State v. Bowen ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,274
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
COLE BOWEN,
Appellant.
MEMORANDUM OPINION
Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed July 2, 2020. Affirmed.
Christopher M. Joseph and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, for
appellant.
Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER, J., and LAHEY, S.J.
PER CURIAM: The State charged Cole Bowen with one count of possession of
methamphetamine with intent to distribute and one count of unlawfully possessing drug
paraphernalia with intent to use it to distribute a controlled substance. Bowen filed a
motion to suppress prior to trial, but the district court denied the motion. The case
proceeded to trial, and Bowen was found guilty of both counts.
Bowen appeals the district court's denial of his motion to suppress and challenges
the sufficiency of the evidence at trial. We find no error in the district court's denial of the
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motion to suppress. We also find the evidence presented by the State was sufficient to
support conviction of the charges and affirm Bowen's convictions.
FACTUAL AND PROCEDURAL BACKGROUND
There is little if any dispute about the facts presented at trial, which consisted of
the testimony of two officers involved in executing the search warrant and seizing the
evidence admitted at trial. At approximately 4 p.m. on September 7, 2018, Emporia
police officers and Lyon County Sheriff's Office deputies executed a search warrant at a
residence on Whittier Street, the residence of Bowen and Amanda Alvarado. Bowen's
residence was one of three locations where search warrants were executed on that day.
Officer Dominick Vortherms participated in the execution of the warrant. He testified
Alvarado and two minor children were present at the time the warrant was executed.
Bowen was not at the house, and although the house had been under surveillance for
some portion of the day, there were no sightings of him. Vortherms was not part of the
surveillance team but believed only the front of the house was under surveillance. He did
not know if anyone entered the residence during the period of surveillance. He was also
unable to recall what time Alvarado told him Bowen had left the house.
Vortherms started his search of the house in what he characterized as an "adult
bedroom," which he concluded was Alvarado and Bowen's. The room contained male
and female adult clothing, separate dressers, and what he believed to be a medicine or
makeup table. In another bedroom, he observed "toys and kid-like items," and he
presumed that room to be the children's.
The dresser in the south portion of the adult bedroom contained socks and adult
male clothing. In the drawers, Vortherms discovered three bags of methamphetamine
containing a combined weight of 2.3 grams and two used methamphetamine pipes. He
also found pay stubs in Bowen's name in the same drawer of the dresser.
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Vortherms continued to search under the bed, mattresses, and north side dresser,
which had female clothing inside. In the dresser, he located a document with Alvarado's
name on it. He then searched through the only closet in the room. Vortherms testified the
closet contained both male and female clothing hanging inside and two shelves. He
moved the top shelf so anything on it would fall towards him, and a hat and a "purple or
pink" zippered pouch fell down to him. Inside the pouch was a digital scale with residue
and a bag of methamphetamine weighing 27.2 grams. He did not recall what, if anything,
was on the lower shelf.
Vortherms did not obtain any fingerprint analysis or DNA evidence from the
zippered pouch, digital scale, or bags of methamphetamine. He remembered a drawer,
perhaps in the kitchen, having plastic bags inside but did not seize them. He also did not
recover any type of ledgers of sale or other sorts of packaging/instrumentalities of sale.
The KBI also did not test the digital scale for residue.
Officer Kelly Davis, whose affidavit served as the basis for the search warrant,
testified about his experience and his responsibilities during the execution of the search
warrant. He was not involved in the search of the bedroom and did not find any other
contraband in any of the locations he searched.
The search warrant was issued on the basis of information provided by a
confidential informant (C.I.). In his pretrial motion to suppress, Bowen argued the
affidavit was insufficient to prove probable cause due to lack of information supporting
the C.I.'s credibility and the failure of police to corroborate the C.I.'s statements. The
motion to suppress was denied, and at trial Bowen was granted a continuing objection to
all evidence obtained from the search warrant. At the conclusion of the trial, Bowen was
found guilty of possession with intent to distribute methamphetamine and possession of
paraphernalia with the intent to use it to distribute methamphetamine.
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Bowen timely appeals.
I. DID THE DISTRICT COURT ERR IN DENYING THE SUPPRESSION MOTION?
On appeal, Bowen argues the evidence recovered during the execution of the
search warrant should have been excluded because the judge who issued the search
warrant did not have a substantial basis to conclude probable cause existed. In the
alternative, Bowen also contends even if probable cause existed when the search warrant
was originally issued, the probable cause ceased to exist before the warrant was executed.
The State argues the judge had a substantial basis for finding probable cause, and it
contends even if the basis is lacking, the items seized should not be suppressed because
the officers acted in good-faith reliance on the warrant.
"In determining whether probable cause exists to support a search warrant, the
task of the issuing [judge] is simply to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit, including the veracity and basis of
knowledge of any person supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place." State v. Hicks, 282
Kan. 599, Syl. ¶ 1, 147 P.3d 1076 (2006).
Standard of Review
"When an affidavit in support of an application for search warrant is challenged,
the task of the reviewing court is to ensure that the issuing magistrate had a substantial
basis for concluding probable cause existed. This standard is inherently deferential. It
does not demand that the reviewing court determine whether, as a matter of law, probable
cause existed; rather, the standard translates to whether the affidavit provided a
substantial basis for the magistrate's determination that there is a fair probability that
evidence will be found in the place to be searched. Because the reviewing court is able to
evaluate the necessarily undisputed content of an affidavit as well as the issuing
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magistrate, the reviewing court may perform its own evaluation of the affidavit's
sufficiency under this deferential standard." 282 Kan. 599, Syl. ¶ 2.
Aside from the potential items sought in the search, the affidavit in this case
contained the following information:
"Kelly R. Davis 217, of lawful age, being first duly sworn on oath, deposes and
says:
"That I am a police officer for the City of Emporia, Kansas, and am so
commissioned this 7th day of September, 2018. I am currently investigating a violation of
K.S.A. 21-5705(a)(a1) Possession of Methamphetamine with the intent to distribute.
"On 09-07-2018 officers arrested a person who agreed to cooperate with the
police, who for the purpose of this report will be listed as . . . C.I.
"At the time of C.I.'s arrest, C.I. was carrying approximately one and a half
pounds of crystal Methamphetamine (685 grams). [Approximately weight at time of
seizure.] C.I. was also carrying bags, digital scales, and drug Paraphernalia.
"After arresting C.I., officers learned C.I. had traveled to Kansas City and picked
up a large quantity of Methamphetamine [approximately a kilo or 2.2 pounds] and
brought it back to Emporia. C.I. left Kansas City at approximately 0400 hours on 09-07-
2018 after being in Kansas City for 30-45 minutes. C.I. purchased the Methamphetamine
for $7,000.00 in U.S. currency.
"After returning to Emporia on 09-07-2018 at approximately 0630 hours, C.I.
dropped off approximately one ounce of Methamphetamine to Cole Christopher Bowen
W/M . . . and Cole Bowen's girlfriend, Amanda Renee Alvarado W/F . . . . C.I. reports
meeting with Bowen and Alvarado and splitting up the ounce out of the large bag of
Methamphetamine C.I. was carrying when C.I. was arrested.
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"C.I. made positive identification of both Bowen and Alvarado. C.I. also
identified the house C.I. had dropped off the ounce at. That address is commonly known
as . . . Emporia, Lyon County, Kansas. Bowen was last arrested in Emporia, Kansas on
07-27-2018 and at that time he reported his address to be . . . Emporia, Lyon County,
Kansas.
"The computer at the Emporia Police Department shows Bowen's address has
been listed at that location since 07-07-2016. The computer at the Emporia Police
Department shows Amanda Alvarado lists an address of . . . Emporia, Lyon County,
Kansas as of 03-19-2018. I have seen vehicles registered to both Cole Bowen and
Amanda Alvarado at this address.
"C.I. was cooperating with the police for leniency regarding two cases of selling
Methamphetamine within 1000 feet of a school.
"According to C.I.'s Kansas Criminal Justice Information system (KCJIS) C.I.'s
past criminal history includes convictions for:
• Motor Vehicle Burglary as a juvenile reference Lyon County District Court
case 97JV550
• Disorderly Conduct as a juvenile reference Lyon County District Court case
99JV87
• Disorderly Conduct in Emporia Kansas Municipal Court reference court case
C002289
• Driving While Suspended through the Emporia Kansas Municipal Court
reference court case C05-1296
• Sale or Possession w/intent to sell opiates reference Lyon County District
Court case 2006CR531
• Burglary of a non-dwelling through Lyon County District Court case
09CR121
• Possession depressants, stimulants, hallucinogen, controlled substance,
anabolic steroid reference Lyon County District Court case 09CR411
• Violate controlled substance laws via Communications facility
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• Conspiracy to cultivate, distribute, with the intent to distribute opiates,
opium, narcotics, stimulants with one prior conviction."
Bowen correctly argues there is no direct information in the affidavit supporting
the veracity of the C.I. or the information he provided, and the only information
independently corroborated by the police was Bowen and Alvarado's address. Police
confirmed Bowen's address through Emporia police department records and motor
vehicle records. Bowen, citing State v. Landis, 37 Kan. App. 2d 409, 156 P.3d 675(2007), argues that since the C.I. was a participant in the crime and was seeking leniency,
"information regarding the [C.I.'s] credibility and veracity, as well as corroboration of the
person's statements, are necessary to establish probable cause for a search warrant."
Unlike when an unquestionably honest citizen provides information, "when the
person providing the information was a participant in the crime under investigation or has
been implicated in another crime and is acting in the hope of gaining leniency," there is
no presumption of reliability in the information provided. Landis, 37 Kan. App. 2d at
418-19. In Landis, the informant was arrested with marijuana in her car which she told
police she had just purchased from Landis. Police used that information to obtain a search
warrant for Landis' residence. Landis argued the affidavit had no information establishing
the informant's veracity. In finding the search warrant was issued without probable cause,
the Landis panel found police corroboration of only the location of defendant's residence
was insufficient to establish the informant's reliability or credibility. 37 Kan. App. 2d at
419-20. Here, the C.I. was both implicated in the crime and acting in the hope of
leniency. As a result, there is no presumption of reliability in the information he
provided.
As in Landis, there was no indication that officers had an established relationship
with the C.I. or any other reason to believe he was a credible source. Similar to Landis,
the only information provided by the C.I. that was independently corroborated by the
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police was Bowen's address, which Landis held "was simply inadequate to establish [the
informant] was a reliable source." See 37 Kan. App. 2d at 420.
The State concedes "there is an absence of police corroboration in the search
warrant affidavit" but contends there are other circumstances that suggest truthfulness
and reliability that do not require corroboration. It argues the C.I. subjected himself to
potential criminal liability for a new crime by providing the information in the affidavit
when he described his delivery of drugs to Bowen and Alvarado, suggesting veracity and
reliability. See State v. Adams, 294 Kan. 171, 182, 273 P.3d 718 (2012). In Adams, an
informant provided uncorroborated information which formed the basis for a search
warrant of a residence jointly occupied by the informant and defendant. The Adams court
reasoned:
"[T]his case is distinguishable from Landis in that the search warrant was for [the
informant's] residence. [The informant] was not merely pointing a finger in the direction
of a tenuous third party; she was leading the officers to evidence that had the potential of
fortifying or adding to charges the State could bring against her. This circumstance
suggests veracity and reliability. Under these circumstances, additional information
regarding [the informant's] veracity and reliability was not necessary." Adams, 294 Kan.
at 182.
Since Adams, the Kansas Supreme Court has explained: "[T]he probative value of
a tip is determined using the totality of the circumstances as articulated in Illinois v.
Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)." State v. Hensley,
298 Kan. 422, 431, 313 P.3d 814 (2013). Under this approach, an "informant's veracity
and basis of knowledge remain relevant but do not have 'independent status,' meaning 'a
deficiency in one may be compensated for . . . by a strong showing as to the other, or by
some other indicia of reliability.'" 298 Kan. at 431; see also Gates, 462 U.S. at 234(noting even if informant has questionable motives, tip is entitled to greater weight if
informant provides detailed, first-hand description of incriminating items or events).
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In Hensley, the affidavit lacked police corroboration of information provided by
the informant. The Kansas Supreme Court looked at other indicia of reliability, which
included the informant's personal observation of several pounds of marijuana and a large
amount of money hidden in the defendant's freezer the previous day, a description of
where the defendant slept, the caliber of gun the defendant possessed, and the location of
a secret hiding place in defendant's home. 298 Kan. at 431-32. The informant also
identified herself, which could have subjected her to potential prosecution.
Here, although somewhat less detailed than the information in Hensley, the
affidavit provides a first-hand description of delivery of a specified amount of
methamphetamine to Bowen and Alvarado at their residence shortly before the warrant
was obtained. Unlike Hensley, the C.I. here was cooperating in exchange for leniency in
two cases. But an informant's questionable motives do not necessarily prohibit reliance
on information supplied by the informant. See Hensley, 298 Kan. at 432.
Ultimately, we find the facts of this case distinguishable from Landis. Although
there is no presumption of reliability in the information provided by C.I. and the affidavit
corroborates only Bowen's address, we find the totality of circumstances provided a
substantial basis for the issuing judge to conclude probable cause existed. Unlike the
informant in Landis, the C.I. did not give multiple inconsistent stories when talking with
the police. The officer here did not exclude or hide any relevant information—the
affidavit includes the C.I.'s criminal record and informs the judge that the C.I. was
cooperating in exchange for leniency. Keeping in mind that the inquiry before the judge
is whether, under all the circumstances, there is a fair probability that contraband will be
found in a particular place, the affidavit alleges the C.I. personally delivered the drugs to
Bowen and Alvarado just hours before the warrant was issued. This information is
probative of the drugs being at the location to be searched. And, as noted, the information
potentially subjected the C.I. to further criminal liability—a circumstance suggesting
veracity and reliability. Although we acknowledge it is a close call, we conclude this
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other information is sufficiently strong to compensate for the lack of corroboration of the
C.I.'s information and credibility.
"[P]robable cause is a fluid concept—turning on the assessment of probabilities in
particular factual contexts—not readily, or even usefully, reduced to a neat set of legal
rules." Gates, 462 U.S. at 232. Evaluating the information contained only in the affidavit,
we conclude the affidavit provided a substantial basis for the judge's determination there
was a fair probability that methamphetamine would be found at the Bowen/Alvarado
house on September 7, 2018.
Dissipation of probable cause
Another search warrant was issued at the same time as Bowen's but executed
before Bowen's. Bowen alleges when the other warrant was served, police did not find
the contraband the C.I. led them to believe would be present. He contends this
information undercut the C.I.'s credibility and any existing probable cause dissipated as a
result.
In some circumstances, new information developed after a warrant has been issued
may lead to a dissipation of probable cause. See United States v. Grubbs, 547 U.S. 90, 95
n.2, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006). The 10th Circuit Court of Appeals held
that "probable cause becomes stale when new information received by the police nullifies
information critical to the earlier probable cause determination before the warrant is
executed." United States v. Dalton, 918 F.3d 1117, 1128 (10th Cir. 2019).
We have no evidentiary basis to evaluate whether the results of the other warrant
for another location was "critical" to a determination of probable cause in Bowen's case.
The details of the other warrant and affidavit are not part of the record, nor are the details
of the search or its results. There was some limited argument before the district court but,
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insofar as we can determine from the record, no evidentiary presentation was made. In
addressing the argument, the district court found the other search to be irrelevant
"because there's so many intervening circumstances that could occur after a search
warrant is issued [and] before it's served . . . drugs could be added to the house, drugs
could be taken out of the house." We note in the record that Bowen obtained a court order
granting access to the other warrant, but it is not included in the record. "[T]he appellant
has the duty to properly designate the record" and when the appellate record is
inadequate, as here, we "presume that the district court's findings were properly
supported." State v. McMullen, 290 Kan 1, Syl. ¶ 1, 221 P.3d 92 (2009). Under the facts
as they appear in the record, we find no merit in Bowen's dissipation of probable cause
contention.
Good-Faith Exception
The district court found that even if there was not a substantial basis to support a
probable cause finding, the evidence would be admissible under the good-faith exception
to the exclusionary rule. We agree.
"In Leon, the United States Supreme Court held the exclusionary rule should not
bar the use of 'evidence obtained by officers acting in reasonable reliance on a search
warrant issued by a detached and neutral magistrate but ultimately found to be
unsupported by probable cause.'" State v. Powell, 299 Kan. 690, 700, 325 P.3d 1162(2014) (quoting United States v. Leon, 468 U.S. 897, 900, 104 S. Ct. 3405, 82 L. Ed. 2d
677 [1984]). However, the Leon Court recognized four exceptions
"when suppression would still be an appropriate remedy if a warrant was later determined
to be invalid: (1) The magistrate issuing the warrant was deliberately misled by false
information; (2) the magistrate wholly abandoned his or her detached or neutral role; (3)
there was so little indicia of probable cause in the affidavit that it was entirely
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unreasonable for the officers to believe the warrant was valid; or (4) the warrant so
lacked specificity that officers could not determine the place to be searched or the items
to be seized." Powell, 299 Kan. at 700.
See Leon, 468 U.S. at 923; see also State v. Hoeck, 284 Kan. 441, 463-64, 163 P.3d 252(2007) (adopting without modification Leon exceptions for "suppression of evidence
illegally seized based on good-faith reliance on invalid warrant").
Bowen believes the third exception should apply in his case. He argues the district
court erred in applying the good-faith exception because it was unreasonable for the
police officers involved to believe the warrant was valid. Bowen claims the officers
willfully ignored circumstances that negated the reliability of the foundation of the
warrant. "A law enforcement officer should understand the broad precepts implicated in a
Fourth Amendment search and should recognize an obviously deficient warrant. Good
faith is an objective standard measured by how a reasonable law enforcement officer
would view the circumstances." State v. Malone, 50 Kan. App. 2d 167, 178, 323 P.3d 188(2014).
"To evaluate whether it was entirely unreasonable for the officers to believe the
warrant was valid, we must determine 'whether a reasonably well trained officer would
have known that the search was illegal despite the magistrate's authorization.' Leon, 648
U.S. at 922 n.23 . . . .
"The threshold to avoid the Leon good-faith exception is a high one. . . .
"'Where the alleged Fourth Amendment violation involves a search or seizure
pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest
indication that the officers acted in an objectively reasonable manner or, as we have
sometimes put it, in "objective good faith." Nonetheless, under our precedents, the fact
that a neutral magistrate has issued a warrant authorizing the allegedly unconstitutional
search or seizure does not end the inquiry into objective reasonableness. Rather, we have
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recognized an exception . . . when "it is obvious that no reasonably competent officer
would have concluded that a warrant should issue." [Citations omitted.]'" Powell, 299
Kan. at 701.
In Landis, the police officer who completed the affidavit deliberately omitted
pertinent information, and the panel found the officer "acted in bad faith by deliberately
omitting material information and misleading the court[.]" 37 Kan. App. 2d at 423. Here,
the officer did not purposely omit any information from the affidavit. The affidavit also
used Bowen's address to describe the place to be searched and listed the potential
contraband and items expected to be found. There is no suggestion that the officer made
any effort to mislead the court. The officer was up front about the C.I.'s criminal record,
the C.I. had a substantial amount of methamphetamine when he was arrested, and he was
cooperating in exchange for leniency in two drug sale cases. The fact the C.I. had
methamphetamine when he was arrested potentially adds some credence to his story as
well—the officer could reasonably conclude the C.I. had methamphetamine he could
have delivered to others. As noted above, there are at least two factors which objectively
support probable cause—the warrant was obtained on the same day police obtained C.I.'s
information, and the C.I. was providing information "that had the potential of fortifying
or adding to charges the State could bring against [him]." See Adams, 294 Kan. at 182.
Bowen also contends the officers could not believe the warrant was valid because
it was based on a single drug transaction and there was no reasonable basis to believe
drugs remained at the Bowen/Alvarado address. He argues: "For forty years, Kansas law
has required additional facts indicating the drugs remained on the premises after an
isolated drug sale before probable cause to search the premises may be found[.]" He
contends this is a single isolated drug transaction that is insufficient to support probable
cause and any reasonably well-trained officer would know it.
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In support of his argument, Bowen quotes from State v. Jacques, 225 Kan. 38, 42,
587 P.2d 861 (1978):
"A protracted or continuous course of drug traffic at a particular location unquestionably
would support the determination of probable cause. However, a single isolated drug sale
might also have been sufficient to support the determination if such sale had occurred
recently, and additional facts had been established to provide some reasonable basis to
infer drugs remained on the premises after the sale."
But the sentence immediately following the foregoing quote places it in context: "The
lapse of time which would tend to remove all probable cause for issuance of a search
warrant by destroying any reasonable belief that drugs remain on the premises will
depend on the facts and circumstances of each particular case." Jacques, 225 Kan. at 42.
The Jacques court found a two-day lapse of time did not remove a reasonable belief that
drugs remained on the premises. 225 Kan. at 42. Here, the warrant was obtained and
executed promptly, on the same day the police received the information from the C.I. The
short lapse of time in this case supports, rather than destroys, an officer's reasonable
belief that drugs were on the premises. Even if we had concluded there was not a
sufficiently strong showing of other factors to overcome the near complete absence of
corroboration of the C.I.'s information, it was not entirely unreasonable for the officers to
believe the warrant was valid.
"[T]he sole purpose of the exclusionary rule is 'to deter future Fourth Amendment
violations.' Davis v. United States, 564 U.S. 229, 236-37, 131 S. Ct. 2419, 180 L. Ed. 2d
285 (2011)." Powell, 299 Kan. at 705. The Davis Court noted the exclusionary rule has
never been applied "to suppress evidence obtained as a result of nonculpable, innocent
police conduct." 564 U.S. at 240. There is no indication the officers involved in this case
did anything wrong or unreasonable in obtaining the judge's approval of the warrant, and
it was not unreasonable for the officers to believe the warrant was valid. Thus, we find
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the evidence would be admissible under the good-faith exception even in the absence of
probable cause. The district court did not err in denying Bowen's motion to suppress.
II. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE JURY VERDICT?
Bowen advances two arguments in his sufficiency of the evidence challenge. First,
because he was not in exclusive possession of the residence, Bowen contends that other
incriminating circumstances must link him to the methamphetamine and the digital scale,
and he contends the State must prove more than one incriminating factor links Bowen to
the methamphetamine in the closet. Second, he argues any incriminating circumstances
must be proved by facts rather than implied. He contends the State impermissibly stacked
inference upon inference to prove its case.
The State contends there was sufficient incriminating evidence linking Bowen to
the drugs found in the residence. It notes Bowen's pay stubs and clothing were located in
the same dresser drawer as a portion of the methamphetamine and argues: "This is
sufficient for the jury to conclude that at a minimum he exercised joint control over the
methamphetamine in the closet that contained men's clothing."
Standard of Review
"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).
"'"A conviction of even the gravest offense can be based entirely on circumstantial
evidence and the inferences fairly deducible therefrom. If an inference is a reasonable
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one, the jury has the right to make the inference."'" State v. Rosa, 304 Kan. 429, 433, 371
P.3d 915 (2016). Possession and intent, like any element of a crime, may be proved by
circumstantial evidence. State v. Marion, 29 Kan. App. 2d 287, 290, 27 P.3d 924, rev.
denied 272 Kan 1422 (2001).
The State charged Bowen with one count of possession of methamphetamine with
intent to distribute. See K.S.A. 2019 Supp. 21-5705(a)(1) and (d)(3)(C). This charge
required the State to prove Bowen knowingly possessed at least 3.5 grams of
methamphetamine—the methamphetamine in both the dresser and the closet. The State
also charged him with one count of knowingly possessing the digital scale with intent to
use it to distribute a controlled substance. See K.S.A. 2019 Supp. 21-5709(b)(1) and
(e)(2)(A).
"'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. 2019 Supp. 21-5701(q).
"Possession of a controlled substance requires specific intent to exercise control
over the substance, with knowledge of the nature of the substance. The possession of a
controlled substance may be immediate and exclusive, jointly held with another, or
constructive as where the drug is kept by the accused in a place to which he or she has
some measure of access and right of control. Proof of the required elements for
possession of a controlled substance may be established by circumstantial evidence."
State v. Keel, 302 Kan. 560, Syl. ¶ 1, 357 P.3d 251 (2015).
But "[w]hen a defendant is in nonexclusive possession of the premises upon which
drugs are found, it cannot be inferred that the defendant knowingly possessed the drugs
unless there are other incriminating circumstances linking the defendant to the drugs."
Marion, 29 Kan. App. 2d at 290. Stated another way, the mere presence of or access to
the drugs, standing alone, is insufficient to demonstrate possession absent other
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incriminating circumstances. "Although we allow the State to prove knowledge and
intent by circumstantial evidence, when 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." Rosa, 304 Kan. at 434.
"Other circumstances which have been held sufficiently incriminating to link a defendant
with illicit drugs in a vehicle are his previous participation in the sale of drugs, his use of
narcotics, his proximity to the area where drugs are found and the fact the drugs are
found in plain view. While none of these circumstances, by itself, may be sufficient to
support a conviction, taken together they provide a sufficient inference of knowing
possession to support the verdict." State v. Faulkner, 220 Kan. 153, 160, 551 P.2d 1247(1978).
While the rule pronounced in Faulkner applied to vehicles, courts have applied the
factors to cases involving nonexclusive possession of a premises. See Marion, 29 Kan.
App. 2d at 290; State v. Cruz, 15 Kan. App. 2d 476, 489, 809 P.2d 1233 (1991). "'"Other
factors noted in cases involving nonexclusive possession include incriminating
statements of the defendant, suspicious behavior, and proximity of defendant's
possession[s] to the drugs." [Citation omitted.]' 15 Kan. App. 2d at 489." Marion, 29
Kan. App. 2d at 290.
PIK Crim. 4th 57.040 is the pattern instruction for possession of a controlled
substance. The instruction includes the following language:
"'Possession' means having joint or exclusive control over an item with
knowledge of and the 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.
"[When a defendant is in nonexclusive possession of (the premises upon) (an
automobile in) which a controlled substance is found, it cannot be inferred that the
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defendant knowingly possessed the controlled substance unless there are other
circumstances linking the defendant to the controlled substance. You may consider all
factors supported by the evidence in determining whether the defendant knowingly
possessed the controlled substance, including the following:
"1. whether the defendant previously participated in the sale of a controlled
substance;
"2. whether the defendant used controlled substances;
"3. whether the defendant was near the area where the controlled substance was
found;
"4. whether the controlled substance was found in plain view;
"5. whether the defendant made any incriminating statements;
"6. whether the defendant's behavior was suspicious;
"7. whether the defendant's personal belongings were near the controlled
substance.]"
No evidence was presented on any factor except the last one—there was
circumstantial evidence that Bowen's belongings were near the controlled substance. But
the jury is free to consider all the circumstances linking the defendant to the controlled
substance, not only the ones specifically listed in this pattern jury instruction.
Looking at the evidence in the light most favorable to the State, as we are required
to do on a sufficiency challenge, Chandler, 307 Kan. at 668, we find the circumstances
provided a sufficient basis for the jury to conclude Bowen possessed both the
methamphetamine in the dresser and that in the bedroom closet.
The jury could easily conclude that Bowen possessed the 2.3 grams of
methamphetamine and the two used meth pipes found in the dresser drawer. In a
bedroom occupied by a man and a woman, with two dressers, these items were found in a
dresser that contained only men's clothing. And Bowen's pay stubs were found in the
same drawer as the meth and pipes.
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Of course, the State chose to charge Bowen with an offense requiring that he
knowingly possessed not just those 2.3 grams; the charge required that he possessed at
least 3.5 grams. Another 27.2 grams of meth and a scale were found on a closet shelf in
the same bedroom, and the jury found that Bowen possessed at least 3.5 grams overall.
So the jury had to conclude that he was at least in knowing joint possession of the meth in
the closet. And the jury concluded that Bowen possessed the scale, which was the basis
for a separate charge.
The jury's conclusions are supported by several facts: (1) The only meth pipes
found by the police were in Bowen's dresser drawer; (2) the only meth found by the
police outside the closet was in Bowen's dresser drawer; (3) both Bowen and Alvarado
had clothes and personal items in the closet; and (4) Bowen had joint control of the
house. See Rosa, 304 Kan. at 435. Based on those facts it is reasonable to conclude that
Bowen at least jointly possessed the meth and the scale found in the closet.
Bowen also argues the "inference stacking" involved in reaching the conclusion
the methamphetamine in the closet belonged to him is prohibited by our Supreme Court.
"Presumption and inferences may be drawn only from facts established, and presumption
may not rest on presumption or inference on inference." State v. Doyle, 201 Kan. 469,
488, 441 P.2d 846 (1968); see State v. Williams, 229 Kan. 646, 649-650, 630 P.2d 694(1981).
But "[i]mpermissible inference stacking is not present where different
circumstances are used to support separate inferences or where multiple pieces of
circumstantial evidence separately support a single inference." State v. Banks, 306 Kan.
854, Syl. ¶ 3, 397 P.3d 1195 (2017). Here, as we have already summarized, several pieces
of circumstantial evidence taken together support the inference that Bowen possessed at
least 3.5 grams of meth and the scale found in the closet. The men's clothing and pay
stubs provided circumstantial evidence that the meth and pipes in the drawer were
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Bowen's. All of the items we listed previously—the only meth and meth pipes found in
the house were Bowen's, Bowen had clothes in the closet, and Bowen had joint control of
the house—each support the inference that Bowen at least jointly possessed the items
found in the closet. So there is no impermissible inference stacking required.
We do not reweigh evidence, independently evaluate the credibility of witnesses,
or make our own factual conclusions. Our role is much more limited—we determine if,
on the basis of the evidence presented during the trial viewed in a light most favorable to
the State, a reasonable fact-finder could conclude beyond a reasonable doubt that Bowen
committed the drug offenses with which he was charged. See Chandler, 307 Kan 657,
Syl. ¶ 2. Under that standard, we conclude the evidence was sufficient in this case.
Affirmed.
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