State v. Rodriguez

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NOT DESIGNATED FOR PUBLICATION

No. 114,424

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOSE L. RODRIGUEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed November 4, 2016.
Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Jonathon L. Noble, assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., ATCHESON and POWELL, JJ.

Per Curiam: After a jury trial, Jose L. Rodriguez was convicted of possession of
methamphetamine with intent to distribute and two counts of possession of drug
paraphernalia. On appeal, Rodriguez argues the district court erred in giving an aiding
and abetting instruction and that there was insufficient evidence to support his conviction
for possession of methamphetamine with intent to distribute. We disagree and affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

On March 17, 2014, Joni Beemer and Rodriguez were driving in Lyon County,
Kansas. Beemer was the driver, Rodriguez was the passenger in the front seat, and their
son was in the back seat. Deputy Heath Samuels of the Lyon County Sheriff's
Department stopped the car for failing to use a turn signal. While Samuels was stopping
the vehicle, he saw Rodriguez appear to bend downward and reach below the front seat.
Because of Beemer's alleged involvement in several ongoing drug investigations,
Samuels requested and obtained consent to search the car.

Deputy Cory Doudican arrived as backup. While searching the car the deputies
found a roll of money totaling $1,403 between the passenger seat and the center console.
Rodriguez and Beemer both claimed the money was from Rodriguez' tax refund.
Rodriguez was searched, and the deputies found $400 in Rodriguez' wallet. Additionally,
the deputies found a glass pipe, a metal pipe, and marijuana inside the passenger-side
doorframe. Rodriguez claimed possession of one of the pipes and the marijuana.

Beemer was arrested. While being transported to the police station, Beemer told
Doudican she had methamphetamine in her pants. She said that Rodriguez had handed
her the bag containing the meth when she was stopped. The methamphetamine was taken
from Beemer while she was in custody, and the Kansas Bureau of Investigation analysis
of the substance confirmed it was methamphetamine with a gross weight of 21.85 grams.

Later, in an interview with an investigator with the county attorney's office,
Beemer explained that the methamphetamine was being transported in a camera bag and,
during the stop of the car, Rodriguez handed the camera bag to Beemer. The camera bag
contained three smaller plastic bags, each of which contained methamphetamine. Beemer
claimed Rodriguez opened the camera bag and took out the three smaller bags for her to
hide. Beemer stated the methamphetamine belonged to both her and Rodriguez. She also
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claimed Rodriguez knew the methamphetamine was in the car and that it was being sold
to support their family because Rodriguez had lost his job. Beemer said she, not
Rodriguez, was selling the methamphetamine because Rodriguez was not from the area
and did not know people. Although the methamphetamine belonged to both Beemer and
Rodriguez, Beemer did not state Rodriguez was attempting to sell the methamphetamine
or was involved in any sales.

At trial, Beemer testified contrary to her statement to law enforcement. She stated
the methamphetamine belonged to her but the marijuana, marijuana pipe, and
methamphetamine pipe belonged to a third party. Beemer also testified that Rodriguez
did not know about the methamphetamine in the car, that she had Rodriguez hand her the
bag during the stop, and there was no way he could have known what was in the camera
bag. Additionally, she testified Rodriguez did not attempt to sell the methamphetamine
and he was not involved in any way with obtaining the methamphetamine from her
source.

Over Rodriguez' objection, the district court gave an aiding and abetting jury
instruction. Prior to the jury's deliberations, the district court dismissed the possession of
methamphetamine charge. The jury convicted Rodriguez on the remaining four charges;
however, at sentencing, the possession of marijuana charge was set aside due to a jury
verdict form error. Rodriguez was sentenced to 105 months in prison for the charge of
possession of methamphetamine with intent to distribute and two concurrent 12-month
sentences for the possession of drug paraphernalia charges.

Rodriguez timely appeals his conviction for possession of methamphetamine with
intent to distribute.

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DID THE DISTRICT COURT ERR BY GIVING
AN AIDING AND ABETTING JURY INSTRUCTION?

Rodriguez first claims the district court erred in giving an aiding and abetting jury
instruction because there was no evidence presented at trial that he aided and abetted
Beemer's crime of possession of methamphetamine with intent to distribute. Our
Supreme Court has set out a four-step test to determine the propriety of a jury instruction:

"'"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012)."' [Citation omitted.]" State v. Fisher, 304 Kan. 242, 256-
57, 373 P.3d 781 (2016).

This issue was properly preserved because Rodriguez objected to the jury
instruction at trial. See State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 (2015).
Therefore, our next step is to analyze whether the instruction was legally appropriate. To
be legally appropriate a jury instruction must fairly and accurately state the applicable
law. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). The challenged
instruction reads:

"A person is criminally responsible for a crime if the person, either before or
during its commission, and with the mental culpability required to commit the crime
intentionally aids another to commit the crime.
"All participants in a crime are equally responsible without regard to the extent of
their participation. However, mere association with another person who actually commits
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the crime or mere presence in the vicinity of the crime is insufficient to make a person
criminally responsible for the crime."

Our Supreme Court has explained that to establish aiding and abetting on the part
of a defendant, "the State is required to show that a defendant knowingly associated with
the unlawful venture and participated in such a way as to indicate that he or she was
facilitating the venture's success." State v. Williams, 299 Kan. 509, 531, 324 P.3d 1078
(2014), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016).
Moreover, to state the law accurately, an aiding and abetting jury instruction must include
language that mere association with a person engaged in criminal activity is insufficient
to find a person guilty of aiding and abetting. State v. Hilt, 299 Kan. 176, 185, 322 P.3d
367 (2014).

Our review leads us to conclude that the challenged jury instruction was legally
appropriate. It required that the defendant have the mental state required to commit the
crime, it required that the defendant participate in a way as to further the success of the
criminal venture, and it included language that mere association on the part of the
defendant was insufficient to form criminal culpability. Because the elements required to
prove aiding and abetting appear within the challenged instruction, the instruction
accurately stated the law.

Rodriguez' principal objection to the aiding and abetting jury instruction surrounds
our next analytical step: to determine if there was sufficient evidence to support giving
the jury instruction. An aiding and abetting jury instruction is appropriate if "the jury
could reasonably conclude from the totality of the evidence that the defendant aided and
abetted another in the commission of a crime." State v. Edgar, 281 Kan. 47, 55, 127 P.3d
1016 (2006). The evidence is viewed in the light most favorable to the party requesting
the jury instruction, and we do not reweigh the evidence or the credibility of witnesses.
Plummer, 295 Kan. at 162. Here, because the State requested the jury instruction, we
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view the evidence supporting the giving of an aiding and abetting jury instruction in the
light most favorable to the State.

Rodriguez argues that, at best, the evidence at trial supports the inference that he
passed Beemer some baggies containing methamphetamine to hide. The record, however,
when viewed in the light most favorable to the State, shows otherwise. In the police
interview, Beemer stated the methamphetamine belonged to both Rodriguez and her, and
she was selling it to support their family. Beemer also stated that Rodriguez knew about
the meth in the car, opened the camera bag, removed the three smaller bags, and handed
the bags to Beemer to hide. These actions show Rodriguez knowingly associated with the
unlawful venture. See Williams, 299 Kan. at 531.

Moreover, Beemer told the police that Rodriguez claimed the paraphernalia was
his, believing that Beemer was going to get away with concealing the methamphetamine
and would not be arrested. Rodriguez also falsely claimed that the $1,403 found in the car
was from his tax return. Such facts lead to a reasonable inference that the money was
from selling methamphetamine and that Rodriguez was participating in the venture in a
way to facilitate its success. Based upon these facts, a reasonable juror could conclude
Rodriguez was aiding and abetting Beemer. Therefore, there was sufficient evidence to
support giving the jury instruction.

WAS THERE SUFFICIENT EVIDENCE TO CONVICT RODRIGUEZ OF
POSSESSION OF METHAMPHETAMINE WITH INTENT TO DISTRIBUTE?

Rodriguez' second argument on appeal is that there was insufficient evidence to
convict him of possession of methamphetamine with intent to distribute, specifically
claiming that the State impermissibly stacked inferences.

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When the sufficiency of the evidence is challenged in a criminal case, we view all
the evidence in the light most favorable to the State. A conviction will be upheld 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 examining this evidence, we generally will not reweigh the
evidence or the credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074
(2016).

In order to convict Rodriguez as a principal, the State had to prove Rodriguez
possessed the methamphetamine and intended to distribute it. Rodriguez does not
challenge whether there was sufficient evidence that he possessed the methamphetamine.
He argues the evidence presented only shows he possessed the methamphetamine, not
that he intended to distribute it. In particular, Rodriguez cites State v. Cruz, 15 Kan. App.
2d 476, 490, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991): "Presumptions and
inferences may be drawn from facts established, but presumption may not rest upon
presumption or inference on inference." See State v. Doyle, 201 Kan. 469, Syl. ¶ 8, 441
P.2d 846 (1968); State v. Star, 27 Kan. App. 2d 930, 935, 10 P.3d 37, rev. denied 270
Kan. 903 (2000).

There is sufficient evidence to support Rodriguez' conviction as an aider and
abettor. Beemer's actions satisfy the elements of possession of methamphetamine with
intent to distribute. See K.S.A. 2015 Supp. 21-5705(a)(1). The crime is a continuing one;
it lasts as long as the defendant possesses the contraband with the intent to distribute at
some time. See State v. Chapman, 252 Kan. 606, Syl. ¶ 1, 847 P.2d 1247 (1993). The
methamphetamine—over 21 grams—was packaged in three baggies. Samuels stated that
based on his training and experience, methamphetamine is packaged this way for sale.
Coupled with the large amount of cash, the packaged methamphetamine suggested
Beemer and Rodriguez to be sellers rather than buyers. During the police interview,
Beemer stated she was selling the methamphetamine in order to support Rodriguez' and
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her family. These facts support the conclusion that Beemer possessed the
methamphetamine with the intention of selling it.

The evidence in the light most favorable to the State shows Rodriguez participated
in Beemer's continuing criminal venture of selling methamphetamine by handing her the
baggies to hide. Rodriguez claimed the drug paraphernalia was his, believing Beemer
would not be caught with the methamphetamine. It is reasonable to infer that Rodriguez
was participating in a way designed to facilitate the continuation of the venture by
helping conceal the methamphetamine from the police. Because Beemer, the principal,
had the requisite intent to distribute, Rodriguez, the aider and abettor, can be held
criminally responsible for her actions. See K.S.A. 2015 Supp. 21-5210(a). Therefore,
there is sufficient evidence to find Rodriguez aided and abetted Beemer's crime.

Because the evidence taken in the light most favorable to the prosecution could
lead a rational factfinder to find Rodriguez guilty of possession of methamphetamine
with intent to distribute beyond a reasonable doubt, as either the principal actor or as an
aider and abettor, there is sufficient evidence to uphold his conviction.

Affirmed.