded Taurus 9mm handgun; a box
containing numerous baggies and marijuana residue; and a bag containing several plastic
baggies.



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       The officers executed a second search warrant for the Equinox and seized a blue
backpack located in the rear cargo area. The backpack contained a speaker box which had
numerous plastic bags and a functioning digital scale with residue; 9mm ammunition; a
silver spoon with residue; and a First Alert safe. The safe contained 9mm ammunition;
cut straws with residue; plastic spoons; several plastic bags with residue; a functional
digital scale with residue; and several plastic bags with residue. Additionally, a marijuana
joint was found in the center console of the car.


       The methamphetamine found on Mitchell and inside the backpack in the Equinox
weighed about 100.88 grams.


       The State charged Mitchell with possession with intent to distribute
methamphetamine of 100 grams or more in violation of K.S.A. 2017 Supp. 21-5705(a)(l)
and (d)(3)(D) and K.S.A. 2017 Supp. 21-6805(g)(l)(A); possession of drug paraphernalia
in violation of K.S.A. 2017 Supp. 21-5709(b)(l) and (e)(2)(A) (felony); possession of
drug paraphernalia in violation of K.S.A. 2017 Supp. 21-5709(b)(2), a class B nonperson
misdemeanor; possession of marijuana in violation of K.S.A. 2017 Supp. 21-5706(b)(3)
and (c)(3)(B); no drug tax stamp in violation of K.S.A. 79-5204; and criminal possession
of a firearm/weapon by a convicted felon in violation of K.S.A. 2017 Supp. 21-
6304(a)(3)(A).


       A jury convicted Mitchell of possession of methamphetamine with the intent to
distribute at least 100 grams with a firearm sentencing enhancement, possession with the
intent to use drug paraphernalia (plastic baggies, black zippered bag, black drawstring
bag, scales, and notepad/owe sheet), possession with the intent to use drug paraphernalia
(pipes and straws), and criminal possession of a firearm by a convicted felon. Mitchell
was sentenced to a controlling term of 176 months in prison with 36 months postrelease
supervision.


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      Mitchell filed a timely notice of appeal.


                                SUFFICIENCY OF THE EVIDENCE

      On appeal, Mitchell does not challenge the State's proof of numerous elements of
the individual crimes for which he was convicted. Rather, the sole issue Mitchell raises
on appeal is whether the State proved beyond a reasonable doubt that he had possession
of the methamphetamine, drug paraphernalia, and firearm that were found in the motel
room and the Equinox. Consistent with his approach on appeal, however, Mitchell
candidly concedes that because he personally possessed 93.4 grams of methamphetamine
he may properly be convicted and sentenced for the lesser offense of a severity level 2
drug felony—possession of methamphetamine with the intent to distribute but without
any enhancement of sentence due to possession of a firearm.


      Our standard of review provides:


              "'When sufficiency of the evidence is challenged in a criminal case, the standard
      of review 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.' [Citation
      omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).


      As just noted, Mitchell only challenges whether there was sufficient evidence to
prove that he possessed the drugs, drug paraphernalia, and firearm that were seized from
the motel room and Equinox. As a result, our analysis will focus on the constructive
possession element of the crimes.


      In keeping with the relevant PIK instruction, the district court informed the jury:
"'Possession' means having joint or exclusive control over an item with knowledge of and

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the 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." PIK Crim. 4th 57.020 (2018
Supp.). Mitchell does not challenge the propriety of this instruction. Instead, Mitchell
argues that he did not have exclusive control over the motel room or Equinox and the
State failed to prove that he had some measure of access and right of control over the
items found in those areas.


       While the methamphetamine found in Mitchell's coat pocket was under his
exclusive control, the drugs, drug paraphernalia, and firearm found in the motel room or
Equinox were not shown to be solely in his possession. Rather, at trial the State's theory
was that Mitchell constructively possessed the incriminating evidence.


       Generally, "when a defendant is in nonexclusive possession of the premises upon
which drugs are found, it cannot be inferred that the defendant knowingly possessed the
drugs unless there are other incriminating circumstances linking the defendant to the
drugs." State v. Marion, 29 Kan. App. 2d 287, 290, 27 P.3d 924 (2001). In this regard,
courts consider various factors, such as: "(1) the defendant's previous sale or use of
narcotics; (2) the defendant's proximity to the area in which the drugs were found; (3) the
fact that the drugs were found in plain view; and (4) the defendant's incriminating
statements or suspicious behavior." State v. Keel, 302 Kan. 560, 567-68, 357 P.3d 251
(2015) (citing State v. Cruz, 15 Kan. App. 2d 476, 489, 809 P.2d 1233 [1991]). Of note,
"[t]he list of incriminating factors in Keel is not exclusive. The Keel court stated that
incriminating factors 'include' the four factors cited, not that the incriminating factors are
limited to the four in the list." State v. Washington, No. 115,225, 2017 WL 2304451, at
*3 (Kan. App. 2017) (unpublished opinion). Lastly, "[i]n order to establish a defendant's
constructive possession of drugs, more than 'mere presence or access to the drugs' is
required to sustain a conviction." State v. Beaver, 41 Kan. App. 2d 124, 129, 200 P.3d
490 (2009).


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       We will apply the four factors cited in Keel in analyzing whether there was
sufficient evidence to prove that Mitchell constructively possessed the drugs, drug
paraphernalia, and firearm in the motel room and Equinox.


Items Found in the Motel Room

       Mitchell complains there was insufficient evidence to connect him to the illegal
drugs, drug paraphernalia, and firearm seized from the motel room. In particular, he notes
the motel room was registered to his girlfriend, Duron, Mitchell did not have a key to the
room, and he was not observed inside the room. He contests that any of the illegal items
were in plain view and he notes there was no proof that he was involved in the previous
sale or use of narcotics. Mitchell also asserts there was no evidence that he had been
inside the motel room for a long time.


       Upon our independent review of the evidence, in a light most favorable to the
prosecution, we are convinced a rational fact-finder could have found that Mitchell
constructively possessed the methamphetamine, drug paraphernalia, and firearm seized
from the motel room. Several factors bolster our conclusion.


       First, at the scene, Mitchell spontaneously and voluntarily admitted that everything
inside the motel room belonged to him. At trial, the State played footage from an officer's
body cam which memorialized Mitchell's incriminating statement. Although Mitchell
later recanted his admission against interest, the jury heard evidence of both statements
made by Mitchell and was able to consider whether the admission or the recantation was
the truth.


       Mitchell counters that his admission is insufficient because his girlfriend, Duron,
testified at trial that the illegal items belonged to her and that she asked Mitchell to claim
ownership because "I was already in trouble and I didn't want more [prison] time. I was

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being selfish." None of the officers, however, recalled hearing Duron make this
statement. Moreover, Duron's credibility was challenged as she admitted that she was
previously convicted of crimes of dishonesty—robbery and passing a worthless check.
Regardless, "jurors may choose to believe parts of a given witness' account of relevant
events and disbelieve other parts." State v. Franco, 49 Kan. App. 2d 924, 930, 319 P.3d
551 (2014).


       Under our standard of review, we consider all the evidence relating to Mitchell's
statements at the scene and Duron's testimony at trial in a light most favorable to the
State. In accordance with Keel, Mitchell's incriminating statement that he possessed the
drugs, drug paraphernalia, and firearm in the motel room tends to prove constructive
possession. See 302 Kan at 567-68.


       Second, there was evidence that Mitchell had stayed in the motel room. Mitchell
told the officers that he was in a dating relationship with Duron. Duron admitted at trial
that Mitchell had been inside the motel room shortly before his arrest. Moreover, officers
found men's shoes and toiletries inside the room. The room contained Mitchell's personal
items in proximity to the drug paraphernalia. For example, Mitchell had a tote bag of his
belongings inside the motel room and a functioning digital scale (like the one on the
nightstand) was found inside the tote bag.


       Although Duron later changed her testimony, she initially testified that Mitchell's
tote bag was the only item in the motel room that belonged to him. See State v. Bockert,
257 Kan. 488, 494, 893 P.2d 832 (1995) (noting that factors supporting constructive
possession include "proximity of the defendant's possessions to the drugs"); State v.
Fortune, 28 Kan. App. 2d 559, 571, 20 P.3d 74 (2001) ("some of the drugs and
paraphernalia, including the mushrooms, were found in a dresser containing men's
clothing, which suggests that the drugs belonged to Fortune").


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       The loaded firearm was found on the bed covered up by bedding or clothing. That
firearm was loaded with ammunition of the same brand and caliber as the ammunition
discovered in the backpack found in the Equinox. Consonant with Keel's guidance, the
defendant's proximity to the area in which the drugs were found was shown through
testimony and his personal effects. See 302 Kan at 567-68. This factor favors a finding of
constructive possession.


       Third, officers observed drug paraphernalia in plain view inside the motel room.
For example, a digital scale with residue was observed on a nightstand, and numerous
small plastic jewelry baggies that are commonly used in distributing small quantities of
drugs were found in plain sight throughout the room. Expert testimony established that
officers commonly find scales and baggies used together for the purpose of distributing
drugs. In keeping with Keel, the fact that drug paraphernalia was found in plain view
supports an inference of constructive possession. See 302 Kan at 567-68.


       Fourth, as conceded by Mitchell on appeal, at the time he was in the immediate
vicinity of the motel room, he personally possessed a significant quantity of
methamphetamine and a large sum of money. The personal possession of drugs is akin to
a defendant's use of narcotics, which is one of the Keel factors of proving constructive
possession. See 302 Kan at 567-68. Of course, the same kind of illegal drug that Mitchell
personally possessed—methamphetamine—was also packaged in three individual
baggies that were seized from the motel room in a stash container. Moreover, a large
amount of cash possessed by an individual who also personally possesses illegal drugs
may raise an inference of drug dealing. State v. Fitzgerald, 286 Kan 1124, 1131, 192 P.3d
171 (2008).


       In summary there was substantial competent evidence to show that Mitchell
constructively possessed the drugs, drug paraphernalia, and firearm seized from the motel
room. This evidence included Mitchell's incriminating admission to possessing the illegal
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items, proof that Mitchell spent time in the motel room with ready access to some of the
contraband in plain view, and his personal possession of methamphetamine and $2,328 in
cash a short distance from the motel room. Viewing the evidence in a light most
favorable to the prosecution, a rational fact-finder could find that the State proved beyond
a reasonable doubt that Mitchell constructively possessed the illegal items seized from
the motel room.


         The result of this finding is that in addition to the other crimes of conviction, the
State proved that Mitchell had possession of over 100 grams of methamphetamine. The
methamphetamine found in Mitchell's jacket weighed 93.4 grams. Three small baggies
found inside a stash can in the motel room contained the following amounts of
methamphetamine: (1) 5.52 grams, (2) 1.57 grams, and (3) .49 grams. Together, the
packages of methamphetamine found on Mitchell and in the motel room weighed 100.88
grams.


Items Found in the Equinox

         Mitchell contends the State failed to prove constructive possession over the
contraband found in the Equinox. In particular, he points out the vehicle was not
registered to him, and there was no evidence that he drove it. At trial, Duron testified that
she had borrowed the vehicle from a friend and that Duron drove it, not Mitchell. She
was unaware of the backpack found in the car or its contents. Lastly, Mitchell notes the
contraband inside the backpack was not in plain view.


         Our review of the trial evidence, in a light most favorable to the prosecution,
convinces us that a rational fact-finder could have found that Mitchell constructively
possessed the drug paraphernalia found in the backpack located in the rear cargo area of
the Equinox. Once again, we analyze this issue mindful of the Keel factors.



                                                9
       First, Mitchell claimed possession of the vehicle. When officers encountered him
in the parking lot, he was attempting to unlock the Equinox with a coat hanger. Mitchell
advised the officers that the vehicle belonged to him and he had locked the keys inside of
it. Mitchell later retracted his statement and said that it was not his vehicle, but he
repeated that he was trying to unlock the Equinox because the keys were inside. On
appeal, Mitchell argues that his initial statement to the police can be explained because he
was on parole and worried about being caught in a precarious situation.


       There was substantial competent evidence to show that Mitchell did not, in fact,
own the Equinox. Still, there was also sufficient evidence that he had been in joint
possession of the vehicle earlier in the day. Duron testified that when she borrowed the
Equinox from her friend, she drove it to a court hearing in Clay Center and then drove
back to the motel—Mitchell was a passenger and with her throughout the day. Mitchell's
claim of ownership, his efforts to open the locked vehicle to obtain the keys, and Duron's
testimony clearly establish Mitchell's association with the Equinox. This evidence of
Mitchell's admitted statement of ownership, which he later contradicted, and his
suspicious behavior in trying to enter the Equinox constitutes one of the relevant factors
noted in Keel. See 302 Kan at 567-68.


       Second, the drug paraphernalia found in the Equinox was like the drug
paraphernalia found in the motel room. Two digital scales with residue found in the
backpack were similar in appearance to the two digital scales with residue found in the
motel room. Pipes or straws to ingest illegal drugs were found in both the Equinox and
the motel room. Small plastic jewelry baggies found inside the backpack were similar to
those found inside the motel room. In addition to the drug paraphernalia, the backpack in
the vehicle contained 9mm ammunition of the same brand and caliber as the ammunition
found loaded in the 9mm firearm seized from the motel room. In summary, there was an
obvious correlation between the drug paraphernalia and ammunition in the backpack and
the drugs, drug paraphernalia, and firearm found in the Equinox. In this way, the State
                                              10
proved that Mitchell had constructive possession over the vehicle and the backpack found
inside.


          Third, at the time the officers observed Mitchell attempting to enter the Equinox,
he was in possession of a large quantity of methamphetamine and a large sum of cash. As
discussed earlier, given these facts, it is reasonable to infer that the drug paraphernalia
and ammunition found in the car Mitchell was attempting to enter were constructively
possessed or owned by him.


          In summary, there was substantial competent evidence to show that Mitchell
constructively possessed the drug paraphernalia and ammunition seized from the
backpack found in the Equinox. Viewing the evidence in a light most favorable to the
prosecution, a rational fact-finder could find that the State proved beyond a reasonable
doubt that Mitchell constructively possessed the drug paraphernalia found in the
backpack.


          We hold there was substantial competent evidence to support the convictions
which Mitchell challenges on appeal. Viewing the evidence in a light most favorable to
the State, a rational fact-finder could find that the State proved beyond a reasonable doubt
that Mitchell committed the crimes for which he was convicted.


          Affirmed.




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