PAYTON v. STATE, A-9503 (Alaska App. 6-27-2007)

ZACHARY PAYTON, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9503.Court of Appeals of Alaska.
June 27, 2007.

NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

Appeal from the Superior Court, Third Judicial District, Anchorage, Brian K. Clark and Philip R. Volland, Judges, Trial Court No. 3AN-04-8123 CR.

J. Adam Bartlett, Anchorage, for the Appellant.

Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Craig J. Tillery, Acting Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Zachary Payton was convicted of misconduct involving a controlled substance in the third degree (possession of cocaine with intent to deliver), a class B felony.[fn1] At the grand jury proceedings and during his trial, the State relied on the fact that a bag of crack cocaine was found next to where Payton was standing prior to his arrestPage 2
and that Payton had items on him — including a pre-paid cell phone and a large amount of cash in two wallets — that were typically associated with Anchorage drug dealers, in order to establish Payton’s possession of the drugs and intent to distribute them. Payton argues that the State did not have enough evidence to indict or convict him, asserting that the State’s case rested primarily on his physical proximity to the drugs. He also argues that the superior court erred in refusing to give the jury an instruction that would have ordered the jury not to consider the State’s expert witness’s testimony for the purpose of proving that Payton possessed drugs. We conclude that the State presented sufficient evidence for the grand jury to indict and the trial jury to convict Payton. We also conclude that the superior court did not err in refusing to give Payton’s proposed jury instruction.

Factual and procedural background
Anchorage police suspected that Zachary Payton, who was on felony probation, was selling crack cocaine. On June 16, 2004, Anchorage Police Officer Brian Burton and Probation Officer Robert Carlson decided to contact Payton while Payton was standing next to his Jeep outside of an apartment building on Karluk Street in Anchorage. Officer Burton had followed Payton to the apartment building from Payton’s residence and arrived at the Karluk Street location a short time after Payton. Officer Burton observed as Payton talked to Bennie Thomas and Gwendolyn Summerville, who were standing near Payton and his Jeep.

Officer Burton, who was wearing civilian clothes, called out to Payton and identified himself as a police officer. Payton looked at Officer Burton but did not otherwise respond. Officer Burton then instructed Payton not to move and to put his hands up. After Officer Burton identified himself, Thomas, standing about five or six feet away from Payton, backed off toward the apartment building behind them, and Summerville moved toward the back of the Jeep.Page 3

At this point, Officer Carlson arrived on the scene. Officers Burton and Carlson proceeded to pull their guns and hold Payton at gunpoint due to Payton’s continued non-compliance with Officer Burton’s verbal orders. Payton remained in place for a few moments, facing away from the officers. While standing about fifteen to eighteen feet away, Officer Burton observed Payton’s left hand down by his side, and although he could not see his right hand, he did see Payton’s right arm and elbow moving. Officer Burton never saw Payton actually drop anything when his arm moved. After Officer Burton saw his arm stop moving, Payton turned and started coming toward the officers. Officer Carlson then took Payton into custody. As Officer Carlson led him away, Payton said to Sergeant Pablo Paiz, who had been dispatched to the scene after Officer Burton had radioed for assistance, that Thomas and Summerville were “good people” that “didn’t have anything to do with anything” and to “let them go.”

After Payton was taken into custody, both Sergeant Paiz and Officer Burton observed a clear plastic “baggie” on the ground next to where Payton had been standing. Sergeant Paiz, based on his experience as an officer, believed the bag contained a large quantity of crack cocaine. Sergeant Paiz observed that the bag was laying on the pavement, near the open driver’s side door of Payton’s Jeep. Field testing confirmed that the substance in the bag was cocaine. The bag contained forty-seven bindles of crack cocaine. In addition to the crack cocaine, Officer Burton seized from Payton two wallets, containing a total of $888 in cash, and a cell phone.

Payton was indicted on one count of misconduct involving a controlled substance in the third degree. At grand jury, the State presented Officer Burton’s testimony that the bag containing the forty-seven bindles of crack cocaine was found near the spot where Payton had been standing, that Payton had been observed moving his elbow and arm while standing in that spot, and that two wallets containing a total of $888 in cashPage 4
had been seized from Payton, to establish that Payton had been in possession of the drugs with the intent to distribute them. Payton moved to dismiss the indictment, arguing that “the state failed to establish a sufficient nexus between . . . Payton and the controlled substance seized.” Relying on Marion v. State,[fn2] Payton argued that his mere physical proximity to the bag of crack cocaine, coupled with the circumstantial evidence, was not enough to “establish dominion and control over the drugs.” Superior Court Judge Philip R. Volland denied Payton’s motion to dismiss the indictment.

Superior Court Judge pro tem Brian K. Clark conducted Payton’s jury trial. In addition to the testimony of Officer Carlson, Officer Burton, and Sergeant Paiz, the State also offered the testimony of Anchorage Police Detective Kurt Kornchuk, who testified without objection, as an expert on the distribution of controlled substances. During Detective Kornchuk’s testimony, the State showed him photographs of the bag of crack cocaine that had been found next to Payton’s Jeep. Detective Kornchuk testified that the amount of crack cocaine in the bag, coupled with the way it was packaged (i.e., forty-seven individually wrapped bindles inside of a larger bag), indicated that the crack cocaine was “clearly” not for “personal use.” Detective Kornchuk also testified that it was common for crack dealers to carry a large amount of cash on them and that it was common for crack dealers to carry the cash in two separate wallets, in order to “prevent law enforcement or robbery from taking all of the money that a person may have.” Detective Kornchuk also testified that it was typical for crack dealers to use pre-paid cellular phones. In response to a question from the prosecutor whether he thought it was “unusual” that “an individual had 916 incoming calls from a two-week period on their cell phone account,” Detective Kornchuk answered that “900 phone calls in a two-weekPage 5
period is . . . astronomically outrageous for the average person, for a person involved in almost anything legitimate.” (The State had earlier established that Payton’s cell phone showed that he had received that number of calls.) The jury found Payton guilty of misconduct involving a controlled substance in the third degree. Judge Clark sentenced him to 6 years of imprisonment. Payton appeals.

Why we conclude that Judge Volland did not err in denying Payton’smotion to dismiss the indictment
A grand jury is to indict a defendant “when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant.”3 At the grand jury, Officer Burton testified to his encounter with Payton. He testified that, when he encountered Payton, he observed Payton moving his elbow and arm. Although he did not actually see Payton drop anything, he found a large plastic bag which contained forty-seven individually packaged bindles of crack cocaine on the ground where Payton had been when he first encountered him. When officers searched Payton, they found that he had two wallets on him. Both wallets contained identification. They found $700 in cash in one wallet and $188 in cash in the other wallet. He testified that the State crime lab tested the bindles and confirmed that they were crack cocaine.

Detective Bruce Bryant Jr. also testified at the grand jury proceeding. He testified that he had extensive background and training in investigating illegal drug transactions. Based upon his experience, he concluded that the way the drugs were packaged — forty-seven bindles totaling a little less than six grams — indicated that the drugs were packaged for distribution. He testified that the fact that Payton was carrying a large amount of money in two separate wallets supported the conclusion that PaytonPage 6
was dealing drugs. He estimated the street value of the drugs that had been found where Payton had been standing totaled approximately $940.

We conclude that Judge Volland did not err in finding that the evidence that the State presented to the grand jury was sufficient to support the indictment. The evidence of the bindles of cocaine which the police found on the ground near where Payton was standing, when coupled with the two wallets and the large amount of money which they found on Payton, if unexplained or uncontradicted, would warrant Payton’s conviction of possessing the crack cocaine with the intent to distribute it.

Why we conclude that Judge Clark did not err in denying Payton’smotion for a judgment of acquittal
Payton’s primary contention is that the State did not prove beyond a reasonable doubt that the crack cocaine belonged to him rather than the other individuals — Bennie Thomas or Gwendolyn Summerville — who were also near the place where the police found the bag of crack cocaine. But, viewed in the light most favorable to the State, Payton’s furtive arm and elbow movements, coupled with his proximity to the drugs, created a closer nexus between Payton and the drugs than either of the two bystanders. In addition to Payton’s proximity to the drugs, the evidence which the police found on Payton created a connection between Payton and the crack cocaine. The testimony of Detective Kornchuk established that the amount of crack cocaine in the bag, coupled with the way the crack was packaged, established that the crack cocaine was for distribution rather than for personal use. Detective Kornchuk also testified that the amount of money which Payton was carrying in two separate wallets and the number of telephone calls on his prepaid cellular phone strongly supported the inference that Payton was a drug dealer and connected him to the drugs which the police found on the ground. In addition, Payton’s statement that his companions were “good people” and that they “didn’t have anything to do with anything” supported an inference that Payton had a consciousnessPage 7
of guilt. We conclude that Judge Clark did not err in finding that the evidence was sufficient for a reasonable jury to find Payton’s guilt beyond a reasonable doubt.

Why we conclude that Judge Clark did not err in refusing to givePayton’s proposed jury instruction
Payton argues that Judge Clark erred in refusing to give his proposed jury instruction which would have instructed the jury that it could not consider Detective Kornchuk’s expert testimony for the purpose of proving that Payton possessed the controlled substance, but only for the purpose of determining whether the person in possession of the cocaine (whoever that might be) intended to sell or otherwise distribute it. Payton argues that “[t]he risk of unfair prejudice [from the expert testimony] was particularly high because the evidence of possession was weak.” Payton argues that if the jury believed Detective Kornchuk’s testimony about the typical characteristics of crack dealers, it could have “use[d] this finding to infer possession,” which would “amount to impermissible character evidence.” Payton’s argument does not make sense. Detective Kornchuk’s testimony was relevant to show that the items the police found on Payton’s person tended to establish that he was a drug dealer. And the evidence that Payton was a drug dealer supported the inference that the crack cocaine the police found on the ground, which was packaged for sale, belonged to Payton. The jury was entitled to draw these inferences. Therefore, Judge Clark did not err in denying Payton’s proposed instruction.

Conclusion

The judgment of the superior court is AFFIRMED.

[fn1] AS 11.71.030(a)(1), (3).

[fn2] 806 P.2d 857 (Alaska App. 1991).

[fn2] Alaska R. Crim. P. 6(q).Page 1