Opinion
No. 108,668.
2013-08-9
STATE of Kansas, Appellee, v. Kristina Rae LEONARD, Appellant.
Appeal from Sumner District Court; William R. Mott, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Kerwin L. Spencer, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sumner District Court; William R. Mott, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Kerwin L. Spencer, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
In this direct appeal of her possession of marijuana and drug paraphernalia convictions, Kristina R. Leonard claims the State presented insufficient evidence to prove her guilty. At this point of the process, we are required by law to look at the evidence in a light most favorable to the prosecution and refrain from weighing the evidence or the credibility of witnesses. Here, Leonard admitted to a police officer that the marijuana and the smoking device found in her bedroom were hers. She recanted this admission at trial. Given our standard of review, we hold this was sufficient to find Leonard guilty of both crimes. We will not address her second issue concerning a claim of an incorrect assessment of Board of Indigents Defense Services fees, as we have been informed that a subsequently issued nunc pro tunc order by the district court amending the journal entry has corrected the claimed error.
The appearance of a lost child brought the police.
On the morning of May 8, 2011, Wellington Police Officer Bronson Campbell responded to a call requesting the police check on the welfare of a small child approximately 3 years old found alone with no shoes wandering alongside a roadway outside a convenience store. The child was Leonard's grandson.
Leonard lived in an apartment in Wellington with her boyfriend, Steven Kreifels, her daughter, Connie Stowell, and her toddler grandson. Thomas Weiner, the father of Leonard's grandson, was also visiting at the apartment at the time.
Officer Campbell and his partner discovered that both Stowell and Leonard were at another convenience store across the street, where Leonard worked as a clerk. Leonard identified the child as her grandson and sent the child's aunt to take him back home, approximately 1 block away. Officer Campbell followed.
Upon arriving at the doorstep to an apartment, Officer Campbell observed Weiner sleeping on a couch. Concerned for the child's safety, Officer Campbell entered the residence. The child's aunt and Weiner began arguing. At this point, Kreifels came out from a bedroom and asked what was wrong. Officer Campbell informed Weiner and Kreifels that he was investigating what happened with the child. Officer Campbell observed that both Weiner and Kreifels appeared to have been sleeping while the child was out of the apartment. While talking to Weiner, Officer Campbell observed a pair of tweezers with a “burnt filmy residue” all around the tips. Officer Campbell suspected the tweezers were drug paraphernalia. While inspecting the tweezers, Officer Campbell detected the odor of burnt marijuana. After receiving permission from Kreifels to take a quick look around, Officer Campbell observed in the dining room a heart-shaped metal container resembling a cake pan. The container had “little metal round screens with a burnt reside around them” and contained little bits of green vegetation, which Officer Campbell believed came from a marijuana plant. Based on his observations, Officer Campbell called for backup.
After Officer Campbell's partner arrived at the apartment, Officer Campbell asked Kreifels if there was any marijuana in the house. Kreifels went back into his bedroom with Officer Campbell. Once in his bedroom, Kreifels retrieved small baggies of marijuana from the nightstand next to the bed. On the opposite side of the bed, Officer Campbell located a second heart-shaped container, with similar suspected evidence of marijuana, and a homemade smoking device made from a plastic bottle. Kreifels proceeded to tell Officer Campbell that the marijuana belonged to Leonard, who was at work and would admit to owning the marijuana.
Officer Campbell returned to the convenience store were Leonard worked. During the ensuing conversation, Officer Campbell explained to Leonard that Kreifels had told him she would tell him the marijuana was hers. Leonard subsequently admitted to Officer Campbell that the marijuana and drug paraphernalia was hers.
The State charged Leonard with one count of possession of marijuana in violation of K.S.A.2010 Supp. 21–36a06, and one count of possession of drug paraphernalia in violation of K.S.A.2010 Supp. 21–36a09. The State presented three witnesses: Officer Campbell, Kreifels, and a KBI drug analyst. Kreifels testified that the marijuana and drug paraphernalia was found in the bedroom he shared with Leonard but could not remember telling Officer Campbell that the marijuana belonged to Leonard. On cross-examination, Kreifels testified the marijuana belonged to him and pointed out that the marijuana was found next to his billfold on the nightstand by his side of the bed. The State also admitted State's Exhibit 5, a video recording made by Officer Campbell. This recording contained three separate video files, which Officer Campbell took of the events and conversation that transpired (1) at the convenience store where the child was found; (2) at the apartment; and (3) during the conversation between Officer Campbell and Leonard at her place of employment when Leonard admitted to owning the marijuana and drug paraphernalia.
Leonard was the only defense witness. Leonard testified that the marijuana did not belong to her. Leonard explained that she had only admitted to Officer Campbell that the marijuana was hers because she was “flustered” that day. Following closing arguments, the jury convicted Leonard of both counts.
In this appeal, Leonard contends the State did not have sufficient evidence to support her convictions. Specifically, Leonard points out that both she and Kreifels shared the bedroom where Officer Campbell found the marijuana and drug paraphernalia and that other than her and Kreifels' recanted statements, the State failed to show that she had constructive possession of the marijuana and drug paraphernalia.
How we deal with questions of evidence sufficiency and possession of contraband.
When the sufficiency of evidence is challenged in a criminal case, we review such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–375, 277 P.3d 1091 (2012). This court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Turning to the law of possession, we note that K.S.A.2010 Supp. 21–36a06(b)(3) provides that it shall be unlawful for any person to possess the controlled substance marijuana. See K.S.A.2010 Supp. 65–4105(d)(16). And K.S.A.2010 Supp. 21–36a09 provides that it shall be unlawful for any person to possess drug paraphernalia. The term “possession” means “having joint or exclusive control over an item with knowledge of or intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.” K.S.A.2010 Supp. 21–36a01(q). Possession of a controlled substance requires “ ‘having control over a place or thing with knowledge of and the intent to have such control.’ [Citation omitted,]” State v. Beaver, 41 Kan.App.2d 124, 129, 200 P.3d 490 (2009). When the controlled substance is not found on the person, the inquiry becomes one of constructive, or nonexclusive, possession. 41 Kan.App.2d at 129.
To establish a defendants nonexclusive possession of a controlled substance, more than mere presence or access to the drugs is required to sustain a conviction. 41 Kan.App.2d at 129. Possession of drugs, however, may be proven by circumstantial evidence. State v. Washington, 244 Kan. 652, 654, 772 P.2d 768 (1989). When a defendant is in nonexclusive possession of the premises in which drugs are found, as in the case here, other incriminating factors establishing a defendant's knowing possession of drugs may include: the defendant's proximity to the area where the drugs are found; the fact that the drugs are found in plain view; incriminating statements made by the defendant; and the proximity of the defendant's possessions to the drugs. See State v. Marion, 29 Kan.App.2d 287, 290, 27 P.3d 924,rev. denied 272 Kan. 1422 (2001).
A review of the evidence supports a finding of guilt.
Officer Campbell found drug paraphernalia throughout the residence shared by Leonard and Kreifels. A prior ruling of this court in another case causes us to infer from this evidence that Leonard knew about and had access and control over these items. In State v. Bullocks, 2 Kan.App.2d 48, 49–51, 574 P.2d 243,rev. denied 225 Kan. 846 (1978), disapproved on other grounds by State v. Boggs, 287 Kan. 298, 197 P.3d 441 (2008), the court held that marijuana paraphernalia found in the house tended to show knowledge and absence of mistake bearing on the defendant's intent to possess marijuana found in the trailer outside the house.
Next, the record indicates the marijuana and drug paraphernalia were in plain view on each side of the bed in the bedroom or the immediate area where Leonard slept, a room Leonard exercised joint control over with Kreifels. See K.S.A.2010 Supp. 21–36a01(q). Leonard does not dispute that the contraband was found in her residence and bedroom.
Finally, after Kreifels told Officer Campbell that Leonard owned the marijuana and drug paraphernalia in their residence, Leonard made a similar admission to Officer Campbell. Leonard, however, argues that both she and Kreifels during trial recanted their earlier statements and testified that Kreifels owned the marijuana. But Leonard fails to acknowledge that under the standard of review this court cannot reweigh the evidence or the credibility of witnesses. See Hall, 292 Kan. at 859.
Accordingly, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Frye, 294 Kan. at 374–75.
Affirmed.