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NOT DESIGNATED FOR PUBLICATION

No. 121.204

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

MICHAEL STEVEN MARTINEZ,

Appellant.

MEMORANDUM OPINION

Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed September 24, 

2021. Affirmed.

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

Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and 

Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., GARDNER and WARNER, JJ.

ATCHESON, J.: A jury sitting in Finney County District Court convicted Defendant 

Michael Martinez of possession of methamphetamine with the intent to distribute and 

several other crimes. On appeal, Martinez challenges that drug conviction on three 

grounds and the overall fairness of his trial on three other grounds. We find no bases for 

upsetting the guilty verdicts and, therefore, affirm the judgments of conviction and the 

resulting sentences.
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FACTUAL AND PROCEDURAL HISTORY

Given the issues on appeal, we may sketch the salient facts with fairly broad 

strokes, recognizing the parties are familiar with the details outlined for the jurors during 

the three-day trial. Two Finney County Sheriff's officers were on routine patrol during 

the afternoon of November 10, 2017, in a residential area east of Garden City. They 

parked their patrol cars near what had been reported as a drug house. After seeing 

Monyai Lampkin at the front of the house, they drove around the block and returned as 

Lampkin came out of the house and got in an SUV. As the SUV drove away, one of the 

officers followed at a distance in what could be characterized as a low-speed, rolling 

surveillance of the vehicle. 

The driver of the SUV, later identified as Martinez, made a series of seemingly 

random turns in the residential area in what the officer perceived to be an effort to shake 

the pursuit. At one point, the SUV pulled into the driveway of a house. As the officer 

drove by, Martinez and Lampkin got out and went to the front door. They told a resident 

of the home they were lost, asked for directions, and left. Contacted by law enforcement 

officers later, the resident provided a surveillance video of his encounter with Martinez 

and Lampkin. In the video, Martinez is wearing a stocking cap and a black jacket with a 

distinctive shoulder patch—a detail that momentarily turns significant in our narrative.

The Sheriff's officer resumed his rolling surveillance of the SUV as the second 

officer remained in the vicinity. Martinez then parked the SUV in an alleyway, and he 

and Lampkin ran from the vehicle through the residential area. The following officer 

began a foot pursuit of the two and requested assistance from other officers. As he fled, 

Martinez discarded his stocking cap, the black jacket, and his outer shirt. He and 

Lampkin split up as the officers closed in. Some of the officers nabbed Lampkin first, and 

others overtook Martinez shortly afterward. Martinez had hidden in the backseat of an 

unlocked car parked in a residential driveway.
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Officers found the black jacket in the yard of another house on the route Martinez 

took as he ran. The residents of the house approached the officers and turned over a 

stocking cap they had found in the yard. The officers discovered a clear plastic bag 

containing what turned out to be about 111 grams of methamphetamine in a pocket of the 

jacket.

Shortly after his capture, Martinez spoke to law enforcement officers. He declined 

to talk about Lampkin. Although Martinez admitted that about 6 grams of marijuana 

investigators discovered in the SUV belonged to him, he disclaimed any connection to 

the methamphetamine found in the jacket. He suggested someone from the neighborhood 

might have stashed the drugs there. 

The State charged Martinez with possession of methamphetamine with the intent 

to distribute, a severity level 1 drug felony violation of K.S.A. 2017 Supp. 21-5705; 

tampering with evidence, a severity level 8 felony violation of K.S.A. 2017 Supp. 21-

5904(a)(2); criminal trespass, a misdemeanor violation of K.S.A. 2017 Supp. 21-5808; 

and possession of marijuana, a misdemeanor violation of K.S.A. 2017 Supp. 21-5706. 

During the trial in January 2019, law enforcement officers and residents from the area 

testified about their involvement in the surveillance, pursuit, and capture of Martinez and 

the identification and recovery of associated physical evidence. Pertinent to the issues on 

appeal, Detective Mike Tabor testified that based on his training and experience with 

drug cases, personal use quantities of methamphetamine are typically measured in 

fractions of a gram. He also told the jurors the comparatively large size of the individual 

methamphetamine crystals found in the jacket suggested they would be broken down for 

later sale. 

Martinez testified in his own defense. He told the jurors he ran from the SUV 

because he had no driver's license and thought there was an outstanding warrant for his 
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arrest in Texas. Martinez again acknowledged the marijuana was his and denied he had 

anything to do with the methamphetamine. He intimated Lampkin might have put the 

drugs in the jacket after he laid it on a seat in the SUV.

The jury convicted Martinez on the four charges. The district court later sentenced 

Martinez to a controlling 194-month term of imprisonment on the methamphetamine 

conviction followed by a 36-month period of postrelease supervision. The district court 

imposed considerably shorter terms of incarceration on the other convictions to be served 

concurrent with each other and with the 194-month sentence. Martinez has duly appealed.

LEGAL ANALYSIS

As we have indicated, Martinez had asserted an array of issues on appeal. We first 

take up those directly challenging the methamphetamine conviction and then turn to the 

more general attacks on the overall fairness of the trial and the resulting guilty verdicts. 

We add facts as necessary to those targeted discussions.

⦁ Martinez first contends K.S.A. 2020 Supp. 21-5705(e)(2) creates an 

unconstitutional presumption that possession of 3.5 grams or more of methamphetamine 

establishes intent to distribute. K.S.A. 2020 Supp. 21-5705(e)(2) ("there shall be a 

rebuttable presumption of intent to distribute if any person possesses . . . 3.5 grams or 

more of . . . methamphetamine"). This has become a recurrent issue of late for our court. 

See State v. Reisinger, No. 119,791, 2021 WL 2171093, at *6 (Kan. App. 2021) 

(unpublished opinion), rev. denied 313 Kan. ___(August 31, 2021); State v. Slusser, No. 

121,460, 2020 WL 7636318, at *1-2 (Kan. App. 2020) (unpublished opinion), petition for 

rev. filed January 26, 2021. In Slusser, we observed:

"Presumptions favoring the State in criminal cases can be tricky creatures. See 

Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419, 105 L. Ed. 2d 218 (1989) 
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(mandatory presumption in jury instruction deprives criminal defendant of due process 

protections afforded under Fourteenth Amendment to United States Constitution); 

Sandstrom v. Montana, 442 U.S. 510, 523, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Even a 

nonconclusive presumption bearing on criminal intent may be constitutionally suspect 

depending on how it has been presented to a jury. 442 U.S. at 524. Conversely, a jury 

properly may be instructed on reasonable inferences at least in some circumstances. See 

Barnes v. United States, 412 U.S. 837, 840-41, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973) 

(instruction that jury may infer knowledge from defendant's unexplained possession of 

recently stolen property constitutionally permissible); United States v. Harrison, 585 F.3d 

1155, 1159-60 (9th Cir. 2009) (instruction that jury may infer consciousness of guilt from 

flight constitutionally permissible)." 2020 WL 7636318, at *1.

Similarly, in County Court of Ulster County, New York v. Allen, 442 U.S. 140, 167, 99 S. 

Ct. 2213, 60 L. Ed. 2d 777 (1979), the Court recognized that a rebuttable presumption 

may be constitutionally infirm if it is the sole basis the government uses in a given case to 

establish an element of a charged crime. 

Here, however, whatever legal shortcomings there might be with K.S.A. 2020 

Supp. 21-5705(e)(2) as a presumption of intent, they amount to debatable academic 

points and nothing more. The statutory presumption did not affect Martinez' trial. That's 

because the jury was never instructed on—and, therefore, could not have considered—the 

statutory presumption. Rather, the district court instructed the jury this way:

"Under Kansas law, if you find the defendant possessed 3.5 grams or more of 

methamphetamine, you may infer that the defendant possessed with intent to distribute. 

You may consider the inference along with all the other evidence in the case. You may 

accept or reject it in determining whether the State has met the burden of proving the 

intent of the defendant. This burden never shifts to the defendant." 

Apart from the introductory phrase, the instruction matches PIK Crim. 4th 57.022 word 

for word. The pattern instruction permits jurors to draw an inference that they may make 
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or not. An evidentiary inference hasn't anywhere near the evidentiary force of rebuttable 

presumption. Typically, a rebuttable presumption requires jurors to assume fact B to be 

true if evidence establishing fact A has been admitted. See K.S.A. 60-413 (defining 

evidentiary presumption). The presumption may be overcome if a party presents evidence 

disproving fact A. See K.S.A. 60-414; see also Brown v. Vannoster, No. 120,376, 2019 

WL 5485149, at *4-5 (Kan. App. 2019) (unpublished opinion) (discussing evidentiary 

presumptions and inferences), rev. denied 312 Kan. 890 (2020). Conversely, jurors may 

draw an inference or not as they choose in exercising their role as fact-finders. 

In this case, Detective Tabor provided expert testimony that a personal use 

quantity of methamphetamine commonly would be less than a gram and the physical 

appearance of the methamphetamine found in Martinez' coat indicated a commercial 

batch that literally had not yet been broken down for distribution. Martinez did not 

dispute that testimony. His defense rested on denying any knowing possession of the 111 

grams of methamphetamine at all and not on whether it was for personal use rather than 

commercial distribution. Given that evidence, the instruction at most simply focused the 

jurors' attention on an entirely reasonable inference that could be drawn from Detective 

Tabor's undisputed testimony. In doing so, the instruction did highlight one aspect of the 

evidence presented to the jurors. But the instruction assiduously advised the jurors they 

could accept or reject the evidence, and the burden of proof never shifted to Martinez. 

The instruction did not compromise Martinez' basic right to a fair trial. See State v. Cruz, 

297 Kan. 1048, 1075, 307 P.3d 199 (2013) ("As we have recognized for decades, '[a] 

defendant is entitled to a fair trial but not a perfect one[.]'") (quoting State v. Bly, 215 

Kan. 168, 178, 523 P.2d 397 [1974]).

More to the point, however, Martinez does not attack the instruction. He 

challenges the propriety of the statutory presumption in K.S.A. 2020 Supp. 21-

5705(e)(2). As we have explained, the jurors were never informed of that presumption 
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and could not have relied on it. So Martinez poses no more than a hypothetical question 

that, even if answered favorably to him, affords no basis for relief from the guilty verdict. 

⦁ Martinez next contends his conviction for possession of methamphetamine with 

the intent to distribute rests on impermissible inference stacking and, thus, unmoored 

speculation rather than facts grounded in the evidence. We disagree with Martinez' 

characterization of the case marshalled against him.

A guilty verdict cannot depend upon a series of entirely speculative suppositions 

offered to prove a specific material fact. Cf. State v. Banks, 306 Kan. 854, 860-61, 397 

P.3d 1195 (2017) ("[I]t is permissible for the State to rely on multiple circumstances to 

support an inference of premeditation, so long as each circumstance has been proved, 

rather than presumed from another circumstance."). That's improper inference stacking. 

For example, the State could not argue a husband had a financial motive to murder his 

wife because he was debt-ridden and had recently taken out a life insurance policy on her 

without admitting evidence establishing the existence of both the debt and the insurance 

policy. See State v. Tobin, No. 114,216, 2017 WL 462161, at *4 (Kan. App. 2017) 

(unpublished opinion) (citing murdered spouse and unproven life insurance policy as 

example of impermissible inference stacking to establish motive). But we don't have 

pyramiding speculation proving essential components of the methamphetamine charge 

against Martinez.

The State had to prove two key factual elements: (1) Martinez possessed the 

methamphetamine; and (2) if he did, he did so with the intent to distribute the drug. 

Those are distinct facts necessary to prove the charge. As to the first, the State presented 

circumstantial evidence Martinez possessed the methamphetamine. It was discovered in 

the pocket of a coat Martinez had been wearing shortly before the discovery. That's 

enough. See State v. Thach, 305 Kan. 72, 84, 378 P.3d 522 (2016) (even gravest crimes 

may be proved with only circumstantial evidence). In addition, however, the jurors also 
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heard the implausible explanation Martinez promptly offered law enforcement officers 

for the drugs being in the coat—somebody from the neighborhood put a plastic bag filled 

with methamphetamine in the pocket of a stranger's jacket lying in the yard of one of the 

homes. Martinez' improbable notion is also circumstantial evidence of consciousness of 

guilt, i.e., that he actually had the methamphetamine all along. So was his shift away 

from that story at trial to implying Lampkin may have been responsible See United States 

v. Lopez-Monzon, 850 F.3d 202, 206-07 (5th Cir. 2017) (implausible exculpatory 

statements and shifting accounts indicative of guilty mind); United States v. Stony End of 

Horn, 829 F.3d 681, 687 (8th Cir. 2016); United States v. Farley, 607 F.3d 1294, 1334-

35 (11th Cir. 2010). 

The State also had to prove that whoever possessed the methamphetamine did so 

with the intent to distribute it rather than retaining it for personal use. Intent reflects a 

state of mind, and bad or illicit intent usually must be proved with circumstantial 

evidence, since wrongdoers typically do not announce their evil mindedness. See Thach, 

305 Kan. at 83-84; State v. Dixon, 279 Kan. 563, 604, 112 P.3d 883 (2005). Here, the 

State relied largely on the expert testimony of Detective Tabor, as we have already 

outlined, to establish that the quantity and crystalline composition of the 

methamphetamine indicated a commercial supply. His undisputed testimony, although 

circumstantial, was sufficient to prove an intent to distribute on the part of whoever 

possessed the methamphetamine. 

Here, each element was proved through a separate line of circumstantial evidence 

grounded in the trial testimony and exhibits. See Banks, 306 Kan. at 860. There was no 

impermissible stacking of speculative suppositions to establish a fact essential to prove 

Martinez' guilt.

⦁ Martinez next argues the district court should have instructed the jurors on the 

lesser included crime of simple possession of methamphetamine. We review claimed 
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instructional errors through a set of sequential considerations. See State v. Williams, 308 

Kan. 1439, 1451, 430 P.3d 448 (2018) (preservation, legal appropriateness, factual 

appropriateness, and prejudicial error). We first consider preservation. During the trial, 

Martinez did not object to the district court's failure to give a lesser included instruction 

and, therefore, failed to directly preserve the point. As a result, we review the omission 

for clear error. 

Simple possession is a recognized lesser included crime of possession with the 

intent to distribute. So the instruction would have been legally appropriate. Factual 

appropriateness is another matter in this case. Given Detective Tabor's testimony, we fail 

to see a factual basis for an instruction on simple possession. A district court need not 

instruct a jury on a lesser included crime absent some trial evidence that would 

reasonably support a guilty verdict. State v. Plummer, 295 Kan. 156, 161-62, 283 P.3d 

202 (2012). Martinez did not offer countering expert testimony that 111 grams of 

methamphetamine might be a personal use quantity. And Martinez never suggested as 

much in his own testimony. In theory, the jurors could have rejected Detective Tabor's 

testimony out of hand, but the district court had no tangible reason to believe they would. 

That sort of abstract possibility would not have warranted an instruction on simple 

possession as a lesser included crime. See K.S.A. 2020 Supp. 22-3414(3) ("In cases 

where there is some evidence which would reasonably justify a conviction of some lesser 

included crime . . . , the judge shall instruct the jury as to the crime charged and any such 

lesser included crime.").

Assuming the district court should have instructed the jurors on simple 

possession—an assumption we make not because we think it's correct but to give 

Martinez every consideration on this point—we would have to find clear error to grant 

him relief. After reviewing all of the trial evidence, we would have to be firmly 

convinced the jury would have reached a different verdict had the instruction on simple 

possession be given. Williams, 308 Kan. at 1451. We entertain no such conclusion given 
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the clear and undisputed evidence that the methamphetamine was of a commercial 

quantity and appearance.

In short, the district court did not err in omitting a jury instruction on simple 

possession of methamphetamine, and if it did, there was no clear error entitling Martinez 

to relief.

⦁ For his next issue, Martinez contends the district court responded to a question 

from the jury during deliberations in a way that impermissibly coerced some or all of the 

guilty verdicts. We conclude Martinez invited any error by the district court and cannot 

complain on appeal about the response to the jury. 

The jurors began deliberations about 10 a.m., immediately following the lawyers' 

closing arguments. About two hours later, the jurors asked to see some of the video 

evidence admitted during the trial and inquired about lunch. They also posed a question 

about unanimous verdicts. With the approval of the parties, the district court informed the 

jurors in writing that they all had to agree on any verdict. Just after 3 p.m., the jurors sent 

out note stating: "We are at 10 and 2. Any suggestions?" The district court did not 

assemble the jury in the courtroom to speak with the presiding juror or otherwise gather 

additional information. Again with agreement of parties, the district court sent this 

written response to the jurors: "All I can do at this point is encourage you to continue 

your deliberations with regard to this case." The jury returned the guilty verdicts about an 

hour later.

When a deliberating jury poses a question, the district court is obligated to provide 

a meaningful answer that is both legally and factually appropriate. State v. Walker, 308 

Kan. 409, 423-24, 421 P.3d 700 (2018); State v. Boyd, 257 Kan. 82, Syl. ¶ 2, 891 P.2d 

358 (1995). On appellate review, we consider the legal accuracy of the response without 

deference to the district court. But we otherwise defer to the district court's judicial 
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discretion in fashioning an answer for the jury. Walker, 308 Kan. at 423. At the same 

time, however, responding to jurors reporting they are at loggerheads or may be outright 

deadlocked entails a fraught exercise. A district court's improvident response may 

impermissibly pressure jurors to reach a verdict when they otherwise would not. See 

State v. Struzik, 269 Kan. 95, 109, 5 P.3d 502 (2000).

When the lawyer for a defendant participates in formulating and then approves the 

answer the district court provides in response to a question from jurors, the invited error 

rule precludes raising the adequacy of the response as a point for reversal on appeal. State 

v. Adams, 292 Kan. 151, 164, 254 P.3d 515 (2011) (invited error applied to response to 

deliberating jury); see State v. Hargrove, 48 Kan. App. 2d 522, 549, 293 P.3d 787 (2013) 

("The invited error doctrine prevents a . . . destructive practice—a party claiming the trial 

court committed reversible error by acting in the very manner that the party advocated."). 

Even if a lawyer does not affirmatively join in a response, the failure to object to the 

response triggers review for clear error, since the district court has been deprived of a fair 

opportunity to fix any perceived problem. See Walker, 308 Kan. at 424. 

The trial transcript shows the district court met with the lawyers and Martinez 

outside the presence of the jury to discuss the question posed during the afternoon 

deliberations. Martinez' lawyer discussed and endorsed the approach the district court 

took in responding and approved the content of the written answer to the jury. Any error 

in the response, therefore, would have been invited, and Martinez cannot complain about 

the response on appeal. The invited error rule disposes of the point adversely to Martinez. 

We need not further plumb the way the district court responded and offer no assessment 

of its efficacy. 

⦁ Martinez next contends the prosecutor committed prejudicial error in his closing 

argument to the jury and deprived him of a fair trial as a result. We disagree. In his 

closing argument, the prosecutor suggested Martinez could have entered the drug house 
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where the Sheriff's officers first saw him with Lampkin. The officers did not testify they 

saw Martinez go into or come out of the house. But they did not have the house in view 

during the time they drove around the block. So it would have been possible for Martinez 

to have gotten out of the SUV, gone in, and returned to the vehicle during that period. 

The governing analytical framework for prosecutorial error first considers whether 

an error has occurred at all and then weighs the prejudice to the defendant resulting from 

an actual error. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). Comments 

made during closing argument to the jury will be considered error if they fall outside the 

wide latitude afforded a prosecutor in discussing the evidence and the law at the close of 

a case. A defendant will be granted relief if the prosecutorial error deprived him or her of 

a fair trial under the standard set out in State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 

801 (2011), for a constitutional wrong. Sherman, 305 Kan. at 98-99, 109. 

The prosecutor's observation that Martinez might have gone into the house seems 

to be fair comment on the trial evidence and, therefore, would not be error. On the printed 

page of the trial transcript, it doesn't necessarily come across as a particularly persuasive 

argument, but that's beside the point. 

Even if the statement were error (and we don't think it was), the prosecutor simply 

offered it as a passing comment in an extended discussion of the evidence. The idea was 

neither a cornerstone of the State's case nor an insight of such clarity as to demand a 

guilty verdict on any of the charges. The brief remark did not deprive Martinez of a fair 

trial even assuming it were prosecutorial error.

⦁ Finally, Martinez argues cumulative error deprived him of a fair trial. Appellate 

courts may weigh the collective impact of trial errors and may grant relief if the overall 

impact of the deficiencies deprived the defendant of a fair hearing even when the errors 

considered individually would not necessarily require reversal of a conviction. State v. 
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Harris, 310 Kan. 1026, 1041, 453 P.3d 1172 (2019); State v. Smith-Parker, 301 Kan. 

132, 167-68, 340 P.3d 485 (2014). An appellate court examines the entire trial record to 

assess the aggregate effect of multiple trial errors. 301 Kan. at 167-68. The assessment 

takes account of "how the trial judge dealt with the errors as they arose; the nature and 

number of errors and their interrelationship, if any; and the overall strength of the 

evidence." State v. Miller, 308 Kan. 1119, 1176, 427 P.3d 907 (2018).

Here, we do not have multiple trial errors to consider under the cumulative error 

rule. We denied relief to Martinez on his argument about the district court's response to 

the jury question because any error was invited. We effectively determined the response 

was invited, precluding appellate review, rather than finding it to be erroneous. But an 

invited error cannot be invigorated on appeal in the guise of a cumulative error analysis—

only properly preserved errors can be considered. See State v. Knight, No. 105,092, 2012 

WL 2325849, at *7 (Kan. App. 2012) (unpublished opinion).

We found no other errors. By definition, a single error cannot drive a cumulative 

error analysis, since there is nothing to cumulate. State v. Leaper, 291 Kan. 89, 107, 238 

P.3d 266 (2010). Although we provided secondary rationales disposing of Martinez' 

arguments on the failure to instruct on simple possession of methamphetamine and on the 

prosecutor's closing argument assuming there had been error, we did so only as forensic 

exercises. We principally decided those issues adversely to Martinez because there was 

no error. Our alternative discussions premised on assumed and wholly artificial errors 

cannot jumpstart a claim for relief based on cumulative error.

Affirmed.