State v. Smith

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NOT DESIGNATED FOR PUBLICATION

No. 116,798


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT SMITH,
Appellant.


MEMORANDUM OPINION

Appeal from Geary District Court; RYAN W. ROSAUER, judge. Opinion filed August 31, 2018.
Reversed and remanded with directions.

Mackenzie Maki, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office,
for appellant.

Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., PIERRON and BUSER, JJ.

PER CURIAM: During a home visit, Robert Smith's probation officer and several
members of the Drug Task Force found marijuana in plain view in Smith's living space at
his grandmother's home. A jury convicted him of marijuana possession. On appeal, he
challenges the sufficiency of the evidence, but when viewed in the light most favorable to
the State, a reasonable fact-finder could conclude that he was guilty beyond a reasonable
doubt of the offense. He also argues that the use of the word "should" in the burden of
proof jury instruction was erroneous. Nevertheless, in State v. Allen, 52 Kan. App. 2d
729, 733, 372 P.3d 432 (2016), rev. denied 306 Kan. 1320 (2017), this court held that the
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contested instruction was legally appropriate. Finally, Smith argues that the trial court
erred in admitting evidence of his prior drug use. We conclude that the trial court erred
by failing to perform a K.S.A. 2016 Supp. 60-455 analysis. Thus, the only purpose of the
evidence would be to show that Smith had a propensity for marijuana use, which is
exactly what K.S.A. 2016 Supp. 60-455 prohibits. Moreover, given the minimal and
circumstantial nature of the evidence, this error was not harmless. Therefore, we reverse
Smith's marijuana conviction and remand for a new trial.

Robert Smith reported to his probation officer Valerie Allen in October 2015. He
submitted a negative uranalysis (UA) test. Then, Smith, Allen, Allen's supervisor, and
four members of the Drug Task Force went to Smith's residence for a routine home visit.

Smith resided at his grandmother's house. Smith's cousin, Dominique Smith, and
several children also lived in the house. During the search, Smith first took the officers to
an upstairs bedroom. Nevertheless, the room contained children's clothing and there was
nothing that appeared to be Smith's in the room. He then told the officers that he also
stayed in the basement of the house. Dominique explained at trial that he and Smith
would rotate between the upstairs room and the basement.

The basement had a common area and a bedroom. A couch and coffee table sat in
the common area. One detective described the basement as "filled with a lot of clutter."
This included bags of clothing, boxes with documents, and other things that people
generally store in the basement strewn throughout. The detective testified that the items
did not appear to belong to a single person.

Allen smelled marijuana when she descended into the basement. She opened a
black backpack on the floor of the basement common area and found a baggie that
smelled like marijuana and appeared to have marijuana residue in it. Nothing identified
the backpack as Smith's. A detective found a marijuana roach on the coffee table near the
backpack. One way of using marijuana is to empty the tobacco out of a cigar and fill it
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with marijuana. After this item is smoked, the remaining tip is called a roach. Upon
further searching, a detective found a small plastic sandwich bag containing marijuana
under the coffee table. An unopened letter addressed to Smith was sitting in a stack of
mail on top of the coffee table.

In the basement bedroom, a detective found two plastic grocery bags with the
corners torn off on the floor. He explained that sometimes drugs are packaged in the
corners of plastic bags. He also found a gallon-sized Ziploc bag with marijuana residue
on top of an armoire in the room. There was either some paperwork or a letter on a card
table in that room, but it did not have Smith's name on it.

Smith was arrested for possession of marijuana. On his way out of the house,
Smith told his grandmother something to the effect of "don't worry, there's nothing else in
the house." The State ultimately charged Smith with one count of possession of
marijuana and one count of possession of drug paraphernalia.

At trial, the State introduced evidence that Smith had tested positive for marijuana
in prior UAs. Smith objected, and the State argued that Smith opened the door to the
evidence by asking about the negative UA taken the day of the home visit. The trial court
overruled the objection.

The jury found Smith guilty of marijuana possession. Nevertheless, the jury found
Smith not guilty of possession of drug paraphernalia. Smith moved for a new trial which
the trial court denied. The trial court sentenced Smith to 12 months' probation with an
underlying prison sentence of 15 months.


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Was There Sufficient Evidence to Support Smith's Conviction?

Smith first argues that the State presented insufficient evidence to support his
conviction for possession of marijuana and that the jury had to engage in impermissible
inference stacking to return a guilty verdict.

When the sufficiency of evidence is challenged in a criminal case, an 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 fact-finder could have found the
defendant guilty beyond a reasonable doubt based on that evidence. In determining
whether there is sufficient evidence to support a conviction, the appellate court generally
will not reweigh the evidence or reassess witness credibility. State v. Daws, 303 Kan.
785, 789, 368 P.3d 1074 (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).

"'Possession' of marijuana is having control over the marijuana with knowledge of,
and intent to have, such control. Possession and intent, like any element of a crime, may
be proved by circumstantial evidence." State v. Bullocks, 2 Kan. App. 2d 48, 49, 574 P.2d
243 (1978). Possession may be constructive "where the drug is kept by the accused in a
place to which he has some measure of access and right of control." 2 Kan. App. 2d at
49-50. "[W]hen a defendant is in nonexclusive possession of the premises on which
illegal drugs are found, the mere presence of or access to the drugs, standing alone, is
insufficient to demonstrate possession absent other incriminating circumstances." State v.
Rosa, 304 Kan. 429, 434, 371 P.3d 915 (2016). These circumstances include the fact that
the drugs were in plain view, a defendant's proximity to the area where the drugs were
found, the proximity of a defendant's belongings to the drugs, and a defendant's
suspicious behavior or incriminating statements. 304 Kan. at 434; State v. Anthony, 242
Kan. 493, 502-03, 749 P.2d 37 (1988).

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Here, the evidence is not overwhelming, but when viewed in the light most
favorable to the State, it is sufficient. Many of the incriminating circumstances listed in
the caselaw were present. Smith told officers he stayed in the basement and a letter
addressed to him was found there. A number of marijuana-related items, including a bag
with marijuana, empty bags with marijuana residue, and roaches, were in plain view in
the basement. Further, Smith's statement to his grandmother that there was nothing else in
the house could be interpreted to mean that he knew what drugs were in the house and
that the police had found them all. A reasonable juror could consider this an
incriminating statement. Although the evidence is circumstantial, it does not require the
inference stacking as Smith asserts. Each piece of evidence listed has been accepted as an
appropriate incriminating circumstance for juries to consider when deciding a
nonexclusive possession case. As a result, sufficient evidence supports Smith's
conviction.

Did the Trial Court Err in Admitting Evidence?

Smith argues that the trial court erred when it allowed the State to introduce
evidence of his prior positive UAs. He asserts that the evidence was admitted in violation
of K.S.A. 2016 Supp. 60-455, which provides that evidence that a person committed a
prior crime or civil wrong is inadmissible to prove that person's propensity to commit the
charged crime. K.S.A. 2016 Supp. 60-455(a). The State replies that it did not introduce
the evidence to prove propensity. Rather, the State argues that the evidence was properly
admitted to allow it to rebut Smith's evidence of the negative UA.

K.S.A. 2016 Supp. 60-455 provides in relevant part:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person
committed a crime or civil wrong on a specified occasion, is inadmissible to prove such
person's disposition to commit crime or civil wrong as the basis for an inference that the
person committed another crime or civil wrong on another specified occasion.
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"(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such
evidence is admissible when relevant to prove some other material fact including motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident."

The list of material facts provided in subsection (b) of the statute is exemplary and not
exclusive. State v. Gunby, 282 Kan. 39, 56, 144 P.3d 647 (2006).

"Generally, when considering a challenge to a district judge's admission of
evidence, an appellate court must first consider relevance." 282 Kan. at 47. Once
relevance is established, this court must apply the rules governing the admission and
exclusion of evidence. Depending on the rule in question, this review is either as a matter
of law or in the exercise of the district judge's discretion. 282 Kan. at 47.

Here, the State argued that the evidence of positive UAs should be admitted
because Smith "opened the door" by introducing evidence of his negative UA on the day
of the search. Smith argued that the evidence was not relevant. The trial court ruled that
Smith opened the door to the evidence and that it was relevant to show that he had
previously engaged in marijuana use.

The problem with the trial court's ruling on this issue is that it did not perform the
K.S.A. 2016 Supp. 60-455 analysis. Our Supreme Court examined a similar situation in
State v. Boggs, 287 Kan. 298, 197 P.3d 441 (2008).

In Boggs, police stopped a truck for suspicion of driving under the influence of
alcohol. Matthew Hockett was driving and Charles Boggs was his passenger. Police
found a glass pipe with marijuana residue under the passenger seat in which Boggs had
been sitting. Hockett said the pipe belonged to Boggs, but Boggs denied that it was his.
Nevertheless, the police smelled burnt marijuana on Boggs' clothing and thought his eyes
looked dilated. The police asked Boggs when he last used marijuana, and Boggs
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answered that it had been about a month before the stop. The State charged Boggs with
felony possession of marijuana and misdemeanor possession of drug paraphernalia. At
trial, Hockett testified that the evening of the stop, Boggs had shown him and several
other people the pipe.

Before the trial, Boggs filed a motion in limine asking the court to prevent the
State from admitting his statement that he used marijuana about a month before the stop.
Boggs argued that the evidence was barred by K.S.A. 60-455 because it would be
admitted solely for the purpose of showing he had a propensity for using drugs. The trial
court denied the motion, holding that in nonexclusive possession cases prior use of drugs
could be considered by the jury. Nevertheless, the court did instruct the jury that the
evidence could only be considered "'for the purpose of proving the Defendant's intent,
knowledge and absence of mistake or accident in this case.'" 287 Kan. at 303. Boggs'
primary defense at trial was that he did not possess the pipe. The jury found Boggs guilty
on both counts. Boggs appealed.

This court reversed Boggs' convictions, holding that the evidence of Boggs' prior
marijuana use was inadmissible under K.S.A. 60-455. 287 Kan. at 304. Our Supreme
Court affirmed. 287 Kan. at 300. In its analysis, our Supreme Court noted that "[t]he
district court did not analyze the question of admissibility of defendant's prior marijuana
use under the provisions of K.S.A. 60-455." 287 Kan. at 309. The court cited Gunby, 282
Kan. 39, in which it "held that there is always error when a district court 'neglect[s] to
apply the safeguards . . . outlined to any other crimes or civil wrongs evidence.'" 287
Kan. at 310 (quoting Gunby, 282 Kan. at 57). Nevertheless, the court noted that such an
error does not require automatic reversal. 287 Kan. at 310. Rather, "a district court's
admission of evidence under K.S.A. 60-455 may be upheld on review even if its rationale
was in some way erroneous if an appellate court determines that the evidence was
otherwise admissible under the statute." 287 Kan. at 310.

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The court then proceeded to "determine whether the evidence of Boggs' previous
marijuana use was admissible under K.S.A. 60-455." 287 Kan. at 310. The State argued
that the evidence was relevant to prove intent, asserting that Kansas courts have long
permitted evidence of prior drug use to prove intent, knowledge, or absence of mistake or
accident. The court noted that the State failed to recognize that in the cases where prior
drug use was admissible for those reasons, "the question of the defendant's intent,
knowledge, or claim of mistake or accident was a disputed material fact in issue." 287
Kan. at 311. Then, the court drew a bright-line rule distinguishing between two types of
cases: cases where the defendant "provide[s] an innocent explanation for his or her
possession of contraband" and cases where the defendant "disput[es] possession of the
drugs in question . . . ." 287 Kan. at 314-15.

For example, in one case police apprehended the defendant and found drugs in his
jacket pockets, pants pocket, and vehicle. As a defense, the defendant said that he
borrowed the jacket, pants, and vehicle from others. Because the defendant "had provided
innocent explanations at trial for why he possessed the drugs in question, his intent was a
'critical element' in assessing his guilt." 287 Kan. at 314 (discussing State v. Graham, 244
Kan. 194, 768 P.2d 259 [1989]). The court contrasted this with Boggs' situation. Boggs'
sole defense was that he did not possess the glass pipe—he "completely denied ever
having possession of the pipe at all." 287 Kan. at 315.

The court opined that "[i]f a person asserts that he or she does not know that there
are drugs in a residence (or in this case, under the seat in a vehicle), prior use of drugs
neither proves nor disproves the validity of that assertion." 287 Kan. at 317. The only
conceivable inference to be drawn from Boggs' prior drug use "an assumption that
because Boggs used marijuana in the past, it was probable that he would use it again in
the future and thus possess the pipe." 287 Kan. at 317. The court held that "[t]his is
propensity evidence and is precisely what K.S.A. 60-455 was designed to prevent." 287
Kan. at 317.

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This case is similar to Boggs. Smith did not attempt to provide an innocent
explanation for the presence of marijuana in his shared living space. Rather, he disputed
possession of the marijuana. The only purpose for the State to introduce Smith's positive
UAs would be to create an inference that he used marijuana in the past and was likely to
use it again in the future. Under Boggs, we conclude that admission of the positive UAs
was barred by K.S.A. 2016 Supp. 60-455.

After concluding that evidence of Boggs' prior drug use was barred from
admission by K.S.A. 60-455, the Boggs court had to determine whether the erroneous
admission of the evidence was harmless. K.S.A. 2016 Supp. 60-261 provides:

"Unless justice requires otherwise, no error in admitting or excluding evidence,
or any other error by the court or a party, is ground for granting a new trial, for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At
every stage of the proceeding, the court must disregard all errors and defects that do not
affect any party's substantial rights."

"[T]he harmless error analysis under K.S.A. 60-261 requires us to determine whether
there is a reasonable probability that the error will or did affect the outcome of the trial in
light of the entire record." State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013).
The party benefitting from the error carries the burden of demonstrating harmlessness.
296 Kan. at 895.

The Boggs court held that admission of Boggs' prior drug use was not harmless.
287 Kan. at 319. In coming to this conclusion, the court reviewed the evidence against
Boggs: police smelled marijuana on Boggs' clothing and Hockett's testimony that the
pipe belonged to Boggs. The court noted that Hockett's credibility was questionable
because he was the only occupant in the truck and because the truck belonged to his
father. 287 Kan. at 318-19. Given these facts, the court thought that evidence of Boggs'
prior marijuana use was not only "inadmissible, but it was also extremely prejudicial."
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287 Kan. at 319. The court concluded that there was a "very real possibility that the jury
was swayed by this prior drug experience and concluded on the basis of the improperly
admitted evidence that the defendant was guilty of the crime solely based on his previous
behavior." 287 Kan. at 319.

The State argued that the court's "harmless error analysis was improper because it
required the court to reweigh the witnesses' credibility." 287 Kan. at 319. The court
distinguished the harmless error analysis from the sufficient evidence analysis, where an
appellate court is not permitted to reweigh evidence or reassess witness credibility. In
performing a harmless error analysis, an appellate court "is required to make a
determination as to whether the evidence admitted had any likelihood of changing the
results at trial." 287 Kan. at 319. Such a determination "necessarily involve[s] some
weighing of evidence presented against the court's confidence that the verdict is
consistent with substantial justice." 287 Kan. at 319.

Here, there is a reasonable probability that the error affected the outcome of the
trial. Smith told officers he resided in the basement, but there was no testimony as to
when he last stayed there. In fact, the testimony showed that every time Smith's probation
officer had been to his grandmother's house to conduct a home visit, he was not there.
Smith initially told officers that he stayed in the upstairs bedroom. They did not believe
him because they did not see anything in the room that appeared to be his. Nevertheless,
the only personal item of Smith's in the basement was an unopened piece of mail sitting
in a stack of mail addressed to others. Based on this evidence, the jury could have formed
a reasonable doubt as to whether Smith spent much time in the basement. Additionally,
Smith's cousin Dominique also resided in the house. Dominique testified that a couple of
months after the search, he was on probation for a marijuana charge. The jury could have
believed that the marijuana belonged to Dominique, but have been swayed by the
evidence of Smith's prior marijuana use. The jury's split verdict, finding Smith guilty of
marijuana possession but not guilty of drug paraphernalia possession, also shows that the
case may have been a close call. The evidence tying Smith to the paraphernalia was the
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same evidence that tied him to the marijuana. It is possible that evidence of Smith's prior
marijuana use swayed the jury toward a guilty verdict on the marijuana possession
charge.

In this case, there was even less evidence tying Smith to the marijuana than there
was in Boggs. Both Smith and Dominique stayed in the basement at their grandmother's
house. In Boggs, both Boggs and Hockett were found in Hockett's father's truck.
Nevertheless, Boggs smelled like marijuana which indicated to officers that he used it.
Smith, on the other hand, tested negative for marijuana the day of the search. Smith's
probation officer testified that marijuana can stay in a person's system for 30 to 45 days.
Additionally, in Boggs, Hockett testified that the pipe belonged to Boggs. In this case,
there was no testimony that the marijuana belonged to Smith. In Boggs, there was more
evidence to counteract the error of admitting Boggs' prior drug use than in this case.
Therefore, we conclude that admission of Smith's prior positive UAs was not harmless
error.

As a final note, the State argues that Smith "conveniently fails to address how a
negative urinalysis test on the day of his home visit was relevant to prove he did not
possess the marijuana found in his residence." Nevertheless, the State did not object to
the evidence at trial. Moreover, the State did not file a cross-appeal on the issue of
whether the evidence was admissible. Therefore, any arguments regarding the negative
UA cannot be considered. Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008). If
the State believed that the evidence was not relevant, it should have objected to the
evidence. Instead, the State tried to rebut it with inadmissible propensity evidence that
reasonably would have affected the jury's verdict.


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Was the Jury Instruction on Burden of Proof Erroneous?

Smith argues that the jury's instruction on burden of proof was erroneous because
it negated the jury's power of nullification. The portion of the instruction at issue
provides:

"The test you must use in determining whether the defendant is guilty or not guilty is this:
If you have a reasonable doubt as to the truth of any of the claims required to be proved
by the State, you must find the defendant not guilty. If you have no reasonable doubt as
to the truth of any of the claims required to be proved by the State, you should find the
defendant guilty."

In his proposed instructions and at trial, Smith requested that the word "should" be
replaced with the word "may." Nevertheless, the trial court rejected his request.

The standard of review is multi-tiered.

"For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." State v. Plummer,
295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).

Smith preserved the issue by raising it below, and this court has jurisdiction to
address it.

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In Allen, 52 Kan. App. 2d at 733, this court held that the use of "should" in the
given instruction was legally appropriate. The Allen court stated "'unlike the words must,
shall, and will, the word should does not express a mandatory, unyielding duty or
obligation; instead, it merely denotes the proper course of action and encourages
following the advised path.'" 52 Kan. App. 2d at 735 (quoting State v. Hastings, No.
112,222, 2016 WL 852857, at *4 [Kan. App. 2016]). Smith acknowledges the holding in
Allen, and argues that it is wrongly decided. Nevertheless, the reasoning in Allen is
persuasive and there is no reason to depart from it.

Smith also argues that Allen is distinguishable. In Allen, the defendant did not
object to the instruction, limiting the court's review to whether the instruction was clearly
erroneous. 52 Kan. App. 2d at 733. Here, Smith objected to the instruction. Nevertheless,
before determining whether the instruction was clearly erroneous, the Allen court first
had to examine whether it was legally appropriate. The clearly erroneous determination
was a different stage of the review. Therefore, the distinction is immaterial for
determining whether the instruction was legally appropriate.

Because Smith does not contend that the evidence was sufficient to support the
instruction, the third part of the review is not at issue. The State was required to prove the
crimes it alleged beyond a reasonable doubt, so the burden of proof instruction was
factually appropriate.

If the trial court erred, the final part of this court's jury instruction review is
determining whether the error was harmless. But because the instruction was legally and
factually appropriate, the trial court did not err in giving it.

Reversed and remanded for a new trial.