State v. Black

1
NOT DESIGNATED FOR PUBLICATION

No. 120,412

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

AMBER LANEY BLACK,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed February 14, 2020.
Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., MALONE and STANDRIDGE, JJ.

PER CURIAM: Following a jury trial, Amber Laney Black was convicted of one
count of possession of methamphetamine and one count of possession with intent to use
drug paraphernalia. The district court sentenced Black to 16 months in prison but released
her on probation for a term of 18 months and ordered mandatory drug treatment. Black
appeals from her convictions claiming: (1) the district court erred when it gave jury
instructions that allowed her to be convicted based on a lesser culpable mental state and
(2) the record contained insufficient evidence to support her conviction for possession of
methamphetamine. Finding no error, we affirm.
2
FACTS

On September 21, 2017, Black was charged with one count of possession of
methamphetamine and one count of possession of drug paraphernalia with intent to use.
She waived her right to a preliminary hearing and pled not guilty to both counts. The case
proceeded to a jury trial on July 24, 2018, where the State called Jonathan Rosario as a
witness. Rosario testified that on September 9, 2017, he was working as a part-time
security officer at Hutchinson Regional Medical Center. In that role, Rosario was
responsible for inventorying and safeguarding the property of patients who were admitted
into the hospital. The purpose of this process was to make sure that high value items were
protected and to prevent dangerous items from being brought into the hospital. If any
illegal drugs were discovered during the inventory process, hospital policy required the
security officer to turn the illegal drugs over to law enforcement.

At approximately 4 a.m. on September 9, 2017, Rosario came into contact with
Black, who was in the process of being admitted to the hospital. He met her in the lobby
and observed she had a purse with her. Rosario escorted her to a secured unit on the third
floor of the hospital. Once he left her in the secured unit, Rosario searched her purse in
accordance with the hospital's policy. As a result of that search, Rosario found
miscellaneous items (wallet, keys, etc.) as well as needles and a small plastic baggie that
contained a glass-like substance. Believing that they were illegal drugs and drug
paraphernalia, Rosario took the needles and baggie into safekeeping and sought out a law
enforcement officer. He eventually found Hutchinson Police Department Officer Scott
Finster—who was at the hospital on a different case—and turned the items over to him.

Officer Finster also testified at trial. Finster confirmed that while he was on duty at
Hutchinson Regional Medical Center in the early morning hours of September 9, 2017,
he was approached by Rosario and given a number of diabetic needles and a baggie
containing a crystal-like substance that Rosario claimed he confiscated from a patient.
3
Finster testified that the needles were of the type commonly used to inject
methamphetamine and that he suspected the crystal-like substance was
methamphetamine. He later confirmed that suspicion when he performed a NARK II test,
which came back positive for methamphetamine. Finster was unable to speak with Black,
however, because she already had been admitted to the hospital. Following Finster's
testimony, Black stipulated that the baggie found in her purse contained 0.12 grams of
methamphetamine.

Following Officer Finster's testimony, the State rested, and Black took the stand in
her own defense. She claimed that when she went to the hospital on September 9, 2017,
she was in a very dark place because she was "done with life," and "didn't want to live
anymore." Her plan was to give herself "one big shot" of methamphetamine with the
hope that she would overdose and die. But when that plan did not work out—due to her
mistaken belief that she did not have any methamphetamine left—she went to the
hospital because she had always been told that the hospital would help if you ever
thought you were at risk of harming yourself or someone else. When she got there, she
told the nurse that she had needles in her purse and asked that they be destroyed. Black
testified she did not know about the methamphetamine in her purse because if she had,
she would have used it to overdose and kill herself. Black also claimed that the baggie
within which the methamphetamine was found in her purse was bigger than the baggies
of methamphetamine she normally purchased and that she always kept her
methamphetamine on her person, never in her purse. But, on cross-examination, Black
admitted that she used methamphetamine approximately eight hours before going to the
hospital and that she was still high when she got there.

Following Black's testimony, the defense rested and moved for dismissal of the
case in its entirety. That motion was denied, and the trial proceeded to the jury
instructions conference, where the district court's proposed instructions were approved
4
without objection. After deliberation, the jury found Black guilty on both counts. Black
filed posttrial motions for a judgment of acquittal and a new trial, but both were denied.

ANALYSIS

Jury instructions

Black first argues that the district court erred by giving jury instructions that were
not legally appropriate because they allowed the jury to convict her under a lesser
culpable mental state. When analyzing jury instruction issues, appellate courts follow a
three-step process:

"'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.' [Citation omitted.]" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

In this case, there is no dispute that Black failed to properly preserve this issue for
appellate review because she failed to lodge a timely and appropriate objection before the
district court. That failure does not, however, prevent this court from addressing the
merits of Black's claims. Rather, it affects the standard applied at the third step and
requires Black to demonstrate clear error. See State v. McLinn, 307 Kan. 307, 317-18,
409 P.3d 1 (2018).

At step two, this court assesses the merits of Black's claim by first using an
unlimited review of the entire record to decide whether the challenged instructions were
legally appropriate. State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70 (2016). If the
instruction is legally appropriate, the court then generally looks at the evidence in the
light most favorable to the requesting party to determine if the challenged instructions
5
were factually appropriate. State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101
(2016). But here, Black makes no claim that the challenged instructions were factually
inappropriate. As such, she has waived that issue, and we need only determine whether
the given instructions were legally appropriate. See State v. Williams, 298 Kan. 1075,
1083, 319 P.3d 528 (2014) ("When a litigant fails to adequately brief an issue it is
deemed abandoned."). To be legally appropriate, a jury "instruction must always fairly
and accurately state the applicable law." State v. Plummer, 295 Kan. 156, 161, 283 P.3d
202 (2012).

In this case, Black is challenging jury instructions 6 and 9, both of which address
the level of mental culpability required to convict her of possession of methamphetamine.
Those instructions provided:

"NO. 6
"In Count One, Amber Black is charged with unlawfully possessing
Methamphetamine. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. Amber Black possessed Methamphetamine.
"2. This act occurred on or about the 9th day of September 2017, in Reno
County, Kansas.
"'Possession' means having joint or exclusive control over an item with
knowledge of and the 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."

"NO. 9
"The State must prove that Amber Black committed the crime of possession of
methamphetamine and possession of drug paraphernalia knowingly.
"A defendant acts knowingly when the defendant is aware of the nature of her
conduct that the State complains about."

6
That language in both instructions is taken almost verbatim from PIK Crim. 4th 57.040
(2018 Supp.) and PIK Crim. 4th 52.010 (2015 Supp.) which, in turn, are based on K.S.A.
2018 Supp. 21-5706(a) and K.S.A. 2018 Supp. 21-5202(a), respectively.

Black does not, and cannot, argue that instructions 6 and 9's almost verbatim
recitation of the PIK instructions are a misstatement of the statutes. Instead, she claims
they are legally inappropriate because they allowed her to be convicted under the lesser
culpable mental state of knowing rather than the more stringent culpable mental state of
intentional. In support of this claim, Black points to the State's proposed jury instructions,
one of which would have required the State to "prove that the defendant committed the
crime Possession of Methamphetamine and Drug Paraphernalia intentionally. A
defendant acts intentionally when it is the defendant's desire or conscious objective to
possess marijuana and drug paraphernalia."

The jury instruction proposed by the State, however, was not given by the court.
Relevant here, the statute defining possession of methamphetamine, K.S.A. 2018 Supp.
21-5706(a), does not prescribe a culpable mental state nor does it plainly dispense with
the mental element. As such, the mental element is still an essential element of the crime
but may be established by proof that Black's conduct was committed intentionally,
knowingly, or recklessly. See K.S.A. 2018 Supp. 21-5202(a), (d)-(e).

Instruction 6 informs the jury that Black has been charged with unlawfully
possessing methamphetamine, and the State has the burden to prove the possession. The
instruction goes on to define possession as "joint or exclusive control over an item with
knowledge of and the 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." (Emphasis
added.) This instruction, which allowed Black to be convicted based on her knowing
conduct, is legally appropriate. Instruction 9 informs the jury that the State has the burden
to prove "Black committed the crime of possession of methamphetamine and possession
7
of drug paraphernalia knowingly." (Emphasis added.) Again, this instruction allowed
Black to be convicted based on her knowing conduct, which is legally appropriate.

In sum, the jury instructions that were given, including instructions 6 and 9, fairly
and accurately stated the law and, as a result, are legally appropriate. Black's claims to the
contrary are without merit. See Plummer, 295 Kan. at 161.

Sufficiency of the evidence

Black next argues that there was insufficient evidence to support her conviction
for possession of methamphetamine.

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

It is only in rare cases where the testimony is so incredible that no reasonable fact-finder
could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v.
Torres, 308 Kan. 476, 488, 421 P.3d 733 (2018). Further, a verdict may be supported by
circumstantial evidence if such evidence provides a basis for a reasonable inference by
the fact-finder regarding the fact in issue. Indeed, circumstantial evidence, in order to be
sufficient, need not exclude every other reasonable conclusion, and a conviction of even
the gravest offense can be based entirely on circumstantial evidence. State v. Logsdon,
304 Kan. 3, 25, 371 P.3d 836 (2016). There is no legal distinction between direct and
circumstantial evidence in terms of their respective probative value. State v. Lowery, 308
Kan. 1183, 1236, 427 P.3d 865 (2018).

8
In this case, Black was charged with possession of methamphetamine in violation
of K.S.A. 2018 Supp. 21-5706(a), which defines the offense as possessing "any opiates,
opium or narcotic drugs, or any stimulant designated in K.S.A. 65-4107(d)(1), (d)(3) or
(f)(1), and amendments thereto, or a controlled substance analog thereof." As noted
above, K.S.A. 2018 Supp. 21-5706(a) does not specify a particular culpable mental state
nor does it plainly dispense with the mental element of the crime. As such, the mental
element is still an essential element of the crime but may be established by proof that
Black's conduct was committed intentionally, knowingly, or recklessly. K.S.A. 2018
Supp. 21-5202(a), (d)-(e). Therefore, to be found guilty of possession of
methamphetamine, the State had to prove beyond a reasonable doubt that Black
possessed methamphetamine and that she did so intentionally, knowingly, or recklessly.

Black does not deny that she possessed the purse where the methamphetamine and
needles were found. Instead she argues that there was insufficient evidence to show that
she knew that the methamphetamine was in her purse; therefore, she could not have
intentionally possessed it. But as noted above, the State is not required to show that Black
acted intentionally. To satisfy the mental culpability element of the crime, the State only
had to establish that she acted either knowingly or recklessly. And here, viewed in a light
most favorable to the State, there is more than enough evidence to establish that Black
knowingly possessed the methamphetamine and the needles. See State v. Chandler, 307
Kan. 657, 668, 414 P.3d 713 (2018); Logsdon, 304 Kan. at 25. This includes Black's own
testimony that she possessed the purse where the methamphetamine was found when she
arrived at the hospital and that she had used methamphetamine a few hours earlier. And
while she denied knowing that the methamphetamine was in her purse, it is improper for
an appellate court to reweigh the evidence or assess the credibility of witnesses. See
Chandler, 307 Kan. at 668.

9
We have reviewed all the evidence in a light most favorable to the prosecution and
are convinced a rational fact-finder could have found beyond a reasonable doubt that
Black knowingly possessed the methamphetamine and needles found in her purse.

Affirmed.