State v. Hill

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NOT DESIGNATED FOR PUBLICATION

No. 116, 439

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JASON LEE HILL,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed September 22,
2017. Affirmed.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, P.J., PIERRON and BRUNS, JJ.

PER CURIAM: Jason Lee Hill appeals from his conviction for distribution of
methamphetamine in violation of K.S.A. 2016 Supp. 21-5705(a)(1) and (d)(3)(B).
Although Hill was also convicted of possession of methamphetamine, felony possession
of drug paraphernalia, and misdemeanor possession of drug paraphernalia, he does not
appeal from those convictions. On appeal, Hill contends that the State presented
insufficient evidence at trial to support the distribution conviction. Specifically, he argues
the State failed to offer evidence of the margins of error for measurements of the
methamphetamine he was convicted of distributing. Moreover, he argues that the
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testimony of the informant who assisted law enforcement with the drug buy was
uncorroborated. We find neither of these arguments to be persuasive. Thus, we affirm
Hill's distribution of methamphetamine conviction.

FACTS

Jessica Knoll offered to assist the Lyon County Sheriff's Department to "work off
some of [pending] charges." Specifically, Knoll told Deputy Heath Samuels that she
could purchase methamphetamine from a person called "Gator." Deputy Samuels knew
that Hill went by the nickname of "Gator." As such, Deputy Samuels arranged for Knoll
to make a controlled purchase of methamphetamine from Hill.

The controlled drug purchase occurred on December 17, 2015. Before allowing
her to meet with Hill, Lyon County deputies searched Knoll and her car. In doing so, the
deputies found nothing illegal in her possession. The deputies then provided Knoll with
$200 in "prerecorded" cash to use to make the drug purchase. Although the deputies also
equipped Knoll with a recording device, it did not work. However, she was able to use
her cell phone to remain in contact with Deputy Samuels during the controlled buy.

The deputies followed Knoll and saw her enter Hill's apartment. When Knoll
arrived at the apartment, Hill indicated he did not have the methamphetamine in his
possession but that someone would deliver it. Accordingly, Knoll texted Deputy Samuels
that someone was delivering the drugs "on foot." As Knoll waited, a man—who police
later identified as Anthony Goff—entered the apartment. After Goff arrived, Hill gave
Knoll the methamphetamine and she threw the money she received from the deputies on
the bed. After leaving Hill's apartment, Knoll gave the deputies the methamphetamine
she had purchased.

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Deputy Samuels subsequently applied for and received a search warrant for Hill's
apartment. Prior to the execution of the search warrant, deputies saw Goff and another
individual leave Hill's apartment. The deputies were able to apprehend Goff and found
$40 in bills from the $200 they had given to Knoll to make the controlled drug purchase.
The deputies never found the remaining money.

In executing the search warrant on Hill's apartment, deputies found multiple drug-
related items, including (1) digital scales, (2) plastic baggies, (3) a straw lined with
suspected methamphetamine residue, and (4) a baggie with suspected methamphetamine
residue. The Kansas Bureau of Investigation (KBI) Forensic Science Center later tested
both the suspected methamphetamine purchased by Knoll during the controlled buy and
the evidence seized from Hill's apartment during the execution of the search warrant. The
material Knoll purchased from Hill, the substance in the straw seized from Hill's
apartment, and the residue in the baggie found in Hill's apartment each tested positive for
methamphetamine. Moreover, the KBI determined that Knoll had purchased 1.02 grams
of methamphetamine.

On December 22, 2015, the State charged Hill with one count of distribution of
methamphetamine, 1-3.5 grams, in violation of K.S.A. 2016 Supp. 21-5705(a)(1) and
(d)(3)(B), a drug severity level 3 felony. The State later filed an amended complaint that
added charges of felony possession of methamphetamine, in violation of K.S.A. 2016
Supp. 21-5706(a); felony possession of drug paraphernalia, in violation of K.S.A. 2016
Supp. 21-5709(b)(1); and misdemeanor possession of drug paraphernalia, in violation of
K.S.A. 2016 Supp. 21-5709(b)(2). The district court bound Hill over for trial on all of the
charges.

A two-day jury trial commenced on May 23, 2016. At trial, the State presented the
testimony of six witnesses. Knoll testified about the controlled drug purchase from Hill.
Although she struggled to remember specific details, Knoll identified Hill as the person
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she knew as "Gator" and from whom she had purchased the methamphetamine. Deputy
Samuels testified that Knoll offered to assist law enforcement with the controlled
purchase. He also testified regarding his investigation of Hill as well as the controlled
drug purchase. In addition, the State presented the testimony of Deputies Catherine
Ohlemeier and Dominick Vortherms. The testimony of both deputies was substantially
similar to that of Deputy Samuels and Knoll regarding the events surrounding the
controlled drug purchase.

The State also offered the testimony of two forensic scientists who worked at the
KBI Forensic Science Center. One of the KBI scientists testified extensively on the
process used to measure the weight of substances collected during a criminal
investigation. She specifically testified that the substance Knoll received during the
controlled drug buy was methamphetamine and that the total weight of the specimens
tested was 1.02 grams. She did not testify regarding the margin of error in her testing
equipment nor did she indicate any uncertainty in her measurement. The other KBI
scientist testified regarding the methamphetamine found on the straw and baggie seized
in Hill's apartment.

Ultimately, the jury convicted Hill on all counts. A few weeks after the trial, Hill
filed a motion for departure. On July 6, 2016, the district court denied Hill's motion and
sentenced him to 73 months of prison time followed by 36 months of postrelease
supervision. Thereafter, Hill timely filed this appeal.

ANALYSIS

Issues Presented and Standard of Review

On appeal, Hill contends that the State failed to present sufficient evidence against
him at trial to establish his guilt beyond a reasonable doubt on the charge of distribution
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of methamphetamine. First, Hill argues that the State was required to present "margin of
error" or uncertainty evidence relating to the scales used and the measurements done by
the KBI Forensic Science Center in determining that the methamphetamine purchased
during the controlled drug purchase was more than 1.0 grams. Second, Hill argues that
the State failed to present reliable evidence to support its contention that he distributed
methamphetamine to Knoll.

When a defendant challenges the sufficiency of the evidence supporting his or her
conviction, we are to review the evidence in the light most favorable to the State.
Likewise, we are to uphold a conviction if we are convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt based on the evidence
presented at trial. State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015). In making this
determination, we are not to reweigh the evidence or assess the credibility of witnesses.
State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016). Hence, we will only reverse a
guilty verdict in the exceptional case where the testimony is so incredible that no
reasonable factfinder could have found the defendant guilty beyond a reasonable doubt.
State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

Sufficiency of Evidence Relating to Weight

Hill argues that there was insufficient evidence presented at trial to prove that he
distributed at least 1.0 gram of methamphetamine. Specifically, Hill argues the State
failed to introduce evidence about the margin of error or uncertainty in the weight
measurements made by the KBI Forensics Science Center of the methamphetamine
purchased during the controlled buy. Hill further argues that jurors are incapable of
making a determination of weights as small as 1.0 gram.

In reviewing the evidence in the light most favorable to the State, as we are
required to do, we find that the record contains sufficient evidence upon which a
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reasonable finder of fact could conclude beyond a reasonable doubt that the
methamphetamine purchased during the controlled buy weighed 1.0 grams or more in
violation of K.S.A. 2016 Supp. 21-5705(a)(1) and (d)(3)(B). At trial, a forensic scientist
who works in the chemistry section of the KBI Forensic Science Center testified under
oath about the weight measurements she performed on the methamphetamine. In
particular, she testified regarding her training—including a degree in chemistry and
geology—and experience—including working for the KBI for more than 25 years. In her
time with the KBI, the scientist has completed over 50,000 tests of various substances
including drugs. She testified that she performed a net weight measurement on each of
the pieces of the crystalline substance provided to her by the Lyon County Sheriff's
Department. Individually, the substances weighed .45 grams, .18 grams, .19 grams, and
.20 grams for a combined weight of 1.02 grams of methamphetamine.

The Kansas Supreme Court has addressed margin of error or uncertainty in the
context of a driving under the influence of alcohol conviction. State v. Finch, 291 Kan.
665, 244 P.3d 673 (2011). In Finch, our Supreme Court reversed a judgment of acquittal
granted by the district court. In doing so, the court noted that the legislature had not
required consideration of margin of error or uncertainty in the DUI statute. Rather than
adding such a consideration to the DUI statute, our Supreme Court found that it was up to
a defendant to attack the measurement—including attacks involving the margin of error
or uncertainty. Specifically, our Supreme Court labeled margin of error as "simply a
factor among many possibilities for the fact-finder to consider." Finch, 291 Kan. at 673.

Although Finch was a DUI case, we find its reasoning to be persuasive in the
present case involving the distribution of methamphetamine. When a statute is plain and
unambiguous, we are not to speculate about the legislative intent, and we are to refrain
from reading something into a statute that is not readily found in its words. State v.
Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). Similar to the DUI statute, the
legislature did not require the consideration for margin of error or uncertainty within the
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plain language K.S.A. 2016 Supp. 21-5705(d)(3)(B). Moreover, we do not find it to be
appropriate for us to read such a requirement into the statute. Instead, we conclude that it
is up to a defendant, as a matter of trial strategy, to decide whether to attack the
measurement by eliciting evidence of the margin of error or uncertainty.

Although Hill cites to United States v. Spirk, 503 F.3d 619, 622-23 (7th Cir. 2007)
and State v. Spear, 297 Kan. 780, 791, 304 P.3d 1246 (2013) in support of his argument,
we find neither case to be applicable here. In both cases, the jury was left to speculate
regarding a necessary element of a crime because there was no evidence beyond the
"guess" of a witness. In this case, however, the State did present evidence from a
qualified forensic scientist about the weight of the methamphetamine purchased in the
controlled drug buy and regarding the procedures that the scientist followed in weighing
the evidence. Thus, it was up to the jury to determine whether to believe that testimony of
the KBI forensic scientist regarding the weight of the methamphetamine, and it is not our
role to replace the judgment of the finders of fact with that of our own.

Sufficiency of Evidence Relating to Distribution

Hill further argues that the State did not present sufficient evidence at trial to
establish beyond a reasonable doubt that he distributed methamphetamine to Knoll. In
particular, Hill suggests that Knoll was motivated to lie and that no other witness
corroborated her testimony. In response, the State argues that Hill is asking us to reweigh
the evidence and to assess the credibility of the witnesses.

Once again, in reviewing the evidence in the light most favorable to the State, we
find that the record contains sufficient evidence upon which a reasonable finder of fact
could conclude beyond a reasonable doubt that Hill is guilty of distribution of
methamphetamine. In fact, the testimony of Knoll is sufficient—in itself—to establish
that Hill sold methamphetamine to her during the controlled drug purchase. As the
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Kansas Supreme Court has found, uncorroborated testimony is sufficient to sustain a
conviction if it is not so incredible and improbable as to defy belief. See State v.
Brinklow, 288 Kan. 39, 53, 200 P.3d 1225 (2009) (citing State v. Plunkett, 261 Kan.
1024, 1033, 934 P.2d 113 [1997]).

Although Hill acknowledges the holding in Brinklow, he cites us to State v.
Matlock in support of his argument. However, as our Supreme Court noted in its more
recent Brinklow opinion, Matlock "is perhaps the only case of its kind in this state where
[it] directly weighed the evidence and assessed the credibility of the prosecutrix to
reverse a conviction for rape." Brinklow, 288 Kan. 53. In fact, our Supreme Court went
on to call the review of the facts performed in Matlock to be "aberrant" as compared to
the normal standard of review for sufficiency of the evidence. Brinklow, 288 Kan. at 53-
54.

We see no reason to apply Matlock to the present case. Rather, we find that it was
appropriate for the jury to determine Knoll's credibility and to weigh her testimony
against the other evidence presented at trial. Moreover, we note that other evidence
corroborated much of Knoll's testimony, including the testimony of Deputy Samuels, the
testimony of Deputy Ohlemeier, and the testimony of Deputy Vortherms. Likewise, the
physical evidence seized from Hill's apartment—including digital scales, a straw lined
with methamphetamine residue, and a baggie with methamphetamine residue—also
corroborated much of Knoll's testimony.

We, therefore, conclude that the evidence presented by the State at trial was
sufficient to support a conclusion beyond a reasonable doubt that Hill is guilty of
distributing methamphetamine in violation of K.S.A. 2016 Supp. 21-5705(a)(1) and
(d)(3)(B).

Affirmed.