State v. Canfield ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,809
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MICHELLE LYNN CANFIELD,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; JEAN M. SCHMIDT and JASON E. GEIER, judges. Opinion
filed February 26, 2021. Affirmed in part and dismissed in part.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before GARDNER, P.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: The Shawnee County District Court convicted Michelle Lynn
Canfield of unlawful use of drug paraphernalia and sentenced her to 6 months in jail but
granted her 12 months' probation. Canfield then appealed her conviction and sentence.
After she docketed her appeal, Canfield then violated the terms of her probation and the
district court revoked her probation. The district court imposed her underlying six-month
jail sentence. Canfield appealed the probation revocation to the Court of Appeals and
amended her original docketing statement to include the probation revocation. The
district court then entered an order on February 11, 2020, that released Canfield for time
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served and Canfield moved to voluntarily dismiss the probation revocation appeal in the
district court. Because the district court lacked jurisdiction to dismiss the appeal after
Canfield amended her docketing statement, our court retained jurisdiction over the
probation revocation issue. Canfield now argues the State presented insufficient evidence
to support her conviction and the district court abused its discretion when it imposed the
underlying six-month jail term rather than drug treatment after the court revoked her
probation. We find that sufficient evidence supported Canfield's conviction and affirm
the district court's verdict. However, the probation revocation issue is now moot and we
dismiss Canfield's appeal on that issue.
FACTS
The State charged Canfield with unlawful use of drug paraphernalia in violation of
K.S.A. 2018 Supp. 21-5709(b)(2). That crime is a class B misdemeanor under K.S.A.
2018 Supp. 21-5709(e)(3).
The district court held a bench trial in June 2019. The State first called Officer
Anthony Palumbo as a witness. Palumbo testified that he had worked as a police officer
with the Topeka Police Department for six years. According to Palumbo, on
September 27, 2018, he responded to a call about a disturbance involving Canfield that
concerned a child custody issue. Before Palumbo arrived at the reported address, he
checked to see if Canfield had outstanding warrants and found that she did. Palumbo
observed Canfield in the driveway when he arrived at the scene and arrested her on the
warrant.
After handcuffing Canfield, Officer Palumbo watched her reach her cuffed hands
into the waistband area at her back and believed she placed something into the waistband
of her pants. Palumbo did not see what the object was but noticed her waistband appeared
tucked inward. This suggested to Palumbo that Canfield was attempting to hide
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something inside her pants. Palumbo then requested a female officer, Sergeant Connell,
to come to the scene to conduct a search of Canfield. When Connell arrived, Palumbo
observed her search Canfield and remove a glass pipe from Canfield's clothing.
The State then admitted the glass pipe into evidence. Officer Palumbo testified
that his training and experience led him to believe the pipe was a meth pipe because
residue and burn marks on the pipe appeared consistent with methamphetamine use. In
addition to the glass pipe, Sergeant Connell found a large amount of money in Canfield's
bra.
When Officer Palumbo asked for Canfield's ID, she walked to the driver's side
door of a truck, indicating it was inside the truck. Palumbo requested access to the truck
parked in the driveway, and the owner, who was present at the scene, consented to the
search. During his search Palumbo found a purse that contained an ID for another
woman, a prescription pill bottle that belonged to the owner of the truck, gift cards, a
blank check that belonged to another woman with her signature, and Canfield's debit
card. The purse also contained a digital scale and a bag of crystal-like substance. On
cross-examination, Palumbo testified that the owner of the truck stated the purse
belonged to Canfield and Canfield reached into the back area of the truck where Palumbo
found the purse.
Canfield and the State stipulated to conclusions in a KBI report concerning the
substance found in the purse. The KBI report concluded the bag of crystal-like substance
found in the purse was methamphetamine. Officer Palumbo testified that his training and
experience led him to believe the glass pipe was used to ingest methamphetamine.
Canfield testified on her own behalf and stated she owned a black purse and
wallet, but the purse in the truck was not hers. Canfield contended a girl that rode in the
truck earlier that evening actually owned the purse in which the methamphetamine was
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found. Canfield testified that she did not enter the truck before the search because Officer
Palumbo cuffed her hands behind her back when he arrived. She also testified that she did
not hear the owner of the truck confirm that she owned the purse found in the search and
she maintained it did not belong to her.
Following the presentation of evidence, the district court then confirmed with the
State that the KBI did not test the glass pipe for methamphetamine but only tested the bag
of methamphetamine found in the purse. The State argued the pipe's close vicinity to the
methamphetamine, in addition to the burn marks and residue on the pipe, was enough to
support possession of drug paraphernalia.
The district court then found that the pipe had no other purpose than to smoke
methamphetamine and the State had presented sufficient evidence to conclude the purse
belonged to Canfield. The court further found that the pipe was used for the purpose of
ingesting methamphetamine based on Palumbo's testimony that Canfield possessed the
pipe. The court found Canfield guilty of possession of drug paraphernalia beyond a
reasonable doubt.
During sentencing, the State informed the district court that Canfield had a
previous felony conviction for possession of opium, property offenses, and a juvenile
record. The court imposed a six-month jail sentence but suspended that sentence and
placed Canfield on 12 months' supervised probation. Canfield filed a timely appeal of the
conviction and sentence.
After Canfield docketed her appeal with the Court of Appeals, the State filed a
motion in district court for an order to show cause to revoke Canfield's probation. The
attached affidavit alleged Canfield did not report to her probation officer on several
occasions and failed to inform her probation officer of an arrest for theft by deception.
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The district court held a hearing based on the show cause motion on December 6,
2019. At the hearing, the probation officer confirmed that Canfield did not report to him
four times. Canfield also missed two drug tests and did not report an arrest to him. The
State withdrew its allegation that she failed to remain a law-abiding citizen because she
had yet to be convicted of the new offense, and the State did not present evidence on that
allegation. Canfield testified on her own behalf and told the district court she had
rescheduled appointments with her probation officer when she either failed to appear or
did not take the drug tests. Nevertheless, the district court found by a preponderance of
the evidence that Canfield failed to report and violated the terms of her probation;
Canfield failed to submit to drug testing; and she failed to inform her probation officer of
her contact with law enforcement. The district court revoked her probation, and the State
recommended Canfield serve the underlying six-month jail sentence with 21 days of
credit for time served. The court imposed her underlying sentence and ordered drug and
alcohol treatment while Canfield served her sentence.
Canfield filed a second notice of appeal that specifically appealed her probation
revocation on December 20, 2019. She also amended her docketing statement to include
the probation revocation in her appeal. The record also includes an order indicating that
on February 11, 2020, the district court modified Canfield's sentence to time served and
ordered her released from jail. Canfield then filed a voluntary dismissal of her notice of
appeal for the probation revocation on March 3, 2020, in the district court.
ANALYSIS
The evidence was sufficient to convict Canfield of possession of drug paraphernalia.
On appeal, Canfield argues K.S.A. 2018 Supp. 21-5709(b)(2) required the State to
prove she possessed the drug paraphernalia with the intent to use it to "'store, contain,
inject, ingest, inhale . . . [a] controlled substance into the human body.'" Because the State
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did not test the pipe for a controlled substance, she contends the State did not prove
beyond a reasonable doubt that she intended to ingest the methamphetamine found in the
purse.
Canfield also believes the district court misinterpreted Officer Palumbo's
testimony—Palumbo did not see Canfield place the pipe into the waistband of her pants
but only noticed her movement that led to his belief that she did. Canfield also contends
Palumbo did not directly see the pipe retrieved from Canfield's pants because Sergeant
Connell conducted the search and retrieved the pipe. Canfield argues the only evidence to
support the conviction was the pipe itself because the State did not tie the
methamphetamine to Canfield and the pipe. Because of these alleged deficiencies,
Canfield concludes that no reasonable person could agree with the district court's
decision based on the facts presented. She asks us to reverse and vacate her conviction.
The State argues the glass pipe Canfield concealed in her pants fits the definition
of drug paraphernalia in K.S.A. 2018 Supp. 21-5701(f)(12)(C). The State asserts that
concealment of the pipe demonstrated her consciousness of guilt and cites to State v.
Cathey, 241 Kan. 715, 730, 741 P.2d 738 (1987), in support of the argument. The State
further argues that evidence of white residue in the pipe and burn marks at the bottom of
the pipe are factors the district court may consider in order to rule the pipe is drug
paraphernalia. The State also contends that a KBI test to confirm the residue on the pipe
was methamphetamine was unnecessary because Officer Palumbo testified that he
recognized the pipe to be a meth pipe based on his training and experience; also, Palumbo
stated that glass pipes of this type had no purpose but to smoke methamphetamine, and he
found Canfield's ID and the bag of methamphetamine in the same vicinity as the glass
pipe. The State concludes that, in a light most favorable to the State, a rational fact-finder
could find Canfield guilty beyond a reasonable doubt.
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Our standard of review in this case is clear:
"'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).
The State must prove every element of an offense beyond a reasonable doubt, but
circumstantial evidence and the reasonable inferences properly drawn from that evidence
can support a conviction. 307 Kan. at 669. But "[r]easonable inferences 'cannot be drawn
from facts and conditions merely imagined or assumed.'" 307 Kan. at 670.
K.S.A. 2018 Supp. 21-5709(b)(2) requires the State to prove Canfield possessed
the glass pipe with intent to use it to ingest, inhale, or introduce a controlled substance
into her body. Proof of the required elements of unlawful possession of drug
paraphernalia may be established by circumstantial evidence. State v. Washington, 244
Kan. 652, 654, 772 P.2d 768 (1998); see State v. Thach, 305 Kan. 72, 84, 378 P.3d 522(2016) (even gravest crimes may be proved with only circumstantial evidence).
The statute defines possession as "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. 2018 Supp.
21-5701(q). "Drug paraphernalia" is defined as "equipment and materials of any kind that
are used, or primarily intended or designed for use in . . . ingesting, inhaling or otherwise
introducing into the human body a controlled substance." K.S.A. 2018 Supp. 21-5701(f).
A glass tube or other device used to cause vaporization of a controlled substance, like
methamphetamine, for inhalation is drug paraphernalia. K.S.A. 2018 Supp. 21-
5701(f)(12)(C). In determining whether an object is drug paraphernalia, a fact-finder is to
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consider relevant factors, such as: the pipe's proximity to controlled substances, any
residue of a controlled substance on the object, legitimate uses for the object, and expert
testimony concerning the object's use. K.S.A. 2018 Supp. 21-5711(a)(4), (a)(5), (a)(13),
and (a)(14).
A panel of our court reversed a conviction of unlawful possession of drug
paraphernalia with intent to store, contain, conceal, or consume marijuana because the
State charged the defendant for one count of possession for both baggies and a digital
scale. See State v. Timmons, No. 119,831, 2020 WL 3885621, at *4 (Kan. App. 2020)
(unpublished opinion). While that definition applied to the baggies, the State could not
prove the defendant used the digital scale to store or contain marijuana because it was
illogical to apply that definition of drug paraphernalia to surfaces like a scale, or a table
for that matter. 2020 WL 3885621, at *4.
Here, Officer Palumbo testified that he observed Canfield place something in her
waistband and Sergeant Connell retrieved the glass pipe from Canfield's waistband.
When viewed in a light most favorable to the State, Palumbo's testimony regarding
Canfield's possession of the pipe is sufficient to prove possession. See Timmons, 2020
WL 3885621, at *3-4 (finding possession of digital scales and baggies where officer
testified defendant could easily reach and access scale in car and officers found Ziploc
bags under defendant's seat of the car).
The State also needed to prove Canfield possessed the glass pipe with the intent to
use it to ingest or inhale methamphetamine. Cf. Timmons, 2020 WL 3885621, at *3-4.
Officer Palumbo testified that, based on his experience and training, the burn marks and
residue found on the glass pipe led him to believe it was a meth pipe. See K.S.A. 2018
Supp. 21-5711(a)(14). Additionally, Palumbo searched the truck and found a purse with
Canfield's debit card and a bag of methamphetamine. The district court made a
reasonable inference that the purse belonged to Canfield based on the debit card and
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Palumbo's testimony. See Chandler, 307 Kan. at 670. Palumbo's testimony also
supported the court's finding that the pipe had no other purpose than to smoke
methamphetamine. Though based in part on circumstantial evidence, we conclude a
rational fact-finder could find Canfield guilty of unlawful use of drug paraphernalia
beyond a reasonable doubt. In light of this, we affirm the district court's finding that
Canfield was guilty of possession of drug paraphernalia.
The probation revocation issue is now moot.
Canfield next argues that K.S.A. 2018 Supp. 22-3716 encourages the district court
to impose nonincarcerative sanctions instead of jail time for probation violations and it
was unreasonable, given Canfield's potential substance abuse issues, to impose her full
sentence instead of drug treatment. Canfield complains that the district court knew of her
substance abuse issue because she had a prior felony conviction that involved opiates.
Canfield argues that sending her to jail, rather than placing her in a treatment program,
was arbitrary and unreasonable and so the district court abused its discretion when it
revoked her probation and imposed her underlying jail sentence. Canfield asks us to find
the district court abused its discretion and vacate its decision to revoke her probation and
order her to serve the jail term.
The State and Canfield have both informed us that the district court paroled her to
time served on February 11, 2020. Because of this, Canfield moved to dismiss her appeal
as it pertained to the probation revocation. The State argues the issue should be
dismissed, regardless of whether Canfield filed it in district court or at the Court of
Appeals. The State contends the issue is moot because Canfield completed the sanction
imposed and was released outright. See State v. Montgomery, 295 Kan. 837, Syl. ¶ 5, 286
P.3d 866 (2012). The State asks the panel to affirm the district court's action.
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We note that the record includes a copy of the district court's order releasing
Canfield from serving her jail sentence on February 11, 2020. Canfield's trial counsel
filed a voluntary dismissal of the portion of her appeal on the probation violation in the
district court, but we accepted the amended docketing statement to include the probation
revocation. A district court loses jurisdiction, including to hear motions to dismiss the
appeal, once the appellate court dockets the appeal. In re Care & Treatment of Emerson,
306 Kan. 30, 35, 392 P.3d 82 (2017). Because it does not appear that Canfield filed a
dismissal in the Court of Appeals, the appeal is properly before us for review, and the
district court lacked jurisdiction to dismiss the appeal.
Kansas courts have developed the mootness doctrine through court precedent and
so appellate review is unlimited. Montgomery, 295 Kan. at 841 (citing State v. May, 293
Kan. 858, 862, 269 P.3d 1260 [2012]).
As a general rule, Kansas appellate courts do not decide moot questions or render
advisory opinions. Montgomery, 295 Kan. at 840. The court is to "'determine real
controversies relative to the legal rights of persons and properties which are actually
involved in the particular case properly brought before it and to adjudicate those rights in
such manner that the determination will be operative, final, and conclusive.' [Citations
omitted]." Stano v. Pryor, 52 Kan. App. 2d 679, 683, 372 P.3d 427 (2016) (quoting State
v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 [2012]). An issue on appeal will only be
dismissed as moot if it can be shown clearly and convincingly that the actual controversy
has ended, the only judgment that could be entered would be ineffectual for any purpose,
and the judgment would not impact any of the parties' rights. State v. Williams, 298 Kan.
1075, 1082, 319 P.3d 528 (2014).
The mootness doctrine is not a matter of jurisdiction and certain exceptions may
apply. Montgomery, 295 Kan. at 841. Appellate courts commonly apply an exception
when an issue "'is capable of repetition and raises concerns of public importance.'" State
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v. Kinder, 307 Kan. 237, 244, 408 P.3d 114 (2018). "Public importance means more than
that certain members of the general public are interested in the decision of the appeal
from motives of curiosity or because it may bear upon their individual rights or serve as a
guide for their future conduct. [Citation omitted.]" State v. Hayden, 52 Kan. App. 2d 202,
206, 364 P.3d 962 (2015).
There are two reasons why we have concluded that Canfield's probation violation
issue is truly moot. First, in a similar case, the Kansas Supreme Court found that a
defendant's probation revocation issue was moot because the defendant had served his
entire underlying sentence. See Montgomery, 295 Kan. at 839. Canfield challenges the
district court's decision to require service of the six-month sentence, which means the
actual controversy ended once Canfield completed the jail term on February 11, 2020. In
addition, a judgment regarding her jail term would now be ineffectual for any purpose
and the judgment would not impact her rights. See Williams, 298 Kan. at 1082.
Second, Canfield's sole issue on appeal is limited to whether the district court
abused its discretion when it imposed her underlying sentence instead of a lesser sanction
after it revoked her probation. A series of recent decisions by our Supreme Court, though
mostly involving allegedly illegal sentences, reinforce our ultimate conclusion that
Canfield's issue is moot. The Supreme Court considered various scenarios where the
mootness doctrine applied to appeals where the defendant had challenged the sentence
imposed by the district court, but had completed the prison and postrelease supervision
terms. State v. Roat, 311 Kan. 581, 583-84, 466 P.3d 439 (2020); see State v. Tracy, 311
Kan. 605, 609-10, 466 P.3d 434 (2020) (affirming Court of Appeals' decision to dismiss
because Tracy did not provide support for meaningful interests he claimed on appeal and
exceptions to mootness did not apply); State v. Sykes, 311 Kan. 612, 613-14, 465 P.3d
1152 (2020) (rejecting Court of Appeals' mootness analysis because courts must avoid
blanket application of mootness doctrine, but court affirmed dismissal because Sykes
failed to preserve issue); State v. Mayes, 311 Kan. 615, 617, 465 P.3d 1141 (2020)
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(affirming Court of Appeals' decision to dismiss case as moot because defendant failed to
respond to State's motion to dismiss and failed to preserve defendant's argument below).
The bottom line is the Supreme Court has determined that a mootness analysis
must include whether an appellate judgment on the merits would have meaningful
consequences for any purpose. Put another way, an appellate court must determine
whether dismissal would impair a meaningful interest. Roat, 311 Kan. at 592-93.
In another of the recent cases, State v. Ward, 311 Kan. 619, 623-24, 465 P.3d 1143(2020), the underlying issue was whether the district court erred when it initially revoked
Ward's probation. On appeal, Ward argued that the probation revocation error would
impact future decisions regarding grants of probation and motions for departure, so the
mootness doctrine did not apply. A panel of our court dismissed the appeal. The Supreme
Court distinguished Ward from Montgomery because Ward challenged the district court's
decision to revoke his probation, not the sanction imposed. The Supreme Court
concluded that completion of a sentence does not necessarily render a case moot and
courts must carefully analyze whether dismissal would impair a meaningful interest.
Because Ward provided a meaningful interest (the judgment would affect future
sentences), the Supreme Court remanded to our court to reevaluate Ward's impairment
claim.
To reiterate, unlike the defendant in Ward, in our case Canfield does not challenge
the district court's decision to revoke her probation, only the sanction imposed. Any relief
Canfield would receive on appeal would be to correct the sanction, or sentence, imposed
by the district court. Accordingly, dismissal of this issue would not impair a meaningful
interest because this appeal is limited to the sanction imposed. Since Canfield's sanction
ended when she was released from jail on time served, any judgment we would make as
to the wisdom of the district court's sanctioning would have no meaningful consequences.
Applying Roat, Ward, and the other related Supreme Court decisions, it is abundantly
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clear that Canfield's appeal of the district court's sanctioning of her for probation
violation is moot.
Finally, an exception does not apply in this case. The Kansas Supreme Court has
found the exception to the mootness doctrine applied where a defendant received
consecutive probation terms in two separate cases and the district court revoked probation
for both cases. Hilton, 295 Kan. at 848. The defendant argued the district court erred
when it aggregated the cases. Unfortunately for resolution of the issue, the defendant was
paroled, and her sentence expired before our court could consider her case. The Supreme
Court held the issue was capable of repetition because it was unlikely anyone could
obtain appellate relief for any error during the imposed prison term of 18 months. And
the issue posed a matter of public importance because district courts would likely face
circumstances of two cases with consecutive terms of probation in the future. 295 Kan. at
851.
This case is unlike Hilton because the decision here is not a matter of public
importance, but rather it is a decision that will not bear upon individual rights or guide
future conduct of the general public. See Hayden, 52 Kan. App. 2d at 206-07. But this
case is similar to State v. Johnson, No. 119,049, 2019 WL 1967961, at *2-3 (Kan. App.
2019) (unpublished opinion), petition for rev. filed June 3, 2019. The defendant in that
case appealed her probation revocation and challenged the district court's decision to
bypass intermediate sanctions and revoke probation without making specific findings;
however, she served her entire prison term. A panel of our court found an exception to
the mootness doctrine did not apply and dismissed the appeal. 2019 WL 1967961, at *2-
3.
Here, the district court imposed the six-month jail sentence in accordance with
K.S.A. 2018 Supp. 22-3716(b)(3)(B)(iii). The choice between the six-month sentence
over an alternative sanction was within the court's discretion. See State v. Still,
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No. 112,928, 2015 WL 4588297, at *1 (Kan. App. 2015) (unpublished opinion). It is not
abnormal, or particularly noteworthy, that a district court imposed the underlying jail
term in accordance with the statute.
In summary, on this second issue we dismiss Canfield's appeal of her probation
revocation as moot and find that an exception to the mootness doctrine does not apply.
Affirmed in part and dismissed in part.
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