State v. Bowser

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NOT DESIGNATED FOR PUBLICATION

No. 119,604

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

AARON M. BOWSER,
Appellant.


MEMORANDUM OPINION

Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed January 11, 2019.
Affirmed.

Chris Biggs, of Knopp and Biggs, P.A., of Manhattan, for appellant.

Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., BUSER, J., and SIDNEY R. THOMAS, District Judge, assigned.

PER CURIAM: Aaron M. Bowser, convicted of possession of methamphetamine,
argues in this direct appeal that there was no good reason for a law enforcement officer to
stop the car in which he was riding and so the trial court erred when it failed to suppress
the contraband evidence found in the car. After reviewing the record and considering his
arguments, we do not agree with Bowser. We affirm his conviction.




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The parties submitted this case to the court on fact stipulations.

Around 8:30 one evening in March 2015, a deputy sheriff and another officer
noticed a vehicle with the driver's side taillight emitting a bright, white light, which was
partially obscuring the red light. The officers stopped the car. The deputy told the driver,
Rebecca Blackburn, the reason for the traffic stop. Two passengers were also seated in
front: Dawn Nelson sat in the center, and Bowser sat to her right. Neither passenger was
wearing a seatbelt. There was an outstanding warrant for Nelson's arrest, and she was
arrested and removed from the scene by another officer. Blackburn and Bowser remained
in the car.

The deputy returned to his patrol car to write tickets for the broken taillight and
the seatbelt violations, and called for a K-9 unit to come to the scene. The K-9 unit
arrived while the deputy was still writing the citations.

The police dog reacted to something in the vehicle, signaling the possible presence
of drugs. The officers had Blackburn and Bowser step out and the deputy patted-down
Bowser. The officers then searched the vehicle and found a black, plastic mirror-like
object with white residue in the glove compartment directly in front of Bowser's seat, and
a cut straw with white residue in the floorboard near the right passenger door around
Bowser's feet. Based on his training and experience as a law enforcement officer, the
deputy believed these objects were drug paraphernalia. Residue in the straw was positive
for amphetamine according to a field test performed at the scene.

The deputy arrested Bowser and told him that he was going to perform a more
extensive search. Before the deputy touched him, Bowser began moving his shirt. Bowser
then turned around and stuck his arms out. At that point, the deputy heard something hit
the ground. The deputy looked down and saw a small glass pipe that contained white and
burnt residue. Residue in the glass pipe tested positive for methamphetamine.
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The State charged Bowser with possession or control of methamphetamine and
possession of drug paraphernalia.

Bowser moved to suppress the evidence. In the motion, he alleged, in part, that the
traffic stop violated his Fourth Amendment rights. After a hearing, the district court
determined that the officers had reasonable suspicion to stop the vehicle and investigate
further. The court found they had probable cause for Bowser's arrest. The court denied
Bowser's motion to suppress.

Bowser made an agreement with the State and entered a no contest plea to the
charge of drug possession, and the court sentenced him to 20 months in prison. He later
moved to withdraw his plea, which was denied by the court. He appealed to our court but
voluntarily dismissed that appeal so that he could pursue a withdrawal of his plea in the
district court. This time, the court granted Bowser's unopposed motion to withdraw his
plea.

Next, the district court tried the case based on the parties' stipulated facts. The
court found Bowser guilty of felony possession of methamphetamine. The district court
then granted a downward durational departure and sentenced Bowser to 20 months in the
custody of the Secretary of Corrections.

In this appeal, Bowser argues the search based on a taillight emanating white light
violated the Fourth Amendment to the United States Constitution and the evidence
obtained from the search must be suppressed. In his view, the officer had no reasonable
suspicion based on objective facts to believe that the driver had committed a traffic
infraction. Additionally, he contends the fact stipulation that the "clear glass pipe fell
onto the ground," is not sufficient to support the court's finding him guilty. We will
address the issues in that order.

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We see no problems with this traffic stop.

In passing, we note the parties did not address Bowser's standing to object to the
stop, so we will not deal with that issue.

We look, instead, at the merits of the court's decision. We are not concerned with
any judicial fact-finding here as the court dealt with fact stipulations. This means that
when the material facts supporting a trial court's decision on a motion to suppress
evidence are not in dispute, as is the case here, the ultimate question of whether to
suppress is a question of law over which an appellate court has unlimited review. State v.
Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

The facts here are not in dispute. The deputy saw a vehicle driving down the street
at night with a cracked taillight. He saw white light emitting from the taillight. The white
light was bright and he noticed it before seeing any other type of light. The deputy made
a traffic stop based on what he perceived to be a possible traffic infraction.

The applicable statute, K.S.A. 8-1706(a), part of the Uniform Act Regulating
Traffic Equipment of Vehicles, K.S.A. 8-1701 et seq., provides that a vehicle must be
equipped with two taillights that emit visible, red light at a distance of 1,000 feet. The
deputy first saw the pickup from the rear at a distance of about one-half of a block—less
than 1,000 feet. At this distance, the deputy saw that the truck was emitting white and red
light.

Bowser claims that this observation of white light did not provide him with a
reasonable suspicion that the vehicle violated K.S.A. 8-1706. He argues that the statute
neither disallows white light, nor exclusively allows red light. He argues that the statute
should be strictly construed to allow for white light as long as red light is also emitting.
See State v. Sharp, 305 Kan. 1076, 1082, 390 P.3d 542 (2017).
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Bowser's argument does not persuade us. Here, the statute clearly and
unambiguously requires that taillights specifically emit red light; it does not state that as
long as red is one of any number of colors of light, then there is no violation. A statute
should not be construed to yield unreasonable or absurd results. See State v. Le, 260 Kan.
845, 850, 926 P.2d 638 (1996).

Reasonable suspicion exists if at the time of the stop an officer has specific,
articulable facts that criminal activity has occurred, is occurring, or is about to occur. See
State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011). The deputy specified his
reason for stopping the truck was the broken taillight emitting white light. The law
requires two functioning taillights, not one.

We must evaluate reasonable suspicion from the viewpoint of a trained law
enforcement officer. State v. Pollman, 286 Kan. 881, 890, 190 P.3d 234 (2008). The
deputy saw white light emanating from Blackburn's taillight. He testified that—in his
experience—the white light would "drown out" the red light the further away the light is
viewed from the source.

We cannot ignore this reasonable safety concern. A bright white light shining into
the eyes of drivers approaching the rear of the truck could impair their vision and thus
create a traffic hazard. Therefore, the white light emanating from the taillight provided
the deputy with reasonable suspicion that a traffic infraction was occurring. The stop was
reasonable. See State v. Blackburn, No. 115,956, 2017 WL 2212115, at *3 (Kan. App.)
(unpublished opinion), rev. denied 307 Kan. 988 (2017).

The fact stipulations support the court's finding of guilt.

When the sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing the evidence in a light most favorable to the
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prosecution, 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).

Here, Bowser narrows his attack to the ninth paragraph of the stipulations he
made. He claims the stipulation of his lifting his shirt during the custodial search and the
pipe then falling to the ground is insufficient to prove his guilt. He adds emphasis to the
portion of the pipe falling to the ground, and then argues that the language of the
stipulation "does not say that it fell 'under the defendant' or 'from his person' or any
similar fact." Bowser argues there is no evidence to describe the precise details of how
the pipe came to be on the ground or where it landed about his person, therefore his
conviction must be overturned. In sum, to find him guilty the court engaged in "inference
stacking."

Bowser relies on State v. Banks, 306 Kan. 854, 859-60, 397 P.3d 1195 (2017), for
support. In Banks, the court found that where the State relies on inference stacking, i.e.,
where the State asks the jury to make a presumption based on other presumptions, it has
not carried its burden to present sufficient evidence. But it looks to us that Bowser
confuses inferences with circumstantial evidence. They are not identical concepts.

Bowser suggests that the State asked the district court here to stack inferences to
find the requisite element of possession. To us, it appears the State is relying on
circumstantial evidence, not inferences. The evidence was a pipe falling to the ground at
the moment Bowser lifted his shirt during a custodial search. That scenario does not fit
the proscribed inference-stacking paradigm. See Banks, 306 Kan. at 859. If the State
establishes more than one circumstance to meet various elements of a criminal charge, it
is not stacking inferences; it is corroborating inferences. 306 Kan. at 860.

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Here, the sequence of events described in the stipulations describes the deputy's
custodial search of Bowser, the deputy's request that Bowser lift his shirt, Bowser's
compliance with that request, and "upon complying with that request," a clear glass pipe
fell onto the ground, then collected by the deputy. As the State points out, the stipulations
taken together establish beyond a reasonable doubt that Bowers possessed
methamphetamine on the date specified.

Actually, Bowser's argument about paragraph nine is fundamentally a request to
reweigh the evidence, which this court does not do. Chandler, 307 Kan. at 668. It was
reasonable for the district court to find that Bowser was guilty beyond a reasonable doubt
of possession of methamphetamine.

Affirmed.