State v. Faulkner

• Decision Date: 12 June 1976
• Docket Number: No. 48177,48177
• Citation: 551 P.2d 1247,220 Kan. 153
• Parties: STATE of Kansas, Appellee, v. Gregory K. FAULKNER, Appellant.
• Court: Kansas Supreme Court

Page 1247

551 P.2d 1247

220 Kan. 153

STATE of Kansas, Appellee, v. Gregory K. FAULKNER, Appellant.

No. 48177.

Supreme Court of Kansas.

June 12, 1976.

Syllabus the the Court

1. In ruling on the admissibility of other crimes evidence under K.S.A. 60-455, the trial court must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact-i. e., that it is substantially in issue and (3) balance the probative value of the other crimes evidence against its tendency to prejudice the jury.

2. Materiality is largely a question of law. It requires the fact proved be significant under the substantive law of the case and properly at issue. For purposes of K.S.A. 60-455, a fact is material if it has a legitimate and effective bearing on the decision of the case and is in dispute.

3. 'Possession' is having control over a place or thing with knowledge of and the intent to have such control.

4. Knowledge and absence of mistake are both factors bearing on the specific intent to exercise control over a place or thing.

5. Where an act in itself may be susceptible to two interpretations, one innocent and the other criminal, then the specific intent with which the act is done becomes the critical element in determining its character.

6. Relevancy is more a matter of a logic than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence or has any tendency in reason to prove a material fact.

7. The similarity of offenses is a key factor in relevancy.

8. Ordinarily, evidence of prior convictions of similar crimes is relevant to prove a specific intent without a showing of the specific facts and circumstances involved in the prior offense.

9. A trial court may in its discretion exclude other crimes evidence which is relevant to prove a material fact pursuant to K.S.A. 60-455 if it finds the probative value of the evidence is substantially outweighed by its prejudicial effect, confusion of the issues or misleading of the jury.

10. In a prosecution for possession of a controlled substance with intent to sell, the record is examined, and as more fully set forth in the record, it is held: (1) where control is shown and intent to exercise control is disputed, whether the accused had the specific intent required to prove possession was a disputed material fact substantially in issue, (2) a journal entry of judgment of a prior conviction for possession of a controlled substance raised a reasonable inference that the appellant was familiar with controlled substances and had knowledge of and intended to exercise control over the controlled substance involved in the present offense and (3) the admission of the journal entry of judgment to show intent, knowledge and absence of mistake without a showing of the underlying facts and circumstances of the prior offense was proper within the district court's discretion.

11. Timely, specific objection is required to preserve a point for appeal.

12. While a criminal defendant is privileged to testify in his own defense or to refuse to do so, that privilege cannot be construed to include the right to commit perjury. An accused's testimony relevant to an issue in the case may be impeached by contradiction on cross-examination.

13. Possession and intent, like any element of a crime, may be prove by circumstantial evidence.

14. The evidence is sufficient to sustain a conviction if there is a basis in the evidence for a reasonable inference of guilt.

William D. Mize, Public Defender, Salina, argued the cause and was on the brief for appellant.

James L. Sweet, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

FATZER, Chief Justice.

This is an appeal from a conviction following trial to a jury for possession of a controlled substance with intent to sell in violation of K.S.A. (1975 Supp.) 65-4127b(b)(1).

The facts may be briefly summarized. At about 1:20 a.m. on January 25, 1974, two Salina policeman observed a vehicle driven by Jimmy Rickers pull into the Gibson's parking lot and park behind the Sands Restaurant. The defendant-appellant, Gregory K. Faulkner, got out of the vehicle on the passenger side and walked toward the restaurant. He ignored one of the officer's repeated requests to stop until he reached the restaurant entrance. When the other officer approached the vehicle to ask the driver for identification, he observed a hypodermic needle and small plastic bag of pills on the floorboard of the passenger side. A brown paper bag was also observed protruding from the glove compartment. This bag contained a large quantity of pills, many of which were the controlled substance amobarbital. The defendant was charged with possession of amobarbital with intent to sell and was subsequently convicted. He perfected this appeal and now asserts four trial errors.

The appellant first contends the district court erred in admitting, over his objection, an authenticated copy of the journal entry of judgment of a previous conviction without requiring evidence of surrounding facts and circumstances showing the similarity between the past and present crimes. The appellant's identity as the subject of the prior conviction was conceded. The journal entry showed that on July 7, 1972, the appellant was convicted of the crime of possession of a controlled substance in Green County, Missouri. Admission of the prior conviction pursuant to K.S.A. 60-455 was discussed at pretrial conference, and the evidence was offered at the end of the state's case in chief for the purpose of showing intent, knowledge and absence of mistake. After reference to other crimes in the journal entry was stricken, it was received in evidence for these limited purposes and the jury was instructed accordingly. No complaint against the instructions has been lodged.

K.S.A. 60-455 provides in pertinent part:

'Subject to section 60-477 evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 60-445 . . . such evidence is admissible when relevant to prove some other material fact including . . . intent . . . knowledge . . . or absence of mistake . . .' (Emphasis added.)

In ruling on the admissibility of evidence of a prior conviction under 60-455, a district court must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact-i.e. that it is substantially in issue and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury.

Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it has any tendency in reason to prove a material fact (K.S.A. 60-401(b), or if it renders the desired inference more probable than it would be without the evidence. (State v. Baker, 219 Kan. 854, 549 P.2d 911.) Materiality, on the other hand, is largely a question of law. 22A. C.J.S. Criminal Law § 637 (1961); Slough, Relevancy Unraveled, 5 Kan.L.Rev. 1 (1956). Materiality requires that the fact proved be significant under the substantive law of the case and properly at issue. Professor Slough makes this distinction:

'. . . Though an evidential fact be relevant under the rules of logic, it is not material unless it has a legitimate and effective bearing on the decision of the ultimate facts in issue.' (Slough, Relevancy Unraveled, 5 Kan.L.Rev. 1, 5. (1956).)

The materiality requirement of K.A.S. 60-455 was discussed in State v. Bly, 215 Kan. 168, 523 P.2d 397, in these terms:

'. . . Probative value consists of more than logical relevancy. Evidence of other crimes has no probative value if the fact it is supposed to prove is not substantially in issue. . . .' (Id. 176, 523 P.2d 404.)

In Bly we held, in effect, that 'materiality,' for purposes of K.S.A. 60-455, contemplates a fact which has a legitimate and effective bearing on the decision of the case and is in dispute. If the fact is obvious from the mere doing of an act, or if the fact is conceded, evidence of other crimes to prove that fact should not be admitted because it serves no purpose of justify whatever prejudice it creates. (See 31A C.J.S. Evidence §§ 159, 166 (1964).)

Here, the appellant was charged with possession of a controlled substance with intent to sell. Proof of 'possession' was an essential element of the state's burden. The Uniform Controlled Substances Act, (K.S.A. 65-4101 et seq.) does not define 'possession.' (See K.S.A. 21-3102(1).) In State v. Neal, 215 Kan. 737, 529 P.2d 114, we defined 'possession,' citing PIK Criminal, Ch. 53.00, at p. 69 (1971):

'Possession: Having control over a place or thing with knowledge of and the intent to have such control. State v Metz, 107 Kan. 593, 193 P. 177 (1920); City of Hutchinson v. Weems, 173 Kan. 452, 249 P.2d 633 (1952) . . ..'

The prior conviction was offered to prove knowledge, intent and absence of mistake. Both knowledge and absence of mistake are factors bearing on intent. Knowledge signifies awareness and is a requirement for 'possession.'

'Knowledge of the presence of a narcotic or dangerous drug as embraced within the concept of physical control with the intent to exercise such control is essential. . . .' (28 C.J.S. Drugs and Narcotics Supplement § 160 (1974) p. 235.)

Absence of mistake simply denotes an absence of honest error; evidence of prior acts illustrates the doing of the criminal act in question was intentional. Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, 20 Kan.L.Rev. 411 (1972).

Evidence of the prior conviction was offered essentially to prove the specific intent required for 'possession.' Control was shown by circumstantial...