State v. Keel

• Decision Date: 28 August 2015
• Docket Number: 106,096.
• Citation: 357 P.3d 251,302 Kan. 560
• Parties: STATE of Kansas, Appellee, v. Danny KEEL, Appellant.
• Court: Kansas Supreme Court

302 Kan. 560

357 P.3d 251

STATE of Kansas, Appellee

v.Danny KEEL, Appellant.

106,096.

Supreme Court of Kansas.

Aug. 28, 2015.

Randall L. Hodgkinson, Topeka, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and David A. Page, county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

Opinion

The opinion of the court was delivered by ROSEN, J.:

Danny Keel was convicted of one count of possession of methamphetamine and one count of possession of drug paraphernalia. He argued before the Court of Appeals that the State presented insufficient evidence to show that he had constructive possession of the drugs and drug paraphernalia found inside the residence he shared with his girlfriend. Keel also argued that the jury was improperly instructed on the definition of drug paraphernalia. The Court of Appeals rejected both arguments and affirmed his convictions. State v. Keel, No. 106,096, 2012 WL 4373012 (Kan.App.2012) (unpublished opinion). We granted review on both of these issues.

After review was granted, Keel filed a motion with this court to correct an illegal sentence. He alleged that this court's recent decision in State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, (because Kansas did not classify crimes as person or nonperson offenses prior to July 1, 1993—the date the Kansas Sentencing Guidelines Act [KSGA], K.S.A. 21–4701 et seq., went into effect—all out-of-state convictions occurring before that date must be classified as nonperson offenses for criminal history purposes), meant the district court erred in classifying his January 1993 Kansas convictions for attempted aggravated robbery and aggravated robbery as person felonies, resulting in a criminal history score of B. Keel argued that the legal reasoning of Murdock dictated that his convictions be classified as nonperson felonies. Keel noted that classifying his two 1993 convictions as nonperson felonies would result in him having a criminal history score of E and, in turn, he would receive a shorter sentence for his current crimes of conviction. We ordered supplemental briefing from the parties on this issue.

While this appeal was pending before the court, the legislature passed House Bill 2053, L. 2015, ch. 5, secs. 1–5 (effective April 2, 2015), in response to the Murdock decision. The bill added explicit language to K.S.A. 2014 Supp. 21–6810 (formerly K.S.A. 21–4710 ) and K.S.A. 2014 Supp. 21–6811 (formerly K.S.A. 21–4711 ) stating that, for criminal history purposes, a conviction or juvenile adjudication for an offense committed prior to July 1, 1993, shall be scored as a person or nonperson crime based on the classification in effect for the comparable offense under the Kansas Criminal Code when the current crime of conviction was committed. The legislature also stated its explicit intention that these amendments applied retroactively. L. 2015, ch. 5, secs. 1 and 2. We ordered supplemental briefing from the parties on whether the amendments could be properly applied to the classification issue raised in this case.

We conclude that the State presented sufficient evidence to show that Keel possessed both the methamphetamine and drug paraphernalia found inside his home. We further conclude that the jury instruction on paraphernalia was not erroneous and did not deprive Keel of a fair trial. Thus we affirm Keel's convictions. Finally, we conclude that Keel, pursuant to K.S.A. 22–3504(1), can raise a challenge to the classification of his prior convictions for the first time on appeal. But we reject his argument contending that his pre-KSGA convictions must be classified as nonperson offenses for criminal history purposes.

Revisiting our construction of the KSGA as a whole now persuades a majority of this court that the legislature, in enacting the sentencing guidelines, contemplated that a pre-KSGA conviction could be classified as a person offense if such a classification was proper. Further, we conclude that State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010) —the case Murdock relied on for the rule that a prior crime's classification is determined by the classification in effect for the comparable Kansas crime when it occurred—was inconsistent with our prior decision in State v. Vandervort, 276 Kan. 164, 72 P.3d 925 (2003), overruled in part by State v. Dickey, 301 Kan. 1018, Syl. ¶ 4, 350 P.3d 1054 (2015). Vandervort, a case involving prior convictions from Virginia, established that a prior crime's classification is determined based on the classification in effect for the comparable Kansas offense at the time the current crime of conviction was committed.

These conclusions lead us to hold today that Keel's 1993 Kansas convictions for attempted aggravated robbery and aggravated robbery must be classified as person offenses based on the classification in effect for those crimes when Keel committed his current crimes of conviction. Because the district court classified Keel's prior convictions as person offenses, Keel was assigned a correct criminal history score and, in turn, received a legal sentence under the sentencing guidelines. Thus we affirm Keel's sentence.

Facts

On May 14, 2010, officers with the Moundridge Police Department and the McPherson County Sheriff's Department executed a search warrant on a house located in Moundridge where officers believed Keel resided.

When officers knocked on the door of the residence, Shayna Wulf, Keel's girlfriend, answered the door. When asked whether Keel was there, Wulf said that he was not and that she did not know when he would return. Despite Wulf's answer, the officers proceeded to search the house for Keel. They eventually found him inside a hidden room near the kitchen. The doorway to the room could not be seen from inside the residence because it was covered by a set of bookshelves; the bookshelves were fastened with a hinge and could be opened and closed. After kicking in an outside door, officers discovered Keel lying on the floor of the hidden room. Officers also discovered a surveillance system consisting of a camera and a monitor inside the room.

During the search of the house, the officers discovered drugs and suspected drug paraphernalia. The officers found a glass pipe containing residue on a shelf in the room where Keel was discovered; the pipe subsequently tested positive for methamphetamine. Officers also seized: (1) a small baggie lying in plain view on a desk near the hidden room containing a white crystal substance that later tested positive for methamphetamine; (2) a black plastic bong in a closet located under the stairway leading upstairs; and (3) a makeup bag in an upstairs bedroom that contained a large glass pipe with black residue that later tested positive for tetrahydrocannabinol and a baggie containing a white granular substance that later tested positive for methamphetamine.

The officers arrested Keel and Wulf. At the time of her arrest, Wulf admitted that the makeup bag belonged to her but claimed that the methamphetamine found inside it did not, stating that she would take responsibility for the “smoke” but not the “dope.” Wulf later confirmed that “smoke” was a reference to marijuana and “dope” was a reference to methamphetamine.

Keel was charged with one count each of possession of cocaine, possession of methamphetamine, and possession of drug paraphernalia. The cocaine charge was dismissed prior to trial.

At trial, Wulf testified on Keel's behalf. Contrary to her prior statement, Wulf testified that all the drugs and drug paraphernalia found in the residence belonged to her and that Keel had no knowledge of or control over any of the items. Wulf explained to the jury that she had been afraid at the time of her arrest to admit that all the contraband, including the methamphetamine, belonged to her because she “didn't want to take a charge for something so big.” Notably, Wulf testified that the glass pipe discovered on the shelf in the room where Keel was discovered was used to smoke methamphetamine and the black plastic bong found in closet underneath the stairway and the large glass pipe found in the makeup bag upstairs were both used to smoke marijuana.

Despite Wulf's testimony, the jury found Keel guilty of possession of methamphetamine and possession of drug paraphernalia.

Prior to Keel's sentencing, a presentence investigation (PSI) report was prepared showing that on January 5, 1993 (before the enactment of the KSGA on July 1, 1993), Keel was convicted of attempted aggravated robbery and aggravated robbery. Both of these convictions were classified as person felonies, resulting in Keel having a criminal history score of B. See K.S.A. 21–4709.

At sentencing, Keel did not raise an objection to his criminal history score and personally stipulated to the existence of the convictions listed in the criminal history worksheet attached to the PSI report. The district court sentenced Keel to concurrent sentences of 34 months' imprisonment for possession of methamphetamine and 1 year in jail for possession of drug paraphernalia.

More facts will be stated as they become pertinent to the issues discussed below.

Sufficiency of the Evidence

Before the Court of Appeals, Keel challenged the sufficiency of the evidence supporting his convictions, claiming that the State failed to prove he had knowledge of or intended to possess the drugs and drug paraphernalia found inside the house he shared with Wulf.

Standard of Review

When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). An appellate court does not reweigh evidence, resolve conflicts in the evidence, or...