State v. Stuart

                IN THE SUPREME COURT OF THE STATE OF KANSAS


                                              No. 125,006

                                          STATE OF KANSAS,
                                              Appellee,

                                                    v.

                                         TIRRELL L. STUART,
                                             Appellant.


                                  SYLLABUS BY THE COURT

1.
        Felony murder is the killing of a human being committed in the commission of,
attempt to commit, or flight from an inherently dangerous felony. The State must
establish all elements of the underlying felony to successfully prove felony murder.


2.
        Simply acquiring a controlled substance in a drug buy is not enough to prove the
recipient's guilt for distribution of that controlled substance.


        Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Oral argument held
November 1, 2023. Opinion filed October 4, 2024. Reversed.


        Ryan J. Eddinger, Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.


        Claire Kebodeaux, assistant district attorney, argued the cause, and Mark A. Dupree Sr., district
attorney, and Kris W. Kobach, attorney general, were with her on the brief for appellee.




                                                    1
The opinion of the court was delivered by


       BILES, J.: Felony murder is the killing of a human being committed in the
commission of, attempt to commit, or flight from an inherently dangerous felony. K.S.A.
21-5402(a)(2). The State must establish all elements of the alleged underlying felony to
successfully prove felony murder. State v. Milo, 

, 442, 

 (2022).
Here, Tirrell Stuart argues the State failed to demonstrate the distribution-of-marijuana
offense the State alleged to support his felony-murder conviction. See State v. Hillard,

, 850, 

 (2021) (reversing conviction for conspiracy to
distribute methamphetamine, reasoning insufficient evidence showed the buyer agreed to
distribute after acquiring). We agree with Stuart. For that reason, we must reverse his
felony-murder conviction and vacate the sentence. See Burks v. United States, 

, 

, 

 (1978) (noting the Double Jeopardy Clause prohibits
a second trial to let the prosecution fix its insufficient evidence problem from the first
trial); State v. Scott, 

, 

 (2007) (when reversing a
conviction based on insufficient evidence, "no retrial on the same crime is possible").


                        FACTUAL AND PROCEDURAL BACKGROUND

       Hanna Lindsay was at Stuart's apartment with other friends when Emilio Lopez
contacted her by Facebook Messenger to ask if she wanted to buy some marijuana. She
agreed and arranged to get $50 worth. She drove Stuart and three other friends to Lopez'
house. Stuart handed Lopez the money, and he handed Stuart the marijuana. Hanna then
drove Stuart and the others to pick up another friend, S.L., and they returned to the
apartment. Hanna testified they "were all sitting there smoking."


       According to Hanna, about two hours later, Stuart asked her to buy more
marijuana, so she set up another deal with Lopez for $200 worth. She said she drove back
to Lopez', with S.L. sitting in the front passenger seat and Stuart in the back. When they


                                              2
arrived, Hanna recalled Lopez walked over to the front passenger door to talk with her
and S.L. through an open window. Stuart handed S.L. the money, who passed it to Lopez,
who handed the marijuana to S.L.


       The problem came when Lopez said the money seemed fake and grabbed the
marijuana back from S.L. Both women testified Stuart shot Lopez through the open front
passenger window after Lopez took the marijuana back from S.L. He died in the front
yard. The State charged Stuart with felony murder with distribution of marijuana as the
predicate felony. Stuart denied being present at this second transaction.


       The district court's felony-murder instruction stated:


               "The defendant is charged with Murder in the First Degree. The defendant
       pleads not guilty.


               "To establish this charge, each of the following claims must be proved:


               "1. The defendant killed Emilio Lopez.


               "2. The killing was done while defendant was committing distribution of
       marijuana.


               "3. This act occurred on or about the 24th day of January, 2020, in Wyandotte
       County, Kansas.


               ....


               "The elements of distribution of marijuana are as follows:


               "1. The defendant distributed marijuana.


               "2. The quantity of the marijuana was less than 25 grams.

                                                   3
               ....


               "'Distribute' means the actual, constructive, or attempted transfer of an item from
       one person to another, whether or not there is an agency relationship between them.
       'Distribute' includes sale, offer for sale, or any act that causes an item to be transferred
       from one person to another." (Emphasis added.)


       A jury convicted Stuart, and the district court imposed a life sentence without
possibility of parole for 25 years. Stuart directly appeals to this court. Jurisdiction is
proper. See K.S.A. 22-3601(b)(3), (b)(4).


                                               ANALYSIS

       Stuart makes two claims on appeal: The State did not prove the underlying felony
of distribution of marijuana supporting the felony-murder verdict; and the trial court
failed to instruct the jury on a definition of possession. But we need not reach the second
claim because the first one requires reversal of Stuart's felony-murder conviction.


Standard of review

       An appellate court reviews evidence sufficiency challenges in the light most
favorable to the prosecution to determine whether a rational factfinder could have found a
defendant guilty beyond a reasonable doubt. In so doing, the court does not reweigh
evidence, assess witnesses' credibility, or resolve evidentiary conflicts. State v. Aguirre,

, 209, 

 (2021). This sets a rather low bar for the State to clear
on appeal. State v. Chandler, 

, 

 (2018). Even so, once
insufficiency is determined, it is not toothless. See Scott, 

.




                                                     4
Discussion

       Felony murder is "the killing of a human being committed . . . in the commission
of, attempt to commit, or flight from any inherently dangerous felony," including
distribution of marijuana. K.S.A. 21-5402(a)(2), (c)(1)(N). It is "unlawful for any person
to distribute or possess with the intent to distribute" marijuana. K.S.A. 21-5705(a)(4);
K.S.A. 65-4105(d)(17). "'Distribute' means the actual, constructive or attempted transfer
from one person to another of some item whether or not there is an agency relationship"
and "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." K.S.A. 21-5701(d).


       Possession is an essential element of distribution, requiring a person have "joint or
exclusive control over an item with knowledge of and intent to have such control."
K.S.A. 2019 Supp. 21-5701(q); see State v. Crosby¸ 

, 637-38, 

(2021) (providing transferring a controlled substance is impossible without first having
joint or exclusive control over the substance at issue). There is no temporal requirement,
as made plain by K.S.A. 2019 Supp. 21-5701(q)'s language, despite Stuart's suggestion
otherwise.


       Viewing the evidence in the light most favorable to the State, we hold Stuart
possessed the marijuana through joint control once Lopez handed it to S.L.—she acted as
Stuart's intermediary by exchanging the money and drugs for his benefit. See Black's
Law Dictionary 1409 (11th ed. 2019) (defining joint possession as "[p]ossession shared
by two or more persons"). But this conclusion only gets us part way to sustaining Stuart's
conviction because mere possession is not enough to establish distribution, and that is
where the State's case runs aground.




                                              5
       The State must also show Stuart distributed or intended to distribute the marijuana
beyond personal use. See K.S.A. 21-5701(d). The State's "evidence may be
circumstantial—flowing from reasonable inferences and possibly statutory
presumptions," "[b]ut it must be present for there to be a conviction." State v. Mora, 

, 548, 

 (2022).


       Both Crosby and Hillard discussed distribution's transfer requirement. In Crosby,
the court held a distribution conviction must be supported by evidence that establishes a
defendant first possessed the controlled substance before transferring it to another.
Crosby, 312 Kan. at 637-38. But it declined to consider whether a person who only
receives drugs is guilty of distribution. 312 Kan. at 636. Even so, its discussion signaled a
distribution conviction needs more than possession. And shortly after Crosby, the court in
Hillard concluded distribution requires evidence that demonstrates a defendant further
transferred the drug after obtaining possession or possessed with intent to distribute it.
Hillard, 313 Kan. at 850. The Hillard court reversed the distribution conviction,
reasoning the State merely showed the defendant "conspired to 'distribute' a controlled
substance to herself only," which is possession, not distribution. 313 Kan. at 850. In other
words, simply acquiring a controlled substance is not enough to prove the recipient is
guilty of distribution.


       It seems obvious from the trial record here that the State did not appreciate it
needed to prove the intent-to-distribute element to convict Stuart on this felony-murder
charge. Its case focused entirely on the drug buy—not what was going to happen
afterward to transfer the newly purchased marijuana to someone else. See Hillard, 313
Kan. at 850 (noting the State failed to present any evidence of the defendant's "intentions
for the drug once she received it"). This seems most apparent from the prosecutor's
closing argument outlining "what I have to prove," which explained:




                                              6
               "No. 2, the killing was done while the defendant was committing distribution of
       marijuana. At the bottom of [the jury instruction], it talks about the definition of
       distribute and Kansas law does not talk about the differences between a buyer and a seller
       in distribution. It says distribution does include the sale, offer for sale or an act that
       causes an item to be transferred from one person to another, which is a buyer or a seller.
       Tirrell Stuart was engaged in distributing marijuana when he gave the money and was
       trying to get the weed.


               "No. 3, this happened on January 24th of 2020 in Wyandotte County, Kansas.
       Over and over you heard that Emilio Lopez died at 8000 Greeley here in Wyandotte
       County, Kansas. We're talking about distribution of marijuana. So those elements are out
       here too. We're talking about the defendant Tirrell Stuart distributed marijuana. He was
       involved in the drug deal. He was an active participant in the drug deal. He provided the
       money. His goal was to receive drugs, marijuana." (Emphases added.)


       Later the prosecutor said: "And so that's why I submit that the defendant is guilty
of distributing marijuana and that he killed [Lopez] in the middle of that distribution, that
he knew, the defendant knew what he was doing." (Emphasis added.)


       The State's closing argument glaringly misstated the law on distribution as
described in Crosby and Hillard. Stuart could not be guilty of distribution under our
caselaw simply because, as the prosecutor told the jury, "[H]e gave the money and was
trying to get the weed." And nowhere in the State's closing did it mention it had to
prove—or did prove—Stuart intended to transfer the marijuana to someone else after
buying it. The State even conceded at oral argument to this court that its prosecution
theory did not concern itself with Stuart's intentions for the drug once he acquired it.


       If the issue were prosecutorial error, the State's closing argument would be a
misstatement of the applicable law. See State v. Watson, 313 Kan 170, 171-72, 

                                                     7
877 (2021) (reversing Medicaid fraud conviction when prosecutor misstated the law by
arguing submission of timesheets was sufficient regardless of the defendant's intent to
defraud). But our issue is evidence sufficiency, so where does that leave us?


       To begin with, the State's understanding about what it needed to prove is not really
important. Instead, we must ask whether a reasonable juror could find beyond a
reasonable doubt that Stuart distributed or intended to distribute the marijuana from
Lopez based on the evidence presented. See State v. Pepper, 

, 776, 

 (2023) (explaining evidence sufficiency asks only if the evidence was ever strong
enough that a reasonable trier of fact could have found the crime's essential elements
beyond a reasonable doubt). And the State now argues on appeal a "rational fact-finder
could find Stuart guilty of distribution because there is a reasonable inference that Stuart
was buying to give to his friends and share the marijuana" purchased from the second
deal. In other words, in its effort to salvage this conviction, the State drops its earlier
assertion that Stuart distributed by receiving the drug from Lopez.


       But in advancing this new argument, the State fails to confront Mora's suggestion
that the mere act of sharing marijuana with codefendants may remain personal use under
some circumstances. See Mora, 315 Kan. at 550 ("We reject the State's contention that
the mere act of Bledsoe and Mora consuming the marijuana together would satisfy the
statutory definition of distribution."). There, the court noted, no evidence supported the
defendant "ever sold or offered marijuana for sale, arranged to meet anyone to sell
marijuana to, or anything else that could suggest he was engaging in distribution." 315
Kan. at 550. Here, Hanna was also charged with felony murder, so any marijuana Stuart
might have intended to share with her seemingly implicates Mora.


       This confronts us with yet another legal quandary: Does Mora incorrectly limit
distribution's statutory definition? See K.S.A. 21-5701(d). Neither party briefed this
question, but Stuart did not dispute it. In the end, we will assume, without deciding, the

                                               8
State's new premise on appeal interprets the statute's text correctly. See State v. Gonzalez,

, 

 (2018) ("Simply pressing a point without pertinent
authority, or without showing why it is sound despite a lack of supporting authority or in
the face of contrary authority, is akin to failing to brief an issue. When a party fails to
brief an issue, that issue is deemed waived or abandoned.").


       In examining the State's new argument and determining whether sufficient
evidence existed, we consider both the direct and circumstantial evidence in the record.
"Direct evidence is such evidence which, if believed, proves the existence of a fact
without inference or presumption, as for example the testimony of an eyewitness as to
what he or she actually saw, heard, or touched." State v. Scaife, 

, 

 (2008). And "'[c]ircumstantial evidence tends to prove a fact in issue by proving
other events or circumstances which afford a basis for reasonable inference by the jury of
the occurrence of the fact in issue.'" State v. Evans, 

, 

(2003). Circumstantial evidence can support a conviction of even the most serious
offense and the law does not differentiate between the probative values of direct and
circumstantial evidence, treating both as having similar weight in proving relevant facts.
State v. Darrow, 

, 

 (2016); Scott, 

.


       Here, the State failed to introduce direct evidence about the second transaction to
establish the distribution element. From the first transaction, we know Stuart "did the
deal," by exchanging money for marijuana with Hanna, Yulianna, Bones, and Quavo in
the car. But what happened next is less clear because the record is littered with
ambiguous pronouns. For example, when discussing the first deal, the prosecutor asked
Hanna, "Did you all get weed from [Lopez]?" to which she responded, "Yes, we did."
And when the prosecutor asked, "Where did you go after you all got the weed from
Emilio?" Hanna said "we" went to pick up S.L. from work, joining them "all" in the car.
The prosecutor then asked, "Where did you guys go?" and Hanna responded that "we"
drove to Stuart's apartment. In response to the question "[w]hat happened when you all

                                               9
get back to the apartment?" Hanna testified: "Bones rolled up a blunt. We were all sitting
there smoking." She also testified "we hung out for awhile [sic]." But this does not tell us
if "we" refers to the same group the entire time or what they smoked.


       S.L.'s testimony also does not clarify these ambiguities. She said Hanna picked her
up from work with "a kid named Bones and his girlfriend Yulianna and a kid named
Quavo and a Mexican kid, I don't remember his name. I don't remember who else." She
said, "We went to [Stuart's] house" where "[w]e were just hanging out with [Stuart] and
we got some beer and we just hung out." But she could not remember if other people
were smoking marijuana, just cigarettes. At oral argument, the State conceded S.L. did
not smoke any marijuana that night. And what about the mother of Stuart's children who
lived in the apartment, but no evidence shows if she was even present?


       As defense counsel noted at oral argument, "there's a hole, a pretty big one" in the
evidence. And the State concedes it failed to ask if Stuart ever shared his marijuana from
the first buy. In any event, believing all of Hanna's testimony, we only know from the
direct evidence that Stuart possessed the marijuana from the first deal, but not if he
shared it. Similarly, no trial evidence directly shows Stuart ever intended to distribute
marijuana from the second transaction.


       Even so, that does not end our inquiry because circumstantial evidence, which
requires a factfinder to draw reasonable inferences, may equally prove distribution or
support a conviction of even the gravest offense. See Scott, 

; State v.
McBroom, 

, 

 (2014). A reasonable inference is when
"different circumstances are used to support separate inferences or where multiple pieces
of circumstantial evidence separately support a single inference. State v. Banks, 

, Syl. ¶ 3, 

 (2017). An unreasonable inference, on the other hand, is one
based on mere suspicion or inference stacking. State v. Doyle, 

, 

 (1968) (stating "mere suspicion, however strong, is not enough and juries are

                                             10
not permitted to base verdicts of conviction on suspicion"); Mora, 315 Kan. at 547
(noting "stacking one presumption upon another to reach a fact is" prohibited). Simply
put, an inference that presumption A, presumption B, and presumption C all
independently point to fact D is reasonable and permitted; an inference, however, that
presumption A leads to presumption B leads to presumption C leads to fact D is
unreasonable and prohibited. Banks, 306 Kan. at 861.


       So starting with the evidence relating to the first deal, we directly know: (1) the
group of friends all went together to "get weed from [Lopez]," (2) Stuart handed Lopez
money and Lopez handed him the marijuana, (3) the group picked up S.L. and returned to
Stuart's place, and (4) "Bones" rolled a joint and "we all" smoked. Stuart does not dispute
these facts. And from the same evidence we can reasonably presume Stuart shared the
initial purchase with the friends by smoking at his apartment. We can do so because that
assumption flows from separate, proven facts—not from a string of inferences based on a
single proven fact. See 29 Am. Jur. 2d Evidence § 214 ("Rule against inference-stacking
prohibits an inference where an initial inference is drawn from a fact, and other
inferences are built solely and cumulatively upon the first, so that the conclusion reached
is too remote and has no sound logical foundation in fact."). In the words of the Banks
court, the State showed fact A, fact B, and fact C all independently lead to fact D—Stuart
distributed the drugs after the first transaction (assuming without deciding the State's
distribution premise).


       But the reasonable inference (fact D) does not establish the underlying felony of
distribution for felony murder, which is premised on the second transaction. When
viewed in the light most favorable to the prosecution, the evidence shows the first deal
was a discrete occurrence from the second transaction and Lopez' death. The first buy
happened earlier in the day with Stuart and his friends going back to the apartment,
before Stuart returned for the second buy with a different group. Fact D was unconnected
to Stuart shooting Lopez for taking the second drug back. See State v. Patillo, 

995, Syl. ¶ 5, 

 (2020) (under the felony-murder statute, the killing must
occur within the res gestae of the underlying crime, and there must be a direct causal
connection between the felony and the resulting death).


       Accordingly, the State must prove Stuart intended to distribute the marijuana from
the second deal to establish the underlying felony it alleged. But that is where the "big
hole" appears in the State's evidence. Hanna testified that after the first transaction they
hung out for a while, at which point Stuart told her "to ask Emilio if [they] could pull up
for some more"—$200 worth. She also testified about her Facebook messages with
Lopez. She said, "slide me 30gs for 2 bills," meaning 30 grams for $200. Lopez replied,
"[Y]ou really want that for $200?" She messaged back, describing that message at trial as
indicating Stuart "liked what we had gotten the first time and he wanted to get more of
it."


       From this, we directly know Stuart liked the initial purchase, and that he asked
Hanna to buy a larger quantity. Based on this, the State insists we still can reasonably
infer an intent to distribute from the second deal. It reasons Stuart first bought $50 worth
and shared it with friends and then asked Hanna to set up a second purchase "to buy even
more marijuana." This, in the State's view, strengthens the presumption he was
purchasing to again share with his friends like he did after the first buy.


       But this pile of guesswork impermissibly requires making an inference based on
another inference. The State entirely misses that its proposed presumption is only a
logical conclusion if we initially make the separate inference that Stuart distributed the
first deal. It incorrectly assumes it directly proved that fact with the evidence discussed
above. And it goes on, without any citation to the record, to argue even if he were not
going to share with the other friends, Stuart must have intended to share with Hanna and
S.L.—even though the State concedes S.L. never smoked at any time that day. All the
State has is Hanna "hoping for other people to purchase" marijuana so she could smoke

                                              12
it, but that says nothing about Stuart's state of mind. The State's prosecutorial assumption
requires an unreasonably large jump to conclude Stuart intended to distribute the second
purchase from what the State proved at trial.


       The court in Mora illustrates the inference stacking problem presented here.
There, the defendant's felony-murder conviction was based on two underlying felonies:
attempted aggravated robbery and distribution of marijuana. In reversing the conviction
based on attempted aggravated robbery, the Mora court held the State's case
impermissibly stacked inferences to conclude the defendant intended to commit
aggravated robbery. Mora, 315 Kan. at 546-47. The district court first inferred the
defendant had no money from the established facts that he lacked a job, home, and car.
And from that, the district court made a second inference the defendant necessarily
intended to rob the drug dealer because he could not get the marijuana any other way.
The same impermissible logic contaminates Stuart's prosecution.


       All the State has here is Hanna "hoping for other people to purchase" marijuana so
she could smoke it—a fact the dissent hangs its hat on. But her hope says nothing about
Stuart's state of mind, which is where the focus needs to be for the State to prove its case.
Her desire about smoking Stuart's second purchase does not reveal whether he intended
to share it with others or just consume it himself sometime later.


       There is insufficient evidence in the record to support the distribution element of
the underlying offense, which means the evidence is necessarily insufficient to sustain
Stuart's felony-murder conviction. And with that, we need not consider the second issue
of instructional error.


       Reversed.




                                             13
                                                  …


       STEGALL, J., dissenting: I would hold there is sufficient evidence to support the
conviction for felony murder with the underlying felony of distribution of marijuana.
Showing insufficient evidence "is a high burden, and only when the testimony is so
incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt
should we reverse a guilty verdict." State v. Meggerson, 

, 247, 

(2020).


       The testimony heard by the jury—and explained by the majority—present enough
circumstantial evidence to allow a reasonable juror to conclude that Stuart intended to
distribute marijuana. State v. Scott, 

, 

 (2007)
(circumstantial evidence may support a conviction of even the gravest offense); State v.
Pepper, 

, 776, 

 (2023) (explaining evidence sufficiency asks
only if the evidence was strong enough that a reasonable trier of fact could have found
the crime's essential elements beyond a reasonable doubt).


               "'Distribute is defined as "the actual, constructive or attempted transfer from one
       person to another of some item whether or not there is an agency relationship." K.S.A.
       2019 Supp. 21-5701(d). This "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." K.S.A. 2019 Supp.
       21-5701(d).'" State v. Mora, 

, 549, 

 (2022) (quoting State v.
       Crosby, 

, 637, 

 [2021]).


       Thus, the question before us is whether a reasonable juror could find beyond a
reasonable doubt Stuart was purchasing marijuana with the intent to later transfer, by any
act, at least some of that marijuana to another person. K.S.A. 21-5701(d). The majority
makes much of the fact that in their view, such a conclusion would require impermissible
inference stacking between the first and the second marijuana purchase. This distracts



                                                    14
from the possibility that a reasonable juror could make such a finding based solely on the
facts surrounding the second transaction. And this possibility is certainly supported by
the evidence.


         The first transaction does lay the evidentiary back-drop to a full understanding of
the second transaction. Stuart had asked Hanna to set up a second purchase—on the same
day—for more marijuana from the same person. State v. Stuart, 

, slip op. at
2, 12.


         "Hanna testified that after the first transaction they hung out for a while, at which point
         Stuart told her 'to ask Emilio if [they] could pull up for some more'—$200 worth. She
         also testified about her Facebook messages with Lopez. She said, 'slide me 30gs for 2
         bills,' meaning 30 grams for $200. Lopez replied, '[Y]ou really want that for $200?' She
         messaged back, describing that message at trial as indicating Stuart 'liked what we had
         gotten the first time and he wanted to get more of it.'" 

, slip op. at 12.


The majority states that "[f]rom this, we directly know Stuart liked the initial purchase,
and that he asked Hanna to buy a larger quantity." 

, slip op. at 12.


         But we also know that Stuart liked what "we" got the first time, and the majority
admits there's a reasonable inference that Stuart shared what "they" got from the first
transaction. 

, slip op. at 11. Jurors also knew that the second time around,
Hanna wanted "other people to purchase" marijuana so "she could smoke it." 

, slip op. at 13. And in fact, the evidence shows that Stuart was the "other" person
whose marijuana Hanna was planning to smoke. No impermissible inference stacking is
required to reach such a conclusion. The majority over-thinks the evidentiary question
before us. To a reasonable juror exercising ordinary knowledge and common-sense, the
testimony paints a relatively simply picture—a planned marijuana purchase which was
intended for later use among a group of friends who had been partying all day, and
desired to continue doing so.

                                                      15
       I would hold that based on the evidence presented, viewed in the light most
favorable to the State, a jury could reasonably conclude that Stuart arranged the second
buy with the intention of later distributing that marijuana among friends.


       For this reason, I dissent.


       LUCKERT, C.J., joins the foregoing dissenting opinion.




                                            16