State v. Scheibe

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NOT DESIGNATED FOR PUBLICATION

No. 116,745

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TAMMY L. SCHEIBE,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; CHERYL A. RIOS, judge. Opinion filed April 6, 2018.
Affirmed.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Rachel L. Pickering, assistant district attorney, Michael F. Kagay, district attorney, and Derek
Schmidt, attorney general, for appellee.

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

PER CURIAM: A jury convicted Tammy L. Scheibe of possession of
methamphetamine, possession of marijuana, and unlawful use of drug paraphernalia. On
appeal, Scheibe argues that there was insufficient evidence for the jury to find beyond a
reasonable doubt that she possessed methamphetamine and marijuana. Because we find
that, when viewed in a light most favorable to the State, a rational fact-finder could have
found Scheibe guilty of both charges, we affirm.


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FACTUAL AND PROCEDURAL HISTORY

Topeka police had a warrant to search Scheibe's residence based on an anonymous
tip and trash pulls where drug paraphernalia was found that field-tested positive for
methamphetamine. The residence was shared with Dehaven Hanna. Scheibe's room was
on the main floor of the residence while Hanna's room was in the basement.

While police searched the residence, Topeka Police Officer Aaron Jones
interviewed Scheibe. Jones read Scheibe her Miranda rights and she agreed to waive her
rights and speak with him. Scheibe informed Jones that there was a user amount of
methamphetamine in her purse. Officer Nicole Karr heard Scheibe tell Officer Jones that
drugs were in her purse.

Topeka Police Officer Trenton Ginn searched the residence with his K-9 partner,
Monte. Monte alerted to narcotics in Scheibe's room. Monte indicated that the odor was
coming from a pile of purses, next to a dresser, in the corner of the room. Ginn removed
the purse that Monte was interested in and set it on the bed. Monte continued to show
interest in the area between the pile of purses and the dresser. Ginn directed other officers
to the area and continued to search the residence with Monte. After Ginn finished
searching with Monte, he went back to Scheibe's bedroom and assisted other officers in
their search of the room. The officers told Ginn that the purse which was removed from
the pile and placed on the bed contained suspected methamphetamine. Ginn searched the
pile of purses and the dresser and found baggies and a digital scale. Additionally, Ginn
found a pipe, which based on his training and experience, he recognized as a pipe used to
smoke methamphetamine.

Officer Jason Schumacher assisted with the search of Scheibe's residence by
photographing and collecting evidence. Officer Schumacher photographed the
methamphetamine that was located in the purse, as well as suspected marijuana that was
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located in Scheibe's room. Additionally, a marijuana grinder was located in Scheibe's
bedroom.

Scheibe was charged with possession of methamphetamine, possession of
marijuana, and unlawful use of drug paraphernalia. At trial, the State also admitted two
baggies of methamphetamine, one white and the other brown, which were found in
Scheibe's room. Schumacher's picture of the methamphetamine only shows one baggy of
methamphetamine. He explained the discrepancy between the photograph and the
admitted evidence, stating: "[T]he other bag was under that one or in a different spot in
the purse and didn't show in the photograph." Schumacher indicated that if a second
baggy was found he would have photographed it. Another baggy that was located at
Scheibe's residence was admitted to evidence. Of the three baggies admitted, it appears
that none matched the photograph marked as State's Exhibit 1. Schumacher also testified
that the first two baggies admitted came from Scheibe's bedroom.

The suspected methamphetamine that Schumacher testified was located in
Scheibe's bedroom tested positive for methamphetamine. The suspected marijuana found
in Scheibe's bedroom area tested positive for marijuana.

Scheibe's roommate, Hanna, was called to testify by the defense. The transcript
appears to be somewhat incomplete, but it seems that Hanna testified that he could, and
would, sometimes go into Scheibe's room. When questioned by the State, Hanna
indicated that he would not take something into Scheibe's room unless she asked him to
do so.

In closing arguments, Scheibe's attorney focused on the discrepancies between the
State's testimony and what evidence was presented. Scheibe's attorney pointed out the
evidentiary issues involved in the photographs of the methamphetamine. As characterized
by Scheibe's attorney, the white suspected methamphetamine was never tested to
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determine whether it was methamphetamine. Essentially, Scheibe argued that the State
failed to meet its burden to prove beyond a reasonable doubt that she had possessed
methamphetamine and marijuana.

The jury found Scheibe guilty on all counts. Scheibe timely appeals.

ANALYSIS

On appeal, Scheibe argues that there was insufficient evidence to support her
convictions for possession of methamphetamine and possession of marijuana.
Specifically, Scheibe argues that the evidence presented at trial, when viewed in a light
most favorable to the State, does not prove beyond a reasonable doubt that she possessed
methamphetamine and marijuana.

Standard of Review

"'When the sufficiency of evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt.'" State v.
Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). When determining whether there was
sufficient evidence to support a conviction, an appellate court does not "'reweigh
evidence, resolve evidentiary conflicts, or make determinations regarding witness
credibility.' [Citations omitted.]" State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016).
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.
Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

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.
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Circumstantial evidence, in order to be sufficient, need not exclude every other
reasonable conclusion. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016).

Discussion

In this case, there was sufficient evidence for the jury to find Scheibe guilty of
possession of methamphetamine and possession of marijuana. As a preliminary matter,
Scheibe argues discovery of a controlled substance in the common area of a shared
residence is not, alone, sufficient evidence to support a conviction of unlawful possession
of the controlled substance. See State v. Keel, 302 Kan. 560, Syl. ¶ 2, 357 P.3d 251
(2015). This argument is unpersuasive. Evidence was presented that the
methamphetamine and marijuana were found in Scheibe's bedroom, not a common area.
Additionally, Hanna testified that he would not have taken anything to Scheibe's bedroom
unless she asked him to do so. We will address the evidence to support each charge
separately.

Possession of methamphetamine.

The jury was instructed that in order to find Scheibe guilty of possession of
methamphetamine the State was required to prove that Scheibe knowingly had joint or
exclusive control over the methamphetamine.

At trial, the jury heard testimony that methamphetamine was found in Scheibe's
room. Officer Ginn testified that Monte alerted to the odor of narcotics coming from a
pile of purses in Scheibe's room. Ginn was later told that one of the purses contained
methamphetamine. Officers also found drug paraphernalia in the room, including:
baggies, a digital scale, and a pipe commonly used to smoke methamphetamine. The jury
also heard testimony that the suspected methamphetamine found in Scheibe's bedroom
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later tested positive for methamphetamine. Additionally, the jury heard that Scheibe
admitted to police that methamphetamine would be located in her purse.

While there were certainly issues in the collection of evidence and the subsequent
presentation of that evidence at trial, it is not this court's place to reweigh the evidence,
pass on the credibility of witnesses, or resolve evidentiary conflicts. Dunn, 304 Kan. at
822. The jury was clearly aware of the problems with the State's evidence. However, the
jury found that the State proved beyond a reasonable doubt that Scheibe was guilty of
possession of methamphetamine. This is not a case where the evidence is so incredible
that no reasonable fact-finder could find Scheibe guilty beyond a reasonable doubt. See
Matlock, 233 Kan. at 5-6. When viewed in a light most favorable to the State, there was
sufficient evidence for a reasonable fact-finder to find Scheibe guilty of possession of
methamphetamine. See Rosa, 304 Kan. at 432-33.

Possession of marijuana

The jury was instructed that in order to find Scheibe guilty of possession of
marijuana the State was required to prove that Scheibe knowingly had joint or exclusive
control over the marijuana.

At trial the jury heard testimony that suspected marijuana was found in Scheibe's
bedroom. The jury also heard that the suspected marijuana later tested positive as
marijuana.

It does not appear that the same issues facing the collection and presentation of the
methamphetamine plagued the collection and presentation of the marijuana. On appeal,
Scheibe speculates that the marijuana was actually located somewhere else in the
residence. However, when viewed in a light most favorable to the State, there was
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sufficient evidence for a reasonable fact-finder to find Scheibe guilty of possession of
marijuana. See Rosa, 304 Kan. at 432-33.

Affirmed.