State v. McClung ( 2021 )


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  •                            NOT DESIGNATED FOR PUBLICATION
    No. 121,412
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    STATE OF KANSAS,
    Appellee,
    v.
    JILL ANN MCCLUNG,
    Appellant.
    MEMORANDUM OPINION
    Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed September 10,
    2021. Affirmed.
    Clayton J. Perkins, of Capital Appellate Defender Office, for appellant.
    Emma Halling, assistant district attorney, Suzanne Valdez, district attorney, and Derek Schmidt,
    attorney general, for appellee.
    Before SCHROEDER, P.J., MALONE, J., and BURGESS, S.J.
    PER CURIAM: Jill Ann McClung appeals her convictions for one count of
    possessing methamphetamine with intent to distribute, one count of possessing drug
    paraphernalia, and three counts of unlawfully distributing methamphetamine using a
    communication facility. She argues that we should reverse her convictions for three
    reasons: (1) the district court wrongly denied her motion to suppress the items removed
    from her car; (2) the district court wrongly admitted into evidence, over her hearsay
    objection, a report on her cell phone's text message exchanges; and (3) the prosecutor
    1
    committed several instances of error during closing arguments. We find McClung's
    arguments unpersuasive and affirm her convictions.
    FACTUAL AND PROCEDURAL BACKGROUND
    In October 2016, Detective Kimberlee Nicholson of the Lawrence Police
    Department began investigating McClung as a potential drug dealer. Through this
    investigation, she received information that McClung was distributing methamphetamine
    to Anthony Sutton. Sutton lived in a house located on Illinois Street in Lawrence.
    On December 21, 2016, at approximately 6:30 p.m. to 7 p.m., Detective Nicholson
    observed a woman who she believed to be McClung driving a gold Toyota Avalon to
    Sutton's house. According to the detective, Sutton left the house and entered the car, then
    a few minutes later both Sutton and the woman exited the car and entered Sutton's house.
    The detective continued her surveillance of Sutton's house until around 10:30 p.m. At that
    time, she radioed Officers Shannon Riggs and Matthew Weidl, who had been assisting
    her investigate the woman she believed to be McClung. She told the officers that
    McClung had just exited Sutton's house with two other people and drove off in
    McClung's car. The detective asked the officers to attempt a traffic stop.
    Shortly after receiving the radio call, Officer Riggs noticed the car drive by and
    that the left taillight was broken. Officer Riggs decided to stop McClung's car based on
    the broken taillight. Because he had previously searched McClung's name in the police
    computer system, he also knew that her driver's license was expired.
    As Officer Riggs approached McClung's car, he noticed that the man in the
    backseat was moving around a lot, which made him suspect that the man was hiding
    something. As he approached, Officer Riggs noticed that the driver opened her door. The
    2
    officer became suspicious because, in his experience, most people simply roll down their
    windows to talk during a traffic stop.
    When McClung opened the driver's door, Officer Riggs asked her to exit the car so
    he could show her the broken taillight. At that time, McClung told Officer Riggs that she
    already knew that the taillight was broken because she had accidently reversed the car
    into a dumpster. When the officer asked her for her driver's license, McClung only
    produced a Kansas identification card. When Officer Riggs asked the passengers in the
    car to roll down their windows so they could talk to Officer Weidl and Officer Kristen
    Kennedy, who arrived on the scene about a minute into the stop, McClung interrupted
    Officer Riggs. She told the passengers they did not have to speak to him. When Officer
    Riggs asked the passengers for their identification, McClung interrupted again. She told
    the passengers that they did not have to give their identification to the officer.
    Because McClung had not produced a driver's license, had told the passengers not
    to produce identification, and was a suspected methamphetamine distributor, Officer
    Riggs decided to handcuff McClung and place her in his patrol car. As Officer Riggs did
    this, McClung protested and told him that she did not need a driver's license because she
    had a "constitutional right to travel."
    Meanwhile, as Officer Riggs tried to move McClung away from her car to his
    patrol car, Officer Weidl began speaking to the passengers. Officer Weidl noticed that
    Officer Riggs was having trouble handcuffing McClung, so he went over to assist. After
    Officer Riggs had successfully handcuffed McClung, Officer Weidl, who had a K9
    partner, returned to McClung's car to have the dog conduct a search.
    Before conducting the dog sniff, Officer Weidl directed Pamela Arnold, who was
    sitting in the front passenger seat, and William Byrd, who was sitting in the backseat, to
    exit the car. Once Byrd had exited the car, Officer Weidl told Byrd that he was going to
    3
    pat him down for weapons. At this point, Byrd volunteered that he had a marijuana pipe
    on his person. Officer Riggs testified that by the time he was finished dealing with
    McClung at his patrol car, Byrd had already admitted to having a marijuana pipe on his
    person.
    Upon Byrd's admission, Officer Weidl started searching McClung's car. The
    officer started by searching the backseat in the area where Byrd had been sitting. During
    this search, Officer Weidl discovered a case containing a pipe and a plastic baggie
    containing methamphetamine-like residue inside Byrd's boots.
    Upon finding the drug paraphernalia and methamphetamine inside Byrd's boots,
    Officers Weidl and Kennedy decided to search the remainder of the car. During this
    search, Officers Weidl and Kennedy found a bag containing a methamphetamine-like
    substance and a digital scale covered in a methamphetamine-like residue in the locked
    glovebox, numerous plastic baggies inside McClung's purse, and McClung's cell phone.
    Both McClung's purse and cell phone were found sitting on top of the driver's seat in the
    car.
    Once Officers Weidl and Kennedy finished searching the car, they allowed
    McClung to leave on her own accord. They told McClung that she could face criminal
    charges if lab testing showed that the substances seized from her car contained
    methamphetamine. Ultimately, Kansas Bureau of Investigation (KBI) lab testing
    established that the substances seized from McClung's car were methamphetamine. The
    baggie removed from McClung's locked glovebox had just over 10 grams of
    methamphetamine inside it. After obtaining a search warrant, the officers downloaded
    data from McClung's cell phone using Cellebrite software, indicating that the cell phone
    sent and received multiple messages about selling methamphetamine. Those text
    messages included: (1) a December 1, 2016 text message from McClung's phone to a
    contact named "Plumber" around 8 a.m., asking "Can I trouble you for a 20[?]"; (2) a
    4
    December 1 text message from an unknown sender to McClung's phone around 6 a.m.
    explaining that he or she had "someone who needs a ten"; (3) a December 12 text
    message from a contact named "Vinny" to McClung's phone around 3 a.m. asking, "What
    are [you] wanting for that or those sev[en?]"; and (4) a December 20 text message from
    an unknown sender to McClung's cell phone around 5 a.m. asking, "Hey, you wanna
    make a little money?"
    As a result, the State charged McClung with one count of possessing
    methamphetamine with intent to distribute, one count of possessing drug paraphernalia,
    four counts of unlawfully distributing methamphetamine using a communication facility,
    one count of driving with an invalid license, and one count of driving with a defective
    taillight. The four counts of unlawfully distributing methamphetamine using a
    communication facility hinged on the four messages previously described.
    After McClung was arrested, she moved to suppress all the evidence seized during
    the search of her car and its contents. In the motion, McClung argued that the police
    lacked probable cause to search her car and seize its contents. She asserted the search of
    her car and seizure of its contents occurred outside of the scope of the sole legitimate
    purpose of the traffic stop, which was to investigate her broken taillight. McClung argued
    that the district court should suppress all the evidence obtained during the search of her
    car and its contents because, during the search, the officers violated her rights as stated
    under the Fourth Amendment to the United States Constitution and § 15 of the Kansas
    Constitution Bill of Rights.
    In response the State countered that the search of McClung's car was legal
    because, during the stop, the officers "developed probable cause that criminal activity
    was afoot" when Officer Weidl discovered the marijuana pipe on Byrd. The State argued
    that because Officer Weidl found the marijuana pipe on Byrd, the officers developed
    probable cause to search the backseat area of the car where Byrd had been sitting. In
    5
    making this argument, the State alleged that Officer Weidl discovered the marijuana pipe
    on Byrd as Officer Riggs attempted to obtain information from McClung relating to the
    broken taillight and her expired driver's license, which the State argued were both
    legitimate reasons for the stop. The State then argued that after Officer Weidl discovered
    the drug paraphernalia and methamphetamine in Byrd's boots, the officers developed
    probable cause to search the remainder of McClung's car and its contents. The State
    argued that the district court should deny the suppression motion because the officers
    neither impermissibly extended the stop nor searched McClung's car without probable
    cause.
    The district court held a hearing on McClung's suppression motion. At the hearing,
    the State presented testimony from Detective Nicholson, Officer Riggs, and Officer
    Weidl. During their testimony, they each explained their role in investigating McClung
    for methamphetamine distribution, stopping her car because of the broken taillight and
    her expired driver's license, and searching her car for contraband. At the end of the
    hearing, the district court relied on the officers' testimony to deny McClung's suppression
    motion. In denying the motion, the district court found that: the police had reasonable
    suspicion to stop McClung based on the broken taillight and her expired driver's license;
    upon Byrd's admission to possessing a marijuana pipe, the officers had probable cause to
    search for evidence of criminal activity in the backseat area where Byrd had been sitting;
    and upon the discovery of the methamphetamine and drug paraphernalia inside Byrd's
    boots, the officers had probable cause to search the remainder of McClung's car and its
    contents. The court further found that Officer Riggs' decision to detain McClung "until
    the situation was under control and the search was finished was reasonable."
    A jury trial was held between March 25, 2019, and March 28, 2019. At trial,
    McClung's defense hinged on four contentions: (1) that all of the methamphetamine and
    paraphernalia that the officers found in her car the evening of December 21 belonged to
    Byrd; (2) that her cell phone had incriminating text messages about distributing
    6
    methamphetamine on it because all the people who lived at her house regularly used her
    cell phone; (3) that she had plastic baggies in her purse because she used them for selling
    jewelry online; and (4) that she had inadequate notice of her driver's license expiring. To
    support these contentions, McClung presented testimony from her daughter Jessie and
    Arnold.
    Both Arnold and Jessie testified that McClung was at Sutton's house during the
    evening of December 21 because McClung had volunteered to help Sutton move. Arnold
    also testified that at the direction of Byrd she placed the items that were eventually
    seized, which were within a bag, in McClung's glovebox while helping Sutton move
    earlier that day. Arnold asserted that she did not tell McClung about putting Byrd's bag in
    the glovebox because she assumed the bag contained tools. Arnold also alleged that she
    did not think to tell McClung that she had placed Byrd's bag containing the
    methamphetamine and digital scale in her glovebox, at the direction of Byrd, until after
    the police had completed their stop. Jessie testified that many people used her mother's
    cell phone to communicate because it was the only cell phone in a house of at least five
    people, including herself and her sister Carly.
    The State's case largely relied on the testimony of Detective Nicholson, Officer
    Riggs, and Officer Weidl. The State also presented the testimony of the forensic scientist
    who confirmed that the methamphetamine-like substances found in McClung's car were
    actually methamphetamine. In addition, the State presented testimony from the officer
    who compiled the Cellebrite report on McClung's cell phone data.
    Before closing arguments, McClung announced that she was willing to plead
    guilty to having a defective taillight. As a result, the jury was not instructed on this
    charge. As to the remaining charges, the jury found McClung guilty of one count of
    possessing methamphetamine with intent to distribute, one count of possessing drug
    paraphernalia, and three of the four counts of unlawfully distributing methamphetamine
    7
    using a communication facility. The jury found McClung not guilty of one count of
    unlawfully distributing methamphetamine using a communication facility and one count
    of driving with an invalid license.
    The district court sentenced McClung to a controlling term of 96 months'
    imprisonment followed by 36 months' postrelease supervision for the primary crime of
    possession of methamphetamine with intent to distribute, with the remaining convictions
    running concurrent to the controlling sentence.
    McClung appeals.
    ANALYSIS
    I.   The district court did not err by denying McClung's suppression motion.
    In her primary argument on appeal, McClung contends the district court erred
    when it denied the motion to suppress the evidence seized from her car. Although she
    concedes that Officer Riggs had reasonable suspicion to make the stop based on the car's
    broken taillight, she nonetheless argues that he impermissibly extended the stop.
    McClung argues that Officer Riggs' actions during the stop did not involve completing a
    traffic ticket for the broken taillight. In making this argument, McClung emphasizes that
    the district court never found that Officer Riggs had reasonable suspicion to make the
    stop based on the ongoing police investigation that she was a drug dealer. She asserts that
    the ongoing investigation into her alleged methamphetamine distribution did not provide
    the officers with reasonable suspicion to either make or extend the stop.
    In challenging the district court's denial of her suppression motion, McClung
    further argues that once Officer Weidl arrived, he impermissibly extended the stop by
    ordering Byrd and Arnold out of the car. To support this argument, McClung points to
    Officer Weidl's testimony from the suppression motion hearing that he ordered Byrd and
    8
    Arnold out for their own safety as he prepared to conduct the dog sniff. She contends that
    Officer Weidl could not legally order Byrd and Arnold out of the car for their own safety.
    She contends that once Byrd was outside of her car, Officer Weidl lacked reasonable
    suspicion to pat him down. In addition, McClung argues that Officers Weidl and
    Kennedy's discovery of methamphetamine and drug paraphernalia in Byrd's boots did not
    "justify the search of the front of the car[,] including locked containers." According to
    McClung, "the mere fact that a backseat passenger in a car possessed paraphernalia does
    not provide probable cause to search the entire car for contraband." Finally, McClung
    argues that Officers Weidl and Kennedy also lacked probable cause to seize her cell
    phone from the car. This argument hinges on her contention that the State failed to
    present any evidence to support the seizure of her cell phone.
    The State responds that contrary to McClung's arguments, the district court
    properly denied her motion to suppress the items seized from the car. The State argues
    that after Officer Riggs stopped McClung for the broken taillight and her expired driver's
    license, McClung's own uncooperative behavior resulted in extending the stop. The State
    argues that substantial competent evidence established that by the time Officer Riggs
    finished dealing with McClung's obstructive behavior, Byrd had already told Officer
    Weidl about the marijuana pipe. The State contends that the officers obtained probable
    cause to search the backseat of McClung's car under the automobile exception to the
    warrant requirement. In challenging McClung's complaints about Officer Weidl's
    dealings with Byrd, the State also contends that McClung lacks standing to argue that
    Officer Weidl somehow violated Byrd's constitutional rights by pointing to precedent that
    the Fourth Amendment is a personal right that must be invoked. See, e.g., State v.
    Talkington, 
    301 Kan. 453
    , 476-77, 
    345 P.3d 258
     (2015).
    Next, the State argues that upon finding the methamphetamine and drug
    paraphernalia in Byrd's boots, the totality of the circumstances provided the officers with
    probable cause to search the remainder of the car. Additionally, the State argues that the
    9
    officers had probable cause to seize McClung's cell phone because under the totality of
    the circumstances, there was a fair probability that the cell phone contained evidence of
    McClung facilitating the distribution of methamphetamine. The State stresses that the
    officers obtained a warrant before using the Cellebrite software on McClung's phone;
    thus, the officers' ultimate search of McClung's cell phone using the Cellebrite software is
    not at issue.
    Applicable Law
    When a defendant challenges the district court's denial of his or her motion to
    suppress, this court reviews the district court's fact-findings in support of its decision for
    substantial competent evidence. State v. Hanke, 
    307 Kan. 823
    , 827, 
    415 P.3d 966
     (2018).
    While engaging in this review, we must not reweigh the evidence or reassess the
    credibility of witnesses. When considering the district court's ultimate legal conclusion,
    we exercise unlimited review. 307 Kan. at 827.
    "The Fourth Amendment to the United States Constitution and § 15 of the Kansas
    Constitution Bill of Rights assure each person's right to be secure in his or her person and
    property against unreasonable searches and seizures." State v. Thompson, 
    284 Kan. 763
    ,
    772, 
    166 P.3d 1015
     (2007). Traffic stops are seizures as meant under the Fourth
    Amendment and § 15 of the Kansas Constitution Bill of Rights; therefore, they must be
    supported by articulable facts sufficient to constitute reasonable suspicion. See State v.
    Smith, 
    286 Kan. 402
    , 406, 
    184 P.3d 890
     (2008). Traffic stop seizures are "analyzed as
    being more akin to an investigatory detention than an arrest. As a result, courts examine
    the reasonableness of a traffic stop under the principles set forth in Terry v. Ohio, 
    392 U.S. 1
    [, 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
     (1968)]." Smith, 286 Kan. at 406.
    Under Terry, courts utilize a two-step process to analyze the propriety of an
    officer's actions in making a traffic stop. First, the court must consider whether the
    10
    officer's initial stop was justified. Second, the court must determine whether the length
    and scope of the traffic stop were reasonably related in scope to the circumstances that
    justified the traffic stop in the first place. Smith, 286 Kan. at 407. It is settled law that
    during a traffic stop an "officer may request the motorist's driver's license, car
    registration, and proof of insurance; conduct a computer check; issue a citation; and take
    those steps reasonably necessary to protect officer safety." 286 Kan. at 410. The traffic
    stop may last only as long as required for the law enforcement officer to diligently
    complete those tasks. 286 Kan. at 410. Even so, "[a]n officer's inquiries or actions
    unrelated to the justification for the initial traffic stop do not convert the stop into an
    unlawful seizure so long as they do not measurably extend or prolong the stop." State v.
    Coleman, 
    292 Kan. 813
    , 816, 
    257 P.3d 320
     (2011).
    "If no information raising a reasonable and articulable suspicion of illegal activity
    is found during the time period necessary to perform the computer check and other tasks
    incident to a traffic stop, the motorist must be allowed to leave without further delay."
    Thompson, 284 Kan. at 774. But an officer may expand his or her investigative detention
    beyond the purpose of the initial traffic stop if the officer has an objectively reasonable
    and articulable suspicion that some other criminal activity is taking place. Coleman, 292
    Kan. at 816-17.
    Unless a recognized exception allows for a warrantless search, a police officer's
    warrantless search of a person or property is unreasonable. State v. Knight, 
    55 Kan. App. 2d 642
    , 646, 
    419 P.3d 637
     (2018). "Kansas has recognized several exceptions to the
    Fourth Amendment search warrant requirement: consent, search incident to a lawful
    arrest, stop and frisk, probable cause plus exigent circumstances, the emergency doctrine,
    inventory searches, plain view or feel, and administrative searches of closely regulated
    businesses." 55 Kan. App. 2d at 646. Under the probable cause plus exigent
    circumstances exception, "the police may search without a warrant when they have
    probable cause to search—meaning there is a fair probability that the police will find
    11
    evidence of a crime—and exigent circumstances." 55 Kan. App. 2d at 646. When the
    place being searched is a car, the mobility of the car creates the exigent circumstances.
    As a result, there is an automobile exception to the warrant requirement. For this reason,
    when the place being searched is a car, the only question courts must consider is whether
    the police had probable cause to conduct the search. 55 Kan. App. 2d at 646-47.
    In analyzing whether the totality of the circumstances provided a police officer
    with probable cause to search a car, courts must consider "'all of the information in the
    officer's possession, fair inferences therefrom, and any other relevant facts, even if they
    may not be admissible on the issue of guilt.' [Citation omitted.]" 55 Kan. App. 2d at 647.
    Also, in analyzing whether the totality of the circumstances provided an officer with
    probable cause to search a car, the scope of the warrantless search "is defined by the
    object of the search and the places in which there is probable cause to believe that it may
    be found." 
    55 Kan. App. 2d 642
    , Syl. ¶ 5. This means that the police may search a
    particular part of a car as long as they have probable cause to do so; the police must not
    search any area of the car in which they do not have probable cause to search. 55 Kan.
    App. 2d at 648.
    Suppression Motion Properly Denied
    McClung argues that the district court erred by denying her motion because
    nothing Officer Riggs did during the stop involved his original "traffic stop mission."
    According to McClung, the officer validly stopped her based on the car's broken taillight,
    but everything he did, including making her step away from the car, was "unrelated to the
    traffic mission." In making this argument, McClung points to Officer Weidl's testimony
    that he believed Byrd told him about his marijuana pipe about "[a] couple minutes" after
    he assisted Officer Riggs with detaining the uncooperative McClung. McClung cites this
    testimony as well as Officer Riggs' testimony that the original purpose of the stop was put
    12
    "on hold" upon the discovery of Byrd's marijuana pipe as proof that the officers never
    engaged in the original traffic-related purposes of the stop.
    This argument ignores the fact that the district court found that there were two
    purposes for stopping McClung—the car's broken taillight and her expired driver's
    license. The time needed for the officer to diligently investigate the broken taillight and
    McClung's expired driver's license controlled the legitimate scope of the stop.
    Accordingly, despite McClung's suggestion otherwise, the car's broken taillight was not
    the only valid reason why the officer initiated the stop.
    McClung's first argument wholly ignores the role her behavior had in extending
    the duration of the stop. At the suppression hearing, Officer Riggs testified that as he
    approached the car immediately after making the stop, McClung opened the driver's door
    instead of rolling down the window, which was "fairly rare" behavior. He testified that
    when he contacted McClung, he asked her to get out of the car so he could show her the
    broken taillight. Officer Riggs stated that although McClung complied with this request,
    she refused the request to produce a driver's license. He further recalled that McClung
    gave him a Kansas identification card, but she "never" provided him with her driver's
    license. He also testified that he only sought to move McClung away from the car over to
    his patrol car after she interrupted his attempts to speak with Arnold and Byrd by telling
    them that they did not have to speak to him or comply with his identification request.
    Police officers may ask drivers for their driver's licenses as part of a routine traffic
    stop. Smith, 286 Kan. at 410. In this case, Officer Riggs had reasonable suspicion to
    believe that McClung's driver's license had expired. His request for McClung's driver's
    license was reasonably related to the legitimate scope of the stop. Officer Riggs' actions
    relating to obtaining McClung's driver's license did not prolong the stop in a manner that
    infringed upon McClung's rights under the Fourth Amendment and § 15 of the Kansas
    Constitution Bill of Rights.
    13
    Officer Riggs indicated that McClung was uncooperative the moment he contacted
    her. Although McClung may have been unhappy about the stop, the officer had the
    authority to ask her to exit the car. See State v. Lutz, 
    312 Kan. 358
    , 366, 
    474 P.3d 1258
    (2020) ("Removal of the vehicle's occupants, including passengers, is permitted pending
    completion of the traffic stop."). In spite of McClung's protestations that Arnold and Byrd
    did not have to provide their identification, Officer Riggs had the authority to ask for
    such identification. See State v. Jones, 
    27 Kan. App. 2d 476
    , Syl. ¶ 4, 
    5 P.3d 1012
     (2000)
    ("A police officer, while making a routine and lawful stop of a vehicle for a traffic
    violation, may ask passengers in the vehicle for identification in order to complete his or
    her record of the traffic citation and to note the witnesses to the traffic stop."). When
    Officer Riggs made McClung move from outside of the car to his patrol car, he did so
    because McClung had obstructed his completion of the routine tasks related to the
    investigation of the broken taillight and expired driver's license.
    The district court also found that Officer Weidl's interaction with Byrd did not
    impermissibly extend the stop. Although McClung claims that Officer Weidl testified that
    Byrd told him about his marijuana pipe "[a] couple minutes" after he assisted Officer
    Riggs with handcuffing the uncooperative McClung, Officer Weidl's testimony does not
    mean the officers impermissibly extended the scope of the stop. McClung seemingly
    asserts that Officer Riggs impermissibly extended the scope of the stop because he never
    testified that he was doing anything related to the "traffic mission" during the couple of
    minutes after Officer Weidl assisted him with handcuffing her. This is not supported by
    the testimony of Officers Riggs and Weidl at the suppression hearing.
    Officer Weidl's testimony suggests that he helped Officer Riggs place McClung in
    handcuffs, but he did not help place McClung in the patrol car. Officer Riggs' testimony
    establishes that after McClung was handcuffed, he had Officer Kennedy pat her down for
    officer safety purposes before he placed McClung in the patrol car. Thus, there was
    14
    obviously time between when Officer Weidl assisted Officer Riggs with handcuffing
    McClung and when Officer Riggs placed the handcuffed McClung in his patrol car. In
    turn, per Officers Riggs' and Weidl's testimony, there was a period of time when Byrd
    could have revealed his marijuana pipe possession before Officer Riggs had even placed
    McClung in his patrol car so he could continue with the routine tasks of the stop. Officer
    Riggs' testimony supports this premise when he stated that by the time that he had "seated
    [McClung] into the front seat of [his] patrol car," "Officer Weidl . . . had found . . . a drug
    pipe on one of the passengers."
    The evidence supports that after Officer Riggs validly stopped McClung for
    having a broken taillight and having an expired driver's license, she obstructed the
    officer's completion of the stop. There is evidence to support that Byrd revealed to
    Officer Weidl that he possessed a marijuana pipe during the period in which Officer
    Riggs continued to deal with McClung's uncooperative behavior. Although McClung
    contends that Officer Riggs must have extended the stop because his actions during the
    stop were unrelated to his "traffic mission," his actions of trying to obtain McClung's
    cooperation and driver's license were related to the original purposes of the stop.
    Substantial competent evidence supports that Byrd told Officer Weidl about being in
    possession of a marijuana pipe as Officer Riggs continued to complete tasks related to the
    broken taillight and McClung's expired driver's license. In denying the suppression
    motion, the district court correctly rejected McClung's argument that Officer Riggs'
    conduct impermissibly expanded the legitimate scope of the stop.
    Turning to McClung's second argument about the denial of her suppression
    motion, she argues that the district court erred by denying the motion because Officer
    Weidl impermissibly extended the stop by ordering Byrd and Arnold out of the car and
    then patting down Byrd. The State contends that McClung lacks standing to argue that
    Officer Weidl somehow violated Byrd's constitutional rights because the Fourth
    Amendment is a personal right. McClung responds that she is challenging a violation of
    15
    her own rights by arguing that the officers unlawfully expanded the scope of the stop by
    ordering her passengers out of the car and patting down Byrd.
    The most significant problem with McClung's argument is that she is raising it for
    the first time on appeal. Although McClung now asserts that Officer Weidl could not
    order Arnold and Byrd out of the car and thereafter pat down Byrd, she did not make
    these arguments before the district court. McClung broadly argued before the district
    court that the officers' search of her car and seizure of its contents occurred outside of the
    scope of the sole legitimate purpose of the traffic stop. She never argued that Officer
    Weidl's acts of ordering Byrd out of the car and patting Byrd down were illegal and thus
    impermissibly extended the scope of the stop.
    Simply put, because McClung did not argue that Officer Weidl's acts of ordering
    Byrd out of her car and patting down Byrd illegally extended the scope of the stop before
    the district court, she cannot now do so for the first time on appeal. See State v. Kelly,
    
    298 Kan. 965
    , 971, 
    318 P.3d 987
     (2014). McClung has abandoned her argument by
    failing to recognize that she is raising it for the first time on appeal contrary to Kansas
    Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35). See State v. Williams, 
    298 Kan. 1075
    , 1085, 
    319 P.3d 528
     (2014) (holding that appellants who fail to comply with Rule
    6.02[a][5] risk a ruling that their argument is improperly briefed and thus abandoned).
    Turning to McClung's third argument, she asserts that the discovery of
    methamphetamine and paraphernalia in Byrd's boots did not "justify the search of the
    front of the car[,] including locked containers." According to McClung, "the mere fact
    that a backseat passenger in a car possessed paraphernalia does not provide probable
    cause to search the entire car for contraband." McClung does not challenge Officer
    Weidl's authority to search the area of the backseat where Byrd was sitting for drug-
    related evidence.
    16
    The district court correctly rejected McClung's contention that the officers lacked
    probable cause to search the entirety of her car. Byrd revealed that he possessed a
    marijuana pipe, which provided the officers with probable cause to search the backseat of
    McClung's car where Byrd had been sitting. The discovery of methamphetamine and
    drug paraphernalia in Byrd's boots provided probable cause to search the rest of the car.
    The evidence supports that when Officer Weidl discovered the methamphetamine and
    drug paraphernalia in Byrd's boots, the officers were also aware that: (1) McClung was
    currently under police investigation for distributing methamphetamine; (2) McClung was
    just at a known methamphetamine user's house; (3) McClung's driver's license was
    expired; (4) McClung refused to provide her driver's license upon officer request; (5)
    McClung advised her passengers to not provide their identification upon officer request;
    (6) McClung resisted being placed in handcuffs and the patrol car; and (7) Byrd—
    McClung's passenger—was in possession of marijuana, methamphetamine, and drug
    paraphernalia while riding in the car. The totality of the circumstances indicated that
    there was a very strong possibility that McClung's car contained additional evidence of
    drug-related crimes.
    McClung contends there was insufficient probable cause to support the search of
    the remainder of the car. Under the facts of this case, the officers had probable cause to
    search the remainder of the car upon discovering the methamphetamine and drug
    paraphernalia in Byrd's boots.
    McClung's final argument is that the State failed to establish that it had probable
    cause to seize her cell phone. She asserts that the district court had no choice but to
    suppress the seizure of her cell phone because the State presented no evidence at the
    suppression hearing to support the seizure of her cell phone. The State counters that the
    seizure of the cell phone was supported by probable cause because, under the totality of
    the circumstances, there was a fair probability that McClung's cell phone contained
    evidence of her facilitating the distribution of methamphetamine.
    17
    The State's position is more persuasive than McClung's. Although McClung
    moved to suppress all items seized by broadly arguing that the officers lacked probable
    cause to search the entirety of the car, she never made a specific argument about the
    seizure of her cell phone before the district court. She never specifically argued that the
    officers could not seize her cell phone because there was no fair probability that her cell
    phone would contain evidence of criminal activity. We need not consider McClung's
    argument about the seizure of her cell phone for the first time on appeal. See Kelly, 298
    Kan. at 971 (holding that issues not raised before the district court cannot be raised for
    the first time on appeal).
    Regardless of her failure to raise the seizure of her cell phone to the district court,
    McClung's argument fails on a factual basis. The totality of the circumstances indicated
    that she was engaging in methamphetamine distribution. Under such circumstances, the
    officers reasonably seized McClung's cell phone believing that there was a fair
    probability that it contained other evidence of methamphetamine distribution. Even
    assuming that McClung's argument about the seizure of her cell phone was properly
    before this court, we reject her argument as probable cause supported the seizure of her
    cell phone.
    Conclusion
    None of McClung's arguments addressing the denial of her motion to suppress are
    persuasive. The evidence supports that upon Byrd's admission to possessing a marijuana
    pipe, the officers obtained probable cause to search the backseat area of the car where
    Byrd had been sitting. The discovery of methamphetamine and drug paraphernalia in
    Byrd's boots provided the officers with probable cause to search the remainder of the car.
    The testimony supports that Byrd revealed to Officer Weidl that he possessed a marijuana
    pipe before Officer Riggs had dealt with McClung's uncooperative and obstructive
    18
    behavior during his investigation of the broken taillight and her expired driver's license.
    The officers obtained probable cause to search the entirety of the car without expanding
    the legitimate scope of the stop. We affirm the district court's denial of McClung's
    suppression motion.
    II.   The district court did not err by admitting the cell phone Cellebrite report into
    evidence.
    McClung contends that the district court erroneously admitted into evidence the
    Cellebrite cell phone report over her hearsay objection. Pointing to the text message
    exchanges within the report that the State relied on, McClung specifically argues that "[i]t
    is clear that those text messages were statements that were not made by a witness while
    testifying at trial, and were admitted for their truth." As a result, she asserts that K.S.A.
    2020 Supp. 60-460's rule on the admission of hearsay prohibited the district court from
    admitting the Cellebrite report into evidence. She asserts we must reverse her three
    unlawful distribution of methamphetamine using a communication facility convictions.
    The State counters McClung's argument in two ways. First, it contends that the
    arguments are inadequately briefed because McClung has not identified the specific text
    messages she is challenging as inadmissible and her record citations are inaccurate.
    Second, under the assumption that McClung's argument is adequately briefed, the State
    contends that McClung's hearsay objection is nonetheless meritless because it never
    offered the disputed text messages into evidence to prove the truth of the matter asserted
    within those text messages. Instead, the State contends that it offered the disputed text
    message exchanges into evidence to establish that McClung believed that she was in
    communication via cell phone with a potential methamphetamine buyer.
    19
    Applicable Law
    McClung was convicted of three counts of unlawfully distributing
    methamphetamine using a communication facility, which is a severity level 8 nonperson
    felony contrary to K.S.A. 2020 Supp. 21-5707(a)(2). In relevant part, K.S.A. 2020 Supp.
    21-5707(a)(2) provides that it is "unlawful for any person to knowingly or intentionally
    use any communication facility . . . in any attempt to commit . . . any felony under K.S.A.
    2020 Supp. 21-5703, 21-5705 or 21-5706, and amendments thereto." (Emphasis added.)
    A "communication facility" as meant under K.S.A. 2020 Supp. 21-5705(a)(2) includes a
    cell phone. See K.S.A. 2020 Supp. 21-5707(c); State v. Torres, 
    53 Kan. App. 2d 258
    ,
    267, 
    386 P.3d 532
     (2016) (describing a cell phone as a communication facility). Because
    distribution of methamphetamine is a severity level 2 felony pursuant to K.S.A. 2020
    Supp. 21-5705(d)(3)(C), K.S.A. 2020 Supp. 21-5707(a)(2) criminalizes using a
    communication facility in the distribution of methamphetamine.
    Under the plain language of K.S.A. 2020 Supp. 21-5707(a)(2), the State may
    charge a person with unlawfully distributing a controlled substance using a
    communication facility for "[e]ach separate use of a communication facility." As a result,
    in this case, the State could have theoretically charged McClung with every text message
    exchange on her cell phone in which it appeared that she sought to distribute
    methamphetamine.
    We review a district court's denial of a hearsay objection for an abuse of
    discretion. State v. Lemmie, 
    311 Kan. 439
    , 449, 
    462 P.3d 161
     (2020). An abuse of
    discretion occurs when the district court's decision is arbitrary, fanciful, or unreasonable,
    based on an error of law, or based on an error of fact. 311 Kan. at 449-50.
    K.S.A. 2020 Supp. 60-460 controls the admission of hearsay statements into
    evidence, stating that absent the application of some exception, "[e]vidence of a
    20
    statement which is made other than by a witness while testifying at the hearing, offered to
    prove the truth of the matter stated, is [inadmissible] hearsay." K.S.A. 2020 Supp. 60-
    460(a)-(ee) lists exceptions to the general rule against excluding hearsay evidence. In
    addition to these listed exceptions, our Supreme Court has recognized three types of out-
    of-court statements that do not constitute hearsay under K.S.A. 2020 Supp. 60-460
    because they are not offered to prove the truth of the matter asserted: "'(1) those
    statements material to the case as part of the issue; (2) those statements which are verbal
    parts of an act; and (3) those statements used circumstantially as giving rise to an indirect
    inference but not as an assertion to prove the matter asserted.'" Boldridge v. State, 
    289 Kan. 618
    , 634, 
    215 P.3d 585
     (2009) (quoting State v. Harris, 
    259 Kan. 689
    , 699, 
    915 P.2d 758
     [1996]).
    There is little Kansas caselaw addressing what constitutes nonhearsay statements
    because they are material to the case as part of the issue. Although a handful of Kansas
    appellate courts have cited this rule, no Kansas appellate court has specifically applied
    the rule that statements material to the case as part of the issue do not constitute hearsay.
    See, e.g., Boldridge, 289 Kan. at 634; State v. McKissack, 
    283 Kan. 721
    , 737, 
    156 P.3d 1249
     (2007); Harris, 259 Kan. at 699. There is only one Kansas case that discusses what
    constitutes nonhearsay statements because they are verbal parts of an act. In State v.
    Oliphant, 
    210 Kan. 451
    , 454, 
    502 P.2d 626
     (1972), our Supreme Court noted that such a
    statement is "an extrajudicial statement [that] is offered merely to show the fact of its
    having been made," which may be admissible "when testified to by a person who heard
    it."
    In People v. Dominguez, 
    454 P.3d 364
     (Colo. App. 2019), the Colorado Court of
    Appeals considered whether text messages on a defendant's cell phone constituted
    statements that were verbal parts of the act. The court affirmed Dominguez'
    methamphetamine distribution conviction, rejecting his argument that the district court
    wrongly admitted the following text messages over his hearsay objection: (1) "'[c]an you
    21
    do 2 for 1500 if I got all of it'"; (2) "'[y]our voicemail is full'"; (3) "'[c]an you do that for
    me'"; (4) "'[c]all me please'"; and (5) "'[c]an you do 2 for 1600.'" 454 P.3d at 367. In
    doing so, the court explained that the district court properly denied Dominguez' hearsay
    objection because the disputed text messages constituted verbal parts of the act
    statements:
    "[W]e conclude that the text messages were properly admitted verbal acts (as
    argued by the prosecution at trial), which are not hearsay. See People v. Thompson, 
    2017 COA 56
    , ¶ 135, 
    413 P.3d 306
    ; People v. Scearce, 
    87 P.3d 228
    , 233 (Colo. App. 2003);
    see also United States v. Rodriguez-Lopez, 
    565 F.3d 312
    , 314 (6th Cir. 2009).
    "'A verbal act is an utterance of an operative fact that gives rise to legal
    consequences.' Scearce, 
    87 P.3d at 233
     (citation omitted). It's offered not for its truth, but
    to show that it was made. Thompson, ¶ 135. Thus, verbal acts aren't hearsay. . . . Scearce,
    
    87 P.3d at 233
    ; see also United States v. Montana, 
    199 F.3d 947
    , 950 (7th Cir. 1999)
    ('Performative utterances are not within the scope of the hearsay rule, because they do not
    make any truth claims.').
    "The text messages sent to Dominguez's cell phone don't make any truth claims;
    rather, they suggest a request to purchase something at a proposed price. Such statements
    have a legal effect regardless of their truth. See Scearce, 
    87 P.3d at 233
     (recognizing
    examples of a verbal act include oral utterances constituting the offer and acceptance for
    a contract); see also Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 
    298 F.3d 201
    , 218 n.20 (3d Cir. 2002) ('[A] statement offering to sell a product at a particular
    price is a "verbal act," not hearsay, because the statement itself has legal effect.'); Little v.
    State, 
    204 Md. 518
    , 
    105 A.2d 501
    , 503 (1954) (recognizing that the 'verbal act of taking a
    bet' was not inadmissible hearsay); 5 Jack B. Weinstein & Margaret A. Berger,
    Weinstein's Federal Evidence § 801.11(3) (2d ed. 2018) (examples of a verbal act include
    contract offers and illegal solicitations).
    "Even more to the point, 'the purchase of a drug, legally or illegally, is a form of
    contract.' Garner v. State, 
    414 Md. 372
    , 
    995 A.2d 694
    , 700 (2010) (citation omitted).
    And, '[t]he . . . words of [a] . . . would-be [drug] purchaser are . . . categorized . . . as
    22
    verbal parts of acts . . . [that] are not considered to be assertions and do not fall under the
    scrutiny of the Rules Against Hearsay.' . . .
    "Like similar offers or solicitations, the text messages were not admitted here for
    the truth of the matter being asserted in them (whether Dominguez could do '2 for 1500'
    or '2 for 1600') or the truth of their arguably implied assertion (that Dominguez was
    someone who could provide '2 for 1500' or '2 for 1600'), but for the fact that a request to
    purchase something at a proposed price was made, which is not hearsay. 
    Id. at 697, 704
    (concluding that an unidentified caller's out-of-court statement asking, '[C]an I get a 40?'
    (a request to purchase cocaine) was admissible as a verbal act); see Rodriguez-Lopez, 
    565 F.3d at 315
     (noting that evidence of 'ten successive solicitations for heroin' received by
    the defendant was not offered 'for [its] truth, but as evidence of the fact that [the
    solicitations] were made'); cf. State v. Chavez, 
    225 Ariz. 442
    , 
    239 P.3d 761
    , 762-63
    (Ariz. Ct. App. 2010) (holding that text messages seeking to purchase drugs ('Can you
    deliver a "T" to the house?') were admissible because they were not offered to prove the
    truth of the matter asserted); State v. Connally, 
    899 P.2d 406
    , 408-10 (Haw. 1995)
    (concluding that statements that the defendant would perform sex acts for money were
    'verbal acts' and not offered to prove the truth of the matter asserted)." (Emphasis added.)
    Dominguez, 454 P.3d at 369.
    In State v. Randle, 
    311 Kan. 468
    , 477, 
    462 P.3d 624
     (2020), our Supreme Court
    considered whether the rule that a statement used circumstantially as giving rise to an
    indirect inference constitutes hearsay. Randle argued that the district court wrongly
    admitted into evidence, over his hearsay objection, a coconspirator's out-of-court
    question to Randle's mother about the location of a gun. There, the district court allowed
    the question and answer into evidence over Randle's hearsay objection, concluding that
    the disputed question was not hearsay because it did not contain a factual assertion that
    could be true or false. In doing so, it also seemingly accepted the State's contention that it
    was offering the coconspirator's question into evidence to establish a connection between
    the coconspirator and the gun. On appeal, the Kansas Supreme Court rejected Randle's
    challenge to the admission of his coconspirator's question because the State had not
    offered the disputed question into evidence for the purpose of establishing the gun's
    23
    existence. Instead, "the State simply sought to establish the gun had some connection
    with [the coconspirator] because he was looking for it." 311 Kan. at 477. Said another
    way, the State offered the coconspirator's question into evidence for the purpose of
    providing circumstantial evidence allowing the fact-finder to make an indirect inference
    that the coconspirator was connected to the gun.
    Here, it is undisputed that the State provided McClung with the Cellebrite report
    just weeks before her scheduled jury trial. Notwithstanding, McClung knew about the
    specific text messages the State intended to rely upon to support its unlawful distribution
    of methamphetamine using a communication facility charges because those text messages
    were included in the State's probable cause affidavit to support McClung's arrest.
    Although the State sought to admit only the four text message exchanges into evidence,
    McClung insisted that the entire Cellebrite report be admitted into evidence. This
    ultimately resulted in the district court admitting the physical disc containing the
    Cellebrite report—State's Exhibit 39—and the printout of the Cellebrite report—State's
    Exhibit 40—into evidence.
    Despite requesting that the entire Cellebrite report be admitted into evidence,
    McClung objected to the admission of Exhibits 39 and 40 when the district court
    admitted both. In making her objection, McClung explained that although she preferred
    that the entire Cellebrite report be admitted into evidence, the particular text message
    exchanges that the State was relying on to support its four unlawful distribution of
    methamphetamine using a communication facility charges were inadmissible hearsay.
    However, McClung did not say why she believed that the disputed text message
    exchanges constituted inadmissible hearsay.
    The State contends that the district court properly admitted the disputed text
    messages into evidence over McClung's hearsay objection. At trial, the State sought the
    admission of those text messages to circumstantially give rise to an indirect inference that
    24
    McClung believed she was in contact with a potential methamphetamine buyer. McClung
    responds that the State is parsing words. She contends that the State relied on the disputed
    text messages to prove that she used her cell phone to distribute methamphetamine.
    While the State contends that it sought the admission of the disputed text messages into
    evidence because they gave rise to an indirect inference that McClung believed she was
    in contact with a potential methamphetamine buyer, the disputed text messages are better
    categorized as verbal parts of the act statements. Here, a review of the four text message
    exchanges at issue supports that they are comparable to the text messages at issue in
    Dominguez, which the Colorado Court of Appeals found to be nonhearsay verbal parts of
    the act statements.
    It is readily apparent that the State did not offer the exchange to prove the truth of
    the matter asserted in the texts. They were not offered to prove that sales of
    methamphetamine were completed or that McClung made any such sales. Instead, the
    State argues it offered the text messages simply to show that they were made. In making
    her argument, McClung ignores that to support her unlawful distribution of
    methamphetamine using a communication facility convictions, the State only needed to
    show that she used her cell phone in a knowing attempt to distribute methamphetamine. It
    did not have to prove that she actually completed the drug deal with whomever she was
    texting. See K.S.A. 2020 Supp. 21-5707(a)(2).
    Conclusion
    The State did not offer the four text messages at issue into evidence because it
    sought to prove the truth of the matter asserted pertaining to the apparent drug deals
    mentioned within those text messages. Because it merely needed to prove that McClung
    used her cell phone to enable the distribution of methamphetamine to support its unlawful
    distribution of methamphetamine using a communication facility charges against her, it
    necessarily follows that the State offered the text messages for the limited purpose of
    25
    proving that McClung used her cell phone to facilitate methamphetamine distribution—a
    purpose that is distinct from proving specific facts asserted or insinuated in each text
    message exchange. The four text messages in this case are comparable to the text
    messages that were at issue in Dominguez. As in Dominguez, the text messages here were
    not offered to prove the truth of the matter that they asserted about potential drug deals.
    To the contrary, they were offered "for the fact that a request to purchase something at a
    proposed price was made, which is not hearsay" because it constitutes a verbal parts of
    the act statement. 454 P.3d at 369. We affirm the district court's finding that the texts
    were not hearsay.
    III.   The prosecutor did not commit reversible error during closing arguments.
    In her final argument, McClung contends that the prosecutor committed reversible
    error during closing arguments by misstating facts and stating facts not in evidence on
    numerous occasions.
    Applicable Law
    When a defendant argues that a prosecutor committed error during closing
    arguments, this court applies the two-step prosecutorial error test. Under the first step of
    this test, we consider whether the complained-about conduct or statements fell outside the
    wide latitude afforded prosecutors to obtain the defendant's conviction in a constitutional
    manner. State v. Sherman, 
    305 Kan. 88
    , 109, 
    378 P.3d 1060
     (2016). If error is found
    under the first step, then we must complete the second step of the test, which requires us
    to consider whether the prosecutor's error was harmless under the constitutional harmless
    error test. The constitutional harmless error test requires the State to prove that there is no
    reasonable possibility that the prosecutor's error contributed to the jury's verdict. 305
    Kan. at 109.
    26
    It is well-established that a prosecutor errs under the first step of the prosecutorial
    error test by misstating facts or stating facts not in evidence. See State v. Conway, 
    284 Kan. 37
    , 43-44, 
    159 P.3d 917
     (2007). Our Supreme Court has explained that prosecutors
    do not commit error by using their closing arguments to explain to juries what they
    should look for when assessing witness credibility or by making closing arguments in
    which they draw reasonable inferences from the evidence. State v. Duong, 
    292 Kan. 824
    ,
    830, 
    257 P.3d 309
     (2011). When evaluating a prosecutor's closing argument for error, this
    court must consider the prosecutor's disputed statement in context rather than analyzing
    the prosecutor's disputed statement in isolation. 292 Kan. at 831.
    No Prosecutorial Error
    In her first prosecutorial error argument, McClung contends that the prosecutor
    committed error by making the following statement during her closing arguments:
    "As the evidence has shown, ladies and gentlemen, on December 21st, 2016,
    [McClung] was being surveilled by members of the Lawrence Police Department Drug
    Enforcement Unit. Throughout that day, those law enforcement officers saw [McClung]
    visit several known drug houses in her tan Toyota Avalon. And that evening, they saw
    [her] go again to another known drug house [on] Illinois Street."
    McClung argues that no police officer testified that she had visited "several known
    drug houses" on December 21. The State responds that the prosecutor did not misstate
    facts or state facts that were not in evidence, noting that Detective Nicholson testified that
    she witnessed McClung go to two houses in addition to her house and Sutton's house on
    December 21. The State further notes that the detective testified that one of those houses,
    as well as Sutton's house, were known drug houses. According to the State, the evidence
    supported the prosecutor's statement that the officers witnessed her going to "several
    known drug houses" on December 21. McClung counters that even if she had visited two
    27
    drug houses that day, going to two drug houses in one day is not the same as going to
    several drug houses in one day.
    The parties' disagreement about the meaning of the term "several" is irrelevant. In
    the end, the State's argument that any error stemming from this minor misstatement of
    fact was harmless beyond a reasonable doubt is persuasive. The prosecutor's comment
    about McClung visiting several known drug houses was a minor misstatement of fact.
    Because there was testimony indicating that McClung had visited at least two drug
    houses on December 21, it is highly unlikely that the prosecutor's statement that
    McClung had visited several known drug houses that day had any additional prejudicial
    effect on the jury's view of McClung's character.
    Furthermore, there was other substantial evidence indicating that McClung was in
    possession of methamphetamine, in possession of drug paraphernalia, and unlawfully
    distributing methamphetamine using a communication facility. The evidence was
    overwhelming rendering any reference to "several" drug houses harmless.
    McClung contends that the prosecutor committed error by making misstatements
    about who had access to her car. She asserts that the prosecutor erred when stating that
    McClung was the only person who drove her car on December 21.
    McClung further asserts that the prosecutor erred by questioning Arnold's
    credibility when she testified that she did not need permission to get McClung's keys to
    access the car. McClung similarly argues that the questioning of Arnold's credibility
    constituted prosecutorial error because Arnold had testified that she told McClung that
    she had placed Byrd's bag containing the baggie of methamphetamine and the digital
    scale in the car immediately after the officers had completed their stop. The prosecutor
    stated:
    28
    "[I]s it credible to believe Pam Arnold's statements? That her friend of four or five years
    is charged with a crime and she . . . has information about that crime. She knows
    someone else committed it and she says nothing to anyone else for two years and four
    months? She apologizes to her friend about not asking for permission to place [the bag]
    into the glove box, but she doesn't know that it's there. Is that credible?"
    The State responds by conceding that the prosecutor made "a minor misstatement
    of the evidence" by stating that McClung was the only person who drove her car that day.
    It notes that although there was evidence indicating she was the sole driver of her car the
    evening of December 21, there was no evidence indicating whether someone else had
    driven her car earlier that day. The State argues that any such misstatement that the
    prosecutor made regarding who had access to McClung's car throughout December 21
    was harmless because overwhelming evidence supported McClung's convictions for
    distribution of methamphetamine, possession of drug paraphernalia, and unlawful
    distribution of methamphetamine using a communication facility.
    As to the claim that the State erred by questioning Arnold's credibility, the State
    argues that McClung has taken the prosecutor's statement out of context. It asserts that
    the prosecutor was simply stressing that Arnold, for more than two years, did not tell law
    enforcement that Byrd was the owner of the baggie with over 10 grams of
    methamphetamine and the digital scale with methamphetamine residue.
    The State's arguments are persuasive. As stressed in its brief, the State never
    argued that McClung had exclusive access to her car. At trial, Detective Nicholson
    testified that she saw several people go back and forth between Sutton's house and
    McClung's car, and they appeared to be moving different items from the house into the
    car. Arnold's testimony confirmed that many people helped Sutton move items from his
    house to McClung's car the evening of December 21. Accordingly, regardless of the
    prosecutor's insinuations that there was limited access to McClung's car, the jury
    undoubtedly knew that other people had opportunities to access the car without McClung
    29
    knowing. There is no reasonable probability that the prosecutor's brief suggestion that
    McClung was the only person who drove her car that day had any bearing on the jury's
    verdict. Similarly, there is no reasonable probability that the prosecutor's brief
    questioning of Arnold's credibility based on her errant belief that Arnold had to ask
    McClung's permission for her car keys before putting Byrd's bag into the glovebox had
    any bearing on the jury's verdict.
    The prosecutor's questioning of the veracity of Arnold's testimony based on
    Arnold's failure to tell anyone, for more than two years, that the items seized from
    McClung's glovebox belonged to Byrd was not erroneous. It is not disputed that Arnold
    testified that after the police completed their stop, she told McClung that she had put the
    bag containing the baggie of methamphetamine and the digital scale in the glovebox at
    Byrd's direction, thinking that Byrd's bag contained tools. It is undisputed that there is
    nothing in the record to show that, for more than two years, Arnold failed to tell law
    enforcement that the items seized from McClung's glovebox belonged to Byrd. The
    prosecutor was trying to highlight this fact when she questioned the veracity of Arnold's
    testimony. In context, the prosecutor's statement was not erroneous.
    McClung challenges the prosecutor's statement that "[t]here's no jewelry found in
    the car" during the police search. The prosecutor made this statement when questioning
    the claim that McClung had numerous baggies in her purse because she was selling
    jewelry online. McClung contends that the prosecutor made a misstatement of fact
    because none of the police officers testified about whether they discovered jewelry during
    the search of her car. Nonetheless, the prosecutor's statement was a reasonable inference
    from Officer Weidl's testimony that outside of the items in Byrd's boot, the items in
    McClung's glovebox, and the baggies in McClung's purse, he found nothing "else of
    evidentiary value" in McClung's car.
    30
    McClung asserts that during the State's rebuttal, the prosecutor argued a fact not
    in the evidence by suggesting there was more than one cell phone at her house. This
    statement was based on the testimony of Detective Nicholson, who stated he called Jessie
    to pick her mother up after the police completed their stop. McClung contends that this
    was an erroneous inference from the evidence because Detective Nicholson actually
    testified that she was unsure whether she called Jessie or McClung's other daughter,
    Carly. Jessie had testified that everybody who lived in her mother's house, including
    herself, all depended upon her mother's cell phone. Arnold's testimony that the police
    called Jessie gave rise to an inference that Jessie had a cell phone available to her in
    addition to her mother's cell phone, which the police had in their custody.
    During her testimony, Jessie explicitly testified (1) that her sister Carly lived in her
    mother's house in December 2016; (2) that her mother's cell phone was the only cell
    phone functioning in her mother's household in December 2016; and (3) that everyone in
    her mother's household, including Carly, was relying on her mother's cell phone in
    December 2016. The simple fact that Detective Nicholson was able to call one of
    McClung's daughters the evening of December 21 supported the prosecutor's inference
    that McClung's entire household was not sharing the same cell phone. Regardless of
    whether Detective Nicholson spoke to Jessie or Carly, the fact she spoke to one of the
    sisters supported the prosecutor's inference that people inside McClung's household had
    more than just her cell phone available to them.
    McClung originally took issue with the prosecutor's comment that the baggie of
    methamphetamine taken from Byrd's boots and the baggies taken from her purse both had
    a Walgreens logo on them. In her reply brief, McClung concedes that both the baggies
    from her purse and the baggie found in Byrd's boot had the Walgreens logo on them.
    However, she does argue that the fact that the baggie had the logo on it does not prove or
    provide a reasonable inference that she sold drugs to Byrd since they live in the same
    house and Byrd may have taken a baggie from the house. Given all the other evidence
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    supporting McClung's involvement in methamphetamine distribution, the prosecutor's
    inference that she sold Byrd the baggie of methamphetamine was reasonable.
    Conclusion
    To conclude, although McClung argues that the prosecutor committed seven
    instances of reversible error by misstating facts and stating facts not in evidence during
    closing arguments, her arguments are unconvincing. Additionally, in the one instance that
    McClung has established the prosecutor committed a misstatement of fact, the State has
    established that error, along with McClung's other claims of prosecutorial misconduct,
    were harmless beyond a reasonable doubt. We affirm McClung's convictions for
    distributing methamphetamine, possessing drug paraphernalia, and unlawfully
    distributing methamphetamine using a communication facility.
    Affirmed.
    32