State v. Miller

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NOT DESIGNATED FOR PUBLICATION

No. 116,482

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TJAY MILLER,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed October 13,
2017. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., MALONE, J., and LORI A. BOLTON FLEMING, District Judge,
assigned.

PER CURIAM: A jury convicted TJay Miller of multiple crimes in two separate,
consolidated cases. In case No. 15CR1423, the jury convicted Miller of possession of
methamphetamine with intent to distribute, fleeing or attempting to elude police officers,
driving with a suspended license, and making an improper left turn. In case No. 16CR67,
the jury convicted Miller of possession of methamphetamine with intent to distribute and
possession of drug paraphernalia for personal use. On appeal, Miller claims there was
insufficient evidence to support his convictions of possession of methamphetamine with
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intent to distribute. He also claims the district court erred in consolidating the two cases
for trial. We disagree with Miller's claims and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On November 9, 2014, while on patrol, Wichita Police Officers Justin Rapp and
Robert Thatcher observed a car speeding through a residential neighborhood. While
following the car, the officers saw it make an improper left turn, a traffic infraction. The
officers turned on their emergency lights and attempted to pull the car over, but the car
initially tried to flee. Soon thereafter, the car broke down and came to a stop. After the
car came to a stop, a female jumped out of the passenger side door, yelling for help. As
officers approached the car, they observed Miller in the driver's seat. When Miller did not
comply with requests to exit, Thatcher removed him from the car. Thatcher then searched
the car, finding a bag containing 61 grams of methamphetamine in the center console.

On May 8, 2015, the State charged Miller in 15CR1423 with possession of
methamphetamine with intent to distribute, fleeing or attempting to elude police officers,
driving with a suspended license, and making an improper left turn. Miller was released
on bond pending trial. Then, on November 4, 2015, Wichita Police Officers Edward
Johnson and Victor Trillo responded to a call regarding a "suspicious character" in a car
in a Dollar General store parking lot. When the officers arrived, they found Miller
sleeping in the driver's seat of the car.

After getting Miller out of the car, the officers noticed a bulge in his right sock.
Miller admitted that the bulge was from a "meth pipe." While Johnson was retrieving the
pipe, he noticed another bulge in Miller's left sock. Johnson reached into Miller's sock
and retrieved a baggie containing 7.85 grams of methamphetamine. During further
investigation, the police obtained a search warrant for Miller's cell phone and found
several text messages indicating that Miller used the phone to conduct drug sales.
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On January 6, 2016, the State charged Miller in 16CR67 with possession of
methamphetamine with intent to distribute and possession of drug paraphernalia for
personal use. On February 19, 2016, the State filed a motion to consolidate the two cases.
In the motion, the State argued that because the crimes charged were of the same or
similar character, the two cases should be consolidated under K.S.A. 22-3202(1) and
K.S.A. 22-3203. The State also argued that the two cases should be consolidated pursuant
to K.S.A. 2014 Supp. 21-5110 because both cases required the production of the same
evidence.

Miller did not file a written response to the motion. At the hearing on the motion,
Miller objected to the consolidation, arguing that it was more prejudicial than probative
and that judicial economy would not be enhanced by consolidating the cases. After
hearing the arguments, the district court granted the State's motion to consolidate under
K.S.A. 22-3202(1), finding that the cases were of the same or similar character and
judicial economy would be promoted by consolidating the cases.

A jury trial commenced on February 29, 2016. Officers Rapp and Thatcher
testified about the incident on November 9, 2014. Officers Johnson and Trillo testified
about the incident on November 4, 2015. Detective Mark McKee testified about the text
messages on Miller's phone indicating that he used the phone to conduct drug sales.
McKee identified seven specific text messages, and transcripts of the messages were
introduced into evidence as exhibits. Other forensic witnesses testified for the State in
order to identify the narcotics seized from Miller as methamphetamine. One witness
testified that he was unable to identify any latent fingerprints on the bag containing the
methamphetamine found in the car on November 9, 2014.

Miller did not testify at trial. However, his step-sister, Jessica Rourke, testified for
the defense. Rourke testified that the car involved in the November 9, 2014 incident was
owned by Miller's half-brother, Billy Miller, and the car was registered to Jessica. Rourke
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also testified that Billy's girlfriend sometimes drove the car. Miller's defense in
15CR1423 was that the methamphetamine found in the car was not his. As to the
possession of methamphetamine charge in 16CR67, Miller's defense was that the
methamphetamine found in his sock was for personal use, not for distribution.

After hearing the evidence, the jury convicted Miller of all charges. At sentencing
on April 6, 2016, the district court imposed a controlling sentence in both cases of 130
months' imprisonment. Miller timely filed a notice of appeal.

SUFFICIENCY OF THE EVIDENCE

Miller first claims there was insufficient evidence to support his convictions of
possession of methamphetamine with intent to distribute. "'When the sufficiency of the
evidence is challenged in a criminal case, this court reviews the evidence in a light most
favorable to the State to determine whether a rational factfinder could have found the
defendant guilty beyond a reasonable doubt.' [Citation omitted.]" State v. Rosa, 304 Kan.
429, 432-33, 371 P.3d 915 (2016). "'In making a sufficiency determination, the appellate
court does not reweigh evidence, resolve evidentiary conflicts, or make determinations
regarding witness credibility.' [Citations omitted.]" State v. Dunn, 304 Kan. 773, 822, 375
P.3d 332 (2016). Moreover, circumstantial evidence is sufficient to support a conviction
as long as it provides a reasonable basis for the jury to reasonably infer each element of
the crime. See State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016).

Case No. 15CR1423

In regard to 15CR1423, Miller claims there was insufficient evidence to support
his conviction of possession of methamphetamine with intent to distribute on November
9, 2014. Specifically, Miller argues that because the State did not present direct evidence
that he controlled the methamphetamine or that he knew the narcotics were in the car, the
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State failed to prove the possession element of the crime. The State asserts that there was
sufficient evidence to support the conviction and that this court may not disturb the jury's
verdict simply because Miller can provide an alternative explanation for the evidence.

The State charged Miller with possession of methamphetamine with intent to
distribute in violation of K.S.A. 2014 Supp. 21-5705(a)(1). That statute provides: "It
shall be unlawful for any person to distribute or possess with the intent to distribute any
of the following controlled substances or controlled substance analogs thereof: (1)
Opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3)
or (f)(1) of K.S.A. 65-4107, and amendments thereto." K.S.A. 2014 Supp. 65-4107(d)(3)
includes methamphetamine. At trial, the district court instructed the jury that
"'[p]ossession' means having joint or exclusive control over an item with knowledge of
and 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." See PIK Crim. 4th 57.020 (2014
Supp.).

Miller cites State v. Vandiver, 257 Kan. 53, 61, 891 P.2d 350 (1995), for the
proposition that a defendant's mere presence or access to drugs is insufficient to establish
possession. While this assertion is true, other circumstances can establish a defendant's
constructive possession of drugs. These circumstances include "the 'defendant's previous
participation in the sale of drugs, use of narcotics, proximity to the area where drugs are
found, and the fact the drugs were found in plain view.'" Rosa, 304 Kan. at 434. Although
no one circumstance alone may be sufficient to support a conviction, the circumstances
taken together can provide sufficient evidence to support a conviction. 304 Kan. at 434.

Here, the State introduced Miller's text messages indicating that he sold drugs,
including methamphetamine, to numerous individuals. Also, the State presented the
circumstantial evidence that Miller fled from police before being arrested, inferring a
guilty state of mind. Miller's step-sister also testified that Miller did occasionally drive
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the car where the methamphetamine was found. Finally, the evidence established that
Miller later possessed methamphetamine in the Dollar General store parking lot.

Based on this evidence, viewed in the light most favorable to the State, a rational
fact-finder could reasonably find that Miller possessed the methamphetamine found in
the center console of the car with the knowledge of and intent to have control over the
narcotics. While some of the evidence presented was circumstantial, the fact that Miller
can provide an alternative explanation for the evidence does not make it insufficient to
support the verdict. We conclude there was sufficient evidence to support Miller's
conviction of possession of methamphetamine with intent to distribute in 15CR1423.

Case No. 16CR67

As to 16CR67, Miller claims there was insufficient evidence to support his
conviction of possession of methamphetamine with intent to distribute on November 4,
2015. Miller argues that the methamphetamine found in his sock was for personal use
only and there was insufficient evidence to support the element of the crime that Miller
intended to distribute the narcotics. Miller points to the fact that no text message actually
refers to him selling drugs on November 4, 2015. He also asserts that because no "indicia
of sale or distribution"—such as a list of clients, scales, or large amount of money—was
found when he was arrested, the evidence established that Miller intended to personally
use the methamphetamine. The State asserts there was sufficient evidence to establish
that Miller intended to sell the methamphetamine found during the 2015 incident.

As we have explained, circumstantial evidence is sufficient to support a conviction
for even the most serious offense. See Logsdon, 304 Kan. at 25. Here, the evidence
established that Miller sent text messages discussing the sale of methamphetamine just a
few hours before his arrest on November 4, 2015. More importantly, K.S.A. 2014 Supp.
21-5705(e)(2) establishes a rebuttable presumption of an intent to distribute when a
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defendant possesses 3.5 grams or more of methamphetamine. Also, Thatcher testified at
trial that methamphetamine users typically do not use more than 1 gram each day for
personal consumption. Based on this evidence, viewed in the light most favorable to the
State, a rational fact-finder could reasonably find that Miller intended to distribute the
methamphetamine found on his person on November 4, 2015. Thus, there was sufficient
evidence to support the conviction in 16CR67.

CONSOLIDATION OF THE CASES FOR TRIAL

Next, Miller claims the district court erred in consolidating the two cases for trial.
Miller argues that consolidation was improper under K.S.A. 22-3202(1) because the
charges in the two cases were not of the same or similar character. He also argues that
joinder of the two cases was improper because it unfairly prejudiced his right to a fair
trial. Specifically, he asserts that (1) joinder of the cases for trial created jury confusion;
(2) evidence was admitted in the consolidated trial that would have been inadmissible at
separate trials; and (3) joinder of the trials adversely implicated his right to testify.

The State argues that Miller failed to preserve this issue for appeal because he is
raising arguments against joinder on appeal that he did not raise in district court. On the
merits, the State argues that the district court did not abuse its discretion in consolidating
the cases. Finally, the State asserts that joinder of the two cases for trial was compulsory
under K.S.A. 2014 Supp. 21-5110.

"An appellate court applies a three-step analysis in reviewing potential
consolidation errors, utilizing a different standard of review at each step. First, the court
considers whether K.S.A. 22-3203 permitted consolidation. Under that statute, multiple
complaints against a defendant can be tried together if the State could have brought the
charges in a single complaint. K.S.A. 22-3202(1) spells out the three conditions
permitting the joining of multiple crimes in a single complaint. Whether one of the
conditions is satisfied is a fact-specific inquiry, and the appellate court reviews the
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district court's factual findings for substantial competent evidence and the legal
conclusion that one of the conditions is met de novo. Second, because K.S.A. 22-3202
provides that charges 'may' be joined, a district court retains discretion to deny a request
to consolidate even if a statutory condition is met. This decision is reviewed for an abuse
of discretion. Finally, if an error occurred in the preceding steps, the appellate court
considers whether the error resulted in prejudice, i.e., whether it affected a party's
substantial rights." State v. Hurd, 298 Kan. 555, Syl. ¶ 1, 316 P.3d 696 (2013).

As a preliminary matter, the State argues that Miller has failed to preserve this
issue for appeal because he is raising arguments against joinder on appeal that he did not
raise in district court. In district court, while Miller did not file a written response to the
State's motion to consolidate, he did object to the consolidation at the hearing on the
motion. Miller's entire objection and argument in district court was as follows: "I object
to this motion to consolidate. I think that consolidating this will be more prejudicial than
probative. As far as I can see, there are no overlapping officers in both cases, so the only
judicial economy is one trial instead of two. So I would object." Miller renewed his
objection to the consolidation at trial, but he offered no further argument on the issue.

Miller never argued in district court that consolidation was improper because the
charges in the two cases were not of the same or similar character. He makes this
argument on appeal, although he cites no Kansas cases to support his claim. As a general
rule, a defendant cannot object on one ground in district court and then assert another
ground on appeal. State v. Richmond, 289 Kan. 419, 428, 212 P.3d 165 (2009). However,
because the record reflects that Miller raised a general objection to consolidating the
cases for trial in district court, we will address the merits of his claim on appeal.

K.S.A. 22-3203 provides that the "court may order two or more complaints,
informations or indictments against a single defendant to be tried together if the crimes
could have been joined in a single complaint, information or indictment." K.S.A. 22-
3202(1) provides that two or more crimes may be charged against a defendant in the
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same complaint if the crimes charged "are of the same or similar character or are based
on the same act or transaction or on two or more acts or transactions connected together
or constituting parts of a common scheme or plan."

Miller's possession of methamphetamine with intent to distribute charges could
have been joined in a single complaint because the crimes were of the same or similar
character. Our Supreme Court has held that crimes are of the same or similar character
"'where all of the offenses charged are of the same general character, requiring the same
mode of trial, the same kind of evidence, and the same kind of punishment.'" State v.
Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999).

State v. Zarate, No. 113,388, 2016 WL 3856918 (Kan. App. 2016) (unpublished
opinion), rev. denied ___ Kan. ___ (August 28, 2017), is almost directly on point with
respect to the facts of Miller's cases. In Zarate, police arrested the defendant on two
separate occasions for suspicion of selling methamphetamine. These arrests occurred
nearly a year apart. The State initially charged the defendant with possession of
methamphetamine with intent to distribute in two separate cases. However, the district
court later granted the State's motion to consolidate the cases for trial. A jury ultimately
convicted the defendant of both charges.

On appeal, the defendant argued that the district court improperly consolidated the
two cases for trial. Our court rejected that claim noting that both cases involved the same
charge: possession of methamphetamine with intent to distribute. Likewise, the
quantities of methamphetamine the defendant possessed in each case indicated
distribution, not personal use. 2016 WL 3856918, at *4. Finally, our court found that the
discrepancy in the amount of methamphetamine possessed in each case (9 grams in one
case and 120 grams in the other) did not change the fact that the amount possessed in
both cases was indicative of distribution. 2016 WL 3856918, at *5.

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Like in Zarate, Miller's two cases involved the same charge: possession of
methamphetamine with the intent to distribute. Miller's cases involved amounts of
methamphetamine that were indicative of distribution, not personal use. Similar to
Zarate, the fact that the amount of methamphetamine was different in each case (7.85
grams in one case and 61 grams in the other) is of no meaningful difference as to whether
the charges are of the same or similar character. Moreover, Miller's cases involved the
same kind of evidence (text messages indicating Miller sold methamphetamine; expert
testimony as to how drugs are scientifically determined to be methamphetamine), the
same mode of trial (trial by jury), and the same kind of punishment (a prison sentence).
Based on these factors, we have no difficulty concluding that the charges in Miller's cases
were of the same or similar character to be properly consolidated for trial.

Next, we must consider whether the district court abused its discretion by
consolidating the two cases. A judicial action constitutes an abuse of discretion if (1) no
reasonable person would take the view adopted by the district court; (2) the action is
based on an error of law; or (3) the action is based on an error of fact. State v. Marshall,
303 Kan. 438, 445, 362 P.3d 587 (2015). The party asserting that the district court abused
its discretion bears the burden of showing such abuse of discretion. State v. Robinson,
303 Kan. 11, 90, 363 P.3d 875 (2015), cert. denied 137 S. Ct. 164 (2016).

Miller first asserts that joinder of the cases for trial created jury confusion and
made it difficult for the jury to "compartmentalize the evidence and consider the counts
separately." Miller cites the fact that during deliberations the jury asked the district court
whether it could consider evidence from one case to decide the other case.

At trial, the district court instructed the jury that each crime charged against Miller
was a separate and distinct offense and each charge must be decided separately. An
appellate court presumes that a jury followed the district court's instructions. State v.
Cromwell, 253 Kan. 495, 510, 856 P.2d 1299 (1993). The jury certainly was allowed to
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consider all the evidence presented at trial to reach a verdict on the charges in each case
provided they understood that each charge was a distinct offense that must be decided
separately. As for the jury's question on this point, the district court properly responded:
"Yes. Please refer to instructions as previously given." Miller fails to establish his claim
that joinder of the cases for trial created jury confusion.

Next, Miller asserts that under K.S.A. 60-455, some of the evidence presented
against him at the consolidated trial would have been inadmissible at separate trials.
However, "Kansas case law and the provisions of K.S.A. 22-3202(1) make it clear that
joinder is not dependent upon the other crimes being joined meeting the admissibility test
set forth in K.S.A. 60-455." Barksdale, 266 Kan. at 510. Thus, we reject Miller's
assertion that joinder of the cases for trial was improper for this reason.

Finally, Miller argues that joinder of the cases for trial adversely implicated his
right to testify. Specifically, Miller asserts that he may have wanted to testify on his own
behalf in one case but not the other case had the charges been tried separately. However,
Miller never asserted in district court that he wanted to testify in one case but not the
other. Considering that even an express desire to testify in one case but not the other does
not necessarily prohibit joinder or constitute grounds for reversal, his assertion on appeal
that he may have decided to testify in one case is unpersuasive. See State v. Howell, 223
Kan. 282, 284-85, 573 P.2d 1003 (1977) (accused's election to testify on some but not all
the charges at trial does not automatically require severance).

To sum up, the two complaints filed against Miller could have been joined in a
single complaint because the charges were of the same or similar character. Miller fails to
establish that he was unfairly prejudiced by the joinder of the charges for trial. Thus, we
conclude the district court did not err in consolidating the two cases for trial.

Affirmed.