State v. Rizal (Court of Appeals)

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NOT DESIGNATED FOR PUBLICATION

No. 115,036

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

YAMUNA RIZAL,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed February 17,
2017. Affirmed.

Jonathan Laurans and Christopher Angles, of Kansas City, Missouri, for appellant.

James Crux, legal intern, Jacob Gontesky, assistant district attorney, Steven J. Obermeier, senior
deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for
appellee.

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

Per Curiam: Yamuna Rizal appeals her conviction for possession with intent to
distribute synthetic cannabinoids. Rizal argues that she did not voluntarily consent to a
search of her store, and that the district court should have suppressed evidence derived
from the search. Additionally, Rizal argues that she was subject to custodial interrogation
without proper warnings, and that the district court should have suppressed statements
she made to the police during the search. Because Rizal's encounter with the police was
voluntary and her consent to search was not coerced, the district court did not err in
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denying Rizal's motion to suppress. Rizal also challenges the sufficiency of evidence to
establish that she knew that the items seized were illegal. But, the district court had
sufficient evidence to support its conclusion, so its decision is affirmed.

FACTUAL AND PROCEDURAL HISTORY

In 2012, the Shawnee Police Department received a narcotics tip from the Johnson
County Adult Residential Center. The facility reported that synthetic cannabinoids had
been found within the facility and that the drugs may have originated from a Phillips 66
store in Shawnee. Two police officers, Detective Shawn Miller and Detective Steve
Hahne, went to the Phillips 66. They were wearing jeans and t-shirts with tactical police
vests, and they were armed with department-issued firearms and TASERs. Rizal was the
only person in the store when the police arrived—she was working behind the counter.
Rizal said that her husband owned the store.

Detective Miller advised Rizal that they were investigating a complaint that
synthetic cannabinoids were being sold in the store. Detective Miller asked Rizal if she
sold "flavored tobacco," but she seemed not to understand. Detective Miller also asked
Rizal if she sold "incense" to which Rizal replied that she did not. "Flavored tobacco" and
"incense" are street names for synthetic cannabinoids. When Detective Miller asked Rizal
if she sold K2 she said she did not sell it because it was illegal.

Detective Miller asked if he and Detective Hahne could look behind the counter
and Rizal said yes. Detective Miller walked behind the counter and saw packages
consistent with synthetic cannabinoid packages under the countertop. Rizal was able to
quote the prices for a couple of the packages. Rizal was unable to tell Detective Miller
what the product was for, but she "was quick to say that it wasn't the smoke." At one
point Rizal told Detective Miller that she had last sold the product a month ago, but later
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she said she last sold it a week ago. Rizal indicated that she would sell 5 to 10 packages a
day.

The police continued to search the store, and Rizal consented to a search of the
back room. The police found invoices in the store that showed that "the store was
regularly ordering what [Detective Miller] would consider a substantial amount of these
packages every 4 to 5 days . . . ." Rizal allowed the police to make copies of the invoices.

The police encounter with Rizal in the Phillips 66 lasted close to an hour. The
encounter was recorded on one of the officer's body cameras. Throughout the encounter,
neither detective informed Rizal that she could refuse to consent to a search "[b]ecause
it's not legally required." The police also did not inform Rizal of her Miranda rights
because "[s]he was never in custody." Rizal served customers that came into the store
throughout the encounter, and Rizal also placed a phone call (likely to her husband).
Rizal was free to move around the store. The police did not arrest Rizal. At the end of the
encounter the police confiscated the suspicious packages and sent them to the crime lab.

Crime lab testing revealed that the packages contained illegal synthetic
cannabinoids. The State charged Rizal with distribution of naphthoylindole (a synthetic
cannabinoid) within 1,000 feet of a school and possession of a controlled substance
without a drug tax stamp as those statutes existed at the time of the offense.

Before trial, Rizal filed a motion to suppress. She first argued that any statements
she made to police should be excluded because she was subject to custodial interrogation
without having been advised of her Miranda rights. Rizal also argued that she did not
voluntarily consent to a search of her store, and thus the evidence gathered during the
search should be suppressed. The district court denied Rizal's motion to suppress.

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The parties proceeded to trial on stipulated facts. In sum, the factual stipulations
were that police officers entered Rizal's store, which was located 827 feet from Shawanoe
Elementary School, and found packets containing illegal synthetic cannabinoids. The
district court found Rizal guilty on both charges. The district court departed
dispositionally from the presumptive prison sentence that accompanied the distribution
charge. The court ordered Rizal to serve 60 days in jail before beginning her 36-month
probation with an underlying sentence of 49 months in prison.

Rizal appealed.

ANALYSIS

The district did not err by failing to suppress evidence found during a search of Rizal's
store.

Rizal's first argument is that the district court erred in denying her motion to
suppress evidence that the police gathered in their search of Rizal's store. Rizal argues
that the district court erred by relying on the wrong legal standard in concluding that she
consented to the search and "[a]s such, it will be all but impossible for this Court to
conduct appellate review of the District Court's ruling . . . ." Additionally, Rizal argues
that she did not voluntarily consent to the search. Rizal also argues that she was illegally
detained, and that even if she voluntarily consented to the search, her consent did not
purge the taint of the illegal detention.

In reviewing the granting or denial of a motion to suppress evidence, the court
determines whether the factual findings underlying the trial court's suppression decision
are supported by a substantial competent evidence standard. The ultimate legal
conclusions drawn from those factual findings are reviewed under a de novo standard.
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State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016). When material facts are not
in dispute, an appellate court exercises plenary review of a district court's ruling on a
motion to suppress evidence. State v. James, 301 Kan. 898, 908, 349 P.3d 457 (2015).

"The Fourth Amendment to the United States Constitution protects everyone's
right to be secure in his or her person and not subject to unreasonable searches by the
government. Without a warrant, a search is unreasonable unless it falls within a
recognized exception." James, 301 Kan. at 908. Consent is an exception to the warrant
requirement. 301 Kan. at 908. To establish valid consent, the State must prove: (1) clear
and positive testimony that consent was unequivocal, specific, and freely given; and
(2) the absence of duress or coercion, express or implied. 301 Kan. at 909. "'[W]hether a
consent to a search was in fact "voluntary" or was the product of duress or coercion,
express or implied, is a question of fact to be determined from the totality of all the
circumstances.'" State v. Thompson, 284 Kan. 763, 783, 166 P.3d 1015 (2007) (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 [1973]).

The district court's ruling was properly based on the totality of the circumstances.

Rizal makes a preliminary argument that the district court did not apply the "rules
for determining 'voluntariness of consent' from the facts of a given case" and thus "it will
be all but impossible for this Court to conduct appellate review of the District Court's
ruling." Rizal argues that it was incorrect for the district court to cite to the factors in
State v. Morton, 286 Kan. 632, Syl. ¶ 3, 186 P.3d 785 (2008), in considering her motion.
Before ruling on the motion to suppress, the district judge described Morton as having
"eight factors for the Court to consider in determining from a totality of the
circumstances whether or not the statement is appropriately admitted as being a voluntary
statement by the defendant." The district judge took those eight factors into account as
well as testimony at the motion to suppress hearing and the body camera video. In
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making his ruling, the district judge stated, "I'll find from the totality of the circumstances
. . . that the consent was voluntary on Ms. Rizal's part . . . ."

Rizal is correct that the Morton factors apply when a court is determining whether
a person is subject to a custodial interrogation. See Morton, 286 Kan. at 640. However,
the fact that the district court cited to them in this situation does not mean that the district
court failed to base its ruling regarding the voluntariness of Rizal's consent on the totality
of the circumstances. The record shows that the district court judge reviewed the entire
encounter between Rizal and the police before making his ruling. Thus, the district court's
ruling was properly based on a totality of the circumstances. It is worth noting that Rizal's
motion to suppress also made arguments regarding custodial interrogation. It is possible
that the district court mixed the analyses of the two issues. However, "[a] district court's
reasons for its decision are immaterial if the ruling was correct for any reason."
Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 848, 863 P.2d 364 (1993).

Rizal's encounter with the police was a voluntary encounter and not an
investigative detention.

Rizal argues that "what might appear to have started technically as a voluntary
encounter was certainly more an investigatory detention, transformed that way almost
immediately." She argues that Kansas law requires investigative detentions to be
predicated on reasonable articulable suspicion of criminal activity. And, "regardless of
consent, the search was not properly predicated upon reasonable suspicion." The issue of
whether this situation was a voluntary encounter or investigatory detention is also
relevant to Rizal's argument that she did not voluntarily consent to the search, which is
discussed later in this section.

"Investigatory stops require reasonable suspicion of criminal activity. [Citations
omitted.] By contrast, voluntary encounters are not considered seizures; as such, they do
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not implicate the Fourth Amendment." State v. Kermoade, 33 Kan. App. 2d 573, 579, 105
P.3d 730 (2005). "A court looks to the totality of the circumstances to determine whether
a particular encounter constitutes a seizure implicating Fourth Amendment rights." 33
Kan. App. 2d at 580. "The test of whether a seizure has occurred is based on whether a
reasonable person would have felt free to decline an officer's request or otherwise
terminate the encounter." 33 Kan. App. 2d at 580. Moreover, the reasonable person test
presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382,
115 L. Ed. 2d 389 (1991).

Rizal relies heavily on Kermoade to support her argument. In Kermoade, three
police officers went to Angela Kermoade's house based on a tip from an informant that
there was marijuana growing in the house. The informant was not reliable, and a police
officer testified that he would not base a search warrant application solely on the
informant's word. The officer testified that his intention in going to Kermoade's house
was to get her consent to search the house. The police knocked on Kermoade's door and
asked if they could come inside. Kermoade said no. The police asked Kermoade to step
outside and Kermoade complied, shutting the front door behind her. The police explained
that they wanted to search her house based on a tip, but Kermoade adamantly refused.
The police said they would apply for a search warrant if she continued to refuse and that,
while people would be allowed to leave the house, "those remaining would have to be in
the presence of an officer." 33 Kan. App. 2d at 575. Kermoade went inside to talk to her
husband. She left the door cracked when she went inside. After several minutes, the
police officers began yelling for Kermoade and her husband to come to the door. At this
point, the officers said that they were let in but "[t]here was testimony they were already
inside the home." 33 Kan. App. 2d at 576. The officers sat in the living room and
conversed with Kermoade and her husband for approximately 30 minutes. The police
informed the defendants that they could refuse to consent to a search. At the end of the
conversation, Kermoade and her husband gave the police consent to search the home.
The police found marijuana.
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Kermoade made a motion to suppress the marijuana evidence, "claiming the
consent was not voluntarily given but coerced following the officers' unlawful intrusion
into their home." 33 Kan. App. 2d at 576. The district court granted the motion. The
district court said that while the encounter began as a voluntary "'"knock and talk,"'" it
transformed into a "'"knock and twist the arm out of the socket"'" when the officers asked
Kermoade to step out of her home. 33 Kan. App. 2d at 580. At that point, the encounter
turned into a seizure. 33 Kan. App. 2d at 580. The district court then considered whether
"the subsequent consent to the search was voluntary and whether the consent purged the
taint of the illegal detention" and concluded that the search was not voluntary. 33 Kan.
App. 2d at 581. The Court of Appeals affirmed the district court because "[t]he officers'
persistence totally overcame the defendants' will. The officers said they were there to 'get'
the defendants' consent to search." 33 Kan. App. 2d at 581.

There are several factors that distinguish Kermoade from the facts in this case.
First, Kermoade refused the officers' initial requests to search, but the officers continued
to ask. The Kermoade court "determined the consensual encounter began its
transformation into a seizure when the officers asked Kermoade to step outside her
home." 33 Kan. App. 2d at 580. Rizal, unlike Kermoade, never refused the officer's
request to search.

Second, when Kermoade went inside her house the officers yelled for her to come
to the door. The Kermoade court characterized this as an "'order' to return to the front
door" that a reasonable person could not disregard. 33 Kan. App. 2d at 580. The officers
that questioned Rizal never ordered her to do anything or go anywhere. Their questioning
was free of the coercion that transformed the Kermoade encounter into a seizure.

The Kermoade court also stated that "[t]he testimony that if the request [for
consent to search] was denied that an officer would remain with each occupant of the
home further shows neither defendant was free to leave." 33 Kan. App. 2d at 580. In
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contrast, the police did not threaten to stay with Rizal until they could obtain a warrant to
search. Rather, they informed her that they would not be arresting her that day.

Rizal argues that her movements were "'restricted and controlled'" like Kermoade's
because she was the only person working at the store and it would be impractical for her
to leave. However, the pressure she felt to stay in the store was not a result of police
coercion, but rather because she did not want to leave the store unattended. The presence
or absence of police is immaterial to whether she felt free to leave the store. Rizal's
movements were not "restricted and controlled" like Kermoade's—Rizal freely moved
around her store and served customers during the encounter. This is analogous to Bostick,
501 U.S. 429. In Bostick, police boarded a bus bound from Miami to Atlanta during a
stopover in Fort Lauderdale. The police asked Terrance Bostick, a passenger on the bus,
if they could search his luggage. The Florida Supreme Court held that Bostick was seized
because a reasonable person would not feel free to leave the bus. In rejecting this holding,
the United States Supreme Court stated:

"The state court erred, however, in focusing on whether Bostick was 'free to leave' rather
than on the principle that those words were intended to capture. When police attempt to
question a person who is walking down the street or through an airport lobby, it makes
sense to inquire whether a reasonable person would feel free to continue walking. But
when the person is seated on a bus and has no desire to leave, the degree to which a
reasonable person would feel that he or she could leave is not an accurate measure of the
coercive effect of the encounter.

Here, for example, the mere fact that Bostick did not feel free to leave the bus
does not mean that the police seized him. Bostick was a passenger on a bus that was
scheduled to depart. He would not have felt free to leave the bus even if the police had
not been present. Bostick's movements were 'confined' in a sense, but this was the natural
result of his decision to take the bus; it says nothing about whether or not the police
conduct was coercive." 501 U.S. at 435-36.

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For these reasons, Rizal's reliance on Kermoade is misplaced. Rizal also cites the
fact that the detectives entered her "store in uniform, badges in full view, armed with
guns in full view" to support her argument. This does not transform the encounter into an
investigatory detention. The officers never drew their weapons or applied any force to
Rizal. Under a totality of the circumstances, Rizal was free to terminate her encounter
with the police. Thus, the voluntary encounter was not transformed into an investigatory
detention and the police did not need reasonable articulable suspicion to talk to Rizal.

Rizal voluntarily consented to the police's request to search her store.

Rizal argues that she did not voluntarily consent to the police search of her store.
She cites several factors in support of this argument: (1) English is not Rizal's native
language; (2) the detectives never informed Rizal of her rights or told Rizal that she was
free to decline consent; (3) the encounter lasted 50-60 minutes; and (4) the police officers'
behavior was coercive.

Rizal argues that she could not voluntarily consent because English is not her
native language. The district court judge considered this, noting that he "took a look at
that through the video in particular." The district court concluded that "[t]he question of
the defendant's understanding of the language and her ability to communicate comes into
question, in part, from these brief responses that she makes. But she certainly does
communicate to the detectives throughout and is cooperative with them." Substantial
competent evidence supports the district court's determination. The body camera footage
shows that Rizal understood what the officers were asking. While some of her responses
were evasive or contradictory, they do not betray a lack of understanding. Thus, this
factor does not weigh in favor of finding that Rizal's statement was involuntary.

Police are not required to inform citizens of their constitutional right to refuse
consent. This is because it is "unrealistic to require police officers to always inform
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detainees that they are free to go before a consent to search may be deemed voluntary."
Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996).
However, the courts "must . . . consider whether the individual was informed of his or her
rights." State v. Parker, 282 Kan. 584, 595-96, 147 P.3d 115 (2006). This factor, alone, is
not enough to establish involuntariness of consent.

The length of the encounter also does not show that her consent to the search was
involuntary. Rizal compares her situation to Kermoade, in which consent to search was
gained after more than 30 minutes of repeated requests and refusals. However, Rizal
consented to the officers' search behind the counter within 1 minute of the officers' entry
into her store. Rizal consented to a search of the cabinet below the counter, where the
officers found the synthetic cannabinoids, about 3 minutes after the officers' entry into
the store. And, Rizal consented after the first request to search. The Kermoade court was
concerned that the police "'wouldn't take no for an answer.'" 33 Kan. App. 2d at 580. The
police never indicated to Rizal, as they did to Kermoade, that they would not take no for
an answer.

Finally, Rizal argues that "the detectives' mannerisms and show-of-force in their
presence weigh heavily in favor of a legal conclusion that the consent they claim to have
elicited wasn't freely given." Consent is not voluntary if it is gained by coercion.
Determining whether coercion existed is a fact-specific determination, and "no list of
factors can be exhaustive or exclusive." Thompson, 284 Kan. at 811. Factors suggesting
coercion include the following:

"[T]hreatening presence of several officers, the display of a weapon by an officer, some
physical touching of the person, the use of aggressive language or tone of voice
indicating that compliance with an officer's request is compulsory, the prolonged
retention of a person's personal effects such as identification, a request to accompany the
officer somewhere, interaction in a nonpublic place, absence of other members of the
public, or the display of emergency lights." 284 Kan. at 811.
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Here, the district court found that Rizal was not coerced, stating, "The two officers
there did not impose themselves on her. It was a very congenial conversation. The
defendant was not physically actually restrained in any way. The officers never drew
their weapons, other than they were evident from their general appearance." The body
camera footage shows that the district court accurately characterized the encounter, thus
the district court's determination that Rizal was not coerced was supported by substantial
competent evidence.

The factors Rizal cites do not establish that, in view of the totality of the
circumstances, her consent to the search was involuntary. Therefore, the district court's
decision on this issue is affirmed.

The district court did not err by failing to suppress statements that Rizal made to the
police.

Rizal argues that the statements she made to the police should have been
suppressed because the police did not advise Rizal of her Miranda rights. Rizal argues
that police were required to give her Miranda warnings because she was subjected to a
custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966).

Miranda warnings are "designed to safeguard the Fifth Amendment privilege
against self-incrimination by reducing the risk of a coerced confession." Morton, 286
Kan. at 639. "[L]aw enforcement officers are not required to administer Miranda
warnings to everyone questioned, only to those who are (1) in custody and (2) subject to
interrogation." State v. Warrior, 294 Kan. 484, 496, 277 P.3d 1111 (2012). Neither party
disputes that Rizal was being interrogated, so the inquiry is whether Rizal was in custody
for the purposes of Miranda.

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"The United States Supreme Court has determined that the question of whether the
interrogation is custodial must be determined based on an objective standard of how a
reasonable person in the suspect's situation would perceive his or her circumstances."
State v. Jones, 283 Kan. 186, 193, 151 P.3d 22 (2007), disapproved on other grounds by
State v. Nelson, 291 Kan. 475, 243 P.3d 343 (2010). "A two-part inquiry is used to
determine whether an interrogation is custodial for purposes of Miranda. The first prong
is: What were the circumstances surrounding the interrogation?" Morton, 286 Kan. at
640. Appellate courts review the first prong under a substantial competent evidence
standard. 286 Kan. at 640. "The second prong of the inquiry is: Under the totality of
those circumstances, would a reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave?" 286 Kan. at 640. Appellate courts "apply a de
novo standard of review to that determination." 286 Kan. at 640.

The Kansas Supreme Court has identified eight nonexclusive factors for courts to
consider in determining whether an interrogation is custodial:

"(1) the time and place of the interrogation; (2) the duration of the interrogation; (3) the
number of law enforcement officers present; (4) the conduct of the officers and the
person subject to the interrogation; (5) the presence or absence of actual physical restraint
or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether the
person is being questioned as a suspect or a witness; (7) whether the person being
questioned was escorted by the officers to the interrogation location or arrived under his
or her own power; and (8) the result of the interrogation, for instance, whether the person
was allowed to leave, was detained further, or was arrested after the interrogation." State
v. Bridges, 297 Kan. 989, 1008, 306 P.3d 244 (2013).

A review of the eight factors supports the district court's holding that Rizal was not
in custody and thus not entitled to Miranda warnings.


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(1) Time and place of interrogation
The interrogation took place at Rizal's place of employment. "Generally, other
things being equal, a person questioned in familiar, or at least neutral, surroundings does
not face the same pressures as one questioned in a police-dominated atmosphere and this
factor weighs against a conclusion that an interview was custodial." Warrior, 294 Kan. at
497. Rizal's store lacked the coercive nature of police stations that Miranda warnings are
designed to protect against. Thus, this factor weighs in favor of finding that Rizal was not
in custody.

(2) Duration of interrogation
The police were in Rizal's store for approximately 50-55 minutes. The district
court judge thought that the length of the contact "may in the abstract seem a little
excessive, but much of that elongated conversation was from the fact of how Ms. Rizal
responded to the questions of the detectives." Furthermore, Rizal was not interrogated for
the full time period. During the encounter, Rizal served customers, moved around the
store, and spoke on the phone. Even if the interview had lasted a full hour, "that would
not be such a long period of time that the interview would become custodial, unless there
were other indications that [the defendant] wasn't free to leave." State v. Criqui, No.
114,940, 2016 WL 7186499, at *5 (Kan. App. 2016) (unpublished decision), petition for
rev. filed December 27, 2016. Thus, this factor does not weigh in favor of finding that
Rizal was in custody.

(3) Number of law enforcement officers present
Two officers were present during the encounter. This is not an overwhelming
number of officers and does not influence the analysis of whether Rizal was in custody.
See Warrior, 294 Kan. at 498 ("There were two officers present in the room. We do not
see this number as influencing our analysis.").


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(4) Conduct of officers and person interrogated
The police officers conducted themselves in a noncoercive manner. As the district
court explained, "The two officers there did not impose themselves on her. It was a very
congenial conversation." The officers asked questions, but did not make commands. They
were honest with Rizal and explained why they were in her store. The officers did not
threaten Rizal. Rizal conducted herself in the way one would expect of a shopkeeper—
throughout the encounter she waited on customers, moved around the store, and made a
personal phone call.

(5) Physical restraint
"Restraint, as contemplated by Miranda, is the interference with a person's
freedom which is imposed by law enforcement officers." Warrior, 294 Kan. at 498. The
police did not physically restrain Rizal. While the officers were armed, they did not draw
their weapons or use them in any way that might make Rizal feel that she could not leave.
Rizal was moving freely around the store during the questioning. Rizal argues that she
was not free to leave because she was the only person working in the store, but "physical
incapacity resulting from forces outside the control of law enforcement does not amount
to custody." Warrior, 294 Kan. at 498. Thus, this factor weighs against finding that Rizal
was in custody.

(6) Whether person questioned is a suspect or witness
Rizal argues that she was questioned as a suspect, and that this suggests that she
was in custody. Detective Miller testified that he did not view Rizal as a suspect. It does
seem as though Rizal was a suspect. The police were investigating a complaint that K-2
was being sold at Rizal's store. As a salesperson and part owner of the store, Rizal would
presumably be the person that is selling K-2. Because the police treated Rizal as a
suspect, this factor gives some support to Rizal's position that she was in custody.
However, this factor is not determinative. See Bridges, 297 Kan. at 1010 ("But the fact
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that a suspect is the focus of an investigation, standing alone, does not trigger the need for
Miranda warnings.").

(7) How person interrogated arrived at place of interrogation
There are no facts establishing how Rizal arrived at the gas station. The parties
assume she arrived on her own volition. This factor does is not persuasive in either
direction.

(8) Aftermath of interrogation
During the course of the interrogation, the police told Rizal that they would not be
placing her under arrest. The police kept their word and did not arrest Rizal after the
encounter. This supports the argument that Rizal was not in custody.

These eight factors "are not to be applied mechanically or treated as if each factor
bears equal weight." Morton, 286 Kan. at 640. But, they help develop whether the totality
of the circumstances support a finding of custody. Here, there is substantial competent
evidence to support the district court's factual determinations. These facts support the
district court's legal conclusion that Rizal was not in custody. The police did not act in a
coercive manner. They did not command Rizal to do anything or restrain her physical
movement in any way. Based on a totality of the circumstances, a reasonable person
would have felt free to terminate the interview. Accordingly, the district court did not err.

There was sufficient evidence of Rizal's intent for the district court to find her guilty.

Rizal's final argument is that there was insufficient evidence of her mens rea—or
the precise state of mind required for her crime—to support her conviction under K.S.A.
2011 Supp. 21-5705. To support her argument, Rizal cites McFadden v. United States,
576 U.S. ___, 135 S. Ct. 2298, 192 L. Ed. 2d 260 (2015). Rizal argues that McFadden
requires the prosecution to introduce evidence that the defendant actually knew that either
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(1) "the substance at issue–regardless of what it is–was indeed illegal because it is listed
statutorily as 'prohibited'"; or (2) "that the substance at issue was indeed a specific
substance known by the defendant, whether or not the defendant also knew it to be listed
as 'prohibited,' (i.e., no mistake of fact by the defendant as to what the substance was)."
Rizal acknowledges that Kansas has not yet adopted McFadden's holding.

When the sufficiency of evidence is challenged in a criminal case, the appellate
court reviews all the evidence in the light most favorable to the State. A conviction will
be upheld if the court is convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt based on that evidence. State v. Laborde, 303
Kan. 1, 6, 360 P.3d 1080 (2015).

Rizal, relying on McFadden, argues that the district court was required to make
findings that she knew the synthetic cannabinoids she was selling were illegal. In
McFadden, the defendant was convicted of distributing controlled substance analogues
after law enforcement officers made five controlled buys of bath salts from the defendant.
The defendant argued that he did not know that the bath salts were regulated as controlled
substances under the Controlled Substance Analogue Enforcement Act of 1986. The
United States Supreme Court reversed the defendant's conviction, holding that when a
controlled substance is an analogue, 21 U.S.C. § 841(a)(1) requires the government to
establish that the defendant knew he was dealing with a substance regulated under the
Controlled Substances Act or Analogue Act. 135 S. Ct. at 2302.

In reaching this holding, the United States Supreme Court began with the language
of the Controlled Substances Act, specifically 21 U.S.C. § 841(a)(1). This statute makes
it "'unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or dispense, a controlled
substance.'" 135 S. Ct. at 2303. The Court held that "[u]nder the most natural reading of
this provision, the word 'knowingly' applies not just to the statute's verbs but also to the
18

object of those verbs—'a controlled substance.'" 135 S. Ct. at 2304. The government can
establish the required knowledge in one of two ways: (1) proving that the defendant
knew he was distributing a substance listed on the schedules, even if he did not know
which substance it was; or (2) showing that the defendant knew the identity of the
substance he was distributing, even if he did not know it was listed on the schedules. 135
S. Ct. at 2305.

Rizal argues that this court should embrace the McFadden analysis because "both
K.S.A. 21-5705 and 21 U.S.C. 841 . . . have identical 'knowingly' language as the mens
rea requirement." This is not the case. Kansas' statute is written differently than the
federal Controlled Substances Act. K.S.A. 2011 Supp. 21-5705(a) states: "It shall be
unlawful for any person to cultivate, distribute or possess with the intent to distribute any
of the following controlled substances or controlled substance analogs thereof . . . ." The
Kansas statute does not contain "knowing" language because it is silent as to mens rea.
However, another Kansas statute provides that crimes, other than crimes that the
legislature explicitly classifies as strict liability crimes, require a mental state. K.S.A.
2011 Supp. 21-5202(d). And, "[a] culpable mental state may be established by proof that
the conduct of the accused person was committed 'intentionally,' 'knowingly' or
'recklessly.'" (Emphasis added.) K.S.A. 2011 Supp. 21-5202(a).

While the McFadden Court held that the mental state applied to both the verbs
(manufacture, distribute, dispense, possess) and the object of the verbs (a controlled
substance) in the statute, Kansas' statute only imposes the mental state on conduct. Unlike
in McFadden, nothing in the Kansas statutes suggests that Rizal needed knowledge of the
specific drug she was distributing. The definition of "possession" in the K.S.A. supports
this. "'Possession' means having joint or exclusive control over an item with knowledge
of and 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. 2011 Supp. 21-5701(q).
In other words, the "knowledge" required to possess a thing is knowledge that a person is
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exercising control over the thing. The statute does not suggest that a person must have
knowledge of what the item is.

The defendant in State v. Marsh, 9 Kan. App. 2d 608, 684 P.2d 459 (1984), made
an argument similar to Rizal's. In Marsh, the defendant sold a baggie containing black
capsules which "were very similar in appearance to black capsules known as 'black
beauties,' a prescription drug containing a slow-releasing kind of amphetamine
preparation." 9 Kan. App. 2d at 609. The capsules did not in fact contain any controlled
substances. The defendant was convicted of violating K.S.A. 1983 Supp. 65-4155(a)(2),
which stated: "'No person shall knowingly deliver or cause to be delivered in this state
any substance which is not a controlled substance' . . . 'under circumstances which would
give a reasonable person reason to believe that the substance is a controlled substance.'"
9 Kan. App. 2d at 609. The defendant argued that "the evidence was that only an expert
could tell what the capsules contained, and that in order to convict under K.S.A. 1983
Supp. 65-4155, the State must prove that the defendant knew that the item was not a
controlled substance when she delivered it." 9 Kan. App. 2d at 610. The Court of Appeals
held that the State was not required to prove that the defendant had the specific intent to
deliver a noncontrolled substance. 9 Kan. App. 2d at 611. Thus, "[t]he fact that the
defendant did not know the substance was noncontrolled, or may have in good faith
believed the substance to be a controlled substance, is not a defense." 9 Kan. App. 2d at
611-12; see also State v. Gillon, 25 Kan. App. 2d 809, 811, 974 P.2d 1115 (1999)
(defendant was not entitled to mistake-of-fact instruction in prosecution for possession of
sawed-off shotgun because State was required only to prove possession of outlawed
weapon not knowledge of specific length of barrel as compared to legal minimum).

But even if we were to adopt the McFadden analysis, there is sufficient evidence,
when viewed in the light most favorable to the prosecution, to support the district court's
conclusion. There is no evidence that Rizal knew the identity of the substance she was
distributing—even the police did not know that the packages they confiscated contained
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naphthoylindole until the crime lab tested the packages. See McFadden, 135 S. Ct. at
2304. However, there is circumstantial evidence that the Rizal knew she was distributing
a substance listed on the schedules, even if she did not know which substance it was. See
135 S. Ct. at 2300-01. The McFadden Court recognized that mens rea could be proven
through circumstantial evidence, which "could include . . . a defendant's concealment of
his [or her] activities" and "evasive behavior with respect to law enforcement." 135 S. Ct.
at 2304 n.1.

Here, several factors support the conclusion that Rizal knew she was selling an
illegal drug. First, the drugs were not displayed openly on the countertop. Rather, they
were stashed below the countertop where no one could see them. This is circumstantial
evidence that Rizal knew the packages contained illicit substances—the district court
could reasonably infer that Rizal was concealing her activities because she knew they
were illegal. Shopkeepers have a clear interest in displaying items for sale, not concealing
them from their customers. Second, when the police officers asked Rizal if she sold K-2,
flavored tobacco, or incense, Rizal said she did not sell those products because they are
illegal. But, when the police asked Rizal what customers would ask for if they wanted the
packages below the counter, Rizal said the customers would ask for "'incense.'" Rizal's
acknowledgement that incense is illegal and that customers seeking the packets below the
counter would ask for incense supports the conclusion that Rizal knew the packets
contained illegal substances. Third, Rizal said that she was not currently selling the
packages because she "heard that these things [are] illegal." But, Rizal admitted that she
had last sold the packages a month previously. Later, Rizal said that she had last sold the
packages a week ago "and then indicate[d] they have been continuing to sell the product
when she [was] confronted with paperwork indicating the store ha[d] ordered hundreds of
packets of the product from distributors over the past few weeks." Eventually, "Rizal
admitted she was selling 5 to 10 packages of synthetic cannabinoid per day." Rizal's
statement that she was not selling the packages because they were illegal, and later her
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admissions that she was in fact still selling the packages, supports the conclusion that
Rizal knew the packages contained illegal substances.

Construing the evidence in the light most favorable to the State, there was
sufficient direct and circumstantial evidence that Rizal knew the packages she sold
contained an illegal substance. Thus, her conviction is affirmed.

Affirmed.