State v. Teal ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,454
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
THOMAS MICHAEL TEAL,
Appellant.
MEMORANDUM OPINION
Appeal from Labette District Court; JEFFRY L. JACK, judge. Opinion filed June 11, 2021.
Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Stephen P. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL, J., and MCANANY, S.J.
PER CURIAM: At times, police will use one law breaker to catch another law
breaker. This is such a case. Usually, those who cooperate with the police in such cases
do so for their own advantage and not from some sense of civic responsibility. Thus, the
testimony of such cooperating individuals must be considered with caution because those
witnesses have something to gain from testifying in a certain way. The question is, are
they telling the truth or merely saying what they need to say in order to gain what they
have been promised by the police? It is left to a properly instructed jury to evaluate and
give whatever weight is appropriate to their testimony.
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The jury in this prosecution found Thomas Michael Teal guilty of distributing
methamphetamine based primarily on the testimony of his former son-in-law. Teal's son-
in-law was the purchaser of the drugs and a paid police informant. Teal claims there is
insufficient evidence to support his conviction. He is wrong. Teal also raises a claim of
improper admission of evidence of his prior wrongdoing to prove he was guilty of this
crime. Our review of the record leads us to believe that this evidence did not concern any
prior specific wrongs, but was more in the nature of reputation evidence and did not
violate any statute. If it was admitted erroneously, it was harmless error. We affirm Teal's
conviction.
There is evidence of a purchase of drugs supervised by the police.
Kansas Bureau of Investigation Agent Chris Farris enlisted Joseph Byrd to do a
controlled drug buy in the city of Parsons. Byrd had been arrested for credit card fraud
and had agreed to "work off" the charges and avoid jail time by working for the KBI.
Byrd told Agent Farris that he had been sending messages to a Facebook user
about purchasing methamphetamine. The name on that Facebook profile was Sebastian
Stewart and the profile picture appeared to be Teal with other individuals. At Agent
Farris' direction, Byrd talked to the individual with the Sebastian Stewart account using
Facebook Messenger. The individual and Byrd agreed to meet in an alley behind a local
store. Agent Farris recorded that call. He did not know who operated the Facebook
profile, but Byrd had told him it was Teal using an alias.
There was no other information corroborating Byrd's assertion—Agent Farris did
not investigate the IP address used to operate the profile, tie Teal's phone to the profile,
tie Teal to an email address used to set up the profile, or otherwise connect Teal to the
Facebook page. Nor did Agent Farris identify or investigate the other individuals in the
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profile picture. And there is no audio sample of Teal's voice to compare with the recorded
call. The only information connecting Teal to the Facebook profile was Byrd's assertion.
Agent Farris picked Byrd up and took him to the meeting location. He gave Byrd
money to purchase the methamphetamine and outfitted him with a hidden audio recorder.
Agent Farris recorded a video of the transaction from a couple of hundred yards away. In
the video, a man on a motorcycle pulled up next to Byrd. The two spoke and then moved
to an alley. Agent Farris' view was obstructed, so he could not record what happened in
the alley. And he could not identify the man on the motorcycle. When Byrd returned to
Agent Farris' car, he told Agent Farris that the person on the motorcycle was Teal. Agent
Farris did not follow the motorcycle or ever investigate whether Teal owned or had
access to one.
Byrd identified Teal as the person on the motorcycle who had sold him the bag of
methamphetamine. He also identified Teal as the person operating the Facebook account
under the name Sebastian Stewart. At trial, when he was asked how he first knew that it
was Teal, Byrd responded, "Um, just word of mouth throughout, you know." Teal's
attorney objected to that statement as hearsay. The district court overruled that objection.
Teal then elaborated, saying, "Word of mouth through the . . . drug community here in
Parsons."
Byrd was frank about why he was cooperating with the police. He stated that he
would have gone to jail if he had not worked as a criminal informant. He at first denied,
but then admitted to, a prior crime involving untruthfulness. And he at first testified that
he had received no money for working as a criminal informant, but he then later admitted
that the KBI had given him $60. Byrd also admitted to using drugs while working as a
criminal informant, in violation of the cooperation agreement he signed with the KBI.
Byrd testified that because of the drug use, it was "a really blurry time" for him so he had
trouble remembering things.
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The trial court sagely instructed the jury in Instruction Number 7: "You should
consider with caution the testimony of an informant who, in exchange for benefits from
the State, acts as an agent for the State in obtaining evidence against a defendant, if that
testimony is not supported by other evidence."
Even so, the jury found Teal guilty of distributing between 1 and 3.5 grams of
methamphetamine. The district court sentenced Teal to 78 months in prison.
Teal raises two arguments on appeal. First, he argues that the record contains
insufficient evidence to support the jury's finding that he was the person who sold drugs
to the informant. Second, he contends the court erred by admitting Byrd's statements
about what he had learned from word of mouth in the drug community.
There is sufficient evidence in this record to sustain Teal's conviction.
On appeal, we do not retry cases. Our task in determining the sufficiency of the
evidence is guided by clear legal principles. Sufficient evidence supports a conviction on
appeal when, with the evidence viewed in a light most favorable to the State, the
appellate court is convinced that a rational fact-finder could have found the defendant
guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve
evidentiary conflicts, or make witness credibility determinations. State v. Chandler, 307
Kan. 657, 668, 414 P.3d 713 (2018).
There was more than Byrd's testimony admitted at this trial. Evidence included
• photos of Facebook messages between Byrd and another person;
• an audio recording of a phone call on Facebook Messenger between Byrd
and another person;
• audio of the transaction from Byrd's hidden recorder; and
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• the KBI agent's video of Byrd and the dealer talking before they moved into
the alley to complete the deal.
Teal did not call any witnesses. Both Byrd and Agent Farris testified for the State.
The testimony of KBI Agent Farris is illuminating. He told the jury how he
strip-searched Byrd before the controlled buy, making sure Byrd had no drugs or money
concealed on his person. He then gave Byrd $165 in KBI buy fund money which was the
agreed-upon price for the methamphetamine. He watched Byrd walk to the scene of the
purchase, saw the dealer approach on a motorcycle, and saw the two men step into the
alley briefly. After the dealer left on the motorcycle, Agent Farris picked up Byrd and
drove him to a secure location. There, he strip-searched Byrd again. Byrd gave the agent
a 1/8 ounce of drugs and had no money on his person. Any rational fact-finder could find
from this evidence alone that a drug purchase occurred in Parsons that day.
For the identity of the dealer, the State relies upon Byrd's testimony. He knew
Teal. After all, Teal was his former father-in-law. Byrd was face-to-face with the dealer
in that alley. They talked for several minutes. The jury heard Byrd's testimony and
listened to the defense repeatedly attack Byrd's credibility. The jury also saw the
Facebook profile picture and heard the recordings.
The court also issued a cautionary instruction, informing the jury that it should
"consider with caution the testimony of an informant who, in exchange for benefits from
the State, acts as an agent for the State in obtaining evidence against a defendant, if that
testimony is not supported by other evidence." After all that, the jury found Teal guilty.
The Supreme Court has ruled that uncorroborated testimony can sustain a
conviction unless the testimony is so incredible and improbable that it defies belief. State
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v. Brinklow, 288 Kan. 39, 53, 200 P.3d 1225 (2009). We do not find Byrd's testimony
incredible, improbable, or unbelievable.
We do not retry cases. Chandler, 307 Kan. at 668. The jury found Byrd credible,
and his testimony is not so improbable that it defies belief. Byrd had known Teal for
several years, so he could readily identify him. The evidence was therefore sufficient to
support Teal's conviction for distribution of methamphetamine. We will not reverse his
conviction on this ground.
Byrd explained why he thought Teal was Sebastian Stewart.
The Facebook profile under the name Sebastian Stewart was at the heart of this
drug transaction. It was through this social medium that the terms and details of the drug
deal were reached. Byrd claimed that Teal operated this profile under the alias of
Sebastian Stewart:
"Q. [Prosecutor:] State's Exhibit Number 1, and 2, 3, 4, 5, and 6. Is that the Facebook
Messenger conversation you had with Mr. Teal?
"A. [Byrd:] Yes.
"Q. Okay. Now what's the name of the person who you're speaking with, according to
Facebook?
"A. Sebastian Stewart.
"Q. Okay. Do you know a Sebastian Stewart?
"A. I do not.
"Q. Okay. How did you know—so who was Sebastian Stewart?
"A. Sebastian Stewart is Tommy.
"Q. How do you know that?
"A. Um, just word of mouth throughout, you know.
"MR. MYERS [Defense counsel]: Objection. It's hearsay, Judge.
"THE COURT: Overruled.
"A. Word of mouth through the, I would say drug community here in Parsons.
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"MR. MYERS: Judge, can we approach?
"THE COURT: You may.
"(The following proceedings were had at the bench by Court and counsel out of the
hearing of the jury:)
"MR. MYERS: He's obviously, he doesn't have a direct knowledge. He heard it
from a third party. I renew my objection. It's hearsay, and now he said throughout the
drug community, what I think violates the 60-455 issue. So I'm going to move for a
mistrial on that issue.
"THE COURT: Okay. I deny the motion for mistrial. I don't think it violates . . .
60-455 but we don't need to go into it any further."
To us, Teal contends the district court erred by overruling both objections. We will
examine the question of prior bad act evidence first.
We question whether K.S.A. 2020 Supp. 60-455(a) applies to this evidence. The
statute governs the admission of evidence of prior crimes or bad acts. It states that
"evidence that a person committed a crime . . . on a specified occasion, is inadmissible to
prove such person's disposition to commit crime . . . as the basis for an inference that the
person committed another crime . . . on another specified occasion." But Byrd did not
testify that Teal had committed a prior crime "on a specified occasion," he instead stated
that persons in the drug community knew that Teal operated a Facebook profile under the
alias Sebastian Stewart. In State v. Richmond, 289 Kan. 419, 427, 212 P.3d 165 (2009),
the court held that a statement that the defendant "'robbed and killed'" people was not
barred by K.S.A. 60-455 because it was not a crime on a specified occasion.
Likewise, we are not convinced that this was inadmissible as hearsay contrary to
K.S.A. 2020 Supp. 60-460. Byrd explained why he thought the Facebook profile was
being operated by Teal. Indeed, he relied upon the statements of others—"word of mouth
through . . . the drug community here in Parsons"— to conclude that Teal ran a Facebook
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profile under the alias of Sebastian Stewart. We do not see that the State offered those
word of mouth statements as proof that Teal operated the Facebook profile.
Even if the admission of this statement of belief was erroneous, we see no way
that its admission affected Teal's conviction. Byrd's statement is about how he initially
connected Teal to the Facebook profile under the name Sebastian Stewart. But Byrd then
used Facebook to speak on the phone with the dealer, and Byrd identified the caller as
Teal. So even if his initial statement were hearsay, he also testified to his direct
knowledge about the person running the Facebook account.
There is no reason based on this issue to reverse Teal's conviction.
Affirmed.
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