State v. Brazzle

S
              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                       No. 116,649

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                              ANTHONY MICHAEL BRAZZLE,
                                     Appellant.


                             SYLLABUS BY THE COURT

1.
       If a defendant argues he or she lacked the intent to distribute drugs, evidence about
a prior crime committed by the defendant may be material, especially if evidence
establishes similarities between the prior crime and the charged crime.


2.
       A party's failure to argue in a petition for review why the Court of Appeals erred
in an invited error analysis means the party has waived any argument before this court as
to why the invited error doctrine did not apply.


3.
       Appellate courts weighing sufficiency do not distinguish between direct and
circumstantial evidence in terms of probative value because a conviction of even the
gravest offense can be based on circumstantial evidence. Thus, even if the State does not
present direct evidence that a defendant charged with unlawfully possessing the



                                             1
controlled substance oxycodone did not have a prescription for the drug, circumstantial
evidence could establish the lack of a prescription.


4.
        Proof of the identity of a substance by circumstantial evidence may be sufficient to
affirm a conviction in a drug prosecution even if no scientific test results are admitted or
available.


5.
        Under K.S.A. 60-404, a timely interposed objection is required before this court
can overturn a verdict because a district court erroneously admitted evidence.


        Review of the judgment of the Court of Appeals in 

55 Kan. App. 2d 276

, 

411 P.3d 1250

(2018).
Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed July 10, 2020. Judgment of
the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.


        Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.


        Barry K. Disney, senior deputy county attorney, argued the cause, and James W. Garrison,
assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were on
the brief for appellee.


The opinion of the court was delivered by


        LUCKERT, C.J.: Anthony Michael Brazzle petitions this court for review of the
Court of Appeals' decision affirming his drug-related convictions, including possession of



                                                      2
methamphetamine with intent to distribute and possession of oxycodone. He argues the
district court erred in admitting K.S.A. 60-455 evidence related to two prior
methamphetamine sales to undercover detectives about a week before the events at issue,
the district court clearly erred in instructing the jury on possession of oxycodone, and
insufficient evidence supported his conviction for possession of oxycodone.


       We find no reversible error and affirm Brazzle's convictions.


                        FACTUAL AND PROCEDURAL BACKGROUND


       Law enforcement officers arrested Brazzle after he drove away from the Royal
Inn, a hotel in Riley County. Law enforcement officers had the Inn under surveillance
because they had learned about an uptick in drug usage and distribution at the hotel. The
officers saw a car come to the hotel and leave about 10 to 15 minutes later. As the car
pulled out of the parking lot, the driver, later identified as Anthony Brazzle, committed a
traffic infraction. The officers followed Brazzle and initiated a traffic stop. Brazzle was
alone in the vehicle. Brazzle first reported his name was Marcus Brazzle, but he
eventually admitted he was Anthony Michael Brazzle.


       During the stop, K9 Officer Andrew Toolin arrived and walked his dog around the
vehicle. After the dog alerted, Toolin searched the vehicle. He found a small, gray pill
under the driver's floorboard. Toolin identified the pill, which had a "K 57" marking on it,
as oxycodone hydrochloride by using "a common method of drugs.com." Toolin said law
enforcement officers in the United States use this website to identify pills. Toolin also
found a glass smoking device with white residue under the driver's seat and brass
knuckles in the front driver's door panel.


                                              3
       Underneath the passenger seat, Toolin found a plastic baggie containing a Crown
Royal bag. The Crown Royal bag contained two small ziplock baggies of a crystal-like
substance Toolin believed was methamphetamine; another glass smoking device; U.S.
currency totaling $128; more small, gray pills with a "K 57" marking; and unused, small
ziplock plastic baggies. Toolin testified that the baggie containing the Crown Royal bag
was easily within reach of the driver's seat.


       Toolin testified the two baggies with the crystal-like substance weighed 3.4 grams
and 5.7 grams. Toolin said this was "a lot" of methamphetamine and, in his training and
experience, these amounts were consistent with a distributable amount of
methamphetamine. He added that a normal amount for a user to possess is anywhere
from a quarter gram to a gram at a time.


       Later testing performed by a Kansas Bureau of Investigation (KBI) forensic
scientist confirmed the bags contained methamphetamine with a net weight of 2.98 grams
and 5.28 grams, respectively. One of the glass smoking devices also tested positive for
methamphetamine. No evidence established that the gray pills were tested.


       Toolin testified, citing his training and experience, that smaller ziplock baggies are
used to package illegal drugs. He also testified the $128 found with the
methamphetamine was in denominations allowing a distributor to make change and drug
dealers commonly store money used for that purpose with the drugs the dealer plans to
distribute.




                                                4
       The State originally charged Brazzle with possession with intent to distribute
methamphetamine, possession of drug paraphernalia, and criminal use of a weapon. The
State later added a charge of unlawful possession of a controlled substance, oxycodone.


       Before trial, the State filed a motion to determine admissibility of K.S.A. 60-455
evidence. The State sought to admit testimony from an undercover detective who had
purchased methamphetamine from Brazzle about a week before his arrest. Following a
hearing, the district court permitted the State to present this evidence to show whether
Brazzle intended to distribute the methamphetamine found during the car stop.


       At trial, over objection from Brazzle's attorney, the undercover detective testified
he and his undercover partner had connected with Brazzle through another person who
told the detective to come to the Royal Inn hotel. Once there, Brazzle sold the detectives
3.5 grams of methamphetamine for $200. A few days later, Brazzle offered to again sell
methamphetamine to the testifying detective at Royal Inn, but the detective asked to
move to a different location. The detective said he also received unused plastic baggies
from Brazzle and the only reason to have these baggies is to distribute methamphetamine.


       Brazzle presented no evidence.


       The district court instructed the jury that the prior crime evidence could "be
considered solely for the purpose of proving the defendant's intent with the controlled
substances." The district court also instructed the jury on the statutorily created rebuttable
presumption of an intent to distribute if any person possesses 3.5 grams or more of
methamphetamine. See K.S.A. 2015 Supp. 21-5705(e)(2). And at Brazzle's request, the
district court instructed the jury that possession with intent to distribute includes the


                                               5
lesser offense of possession of methamphetamine. The jury convicted Brazzle on all
counts as charged.


       The district court denied Brazzle's motion for a departure sentence and sentenced
Brazzle to 105 months' imprisonment for the primary offense of possession with intent to
distribute methamphetamine. The district court ran Brazzle's other sentences concurrent
with the 105-month sentence. During the same hearing, the district court ran the sentence
concurrent with Brazzle's 55-month sentence in another case. And finally, the district
court ran the concurrent sentences consecutive to Brazzle's 20-month sentence imposed
based on a probation violation in an earlier case.


       On direct appeal, the Court of Appeals affirmed Brazzle's convictions. State v.
Brazzle, 

55 Kan. App. 2d 276

, 

411 P.3d 1250

(2018). This court granted Brazzle's
petition for review.


1.     ADMISSION OF K.S.A. 2019 SUPP. 60-455 EVIDENCE NOT ERROR


       As announced in State v. Gunby, 

282 Kan. 39

, 57, 

144 P.3d 647

(2006), K.S.A.
2019 Supp. 60-455 governs the admissibility of all evidence of other crimes and civil
wrongs. K.S.A. 2019 Supp. 60-455 provides in relevant part:


               "(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person
       committed a crime or civil wrong on a specified occasion, is inadmissible to prove such
       person's disposition to commit crime or civil wrong as the basis for an inference that the
       person committed another crime or civil wrong on another specified occasion.




                                                    6
               "(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such
       evidence is admissible when relevant to prove some other material fact including motive,
       opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
       accident."


       This court has instructed district courts to use a three-prong test when applying
this provision and has identified the standard of review for each step.


       First, the district court must determine whether the fact to be proven is material.
Courts answer this question by considering whether the "fact has some real bearing on
the decision in the case." State v. Torres, 

294 Kan. 135

, 139, 

273 P.3d 729

(2012). An
appellate court reviewing this determination gives no deference to the district court,
examining this prong independently. State v. Garcia-Garcia, 

309 Kan. 801

, 811, 

441 P.3d 52

(2019).


       Second, a district court "must decide whether the material fact is disputed, and if
so, whether the evidence at issue is relevant to proving the disputed material fact. In
doing so, the trial court considers if the evidence has any tendency in reason to prove the
disputed material fact." 

Garcia-Garcia, 309 Kan. at 811

. In Garcia-Garcia, as in most
other recent cases, we have identified the appellate standard for review as whether the
district court committed an abuse of 

discretion. 309 Kan. at 811

; see, e.g., State v.
Haygood, 

308 Kan. 1387

, 1392, 

430 P.3d 11

(2018); State v. Richard, 

300 Kan. 715

, 721,

333 P.3d 179

(2014); 

Torres, 294 Kan. at 139-40

.




                                                   7
       In other decisions, we have emphasized the relevancy aspect of this inquiry
requires two assessments: "the probative value of the evidence to be admitted and
whether that evidence is being admitted for the purpose of proving a material fact." State
v. Boggs, 

287 Kan. 298

, 308, 

197 P.3d 441

(2008). Boggs and other cases listing these
two assessments identify a standard of review for each: "The probative value of the
evidence is reviewed for an abuse of discretion; the materiality question requires a legal
determination as to the elements or a particular offense and is therefore reviewed de

novo.” 287 Kan. at 308

. These statements track those we use in any context when
examining relevance. See, e.g., State v. Robinson, 

306 Kan. 431

, 435, 

394 P.3d 868

(2017) (citing State v. Shadden, 

290 Kan. 803

, 817, 

235 P.3d 436

[2010]).


       Although not explaining the difference, the 60-455 cases that do not separately
discuss the two aspects of relevance likely do not include the materiality review in this
second prong simply because the court has already examined materiality in analyzing the
first prong. Because we recognize that a side-by-side comparison of the two lines of cases
might cause some momentary confusion, we clarify that the two approaches do not vary
substantively.


       Turning to the third prong, the district court must determine whether the risk of
undue prejudice substantially outweighs the evidence's probative value. An appellate
court again reviews this for abuse of discretion. State v. Thurber, 

308 Kan. 140

, 202, 

420 P.3d 389

(2018). See also State v. Satchell, 311 Kan. ___, 

2020 WL 3479152

, at *7
(2020) (clarifying that the risk of undue prejudice must "substantially outweigh" the
evidence's probative value, despite occasional shorthand references in some cases
omitting the word "substantially").



                                             8
       If the evidence fulfills the three prongs, it is admissible, but the district court must
give the jury a limiting instruction "telling the jury the specific purpose for which the
evidence has been admitted (and reminding them that it may only be considered for that
purpose)." 

Torres, 294 Kan. at 140

; see 

Haygood, 308 Kan. at 1393

.


       1.1.   Evidence Material to Intent to Distribute


       Brazzle argues the district court erred by allowing the State to present evidence of
his selling methamphetamine to undercover detectives twice about a week before the car
stop. The parties, the district court, and the Court of Appeals primarily focused on our
caselaw arising from charges of possession of drugs, which we often refer to as "simple"
possession, as opposed to Brazzle's charged offense of possession with the intent to
distribute. See State v. Rosa, 

304 Kan. 429

, 436-37, 

371 P.3d 915

(2016); 

Boggs, 287 Kan. at 312

; State v. Graham, 

244 Kan. 194

, 198, 

768 P.2d 259

(1989) (cited in PIK
Crim. 4th 51.030, Comment II, C[3]); State v. Faulkner, 

220 Kan. 153

, Syl. ¶ 3, 

551 P.2d 1247

(1976); State v. Bly, 

215 Kan. 168

, 176, 

523 P.2d 397

(1974), overruled on other
grounds by State v. Mims, 

220 Kan. 726

, 

556 P.2d 387

(1976), disapproved on other
grounds by 

Gunby, 282 Kan. at 54-55

.


       But in State v. Preston, 

294 Kan. 27

, 33, 

272 P.3d 1275

(2012), we observed that
the analysis of the materiality and relevance of 60-455 evidence might be different when
the charge is possession with intent to distribute as opposed to simple possession. Preston
did not further discuss the issue because the parties' arguments made no distinction. Here,
they do.



                                               9
       The State contends that Brazzle, through his counsel, argued his possession, if any,
was simply for personal use rather than distribution. The State argues the prior crime
evidence was relevant to Brazzle's intent to distribute the drugs. 

Cf. 294 Kan. at 33

. The
State also argues our 60-455 caselaw on simple possession—citing most specifically the
reasoning in Boggs, 

287 Kan. 298

—should not guide the outcome here. The State
accurately notes that in Boggs and similar cases "possession proved the offense." In other
words, the other crimes evidence simply proved propensity. But, as the State argues, "the
fact or material element of intent to distribute was not obvious from the mere fact the
Defendant was in possession of the controlled substance." Rather, for example, evidence
that a defendant repeatedly used a particular location for or method of distributing drugs
might bear on a jury's decision about whether the possession was intended for distribution
rather than personal use.


        The Court of Appeals found merit to the distinction, explaining that "[n]ot only
was Brazzle's knowledge of the contraband and intent to exercise control over the
contraband questioned but so was his intent in possessing the contraband, i.e., whether he
intended the drugs and contraband for personal use or for distribution." (Emphasis

added.) 55 Kan. App. 2d at 280

. The panel held evidence of Brazzle's prior
methamphetamine sales, "a week prior to his arrest in this case at a location he had just
left before the traffic stop in this case is highly probative of his intent to distribute the
methamphetamine he possessed rather than to possess it for personal use." 

55 Kan. App. 2d

at 280. We agree that Brazzle both put the issue of intent to distribute in dispute and
that the evidence was material.


        As to the question of whether the issue was disputed, Brazzle's counsel
acknowledged before trial that "obviously the intent or possession is the big issue in this


                                               10
case." Then, during the trial, Brazzle's counsel requested and received an instruction on
simple possession as a lesser included offense of possession with intent to distribute. See
State v. Bates, No. 117,419, 

2019 WL 1412600

, at *9 (Kan. App. 2019) (unpublished
opinion) ("simple possession is a lesser included offense of the crime of possession with
intent to distribute"). And during closing argument, his counsel argued baggies alone
were not enough to show that someone intended to distribute.


       As to the point of whether this dispute impacts the admissibility of the other
crimes evidence, we note that this appears to be an undecided question in Kansas, at least
post-Gunby. The parties do not cite, nor have we found, a post-Gunby case from this
court addressing this exact issue. A case from the Court of Appeals addressing a limiting
instruction issue has reasoned that a jury could infer the defendant's intent to distribute
the marijuana from evidence of prior sales of marijuana. State v. Pearson, No. 114,298,

2017 WL 1367030

, at *6 (Kan. App. 2017) (unpublished opinion). But in that case, the
parties agreed the evidence was admissible to prove intent, and the issue before the Court
of Appeals was whether the lack of a limiting instruction amounted to reversible error.


       Courts from other jurisdictions have reached the same holding as did the Court of
Appeals, however. One example is Trujillo v. State, 

2 P.3d 567

, 572 (Wyo. 2000).


       There, the defendant argued the district court erroneously admitted evidence of his
prior drug transactions in a prosecution for possession of marijuana and possession with
intent to deliver psilocybin mushrooms. The defendant admitted he possessed the
marijuana and mushrooms, but his defense, announced by his counsel during opening
statement, was that he possessed the mushrooms for personal consumption.



                                              11
          On appeal, the Wyoming Supreme Court held "[e]vidence establishing that
Trujillo had engaged in narcotics transactions, one as a seller and another in which he
would be 'fronted' a pound of marijuana, was . . . particularly relevant to the issue of

intent.” 2 P.3d at 572

. See also United States v. Robison, 

904 F.2d 365

, 368 (6th Cir.
1990) (when defendant asserted that he was only a user of drugs, prior evidence
suggesting previous drug deals was admissible to prove intent in prosecution for
conspiracy to distribute cocaine and possession with intent to distribute cocaine). While
arguably Brazzle's arguments were more subtle, his attorney clearly placed in issue the
question of whether Brazzle was guilty of "simple" possession or possession with the
intent to distribute.


          Given this dispute, the prior crimes evidence could be material to the question of
whether Brazzle intended to personally use the drugs or to distribute them. We say "could
be" because other crimes evidence may not always be material to prove an intent to
distribute. Here, we conclude the similarity between the prior crimes evidence and the
evidence of the alleged crime bears on the decision of whether Brazzle intended to
distribute the methamphetamine. State v. Faulkner, 

220 Kan. 153

, 157, 

551 P.2d 1247

(1976) ("The similarity of offenses is a key factor in relevancy."). See generally State v.
Seacat, 

303 Kan. 622

, 629-31, 

366 P.3d 208

(2016) ("reaffirm[ing] the principle that
K.S.A. 2014 Supp. 60-455[b] is an inclusionary rule" and "subject to limited exceptions,
evidence of prior crimes or civil wrongs is admissible if it proves some other material
fact").




                                               12
       1.2.   Evidence's Probative Value

       Next, we must consider whether the evidence was probative. "Probative evidence
is evidence that furnishes, establishes, or contributes toward proof." 

Preston, 294 Kan. at 34

. The Court of Appeals held that the prior sales were "highly probative" of Brazzle's
"intent to distribute the methamphetamine he possessed rather than to possess it for
personal use." 

55 Kan. App. 2d

at 280.


       We agree. Brazzle had sold methamphetamine to undercover detectives at the
Royal Inn, the location Brazzle was leaving when he committed the traffic offense that
led to the search of his car. On another occasion, Brazzle invited detectives to the Inn to
purchase more drugs, but the detectives asked to move to another location. During one of
these transactions, Brazzle sold 3.5 grams—the amount that creates a rebuttal
presumption of an intent to distribute. Brazzle also provided baggies. The detective
testified the baggies were for distributing methamphetamine. Both prior transactions were
close in time to the crimes charged.


       We conclude that under these facts the prior crimes evidence was probative of
whether Brazzle had the intent to distribute.


       1.3.   Risk for Undue Prejudice Did Not Substantially Outweigh Probative Value

       Brazzle finally argues the unduly prejudicial effect of the evidence far outweighed
its probative value. "[T]o demonstrate an abuse of discretion, [Brazzle] must show that
unfair or undue prejudice arising from the admission of the evidence substantially
outweighed its probative value." State v. Vasquez, 

287 Kan. 40

, 53, 

194 P.3d 563

(2008).



                                                13
       This court has recognized at least three types of prejudice that can arise from other
crimes and civil wrong evidence:


       "'"First, a jury might well exaggerate the value of other crimes as evidence proving that,
       because the defendant has committed a similar crime before, it might properly be inferred
       that he committed this one. Secondly, the jury might conclude that the defendant deserves
       punishment because he is a general wrongdoer even if the prosecution has not established
       guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might
       conclude that because the defendant is a criminal, the evidence put in on his behalf
       should not be believed."'" 

Gunby, 282 Kan. at 48-49

(quoting State v. Davis, 

213 Kan. 54

,
       58, 

515 P.2d 802

[1973]).


       Recently, in a sex crime case involving evidence under 60-455(d), this court
discussed nonexclusive factors a district court should consider in evaluating probative
value and prejudicial effect to protect due process rights:


               "In evaluating the probative value of evidence of other crimes or civil wrongs,
       the district court should consider, among other factors: how clearly the prior act was
       proved; how probative the evidence is of the material fact sought to be proved; how
       seriously disputed the material fact is; and whether the government can obtain any less
       prejudicial evidence. In evaluating the possible prejudicial effect of evidence of other
       crimes or civil wrongs, the district court should consider, among other factors: the
       likelihood that such evidence will contribute to an improperly based jury verdict; the
       extent to which such evidence may distract the jury from the central issues of the trial;
       and how time consuming it will be to prove the prior conduct." State v. Boysaw, 

309 Kan. 526

, 541, 

439 P.3d 909

(2019).




                                                    14
       Even more recently, in a case that did not involve a sex crime, this court
encouraged district courts to state on the record the factors considered in weighing the
admissibility of 60-455(b) evidence and to use the nonexclusive Boysaw factors. State v.
Claerhout, 

310 Kan. 924

, 930-31, 

453 P.3d 855

(2019). But Claerhout ultimately held
that a "generalized, superficial weighing" of probative value against undue prejudice was
not necessarily reversible error if an appellate court could find such a deficiency
harmless. 

310 Kan. 924

, 930-31. But see Concannon, Evidence, Kansas Annual Survey
of Law, 141-42 (KBA 2020) (noting Claerhout did not explain why the Boysaw factors
applied to a case that did not include a charge of a sex offense).


       The district court and the Court of Appeals decided Brazzle's case before Boysaw
and Claerhout were published. Neither court thus discussed the Boysaw analysis. Given
that and given Claerhout's holding that superficial analysis can be deemed harmless, we
need not dwell on whether the district court should have considered the Boysaw factors
because any failure to do so was harmless.


       Even without evidence of the prior crimes, the State presented evidence from
which the jury could deduce that Brazzle intended to distribute methamphetamine: the
quantity of the drugs and the possession and distribution of baggies. As to the quantity, as
previously noted, K.S.A. 2015 Supp. 21-5705(e)(2) creates "a rebuttable presumption of
an intent to distribute if any person possesses . . . 3.5 grams or more of heroin or
methamphetamine." See 2 Uelmen and Haddox, Drug Abuse and the Law Sourcebook
§ 8:2 ("Certainly the most relevant factor in establishing an intent to distribute is the
quantity of the drug possessed. Does it exceed what an ordinary user would possess for
his own personal use?"). Evidence at trial established that one of the seized bags
contained 2.98 grams of methamphetamine and the other 5.28 grams. As to the baggies,


                                              15
Toolin testified the baggies found in the Crown Royal bag were, in his training and
experience, an indication that the plan was to distribute the drugs.


       Yet the other crimes evidence of prior sales strengthened the inference of intent to
distribute. Not only did Brazzle distribute the drugs to the undercover detectives, he
provided them with unused baggies. One of these detectives echoed Toolin's opinion that
the presence of baggies suggested the plan was to distribute the drugs.


       We must weigh this probative value against the potential prejudice. The evidence
could have led to the jury exaggerating the value of the prior crime evidence as proving
Brazzle intended to distribute methamphetamine because he had distributed it before—
once a drug dealer, always a drug dealer. Cf. State v. Everett, 

296 Kan. 1039

, 1047-48,

297 P.3d 292

(2013) (prior crimes evidence "was like putting a neon sign over Everett
that read, 'propensity to manufacture methamphetamine'"). But the jury instruction given
by the district court mitigated this prejudice by telling the jury to consider the prior sales
solely for proving intent. On balance, under an abuse of discretion standard, when one of
the major issues in the case was whether Brazzle's intent was possession or distribution,
we conclude the district court did not abuse its discretion.


       We hold that the district court did not err in admitting the prior crimes evidence
under K.S.A. 60-455.


2.     INVITED ERROR PRECLUDES BRAZZLE'S JURY INSTRUCTION CLAIM


       Brazzle argues the jury instruction on possession of oxycodone was clearly
erroneous because it did not require the jury to find that he illegally possessed oxycodone


                                              16
without a prescription. The Court of Appeals held that because Brazzle advocated for the
version of the instruction the district court gave to the jury, he could not claim error on
appeal. Brazzle, 

55 Kan. App. 2d

at 281-82. Brazzle's petition for review sets out the
same arguments he raised to the Court of Appeals and does not address the Court of
Appeals' invited error holding.


       We hold Brazzle's failure to argue in his petition for review why the Court of
Appeals erred in its invited error analysis means he has waived any argument he might
have as to why the invited error doctrine did not apply. See Supreme Court Rule
8.03(a)(4)(C) (2018 Kan. S. Ct. R. 53) ("The court will not consider issues not presented
or fairly included in the petition."); State v. Tims, 

302 Kan. 536

, 539-40, 

355 P.3d 660

(2015) (noting that defendant's failure to seek review over procedural and jurisdictional
conclusions on petition for review constitutes a waiver of those issues, but considering
appeal on question reserved). Cf. State v. Fleming, 

308 Kan. 689

, 694, 

423 P.3d 506

(2018) ("Before the Court of Appeals and us, Fleming presents four reasons the invited-
error doctrine should not apply."). See also State v. Sasser, 

305 Kan. 1231

, 1235, 

391 P.3d 698

(2017) ("Whether the invited error doctrine applies is a question of law over
which this court has unlimited review.").


3.     SUFFICIENT EVIDENCE SUPPORTS BRAZZLE'S POSSESSION OF OXYCODONE
       CONVICTION

       Brazzle next challenges the sufficiency of the evidence to support his conviction
for possession of oxycodone. This issue arises because it would have been legal for
Brazzle to possess the oxycodone if the drug had been properly prescribed for him. See
K.S.A. 2015 Supp. 21-5706(a); K.S.A. 2015 Supp. 21-5702(b); K.S.A. 2015 Supp. 65-



                                              17
4116(c)(3). Brazzle argues (1) the State presented no evidence showing he did not have a
prescription for oxycodone and (2) the only evidence establishing that the pills were
oxycodone was Toolin's testimony about comparing a pill to an image identified as
oxycodone on drugs.com.


       3.1.   Standard of Review


       A portion of Brazzle's sufficiency of the evidence challenge hinges on statutory
interpretation, a question of law subject to unlimited review. State v. Chavez, 

310 Kan. 421

, 425, 

447 P.3d 364

(2019). Once this court interprets the relevant statutes, the
remaining question is whether the State presented sufficient evidence to support Brazzle's
possession of oxycodone conviction. "'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.'" 

Rosa, 304 Kan. at 432-33

.


       3.2.   Sufficiency of Evidence Regarding Prescription


       The parties and the Court of Appeals discuss whether the State had to establish
that the defendant did not have a prescription for oxycodone or whether Brazzle had to
present an affirmative defense and prove he did. We need not delve into the complex
statutory construction issue about whether the existence of the prescription is an
affirmative defense. That is because, at the heart of Brazzle's argument, is his assertion
the State failed to present sufficient evidence because it did not present direct evidence
that he did not have a prescription for oxycodone.



                                             18
       But it is a well-established principle that appellate courts weighing sufficiency do
not distinguish "'between direct and circumstantial evidence in terms of probative value'
because '"[a] conviction of even the gravest offense can be based entirely on
circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a
reasonable one, the jury has the right to make the inference."' [Citations omitted.]" State
v. Rizal, 

310 Kan. 199

, 209-10, 

445 P.3d 734

(2019).


       Here, circumstantial evidence suggests the oxycodone was part of Brazzle's illicit
drug inventory. He stored methamphetamine, currency, most of the discovered
oxycodone pills, and unused plastic bags in a Crown Royal bag that was inside a plastic
bag. Another pill was found loose under the driver's floorboard. See State v. Stank, 

288 Wis. 2d 414

, 439, 

708 N.W.2d 43

(2005) (listing several factors supporting sufficiency of
illegal distribution of oxycodone, including proximity to large quantities of other drugs
and cash). While the district court did not task the jury with determining whether Brazzle
intended to distribute the oxycodone, we hold the same factors provide circumstantial
evidence that Brazzle's possession was illegal. The jury could infer that if the bag
contained drugs that Brazzle intended to distribute he would not put his own prescription
medications in the same bag.


       3.3.   Sufficient Evidence Establishes the Pills Were Oxycodone

       Finally, Brazzle argues that Officer Toolin's testimony about comparing the
appearance of the pills to an image of a pill identified as oxycodone on drugs.com could
not prove the pills were oxycodone.




                                             19
       Both parties cite State. v. Northrup, 

16 Kan. App. 2d 443

, 

825 P.2d 174

(1992), a
case of first impression in Kansas in which the Court of Appeals held that "proof of the
identity of a substance by circumstantial evidence may be sufficient in a drug prosecution
where no chemical tests are admitted or 

available.” 16 Kan. App. 2d at 449

. Northrup
challenged the sufficiency of the evidence supporting his conviction for possession and
sale of marijuana to an informant. At trial, the district court denied the State's attempt to
admit the alleged marijuana into evidence. And no expert testimony or laboratory
analysis was admitted that identified the substance as marijuana.


       The Northrup Court of Appeals panel reasoned that, although "scientific chemical
analysis of a substance will provide the most reliable evidence as to the identity of that
substance," such evidence is not the only evidence that will sustain a criminal conviction.
The panel followed the path of many other jurisdictions that had "concluded that the
proof of marijuana or another controlled substance may be sustained by circumstantial

evidence.” 16 Kan. App. 2d at 448-49

. See also Robinson v. State, 

348 Md. 104

, 113,

702 A.2d 741

(1997) ("[T]he great weight of authority from other state and federal courts
recognizes that circumstantial or indirect evidence may be sufficient, standing alone, to
establish the nature of a controlled substance."); Urrutia v. State, 

924 P.2d 965

, 968
(Wyo. 1996) ("The prosecution may rely on circumstantial evidence to prove the identity
of the controlled substance because 'unlawful distribution of a substance, which by its
nature is to be consumed, should not escape prosecution because the state could not seize
a sample of the substance.'"). But see State v. Jones, 

216 N.C. App. 519

, 526, 

718 S.E.2d 415

(2011) ("'[S]cientifically valid chemical analysis [, rather than visual inspection,] is
required' to identify controlled substances that are defined in terms of their chemical
composition.").



                                              20
       At one point, Brazzle argues that a prescription drug can be identified only by its
chemical structure; but he also recognizes Northrup held circumstantial evidence may be
sufficient. His main argument seems to be that the circumstantial evidence presented here
was insufficient.


       In Northrup, the panel discussed "a leading case in this area," United States v.
Dolan, 

544 F.2d 1219

(4th Cir. 1976), where the Fourth Circuit set out nonexclusive
factors to consider in determining if the State presented sufficient proof:


       "'Such circumstantial proof may include evidence of the physical appearance of the
       substance involved in the transaction, evidence that the substance produced the expected
       effects when sampled by someone familiar with the illicit drug, evidence that the
       substance was used in the same manner as the illicit drug, testimony that a high price was
       paid in cash for the substance, evidence that transactions involving the substance were
       carried on with secrecy or deviousness, and evidence that the substance was called by the
       name of the illegal narcotic by the defendant or others in his presence. [Citations
       

omitted.]'” 16 Kan. App. 2d at 453

(quoting 

Dolan, 544 F.2d at 1221

).


See also State v. Chapman, 

252 Kan. 606

, 618, 

847 P.2d 1247

(1993) (discussing
Northrup and the Dolan factors to determine whether there was sufficient evidence to
bind the defendant over on methamphetamine-related charges).


       Brazzle argues that considering these factors, the only one touched on by the State
in his case was the appearance of the pills. The State counters that uncontroverted
testimony established that the oxycodone was located next to a large quantity of
methamphetamine, baggies, and currency. While not explicitly enumerated as factors in
Northrup and Dolan, those cases made clear that the list was nonexclusive, and the


                                                    21
factors mentioned by the State seem relevant to proving that the pills were some type of
controlled substance.


       Here, there was no objection to Toolin's testimony regarding how he identified the
pill found on the driver's side of the car as oxycodone "[u]sing a common method of
drugs.com," which he said law enforcement in the United States use to identify pills. And
the State points out that there was no objection to the pills being entered into evidence. At
trial, the State introduced both the pill found on the driver's side of the car and the other
pills with the same appearance and markings found with the methamphetamine.
Moreover, although not mentioned by the State, Toolin testified that he received training
to become a police officer and to become a K9 handler. He also said that as a K9 handler,
he has contact with controlled substances regularly.


       The Court of Appeals majority noted this was an issue of first impression, but that
other courts generally address reliance on physical characteristics and a website to
identify a pharmaceutical drug in terms of hearsay exceptions or witness qualifications.
Brazzle, 

55 Kan. App. 2d

at 283. According to the majority, any defect in Toolin's
testimony related to unpreserved evidentiary issues: "the State's alleged failure to qualify
him as an expert, for his lack of foundation to testify about the identity of the pills, and
for the hearsay nature of the information upon which he relied." 

55 Kan. App. 2d

at 284.
It also held Toolin's testimony, assuming it was admissible, "provided the jury with
uncontroverted evidence that the gray pills found in the vehicle were oxycodone
hydrochloride," which was sufficient for the jury to conclude that the gray pills were
oxycodone hydrochloride. 

55 Kan. App. 2d

at 284.




                                              22
       Judge Atcheson dissented on this point and would have reversed Brazzle's
possession of oxycodone conviction for insufficient evidence. He found Toolin's
testimony required the jurors to "guess about how Officer Toolin managed this Internet
magic." He reasoned that the State had not presented evidence about "what drugs.com is,
what kind of information it offers, who sponsors it, or why it might be reliable" in
identifying drugs or how Toolin went about identifying the drugs on the website. 55 Kan.
App. 2d at 288 (Atcheson, J., concurring in part and dissenting in part). Judge Atcheson
also challenged the majority's reasoning that other courts who have considered this issue
have generally addressed it in terms of hearsay exceptions or witness qualifications,
arguing the cases cited did not apply. 

55 Kan. App. 2d

at 288-89 (Atcheson, J.,
concurring in part and dissenting in part).


       Judge Atcheson's points go to the foundation of the evidence and the weight of
Toolin's testimony that the pills were oxycodone. The court admitted his testimony on
this point without objection. A timely interposed objection is required before we can
overturn a verdict because the district court improperly admitted evidence. See K.S.A.
60-404 ("A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous admission of evidence unless there
appears of record objection to the evidence timely interposed and so stated as to make
clear the specific ground of objection."); see State v. Ballou, 

310 Kan. 591

, 612-14,

448 P.3d 479

(2019). And we must disregard Officer Toolin's testimony for us to say the
evidence was insufficient.


       If Brazzle had challenged this issue in the district court, the State would have had
a chance to answer the questions Judge Atcheson and Brazzle raise and the district court
could have determined whether the State did enough to establish a proper foundation for


                                              23
Toolin's opinion. If not, the district court could have sustained an objection to the
testimony.


        We thus agree with the majority that Brazzle has tried to recast an evidentiary
ruling as a sufficiency argument. But, given Toolin's testimony, the evidence was
sufficient.


        In summary, when we review the evidence in a light most favorable to the State,
we determine that a rational fact-finder could have found Brazzle guilty beyond a
reasonable doubt.


        Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.


        HENRY W. GREEN, J., assigned.1
        STEVE LEBEN, J., assigned.2




________________________________



1
 REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed
to hear case No. 116,649 under the authority vested in the Supreme Court by K.S.A. 2019
Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.
2
 REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed
to hear case No. 116,649 under the authority vested in the Supreme Court by K.S.A. 2019
Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R.
Nuss.


                                              24

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