Opinion
No. 106,096.
2012-09-21
STATE of Kansas, Appellee, v. Danny KEEL, Appellant.
Appeal from McPherson District Court; Carl B. Anderson, Jr., Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. David A. Page, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from McPherson District Court; Carl B. Anderson, Jr., Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. David A. Page, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Danny Keel appeals from his convictions for possession of methamphetamine and possession of drug paraphernalia. Specifically, Keel argues there was insufficient evidence presented at trial to support his convictions and the jury was improperly instructed on the definition of drug paraphernalia. We are not persuaded by either of Keel's arguments and, therefore, affirm Keel's convictions.
Facts
On May 14, 2010, Moundridge and McPherson County law enforcement officers executed a search warrant, which authorized a search for illegal drugs and paraphernalia at a residence Keel shared with his girlfriend, Shayna Wulf. Wulf answered the door and told the officers Keel was not home and she did not know when he would return. The officers, however, suspected Keel was inside. This suspicion was confirmed when the officers located Keel inside a “hidden entryway” near the kitchen. A doorway to the hidden room could not be seen from inside the residence because it was covered by a set of bookshelves; the bookshelves were fastened with a hinge and could be opened and closed. After kicking in an outside door, officers discovered Keel lying on the floor in the hidden room. Officers also discovered a surveillance system consisting of a camera and a monitor inside the hidden room.
During the search, the officers discovered drugs and suspected drug paraphernalia. The officers found a glass pipe containing residue on a shelf in the room where Keel was discovered; the pipe subsequently tested positive for methamphetamine. Officers also seized a black plastic bong in a closet located under a stairway leading upstairs; a makeup bag in an upstairs bedroom that contained a large glass pipe with black residue that later tested positive for tetrahydrocannabinol and a baggie containing a white granular substance that later tested positive for methamphetamine; and a small baggie lying in plain view on a desk near the hidden room containing a white crystal substance that later tested positive for methamphetamine.
The officers arrested Keel and Wulf. Wulf admitted that the makeup bag belonged to her but claimed that the methamphetamine inside the bag did not, stating that she would take responsibility for the “smoke” but not the “dope.” Wulf later confirmed that “smoke” was a reference to marijuana and that “dope” was a reference to methamphetamine.
Keel was charged with one count each of possession of cocaine, possession of methamphetamine, and possession of drug paraphernalia. The cocaine charge was dismissed prior to trial.
At trial, Wulf testified on Keel's behalf. Contrary to her prior statement, Wulf testified that all the drugs and drug paraphernalia found in the residence belonged to her and that Keel had no knowledge of, or control over, any of the items. Wulf explained to the jury that she had been afraid at the time of her arrest to admit that all the contraband, including the methamphetamine, belonged to her because she “didn't want to take a charge for something so big.” Notwithstanding this testimony, the jury found Keel guilty of possession of methamphetamine and possession of drug paraphernalia.
Analysis
On appeal, Keel challenges the sufficiency of the evidence supporting his convictions by claiming the State failed to prove that he had knowledge of, or intended to possess, the drugs and drug paraphernalia. Keel also claims the district court violated his constitutional right to have a jury determine his guilt by instructing the jury on the definition of drug paraphernalia in a manner that defined pipes and bongs as drug paraphernalia. We address each of these claims in turn.
Sufficiency of the Evidence
To support his claim of insufficient evidence, Keel argues the mere presence of the contraband in his home does not support the State's theory that he constructively possessed the drugs or drug paraphernalia.
When the sufficiency of the evidence is challenged in a criminal case, we review all evidence, viewed in the light most favorable to the State, to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). In determining whether there is sufficient evidence to support a conviction, we do not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
At trial, the State relied on circumstantial evidence to show that Keel had constructive possession of the contraband found in the residence. A conviction for even the gravest offense may be sustained by circumstantial evidence. McCaslin, 291 Kan. at 710. A verdict may be supported by circumstantial evidence if the evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. Notably, however, the evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). The circumstances used to infer guilt must be proved and cannot be inferred or presumed from other circumstances. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).
Keel was charged with possession of methamphetamine and possession of drug paraphernalia. Kansas law provides that “[i]t shall be unlawful for any person to possess any opiates, opium or narcotic drugs.” K.S.A.2010 Supp. 21–36a06(a). Similarly, K.S.A.2010 Supp. 21–36a09(b)(2) prohibits the possession of drug paraphernalia for personal use. A drug possession charge requires not only that Keel have control over the contraband but also that he do so with knowledge of—and the intent to have—such control. State v. Johnson, 33 Kan.App.2d 490, 502, 106 P.3d 65 (2004); State v. Cruz, 15 Kan.App.2d 476, 489, 809 P.2d 1233,rev. denied 249 Kan. 777 (1991). “[P]ossession of a controlled substance may be ... constructive as where the drug is kept by the accused in a place to which he has some measure of access and right of control. [Citation omitted.]” State v. Washington, 244 Kan. 652, 654, 772 P.2d 768 (1989). Possession and intent may be proved by circumstantial evidence. Cruz, 15 Kan.App.2d at 489.
Keel relies on Cruz to support his argument. In Cruz, we reversed the defendant's conviction for possession of cocaine with intent to sell, holding that the evidence presented did not support the conviction. 15 Kan.App.2d at 492. The Cruz court noted that in those cases where a defendant does not have exclusive possession of the premises upon which drugs are found, “more than mere presence or access to the drugs has been required to sustain a conviction.” 15 Kan.App.2d at 489. The court held that in such cases, other incriminating circumstances must link the defendant to the drugs. Incriminating factors include the following: (1) the defendant's previous sale or use of narcotics; (2) the defendant's proximity to the area in which the drugs were found; (3) the fact that the drugs were found in plain view; and (4) the defendant's incriminating statements or suspicious behavior. 15 Kan.App.2d at 489.
To that end, Keel claims the State failed to come forward with positive evidence of any of the factors listed in Cruz. Specifically, Keel argues there was no evidence presented to establish that he had previous involvement in any drug sale or use, only the glass pipe was in close proximity to Keel, just one baggie of drugs was found in plain view, and the only suspicious behavior was Wulf telling the officers that Keel was not home. In addition, Keel argues there was evidence presented at trial that should have prompted reasonable doubt in the minds of the jury: Wulfs testimony at trial that none of the drugs or paraphernalia belonged to Keel and the State's failure to test any of the drugs or paraphernalia for fingerprints.
Keel's argument is without merit. Not only was the glass pipe containing methamphetamine residue on the shelf in the “hidden entryway” found in close proximity to Keel, but the baggie of methamphetamine was discovered in plain view on a desk near the entrance to the hidden room. Additionally, Keel's attempt to avoid discovery by burrowing away in a hidden room containing surveillance equipment certainly qualifies as suspicious behavior. Finally, the jury was able to assess Wulf's credibility and weigh her testimony at trial in light of the evidence that she had initially denied ownership of the methamphetamine. The fact that the jury convicted Keel reflects the jury's decision to believe the statement made by Wulf at the time she was arrested and reject the testimony she provided later at trial. It is not the function of an appellate court to reweigh the evidence or pass on the credibility of witnesses. Hall, 292 Kan. at 859.
Although Keel lacked exclusive control over the residence, when the evidence is viewed in the light most favorable to the State, we find other incriminating evidence that sufficiently linked Keel to the drugs and drug paraphernalia found inside. As such, there was sufficient evidence presented from which a rational factfinder could find Keel was in constructive possession of the drugs and drug paraphernalia.
Jury Instructions
Keel argues the court deprived him of his constitutional right to have a jury decide his guilt when it instructed the jury on the definition of drug paraphernalia in a manner that explicitly defined pipes and bongs as drug paraphernalia. He claims that the instruction improperly removed from the jury's province the question of whether the items found at the residence were, in fact, drug paraphernalia.
We review a challenged jury instruction on appeal for clear error where, as here, the instruction was given without any objection from the defendant. See K.S.A. 22–3414(3); State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009). A jury instruction is clearly erroneous “only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” 289 Kan. at 802. To the extent that Keel raises a constitutional due process challenge, however, we exercise unlimited review. State v. Wade, 284 Kan. 527, 534, 161 P.3d 704 (2007). In any event, when reviewing jury instructions, an appellate court is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. State v. Brice, 276 Kan. 758, 761, 80 P.3d 1113 (2003).
Instruction No. 3, the challenged instruction, stated:
“ ‘Drug paraphernalia’ means all equipment, products and materials of any kind which are used or intended for use in ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the uniform controlled substances act. ‘Drug paraphernalia’ shall include, but is not limited to:
“(1) Pipes,
“(2) Bongs.”
Notably, the challenged instruction was followed by an instruction that provided factors to consider in determining whether an object is drug paraphernalia. Instruction No. 4 stated:
“In determining whether an object is drug paraphernalia, you shall consider, in addition to all other logically relevant factors, the following:
“Statements by a person in control of the object concerning its use.
“The proximity of the object, in time and space, to a direct violation of the uniform controlled substances act.
“The proximity of the object to controlled substances.
“The existence of any residue of controlled substances on the object.”
The crux of Keel's argument is that by stating drug paraphernalia “shall include” pipes and bongs, Instruction No. 3 removed an element of the charged crime from jury consideration in that it effectively told the jury that pipes and bongs constitute drug paraphernalia under K.S.A.2010 Supp. 21–36a09(b)(2). In support of this argument, Keel cites Brice, a case in which our Supreme Court reversed a conviction for aggravated battery because the jury was instructed that the term “ ‘great bodily harm” ’—an essential element of the crime—meant “ ‘a through and through bullet wound” ’ in the context of the case at hand. 276 Kan. at 762.
But the facts in Brice are readily distinguishable from those in this case. To that end, the statutory definition of drug paraphernalia applicable to the statute prohibiting possession of drug paraphernalia is virtually identical to the definition of drug paraphernalia provided to the jury in Instruction No. 3. See K.S.A.2010 Supp. 21–36a01(f)(12)(B) and (L) (“ ‘Drug paraphernalia’ shall include ... [m]etal, wooden, acrylic, glass, stone, plastic or ceramic pipes ... [or] ‘bongs.”). Moreover, the pattern instruction in Kansas upon which Instruction No. 3 was based specifically recommends that the instruction identify those specific items of paraphernalia supported by the evidence. See PIK Crim.3d 67.40 (“ ‘Drug paraphernalia 1 includes: [lists specific items].”).
Despite Keel's claims to the contrary, Instruction No. 3 neither improperly relieved the State of its burden to prove a necessary element of the crime nor invaded the province of the jury to determine guilt beyond a reasonable doubt. Unlike the instruction in Brice, the instruction here did not literally and expressly state that the objects found in Keel's residence were drug paraphernalia. Rather, the instruction here merely listed specific objects that could constitute drug paraphernalia. Such language was necessary to inform the jury which objects the State claimed to be drug paraphernalia.
Additionally, when considered in conjunction with Instruction No. 4, as our standard of review requires us to do, we find the jury was properly instructed to determine whether the pipe and bong found inside Keel's residence were, in fact, drug paraphernalia. Instruction No. 3 defined drug paraphernalia, while Instruction No. 4 provided the jury with factors to consider when determining whether an object constitutes drug paraphernalia under the law.
Even if Instruction No. 3 was issued in error, however, there was no real possibility the jury would have rendered a different verdict if the instruction had omitted the challenged language. Wulf testified—in response to questioning from defense counsel—that the pipe found in the hidden room was a “methamphetamine pipe.” When asked what the pipe was used for, she stated, “To smoke meth out of .” Wulf also identified State's Exhibit 3 as “a bong.” When asked what the bong was used for, she said, “A pipe to smoke weed out of it.” Wulf clarified that the term “weed” meant marijuana. Keel's argument fails.
Affirmed.