NOT DESIGNATED FOR PUBLICATION
No. 121,237
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DONALD PERRY JONES,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed March 19, 2021.
Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE and WARNER, JJ.
PER CURIAM: Donald Perry Jones appeals his convictions of distributing
methamphetamine and unlawful use of drug paraphernalia. Jones was the target of an
investigation based in part on information from a confidential informant (CI), and the
evidence was seized during a traffic stop following a dog sniff and search of Jones' car.
Jones claims that (1) law enforcement did not have reasonable suspicion to extend the
traffic stop for a dog sniff; (2) law enforcement did not have probable cause to search the
interior of his car; (3) the district court erred in denying his motion to disclose the identity
of the CI; and (4) there was insufficient evidence to support his conviction of distributing
methamphetamine. Finding no error, we affirm the district court's judgment.
1
FACTUAL AND PROCEDURAL BACKGROUND
In December 2017, Topeka Police Officer Bryan Stricklin began investigating
Jones after a CI told him that Jones trafficked methamphetamine. Stricklin conducted
physical surveillance and observed two controlled buys between the CI and Jones. Based
on the controlled buys, Stricklin obtained a GPS search warrant and attached a GPS
tracking device to Jones' car in January 2018. Two or three times, Stricklin noticed that
Jones left Topeka and went to a specific location in Kansas City.
On February 13, 2018, Stricklin received a text message from the CI stating that
Jones was going to Kansas City to pick up methamphetamine. At the same time, he also
received a notification from the GPS that Jones had left Topeka. Stricklin watched the
GPS to confirm that Jones went to the same location in Kansas City. Stricklin decided to
stop Jones when he returned to Topeka, and he asked Topeka Police Officer Joshawa
Heaslet to assist him. Stricklin told Heaslet about his prior investigation, including the
two controlled buys and the GPS monitoring. Stricklin asked Heaslet "to stop the vehicle
in regards to interdicting the controlled substance." Stricklin was not involved in the stop.
When Jones returned from Kansas City and came into the Topeka city limits,
Heaslet stopped him for a window tint violation. Heaslet approached the car and asked
Jones for his documentation. Topeka Police Canine Officer Josh Miller also responded to
the stop. Heaslet took Jones' documentation and went back to his patrol car. About six
minutes into the stop, Heaslet returned to the car and gave Jones a warning ticket for the
window tint violation. Heaslet began to walk away but returned and asked Jones more
questions, including whether he would consent to a car search. Jones did not give consent
for a search. At that point, about seven minutes into the stop, Heaslet told Jones to exit
the car so that Miller could conduct an exterior dog sniff.
2
Miller then conducted an exterior dog sniff while Heaslet talked to Jones outside
the car. Miller started to move the dog around the car and when the dog went to sniff the
upper seam of the driver's side door, he went towards the open window and the dog's
posture changed: he began to engage in a deep sniff and his tail stopped moving. Miller
later testified the dog's posture conveyed he was "in odor" and that he could smell
narcotics, so Miller allowed the dog to pull himself into the open car window to find the
source of the odor. The dog immediately moved to a Chex Mix bag on the floorboard and
put his nose in the bag. Miller found what appeared to be baggies of methamphetamine
stuffed in a cigarette package inside the Chex Mix bag. He also found drug paraphernalia
in the driver's door area. Heaslet then arrested Jones.
Later that night, Stricklin interviewed Jones. Jones admitted that he went to
Kansas City to get methamphetamine from a guy named Hector. Jones said he went to get
4 ounces of methamphetamine for Travis Silver, who gave him $2,000, and 2 ounces for
Dustin Catrell, who gave him $950. Stricklin responded that they only found 2 ounces,
and Jones informed him that the other 4 ounces was in a black toolbox in his car. Jones
told Stricklin that in exchange for getting Silver and Catrell methamphetamine, they
would give Jones some for his personal use when he delivered it. Jones admitted he had
been getting Silver methamphetamine about twice a week for the past month and a half.
A grand jury indicted Jones for cultivating, distributing, or possessing with the
intent to distribute over 100 grams of methamphetamine and unlawful use of drug
paraphernalia. Jones moved to suppress, arguing generally that the stop exceeded the
duration of an investigatory detention for a traffic infraction and it was unreasonably
extended by a dog sniff. Jones also moved to disclose the CI's name.
At a hearing on the motions, Stricklin testified about his prior investigation and the
actions he took on the day of the car stop. He also testified that the CI was a paid
informant. Heaslet testified about conducting the stop. He testified that he directed Miller
3
to conduct the dog sniff because he had reasonable suspicion to believe drugs were in the
car based on Jones' behavior, what Jones said, and the information from Stricklin. Heaslet
explained that Jones' hands were shaking when he handed over his documents, he had
trouble identifying which documents Heaslet asked for, and he had dry mouth and was
sweating. Heaslet also stated that when he asked Jones where he was coming from, Jones
told him from work in Kansas City, which Heaslet knew was untruthful.
After Heaslet testified, the district court denied Jones' motion to suppress, finding
there was reasonable suspicion to extend the stop for the dog sniff and there was probable
cause to search the car based on the dog sniff. The district court also denied Jones' motion
asking for disclosure of the CI's identity, finding that the CI's information was not the
sole basis for the reasonable suspicion to extend the stop.
Jones later filed a motion asking the district court to reconsider its ruling on
whether there was probable cause to search the car. The district court held an evidentiary
hearing on the motion. Miller testified about his dog's training and how a dog sniff works
in general. He testified that his dog is trained to sit when his nose is touching the source
of the narcotic odor. Miller stated that when the dog cannot physically touch his nose to
the object producing the odor, his body posture and behavior changes—he stays in one
area, he deeply inhales, his paw grip changes, his tail stops moving—and thus Miller can
still tell the dog has detected the odor of narcotics. This behavior is called being "in
odor." Miller testified that when his dog is sniffing the exterior of a car and the car door
or window is open, the dog will not enter the space unless he is alerting to an odor, in
which case Miller will allow the dog to keep working to find the source.
Miller then testified to conducting the dog sniff on Jones' car. Miller testified that
based on the dog's behavior outside Jones' open car window, he believed there was
probable cause to search the interior of the car. Miller then allowed the dog to pull
himself into the open car window to find the source of the odor. The dog immediately
4
moved to a Chex Mix bag on the floorboard. Miller then searched and found drugs in the
Chex Mix bag and drug paraphernalia in the driver's door area.
The district court denied Jones' motion, finding that the dog had alerted outside the
car, which provided Miller with probable cause to search inside the car. Alternatively, the
court ruled that even if the dog did not alert outside the car, Miller neither encouraged the
dog to enter the car nor asked Jones to open the window, so the dog's entry into the car
did not violate the Fourth Amendment.
Jones waived his right to a jury trial and proceeded to a bench trial on stipulated
evidence. The evidence included a Kansas Bureau of Investigation lab report indicating
that the total weight of the methamphetamine seized from Jones was 178 grams. After
reviewing the evidence, the district court found Jones guilty of both counts. The district
court granted Jones' motion for a durational departure and sentenced him to 122 months'
imprisonment. Jones timely appealed the district court's judgment.
REASONABLE SUSPICION TO EXTEND THE TRAFFIC STOP
Jones first claims the district court erred in denying his motion to suppress because
it incorrectly found that Heaslet had reasonable suspicion of criminal activity to extend
the traffic stop for the dog sniff. The State argues the opposite. Jones properly preserved
his challenge by renewing his motion to suppress at the bench trial. See State v. Dupree,
304 Kan. 43, 62, 371 P.3d 862 (2016) (stating to preserve a challenge to the denial of a
motion to suppress, the party must object to the introduction of the evidence at trial).
When, as here, the facts supporting the district court's decision on a motion to
suppress are not disputed, the ultimate question of whether to suppress is a question of
law over which the appellate court exercises unlimited review. State v. Hanke, 307 Kan.
823, 827, 415 P.3d 966 (2018). Moreover, our Supreme Court has stated that whether
5
reasonable suspicion exists is a question of law subject to unlimited review by appellate
courts. State v. Jones, 300 Kan. 630, 642, 333 P.3d 886 (2014).
The Fourth Amendment to the United States Constitution protects people from
unlawful seizure and a traffic stop constitutes a seizure of the driver. State v. Sharp, 305
Kan. 1076, 1081, 390 P.3d 542 (2017). To comply with the Fourth Amendment, law
enforcement must "'have a reasonable and articulable suspicion, based on fact, that the
person stopped has committed, is committing, or is about to commit a crime.'" 305 Kan.
at 1081. It is a lower standard than probable cause and requires the court to examine the
totality of the circumstances from the view of a trained law enforcement officer. 305 Kan.
at 1081. Reasonable suspicion is "'a particularized and objective basis' for suspecting the
person stopped of criminal activity." State v. Lowery, 308 Kan. 359, 366, 420 P.3d 456
(2018).
Jones does not contest the validity of the initial stop for a window tint violation,
even though it was pretextual. See Jones, 300 Kan. at 638 (noting a traffic stop is not
invalid even if it is a "'mere pretext for a narcotics search'"). "During a routine traffic
stop, a law enforcement officer may request a driver's license, proof of insurance, and
vehicle registration; run a computer check; and issue a citation." State v. Coleman, 292
Kan. 813, 816, 257 P.3d 320 (2011). But generally, once the officer determines that the
driver has a valid license and the purpose of the traffic stop has ended, the driver must be
allowed to leave without further delay. 292 Kan. at 816.
An encounter between a law enforcement officer and a driver can be extended
beyond the scope of a routine traffic stop if it becomes consensual and the driver
voluntarily agrees to submit to more questioning. State v. Thompson, 284 Kan. 763, 775,
166 P.3d 1015 (2007). After Heaslet gave Jones a warning ticket for the window tint
violation, he tried to engage Jones in a consensual encounter and asked for permission to
search the car, but Jones did not consent to a search. Absent consent, an officer may
6
expand the investigative detention beyond the duration necessary to fulfill the purpose of
the initial stop only if there is an objectively reasonable and articulable suspicion that
criminal activity was or is taking place. Jones, 300 Kan. at 641. Thus, the question is
whether Heaslet had a reasonable suspicion that Jones was engaged in other criminal
activity which would allow Heaslet to continue to detain Jones and conduct the dog sniff.
The State argues that several factors supported the district court's finding that
Heaslet had reasonable suspicion of criminal activity to extend the duration of the traffic
stop. As the State argued in district court, Stricklin had received the CI's tip that Jones
was travelling to Kansas City that day to pick up methamphetamine for distribution to
others, and he confirmed the tip with the GPS tracking devise. Stricklin communicated
this information to Heaslet. Also, as Heaslet testified, Jones was nervous during the
traffic stop, his hands were shaking when he handed over his documents, he had trouble
identifying which documents Heaslet asked for, and he had dry mouth and was sweating.
Heaslet also knew that Jones was lying when he said that he was returning from work.
Jones argues the CI tip and his nervous behavior were not sufficient to satisfy the
reasonable suspicion standard because there is no indication the CI tip was reliable and
nervousness alone is insufficient. Jones cites State v. Lewis, 54 Kan. App. 2d 263, 399
P.3d 250 (2017), to support his argument. In Lewis, the defendant challenged the district
court's finding that reasonable suspicion existed to prolong a traffic stop for a dog sniff
based on a CI's tip. The evidence presented at the suppression hearing regarding the CI
tip was that (1) the CI heard other people talking about a black male who was selling
cocaine out of a pink Cadillac; (2) that multiple people told the officer about the pink
Cadillac but when asked the officer could not identify any person who gave him the
information; (3) the tip did not get documented; and (4) the officer had seen a pink
Cadillac in the area. This court found that the CI tip could not support extending traffic
stop because the officer presented no facts on which the reliability of the CI's information
could be judged. 54 Kan. App. 2d at 274-77.
7
Lewis is not particularly helpful or authoritative in this case. To begin, the Lewis
court relied on the "three-factor tip test" from State v. Slater, 267 Kan. 694, 700, 986 P.2d
1038 (1999), to find that the CI tip was not reliable enough to extend the traffic stop. But
in Slater, the Kansas Supreme Court discussed how to evaluate a stop based on an
anonymous tip. 267 Kan. at 700. In contrast, our Supreme Court has noted that tips from
known informants are the most reliable kind of tip:
"'The reliability of the information or the tip given to the police depends upon the
type of tip involved. The most favored of the tips are those which are, in fact, not really
anonymous at all. These tips occur when the person giving the tip gives the police his or
her name and address, or identifies himself or herself in such a way that he or she can be
held accountable for the tip.'" State v. Chapman, 305 Kan. 365, 373, 381 P.3d 458 (2016)
(quoting Slater, 267 Kan. 694, Syl. ¶ 4).
Thus, a tip from a known informant, like the one here, already has some indicia of
reliability. See State v. Freel, 29 Kan. App. 2d 852, 857, 32 P.3d 1219 (2001) ("A tip
from a known informant whose reputation can be assessed and who can be held
responsible if his or her allegations turn out to be fabricated may exhibit sufficient indicia
of reliability to provide reasonable suspicion to make an investigatory stop.").
In any event, Lewis is distinguishable from the facts in Jones' case. In Lewis, the
only information the officer had was the CI's "tip" that a black male was selling cocaine
out of a pink Cadillac. Here, other information bolstered the CI's tip that Jones was going
to Kansas City on February 13, 2018, to buy methamphetamine. First, Stricklin knew
Jones sold methamphetamine because of the prior controlled buys between Jones and the
CI. Second, Stricklin saw by GPS that Jones did in fact go to Kansas City as the CI
claimed he would. Third, Stricklin knew from prior GPS surveillance that Jones went to
the same area two or three times before. In sum, the tip from a known CI already had
some indicia of reliability and it was corroborated by independent investigation.
8
Jones also challenges Heaslet's reliance on Jones' nervousness as supporting
reasonable suspicion to extend the stop. As Jones correctly points out, nervousness alone
should not be given much weight in determining reasonable suspicions. See Lowery, 308
Kan. at 367-68 (collecting cases that say same). But Jones fails to acknowledge that the
district court seems to have correctly given Jones' nervousness little weight. In its ruling,
the district court pointed out that Jones' nervousness could have been because of being
stopped by police and being told to put his hands outside the car. Also, as the district
court noted, Heaslet relied on more than just Jones' nervousness to establish reasonable
suspicion to extend the stop for a dog sniff. The district court also pointed to Jones'
sweatiness, his dry mouth, his untruthful answers, and the corroborated CI tip.
In determining whether a reasonable suspicion exists, the court is to consider the
totality of the circumstances and it "does not envision a reviewing court pigeonholing
each factor as to innocent or suspicious appearances." 308 Kan. at 366. Granted, much of
the evidence supporting reasonable suspicion here came from what Heaslet already knew
before he stopped Jones' car. But under the facts and circumstances of this case, the
district court correctly found Heaslet had a reasonable suspicion to extend the traffic stop.
Thus, the district court did not err in denying Jones' motion to suppress on this basis.
PROBABLE CAUSE TO SEARCH THE INTERIOR OF THE CAR
Jones argues the district court also erred in denying his motion to suppress because
it incorrectly found that law enforcement had probable cause to search the interior of his
car. More specifically, Jones argues the dog never gave an adequate final alert outside his
car to establish probable cause for the dog to enter the car. Jones preserved this challenge
by renewing his motion to suppress at the bench trial. See Dupree, 304 Kan. at 62.
The State counters that Miller testified that the dog does not give a final alert until
he has made physical contact with the source and, thus, there would not be a final alert
9
outside the car. The State points out that Miller testified that based on his training and
experience, the dog sufficiently revealed outside the car that it detected the odor of
narcotics inside the car. Thus, the State argues there was probable cause to search the
interior of Jones' car. The State alternatively argues that the dog's entry into the vehicle
did not violate Jones' Fourth Amendment rights because Miller did not facilitate the dog's
entry, which was spontaneous and instinctual.
As a preliminary matter, the State argues that this court should apply an abuse of
discretion standard to this issue because the district court technically considered this issue
under a motion to reconsider. The State points out that appellate courts generally treat
motions to reconsider as motions to alter or amend. When reviewing the denial of a
motion to alter or amend, appellate courts apply an abuse of discretion standard.
Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 900, 89 P.3d 536 (2004).
As the State correctly points out, the district court heard evidence on this issue on
Jones' motion to reconsider. The district court started the hearing by acknowledging that
it had found at the original hearing on the motion to suppress that the dog's alert gave law
enforcement probable cause to search the vehicle. But the district court also admitted that
in making that original ruling it went further than Jones' motion to suppress which only
dealt with the extended stop. Even though the district court was ruling on Jones' motion
to reconsider, the issue before the court was whether the law enforcement officers had
probable cause to search the interior of the car based on the undisputed evidence
presented at the hearing. This presents a question of law over which an appellate court
has unlimited review. State v. Fewell, 286 Kan. 370, 375-76, 184 P.3d 903 (2008).
Under the Fourth Amendment, a warrantless search of a car is permitted if there is
probable cause to believe the vehicle contains contraband or evidence of a crime. State v.
Howard, 305 Kan. 984, 990, 389 P.3d 1280 (2017) (stating the mobility of a car fulfills
the requirement of exigent circumstances allowing warrantless search of a car based on
10
probable cause); State v. Jefferson, 297 Kan. 1151, 1159, 310 P.3d 331 (2013) (stating
probable cause "'can be established if the totality of the circumstances indicates there is a
"fair probability" that the vehicle contains contraband or evidence [of a crime]'"). A dog
sniff of the exterior of a car during an otherwise lawful traffic stop is not a search under
the Fourth Amendment. State v. Lutz, 312 Kan. 358, 366, 474 P.3d 1258 (2020). A dog's
alert can establish probable cause if, under the totality of the circumstances, a reasonably
prudent person would think that a search would reveal evidence of criminal activity.
Florida v. Harris, 568 U.S. 237, 248, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (2013).
Here, the district court found that the dog alerted to the odor of narcotics outside
the car based on Miller's testimony about the dog's change in behavior. Thus, the district
court found there was probable cause for the search once the dog alerted outside the car.
Alternatively, the district court found that even if the dog did not alert outside the car,
Miller neither encouraged the dog to enter the car nor asked Jones to open the window, so
the dog's entry into the car did not violate the Fourth Amendment.
Jones entire argument relies on his assertion that the dog did not give a final alert
and, thus, there was not probable cause to search the interior of his car. But as the State
correctly points out, Miller testified that the dog is trained to give the final alert, by
sitting, only when his nose is touching the source of the narcotic odor. Jones' argument
disregards Miller's other testimony, which the district court found persuasive and
dispositive. Miller explained that when his dog's nose cannot touch the source of the
odor, he can still tell that the dog has detected the odor of narcotics because the dog's
body posture and behavior changes—he stays in one area, he deeply inhales, his paw grip
changes, and his tail stops moving. This change in behavior shows the dog is "in odor."
Miller testified that the dog here revealed outside the car that he was "in odor,"
which meant that the dog could smell narcotics inside the car. The dog sufficiently
alerted to the odor of drugs while it was still outside the car. Miller then allowed the dog
11
to pull himself into the open car window to find the source of the odor. The dog
immediately moved to a Chex Mix bag on the floorboard. Based on this testimony, a
reasonably prudent person would think that a search of the interior of Jones' car would
reveal narcotics. Thus, the district court did not err in finding the officers had probable
cause to search the interior of Jones' car based on the dog's behavior outside the car. We
need not address the district court's alternative basis for allowing the search.
MOTION TO DISCLOSE THE CI'S IDENTITY
Jones next claims the district court erred in denying his motion to disclose the
identity of the CI. Jones argues that without the CI's name, he "was unable to test the
exactitude and reliability of the information the officers relied upon." The State counters
that the CI's involvement in the charged crimes was that of a mere tipster because he
simply communicated to Stricklin that Jones was going to Kansas City to pick up
methamphetamine on February 13, 2018. The State also points out that Jones fails to
argue how the denial of his motion hindered his defense.
Both parties correctly assert that this court reviews the district court's denial of a
motion to disclose the identity of a CI for an abuse of discretion. State v. Thomas, 252
Kan. 564, 580, 847 P.2d 1219 (1993). A judicial action constitutes an abuse of discretion
if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is
based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).
The party asserting an abuse of discretion bears the burden of proving the alleged abuse.
State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
The identity of a CI is privileged and does not have to be disclosed unless the CI's
identity has already been disclosed or it "is essential to assure a fair determination of the
issues." K.S.A. 60-436. Thus, the court must determine whether the identity of the CI
"'could provide information essential to a fair trial by providing information relevant and
12
helpful to the defense.'" Thomas, 252 Kan. at 581. Our Supreme Court has differentiated
between a "mere tipster" and an informant who engages in or observes the criminal
activity of the defendant. 252 Kan. at 581. The mere tipster simply provides information
that precipitates an investigation and his or her identity is not generally subject to
disclosure. In contrast, the CI who engages in or observes the defendant's criminal
activity can provide independent evidence relevant to the defense. 252 Kan. at 581.
Here, the CI did not participate in or observe the criminal activity that led to the
charges against Jones for the events on February 13, 2018. The CI participated in the
earlier controlled buys with Jones, but that evidence was used to obtain the GPS warrant.
The CI did not participate in any of the activities on February 13, 2018, except to tip
Stricklin that Jones was going to Kansas City that day to pick up drugs. Thus, the CI was
a mere tipster as to the charges that were ultimately filed against Jones.
More importantly, Jones does not assert how the CI's identity would be relevant to
his defense. Jones merely asserts, without further explanation, that he needed the CI's
identity to test the reliability of the information provided to the officers. But such a
conclusory assertion does not meet his burden. See Thomas, 252 Kan. at 581 (stating
speculation about what an informant might testify to is not enough to require disclosure);
Freel, 29 Kan. App. 2d at 855 (finding CI a mere tipster when CI merely called law
enforcement with information about the defendant and no evidence suggested that the CI
witnessed the crime). And as we have already discussed, the CI's reliability here was
corroborated by the information from the GPS tracking devise.
In sum, the CI was a mere tipster and Jones identifies no relevant and material
information the CI could provide to his defense. Thus, the district court did not abuse its
discretion in denying his motion to disclose the CI's identity.
13
SUFFICIENCY OF THE EVIDENCE
Finally, Jones claims there was insufficient evidence to support his conviction of
distributing methamphetamine. Jones concedes there was ample evidence that he
possessed methamphetamine with the intent to distribute, but he argues that the State
presented no evidence that he transferred or tried to transfer methamphetamine to any
person. The State argues that it presented sufficient evidence to show Jones distributed
methamphetamine because it offered into evidence Jones' police interview in which he
admitted to picking up the methamphetamine from Kansas City for Silver and Catrell. In
the alternative, the State argues that the district court found Jones guilty of count I, which
included the phrase "possession with the intent to distribute" in the charging document.
"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.'" State v.
Fitzgerald, 308 Kan. 659, 666, 423 P.3d 497 (2018) (quoting State v. Lloyd, 299 Kan.
620, 632, 325 P.3d 1122 [2014]).
Jones was indicted for "unlawfully, feloniously, and intentionally, cultivate,
distribute or possess with intent to distribute methamphetamine in an amount weighing
over 100 grams" in violation of K.S.A. 2017 Supp. 21-5705(a)(1). That statute makes it
"unlawful for any person to distribute or possess with the intent to distribute" certain
controlled substances including methamphetamine. See K.S.A. 2020 Supp. 21-
5705(a)(1); K.S.A. 65-4107(d). Thus, the State appears to be correct that all it needed to
prove at trial was that Jones possessed methamphetamine with the intent to distribute.
The journal entry identifies Jones' crime of conviction as "Cultivate, Distribute, Possess
with Intent to Distribute Methamphetamine over 100 Grams" in violation of K.S.A. 21-
5705(a)(1).
14
But as Jones points out in his brief, the district court at the bench trial found Jones
"guilty beyond a reasonable doubt as to Count I, the distribution of methamphetamine
greater than 100 grams." In a criminal case, "[t]he judgment shall be rendered and
sentence imposed in open court." K.S.A. 2020 Supp. 22-3424(a). Because the district
court found Jones guilty in open court of distributing methamphetamine, we accept Jones'
contention that the State needed to provide sufficient evidence of distribution, and not
just possession of methamphetamine with intent to distribute, to support the conviction.
"'Distribute' means the actual, constructive or attempted transfer from one person
to another of some item whether or not there is an agency relationship. [It] includes, but
is not limited to, sale, offer for sale or any act that causes some item to be transferred
from one person to another." (Emphasis added.) K.S.A. 2020 Supp. 21-5701(d).
Contrary to Jones' assertion, the evidence showed that he transferred or tried to
transfer methamphetamine to another person. At the bench trial, the parties stipulated to
the admission of various exhibits, including Jones' police interview. In his interview,
Jones admitted: (1) he went to Kansas City to pick up 4 ounces of methamphetamine for
Silver and 2 ounces of methamphetamine for Catrell; (2) Silver and Catrell gave him
money for the methamphetamine; (3) Jones bought the 6 ounces of methamphetamine at
a house in Kansas City and was on his way back when Heaslet pulled him over; and (4)
in exchange for getting the methamphetamine for Silver and Catrell, they planned to give
Jones some for his personal use when he delivered the methamphetamine. Taking the
evidence in the light most favorable to the State, Jones admitted he was in the process of
transferring methamphetamine to Silver and Catrell when he was stopped. Thus, there
was sufficient evidence to support his conviction of distributing methamphetamine.
Affirmed.
15