State v. Beaver

• Citation: 200 P.3d 490
• Decision Date: 13 February 2009
• Docket Number: No. 100,241.,100,241.
• Parties: STATE of Kansas, Appellant, v. Cody W. BEAVER, Appellee.
• Court: Court of Appeals of Kansas

200 P.3d 490

STATE of Kansas, Appellant, v. Cody W. BEAVER, Appellee.

No. 100,241.

Court of Appeals of Kansas.

February 13, 2009.

Richard E. James, county attorney, and Stephen N. Six, attorney general, for appellant.

Bryant T. Barton, assistant public defender, of Junction City, for appellee.

Before ELLIOTT, P.J., GREEN and MARQUARDT, JJ.

GREEN, J.

Cody W. Beaver was charged with one count of felony possession of methamphetamine with intent to sell, deliver, or distribute, one count of felony possession of drug paraphernalia, and one count of misdemeanor possession of drug paraphernalia. A district magistrate judge conducted a preliminary hearing and found probable cause to bind Beaver over on the charges. Beaver later moved to dismiss all charges for lack of probable cause. The trial court granted the motion. On appeal, the State contends that the trial court improperly granted the motion to dismiss. We disagree. Accordingly, we affirm.

In September 2007, the State charged Beaver with one count of felony possession of methamphetamine with intent to sell, deliver, or distribute (under K.S.A.2006 Supp. 65-4161[a]), one count of felony possession of drug paraphernalia (under K.S.A.2006 Supp. 65-4152[a][3]), and one count of misdemeanor possession of drug paraphernalia (under K.S.A.2006 Supp. 65-4152[a][2]).

These charges arose out of the February 16, 2007, execution of a search warrant at a residence in Clay Center, Kansas. When the warrant was executed, Beaver was present, although he did not reside in the home. Beaver was detained at the back door of the home, approximately 3-4 feet from the kitchen table. After accounting for all the occupants of the home, the officers made an inspection of the premises. In the kitchen, the officers saw a table. On top of the table, the officers saw a digital scale. In addition, the officers saw money, bags of a crystal substance, and another bag of a crystal substance visible from an open drawer.

At the preliminary hearing, the State presented an inventory of the seized items, including a black nylon bag containing small baggies of a crystal substance, a scale, and a Ziploc bag with 21 grams of a crystal substance. A field test of the crystal substances showed the presence of methamphetamine. Officer Steve Squires, the sole witness during the preliminary hearing, stated that the seized scale and bags were commonly used for the packaging and sale of certain types of narcotics. Other items seized from the home included cash, a small silver container which had tested positive for the presence of methamphetamine, and a buy sheet, defined by Squires as "a list of names or initials and amounts of money and types of product they get—a gram, a half gram, quarter gram, or a full ounce [of drugs]." At the preliminary hearing, the State presented photos of the scene, but acknowledged that the items had been rearranged before taking the photos.

Squires further testified that although the residence was generally cluttered and disorganized, all of the seized items were in plain view from the back door, where Beaver had been detained. In the weeks before the warrant's execution, Beaver had been a frequent visitor to the home. The officers, however, had no evidence of how long Beaver had been at the residence on that day before their arrival. The officers found no mail or other documents at the residence in Beaver's name.

Ultimately, the magistrate judge found "that the offense as set forth in the complaint was committed and further finds there is probable cause to believe the Defendant guilty of the commission of said offense." In response to the magistrate judge's decision, Beaver moved in limine to enforce suppression of the items seized from his person during execution of the search warrant and moved to dismiss for lack of probable cause. The motion to dismiss alleged that the magistrate judge had erred in finding probable cause to bind over Beaver for the charges because Beaver was never in exclusive or nonexclusive possession of the items.

At a hearing on Beaver's motions, the State did not oppose Beaver's motion in limine. The district judge granted Beaver's motion to dismiss for lack of probable cause and dismissed with prejudice counts 1 and 2 of the complaint (felony possession with intent to sell and felony possession of drug paraphernalia). In rejecting the State's theory of constructive possession, the district judge distinguished a case relied on by the State and explained how the State's constructive possession theory was flawed:

"THE COURT: Counsel, I have reviewed—I've read the preliminary hearing transcript and reviewed your submissions and heard your arguments. I would agree with counsel for the defendant that this case is distinguishable factually from the Hazley case because in that case the woman was the owner of the home. This case we have no contact with Mr. Beaver in this home other than the fact that he was there. He had been seen coming and going from the place, as I remember the testimony by Clay Center police officer, on several occasions prior to the day in question, but there's no testimony to suggest how long he had been at the—at this house when the officers arrived to serve the search warrant. Proximity we know is not enough to establish constructive possession. Proximity and plain view is not enough to establish constructive possession under the law as I understand it. You've got to have something that showed that he intended to control it or he was in control of it. As I review this preliminary hearing transcript it's void of any evidence to that effect. There's nothing to suggest that Mr. Beaver had any control over what was on the table or intended to control it. He may have gone in there and even if it was in plain view—and frankly I don't think the 21 grams of meth was in plain view based on the photograph in Defendant's Exhibit 2. That little three drawer thing is stuck back behind a bunch of stuff and you can't tell what's in the third or middle drawer of it from the vantage point that he was in."

In its response to defendant's motion to dismiss, the State admitted that the kitchen table was very cluttered.

The State timely filed a notice of appeal to the dismissal. In order to perfect this appeal, the State voluntarily dismissed count 3 of the complaint (misdemeanor possession of drug paraphernalia).

Did the District Court Err in Granting Beaver's Motion to Dismiss for Lack of Probable Cause?

When an appellate court reviews the trial court's dismissal of a complaint, it "must examine the evidence de novo, using the same standard to weigh the evidence as the trial court used." State v. Romo-Uriarie, 33 Kan.App.2d 22, 27, 97 P.3d 1051, rev. denied 278 Kan. 851 (2004). A trial court conducts a preliminary examination to determine whether "it appears that a felony has been committed and [if] there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over for trial. [Citations omitted.]" State v. Powell, 266 Kan. 282, 283, 971 P.2d 340 (1998). Probable cause "`"is the reasonable belief that a specific crime has been committed and that the defendant committed the crime."' [Citations omitted.] Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt of guilt. [Citations omitted.]" State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004). An analysis of the existence of probable cause requires the trial court to determine whether the evidence is sufficient "to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt." Romo-Uriarie, 33 Kan.App.2d at 27, 97 P.3d 1051. When reviewing the evidence, the district court must draw inferences in favor of the State. State v. Anderson, 270 Kan. 68, 71, 12 P.3d 883 (2000). Moreover, it is not the province of the trial court "to determine the wisdom of the decision to file charges or to determine whether the possibility of a conviction is likely or remote." 270 Kan. at 71, 12 P.3d 883.

Both counts 1 and 2 of Beaver's complaint required the State to prove the element of possession. Count 1 of the complaint reads as follows:

"That on or about the 16th day of February, 2007, the said CODY W BEAVER, within Clay County, Kansas, did then and there being, unlawfully, feloniously, intentionally, willfully and knowingly possess or have under his control a stimulant, to-wit: methamphetamine, with the intent to sell, deliver; said methamphetamine being a stimulant drug designated in subsection (d)(3) of K.S.A. 65-4107 and amendments thereto, other than as authorized by the Uniform Controlled Substances Act, FELONY POSSESSION OF METHAMPHETAMINE WITH INTENT TO SELL, DELIVER, OR DISTRIBUTE, in violation of K.S.A. 65-4161(a), a Drug Severity Level 3 Felony."

K.S.A.2006 Supp. 65-4161(a) makes it "unlawful for any person to sell, offer for sale or have in such person's possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; or dispense any opiates, opium or narcotic drugs, or any stimulant." (Emphasis added.)

In addition, Count 2 contained a possession element:

"That on or about the 16th day of February, 2007, the said CODY W. BEAVER, within Clay County, Kansas, did then and there being, unlawfully, feloniously, intentionally, and willfully possess with intent to use drug paraphernalia, including but not limited to, to-wit: set of Jennings digital scales, set of Equinox scales, set of Vibe digital scales, and numerous small plastic baggies; to pack, repack, sell, or distribute a controlled substance, to-wit: methamphetamine, FELONY POSSESSION OF DRUG PARAPHERNALIA, in violation of K.S.A. 65-4152(a)(3), a Drug Severity Level 4 Felony."

K.S.A.2006 Supp. 65-4152(a)(3) makes it unlawful for a person to use or possess with intent to use "any drug...