State v. Murie ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,322
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
HARLIN T. MURIE,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; TYLER J. ROUSH, judge. Opinion filed December 23, 2022.
Affirmed.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Kyle Stutzman, legal intern, Matt J. Maloney, assistant district attorney, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., WARNER and COBLE, JJ.
PER CURIAM: Harlin T. Murie pled guilty to distribution of methamphetamine and
was granted a downward dispositional sentence resulting in probation with an underlying
prison term. After he violated the terms of his probation, Murie served three days in jail.
Six months later, he violated his probation again. When he failed to appear for two
probation violation hearings, the court issued bench warrants for his arrest. Murie was
later arrested pursuant to the warrants during a traffic stop. After an evidentiary hearing,
the district court revoked Murie's probation without imposing further intermediate
sanctions. Murie appeals, arguing that the court's revocation of his probation did not meet
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the standard required under K.S.A. 2017 Supp. 22-3716(c). We disagree. Finding the
decision of the district court was within its discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 15, 2020, Murie pled guilty to one count of distribution of
methamphetamine. After Murie sought a downward dispositional departure sentence, on
May 29, 2020, the district court granted the departure and sentenced Murie to 36 months'
probation with an underlying prison sentence of 98 months.
About five months later, on October 27, 2020, the district court held a probation
violation hearing after the State alleged Murie was in violation of conditions of his
probation. The intensive supervision officer (ISO) reported multiple violations, including
that Murie tested positive for methamphetamine and failed to comply with other
requirements, such as providing proof of attending drug and alcohol treatment, obtaining
employment, paying court costs, and contacting Offender Registration to update his
address. Murie admitted to the probation violations and waived his right to an evidentiary
hearing. As a result, the district court found Murie in violation of his probation and
imposed a three-day jail sanction.
On March 17, 2021, the State alleged that Murie again violated the terms of his
probation. The ISO reported six violations, including: (1) failed to report to the ISO as
instructed, (2) failed to notify the ISO of his address change within 24 hours, (3) failed to
provide proof of attending drug and alcohol treatment, (4) allowed the battery of his
electronic monitoring device to die, (5) failed to complete community service work as
directed, and (6) failed to pay court costs. The district court issued a warrant for Murie's
arrest.
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The district court held a probation violation hearing on May 28, 2021, but Murie
failed to appear. The hearing adjourned and an amended warrant was to be issued.
However, later that day Murie reached out to the court through his counsel advising he
wanted to resolve the matter. The district court rescheduled the probation violation
hearing and withheld issuing the amended bench warrant.
The rescheduled probation violation hearing was held on June 2, 2021. Murie's
counsel advised the court he had communicated with Murie the night before via text
messages confirming Murie remembered the hearing and knew what time to arrive, yet
Murie failed to appear. The district court issued the amended warrant to include the six
previous alleged probation violations from the March warrant and added Murie's failure
to report to his ISO and that his whereabouts were unknown.
Murie was arrested pursuant to the amended warrant during a traffic stop on June
10, 2021. In light of the events occurring during that stop, the State followed up with
another warrant on June 14, 2021, alleging that Murie violated his probation conditions
by committing new offenses: two aggravated weapons violations and use or possession
of drug paraphernalia.
A probation violation hearing was held on June 29, 2021, during which Murie
admitted to the technical violations alleged in the March 17 warrant but denied the
allegations of the aggravated weapons and possession of drug paraphernalia offenses
resulting from his arrest. The district court granted the State's request for an evidentiary
hearing.
The district court held the evidentiary hearing on July 30, 2021. The arresting
police officer testified that he pulled a vehicle over for displaying an illegal license plate
and tag and Murie was discovered riding in its front passenger seat. After the driver
referenced Murie's first name, the officer found the two warrants during a records check
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and took Murie into custody. The officer also found a backpack on the vehicle's
floorboard next to Murie's feet. During an inventory search after law enforcement
impounded the vehicle, the police found inside the backpack two fixed blade knives, a
scale, and a debit card embossed with Murie's name. The scale had white crystalline
residue on it, which appeared to be methamphetamine. The police officer testified that the
debit card was found in a smaller pocket on the front of the backpack while the scale and
knives were found in the main larger compartment.
The district court found that the State met its burden to show that Murie possessed
the backpack and contraband found inside by a preponderance of the evidence. The
district judge stated:
"In addition to the debit card with Mr. Murie's name found in the same backpack as both
the knives and the scale with the methamphetamine residue, [the arresting officer] also
testified that he pulled Mr. Murie from the [passenger] seat and the backpack was located
in the same general area as Mr. Murie. So in addition to having some indicia of
ownership located in the backpack, the backpack was also located near where Mr. Murie
was sitting in the car. Based on those factors, I find that the State has proven that its more
likely true than not that the contents in the backpack and the backpack itself belonged to
Mr. Murie."
The district court also referenced the other technical violations alleged in Murie's
first and second warrants, stating that this was not his first failed chance at probation and
that the previous warrant was issued because he was still using and appeared to be still
dealing drugs. At the conclusion of the evidentiary hearing, the district court revoked
Murie's probation and ordered him to serve his underlying sentence but at a reduced
duration of 60 months.
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Murie timely appeals, claiming that the State failed to prove his possession of the
backpack and that the district court erred by revoking his probation based on those
findings.
DISCUSSION
Murie claims that the district court erred by revoking his probation based on its
finding that the State proved by the preponderance of evidence that he violated the terms
of his probation. The State contends that the evidence presented was sufficient to show
Murie possessed the contraband found within the backpack placed next to his feet inside
the vehicle.
Standard of review
An appellate court reviews the district court's revocation of an offender's probation
for an abuse of discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020). A
judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State
v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). The movant bears the burden of
showing an abuse of discretion. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430(2018).
The district court did not err by finding that Murie possessed the backpack containing
contraband, thereby violating the terms of his probation.
Murie asserts that the district court erred by revoking his probation based on the
State's lack of evidence. More specifically, he argues that the district court abused its
discretion because it found the State's evidence was sufficient to show by the
preponderance of the evidence that Murie was in possession of the contraband, resulting
in a violation of his probation terms.
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Probation is an act of judicial leniency afforded a defendant as a privilege rather
than a right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). But once it is
conferred upon a defendant, the defendant has a liberty interest in remaining on probation
and may only have it revoked if the defendant fails to comply with conditions of
probation. State v. Hurley, 303 Kan. 575, 581, 363 P.3d 1095 (2016). A district court's
decision to revoke probation usually involves two steps: (1) a factual determination that
the probationer has violated a condition of probation (the violation stage); and (2) a
discretionary determination as to the appropriate disposition in light of the proved
violations (the revocation stage). State v. Horton, 308 Kan. 757, 761, 423 P.3d 548(2018) (citing State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 [2008]).
The violation stage
The first step requires the State to establish that the probationer violated the terms
of probation by a preponderance of the evidence—that the violation is more probably true
than not true. State v. Lloyd, 52 Kan. App. 2d 780, 782, 375 P.3d 1013 (2016). And
appellate courts review the district court's factual findings for substantial competent
evidence. State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007).
Murie argues that the mere proximity of the backpack was insufficient to prove he
possessed the items inside. He claims that although his debit card was found inside the
backpack, it was found in a separate case in a different pocket and not with the scale or
the knives. Murie asserts that this shows a lack a connection between him and the scale
and the knives.
In support of his argument, Murie relies on this court's ruling in State v. Beaver, 41
Kan. App. 2d 124, 200 P.3d 490 (2009). There, Beaver was arrested near a table that was
holding drugs and illegal substances in plain view while law enforcement was executing
the search warrant of a house. Beaver was only a visitor and not a resident of the home. A
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panel of this court found that there was no probable cause to support Beaver's
constructive possession based on the mere presence of Beaver in the house and in
proximity to the drugs. 41 Kan. App. 2d at 132. This court noted in reaching the
conclusion that (1) Beaver "was not a resident of the home" where the drugs were found;
(2) there was "no evidence showing his belongings were found in close proximity with
the seized items"; (3) there was "no evidence that Beaver had ever participated in the sale
of drugs"; (4) and there was "no evidence that Beaver acted in a suspicious or otherwise
incriminating behavior." 41 Kan. App. 2d at 131-32.
Here, in contrast to the facts found in Beaver, law enforcement found Murie inside
the vehicle with the backpack placed on the floorboard at his feet. While the proximity of
the backpack alone may be insufficient, Murie's own debit card was found in the
backpack, albeit in a separate case in a different pocket than the scale or the knives, but
Murie does not offer any explanation about why, or how, the debit card with his name
was present in the backpack. Moreover, the backpack was located where Murie could
easily exercise control over the items, and the outstanding warrants revealed to the
arresting officer Murie's prior experience with dealing and using methamphetamine. Such
facts, viewed cumulatively with Murie's drug history, were sufficient circumstantial
evidence to generate a reasonable inference from which a reasonable fact-finder could
find beyond a reasonable doubt that Murie had possession or control over the backpack.
As defined by the Kansas Criminal Code, possession is exhibited through the
"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. 2021 Supp. 21-5701(q); see State v. Crosby, 312 Kan. 630,
637, 479 P.3d 167 (2021); State v. Rosa, 304 Kan. 429, 435, 371 P.3d 915 (2016).
Murie's claim that his circumstance is analogous to the Beaver court's "'mere'" proximity
finding is erroneous.
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The State argues that this court's ruling in State v. Siebold, No. 101,687, 2010 WL
1882148 (Kan. App. 2010) (unpublished opinion), is more applicable to these facts. In
Siebold, the police found drugs and drug paraphernalia hidden from plain view in
Siebold's vehicle during a traffic stop. Siebold was arrested and charged with possession
of drugs and drug paraphernalia (among other charges inapplicable here) but claimed the
contraband did not belong to him but to his wife, without denying the existence of the
contraband in his vehicle. The jury found Siebold guilty on the possession charges.
Siebold appealed, and a panel of this court, specifically distinguished Beaver and upheld
Siebold's conviction. 2010 WL 1882148, at *8. The Siebold court considered that he was
the owner of the vehicle, he was inside the vehicle, and the contraband was found near
Siebold's belongings inside the vehicle. Our court found that "the State presented
sufficient circumstantial evidence from which the jury could have concluded, beyond a
reasonable doubt, that Siebold constructively possessed the methamphetamine and drug
paraphernalia found in his car." 2010 WL 1882148, at *8.
The State's reliance on Siebold is more persuasive under these facts. Although
Murie was not the owner of the vehicle, this court has consistently held that proximity of
drugs combined with additional evidence, circumstantial may it be, is sufficient to
support a conviction of possession beyond a reasonable doubt. See State v. Sharpnack,
No. 113,959, 2017 WL 2001601, at *7 (Kan. App. 2017) (unpublished opinion); State v.
Rosa, No. 108,807, 2014 WL 642051, at *4 (Kan. App. 2014) (unpublished opinion);
State v. Tummons, No. 104,101, 2012 WL 1352822, at *7 (Kan App. 2012) (unpublished
opinion); State v. Rauh, No. 103,497, 2011 WL 6309159, at *2-3 (Kan. App. 2011)
(unpublished opinion).
Murie's argument, on the other hand, hangs thinly on the thread of his claim that
the State proved nothing except the proximity of the backpack to him in the car. Yet, as
noted above, his proximity to the backpack was not viewed in a vacuum; it was
considered together with other evidence, including the presence of his debit card—a
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significant indicia of ownership—and his criminal history. When viewed together, the
evidence is substantially sufficient under Kansas law for a reasonable fact-finder to
determine that, more likely than not, Murie possessed the backpack and by extension the
contraband found inside the backpack. This is true especially when reviewing Murie's
challenge to the sufficiency of the evidence in a light most favorable to the State, as we
are required to do. See Rosa, 304 Kan. at 432.
Conditions of Murie's probation included a requirement to obey the law and a
prohibition against the possession of drug paraphernalia. Possession of drug
paraphernalia, such as the scale found in the backpack, is prohibited under Kansas law.
See K.S.A. 2021 Supp. 21-5709(b) (prohibition against possession of drug
paraphernalia). Viewing the evidence in a light most favorable to the State, the evidence
was sufficient to find Murie possessed the backpack containing contraband, including
drug paraphernalia—a scale with apparent methamphetamine residue. So, the district
court's finding that the State proved Murie's probation violation by the preponderance of
the evidence is supported by substantial competent evidence.
And, even without the district court's finding that Murie possessed the backpack
and items inside, Murie admitted to the multiple technical violations included in the
March 2021 warrant. Given this admission, the district court did not abuse its discretion
by finding Murie violated the terms of his probation.
The revocation stage
Even if the district court erred in finding Murie possessed the backpack and
committed new offenses as a result, its revocation of his probation was within its
permitted statutory discretion given his admission to his violation of other probation
terms. After finding Murie violated the terms of his probation, the district court was
required to next exercise its authority to fashion a punishment within the statutory
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framework of K.S.A. 2017 Supp. 22-3716. A district court abuses its discretion when it
steps outside the framework or fails to properly consider the statutory standards. State v.
Grossman, 45 Kan. App. 2d 420, 427, 248 P.3d 776 (2011).
Although Murie does not mention on appeal that the district court abused its
discretion, it is implied because he claims that the court's decision was erroneously based
on his possession of the backpack. He argues that had the district court not found he
possessed the backpack, he would not have been sentenced to the underlying prison term
solely based on the admission of his prior technical violations. However, Murie's
argument that the technical violations somehow did not warrant imposition of the
underlying sentence is unpersuasive because it disregards the application of the sanctions
scheme found in K.S.A. 2017 Supp. 22-3716(c).
A court applies the sanctioning scheme in effect at the time the offender's crimes
were committed when determining the disposition of an offender following a probation
violation. State v. Dominguez, 58 Kan. App. 2d 630, 637, 473 P.3d 932 (2020). Since
enacting the graduated probation sanctioning scheme in 2013, the Legislature has
amended K.S.A. 22-3716 five times—in 2014, 2016, 2017, 2018, and 2019. Murie's
crimes were committed in February 2018, before the 2018 amendment, so the sanctions
scheme of K.S.A. 2017 Supp. 22-3716(c) controlled Murie's punishment. See Coleman,
311 Kan. at 334-37. K.S.A. 2017 Supp. 22-3716(c)(9)(B) provides an exception to the
intermediate sanction scheme, allowing the district court to bypass intermediate sanctions
and revoke probation if the probation granted was a result of a dispositional departure at
sentencing.
The district court did not expressly identify this exception to intermediate
sanctions during its ruling to revoke Murie's probation. But the State referenced the prior
dispositional departure sentence during the probation violation hearing and reminded the
district court that intermediate sanctions were not required. The district court did not
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disregard the State's argument; rather, it replied to the State's claim by immediately
stating, "He's also already had a quick-dip . . . ." (Emphasis added.) The use of the word
"also" implies that the district court acknowledged the dispositional departure in the
original sentencing as raised by the State. And even if the district court had not so
acknowledged, our Supreme Court has held that under K.S.A. 2018 Supp. 22-
3716(c)(9)(B), "the dispositional departure statutory exception does not require
particularized findings." State v. Tafolla, 315 Kan. 324, 331, 508 P.3d 351 (2022). Our
Supreme Court found the plain language of K.S.A. 2018 Supp. 22-3716(c)(9)(B)
authorizes the district court to bypass intermediate sanctions and revoke an offender's
probation if the probation was originally granted as a result of a dispositional departure.
315 Kan. at 331. Therefore, the district court had the discretion to revoke Murie's
probation without applying intermediate sanctions, pursuant to K.S.A. 2017 Supp. 22-
3716(c)(9)(B), regardless of whether it considered Murie's possession of the backpack
containing contraband.
Although Murie acknowledges that the district court granted his motion for a
downward dispositional departure at his original sentencing hearing, he conveniently
ignores the dispositional departure statutory exception under K.SA. 2017 Supp. 22-
3716(c)(9)(B) and the district court's discretion to utilize that exception. Because the
district court had the statutory authority to revoke Murie's probation even without the
State's finding of the new offenses, it did not abuse its discretion by revoking Murie's
probation without imposing intermediate sanctions.
Affirmed.
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