In re Z.M.

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NOT DESIGNATED FOR PUBLICATION

No. 113,745

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of: Z.M.

MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS E. FOSTER, judge. Opinion filed January 8, 2016.
Affirmed.

Megan L. Harrington, of Overland Park, for appellant.

Daniel G. Obermeier, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen
M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., POWELL, J., and DAVID J. KING, District Judge, assigned.

Per Curiam: Z.M. appeals from his conviction of possession or consumption of
alcoholic liquor by a minor pursuant to K.S.A. 2014 Supp. 41-727. He contends the
district court erred because: (1) the court considered the fact he was arrested as evidence
supporting his guilt; and (2) there was insufficient evidence to support his conviction.

The police, having been dispatched to an apartment following a noise and
suspected underage drinking complaint, found about 20 people inside the apartment and a
trash bag full of beer cans. Z.M., age 17, one of those attending the party, was arrested
and charged under K.S.A. 2014 Supp. 41-727. This statute makes it illegal for a person
under 21 years of age to "possess, consume, obtain, purchase or attempt to obtain or
purchase alcoholic liquor or cereal malt beverage except as authorized by law." K.S.A.
2014 Supp. 41-787(a). These prohibitions are stated in the alternative. The State
proceeded in the trial to the court on a theory of consumption rather than possession of
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alcohol. All of its evidence related to the consumption of alcohol. There was no attempt
to prove that Z.M. possessed any alcohol at the time of his arrest.

At the bench trial on Z.M.'s charge, the State introduced into evidence a
photograph of the trash bag full of empty beer cans found in the apartment. The
photograph also depicted at least three empty broken-down cardboard beer boxes; one
box clearly stated that it was a 30-pack of beer. Officer Dan Kellerman testified that the
police moved the people from inside the apartment to a parking lot outside. He testified
that he made contact with "several juveniles" that were in the apartment whom he
believed were not drinking. Z.M. told the officer that he had not consumed alcohol, but
Officer Kellerman did not believe him because Z.M. had a strong odor of alcohol on his
breath, had bloodshot eyes, and refused a preliminary breath test (PBT).

The district court found Z.M. guilty, and this appeal followed.

Z.M. claims the district court erred by considering the fact that Officer Kellerman
arrested him in finding him guilty under K.S.A. 2014 Supp. 41-727. Z.M. argues that in
announcing his decision, the district judge commented about others at the party not being
arrested, thereby indicating that the judge considered the fact of Z.M.'s arrest in making
his finding of guilt. Z.M. asserts that evidence of a defendant's arrest cannot be used as
evidence supporting guilt and that the district court's consideration of this fact violated
Z.M.'s due process rights; that is, the officer needed only probable cause to arrest Z.M.
but proof beyond a reasonable doubt was necessary to support a conviction. Further, he
contends the error cannot be considered harmless because the evidence against him was
not overwhelming.

Z.M. did not raise this issue before the district court. He raises it for the first time
on appeal. Under Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41), an
appellant must explain why an issue was not raised below and why an appellate court
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should consider the issue for the first time on appeal. See State v. Godfrey, 301 Kan.
1041, 1043-44, 350 P.3d 1068 (2015) (holding that Rule 6.02[a][5] will henceforth be
strictly enforced). Z.M. fails to address why he did not object below and why his
argument is properly before this court. Thus, this issue has not been properly preserved
for us to consider on appeal.

Besides, even if Z.M. had preserved the issue for review, his argument would fail.
The judge's comments were simply directed to the credibility of Officer Kellerman's
overall testimony. The judge believed Officer Kellerman's testimony was credible
because Officer Kellerman observed many people, formed the opinion that some people
had not been drinking, but also formed the opinion that Z.M. had been drinking. The
judge did not apply the lesser probable cause standard to establish Z.M.'s guilt but
specifically found "beyond a reasonable doubt that [Z.M.] committed the acts set forth in
the complaint." Finally, any error associated with this comment was harmless in view of
the overwhelming evidence of Z.M.'s guilt, as we will discuss below.

Z.M. mentions in passing that the district court relied on a fact not in evidence
because Officer Kellerman never testified that "'they didn't just arrest everybody.'" But
Z.M. does not adequately brief this issue, so he has abandoned it. See State v. Llamas,
298 Kan. 246, 264, 311 P.3d 399 (2013).

Next, Z.M. argues that the evidence was insufficient to support a conviction. In
considering this claim we examine the evidence at trial in the light favoring the
prosecution to determine if a rational factfinder could have found Z.M. guilty beyond a
reasonable doubt. See In re J.A.B., 31 Kan. App. 2d 1017, 1022, 77 P.3d 156, rev. denied
277 Kan. 924 (2003). In considering whether a conviction is supported by substantial
evidence, we consider both direct and circumstantial evidence. A finding of guilt may be
supported by circumstantial evidence if such evidence provides a basis from which the
factfinder may reasonably infer the existence of the fact in issue. State v. Brooks, 298
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Kan. 672, 689, 317 P.3d 54 (2014). In our review we do not reweigh the evidence or
reassess the credibility of witnesses; we leave those matters to the trial judge. See State v.
Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). We will reverse only if no
reasonable factfinder could have found the defendant guilty beyond a reasonable doubt.
See State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

Z.M. argues that the district court could not rely on his proximity to alcohol (the
trash bag full of beer cans) as support for his guilt because "[p]roximity to alcohol does
not prove possession or consumption."

Z.M. relies on State v. Bullocks, 2 Kan. App. 2d 48, 49-50, 574 P.2d 243 (1978),
rev. denied 223 Kan. clxxii (1978), disapproved on other grounds by State v. Boggs, 287
Kan. 298, 197 P.3d 441 (2008). In Bullocks, the defendant was charged with possessing
marijuana because marijuana had been found inside a shared residence. The Bullocks
court held: When a defendant is in nonexclusive possession of premises on which drugs
are found, . . . it cannot be inferred that the defendant knowingly possessed the drugs
unless there are other incriminating circumstances linking the defendant to the drugs." 2
Kan. App. 2d at 50.

Bullocks does not control. The evidence in Z.M.'s case supported a conviction for
consuming alcohol, not possessing it. Although Z.M. was not tried on a theory of
possession, there were incriminating circumstances linking him to the beer cans in the
trash bag. He had the odor of alcohol on his breath and his eyes were bloodshot, both of
which are well-recognized indicia of having consumed alcohol.

Z.M. also places unjustified reliance on In re WRC, No. 64,013, Kan. App.
unpublished opinion filed April 13, 1990, another minor in possession case. W.R.C., a
minor, was the passenger in a truck that contained beer in its cabin. W.R.C.'s friend
owned the truck and was driving the truck when police pulled them over. No other
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evidence supported the claim that W.R.C. possessed the beer. On appeal, the court
reversed, finding that in order to support a conviction there needed to be incriminating
evidence linking W.R.C. to the beer other than his mere presence in the truck. Slip op. at
7-8.

Again, WRC relates to evidence of a minor in possession, which is not what was
proven in Z.M.'s case. There was ample (in fact, overwhelming) incriminating evidence
that Z.M., a minor, consumed alcohol.

Next, Z.M. asserts the district court could not rely on his refusal to take the PBT to
support his conviction for two reasons: (1) under K.S.A. 2014 Supp. 41-727(g), refusal
to submit to a PBT is "not per se proof" that a person violated K.S.A. 2014 Supp. 41-727;
and (2) because Z.M.'s father told him not to take the PBT.

K.S.A. 2014 Supp. 41-727(g) states that a minor's refusal to submit to a PBT does
not constitute per se proof of guilt. But this does not mean that a minor's refusal to take a
PBT cannot be used as evidence in support of a finding of guilt. K.S.A. 2014 Supp. 41-
727(g) explicitly states that "a refusal to submit to a preliminary breath test shall be
admissible in court in any criminal action." Z.A.'s refusal to submit to a PBT was
substantial evidence supporting the district court's finding of guilt.

Further, the father's admonition to his son not to take the PBT test does not affect
the district court's ability to base a guilty finding upon the defendant's failure to submit to
the test. There was conflicting testimony at trial regarding whether father actually told
Z.M. to refuse the test. Officer Kellerman testified that he remembered father was present
when he asked Z.M. to take the PBT, but he did not remember father advising Z.M. to not
take the PBT. There was also conflicting testimony regarding the odor of alcohol and the
redness of Z.M.'s eyes. But by its ultimate finding of guilt, it is apparent that the district
court found Officer Kellerman's testimony more credible on all these issues and resolved
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the factual disputes in favor of the State. We do not second-guess the trial court regarding
the credibility of the witnesses. See Williams, 299 Kan. at 525.

The evidence of (1) the massive amounts of beer and beer cans present in the
apartment, (2) the odor of alcohol on Z.M.'s breath, (3) Z.M.'s bloodshot eyes, and (4)
Z.M.'s refusal to take the PBT all provide substantial evidence to support Z.M.'s
conviction. We find no reversible error in the district court's disposition of this case.

Affirmed.