State v. Flinchpaugh, No. 54756
| Court | United States State Supreme Court of Kansas |
| Writing for the Court | FLOYD H. COFFMAN; Burch |
| Citation | 659 P.2d 208,232 Kan. 831 |
| Parties | STATE of Kansas, Appellant, v. Janet P. FLINCHPAUGH, Appellee. |
| Decision Date | 19 February 1983 |
| Docket Number | No. 54756 |
Page 208
v.
Janet P. FLINCHPAUGH, Appellee.
Page 209
1. Possession of a controlled substance requires having control over the substance with knowledge of and the intent to have such control. Knowledge of the presence of the controlled substance with the intent to exercise control is essential.
2. Control as used in K.S.A. 65-4127a means to exercise a restraining or directing influence over the controlled substance.
3. Once a controlled substance is within a person's system, the power of the person to control, possess, use, dispose of, or cause harm is at an end. The drug is assimilated by the body and the ability to control the drug is beyond human capabilities. Presence of the substance in the blood is not possession or control of the substance within K.S.A. 65-4127a.
4. Circumstantial evidence is evidence that tends to prove a fact in issue by proving other events or circumstances which, according to the common experience of mankind, are usually or always attended by the fact in issue, and therefore affords a basis for a reasonable inference by the jury or court of the occurrence of the fact in issue. Casey v. Phillips Pipeline Co., 199 Kan. 538, Syl. p 6, 431 P.2d 518 (1967).
5. In a criminal prosecution, the defendant must be proven guilty beyond a reasonable doubt of each element of the crime charged. State v. Douglas, 230 Kan. 744, Syl. p 1, 640 P.2d 1259 (1982).
6. Discovery of a controlled substance in a person's bloodstream is circumstantial evidence tending to prove prior possession of the substance, but it is not sufficient evidence to establish guilt beyond a reasonable doubt of possession or control of the substance. A blood test alone fails to establish knowledge of the presence of the substance and the intent to exercise control over the substance.
7. The purpose of the Uniform Controlled Substances Act is to control illicit and legitimate drug traffic. Once a controlled substance is in the bloodstream it is beyond the control which the uniform act contemplated.
Keith D. Hoffman, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief for appellant.
No appearance by appellee.
[232 Kan. 832] FLOYD H. COFFMAN, District Judge, Assigned:
The State of Kansas appeals the dismissal of its prosecution against Janet Flinchpaugh for possession of cocaine, its salts, isomers, and salts of isomers, pursuant to K.S.A. 65-4127a and K.S.A. 65-4107(b )(5). Possession of cocaine is a class C felony. The defendant was charged with involuntary manslaughter in a separate prosecution.
Following a preliminary hearing the magistrate found probable cause. The defendant moved to dismiss and the parties stipulated to these facts. Janet Flinchpaugh, while driving in Abilene, Kansas during the late evening hours of November 13, 1981, was involved in an automobile collision. As
Page 210
a result of the impact, the driver of the other car died. Defendant suffered injuries and was taken to the hospital where she consented to the drawing of her blood. Samples of her blood were sent to the Kansas Department of Health and Environment in Topeka. Cocaine and/or benzoylecgonine was found in the blood samples. Benzoylecgonine is a metabolite of cocaine. In order for traces to be in the blood, cocaine must first have been present. The State had no direct evidence of how or when the chemicals were introduced into the defendant's system. The charge of possession is based solely on the result of the testing of the defendant's blood. The trial court, taking the case under advisement following oral argument, observed: "[A] controlled substance in the system controls the body and it is impossible to control the substance once in the bloodstream." Later, by memorandum decision, Judge Christner sustained the defendant's motion to dismiss stating "[a] human being does not possess a narcotic drug which is located in his bloodstream." The State appeals the dismissal through K.S.A. 22-3602(b )(1), and (b )(3). (Jurisdiction is taken under the former.)The State's information charged the defendant with unlawfully, feloniously, and willfully possessing or having under her control cocaine, its salts, isomers, and salts of isomers. The relevant statutes are K.S.A. 65-4127a and K.S.A. 65-4107(a ) and (b )(5):
"Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture, possess, have under his control, possess with intent to sell, sell, prescribe, administer, deliver, distribute, dispense or compound any opiates, opium or narcotic drugs. Any person who violates this section shall be guilty of a class C felony, except that, upon [232 Kan. 833] conviction for the second offense, such person shall be guilty of a class B felony, and upon conviction for a third or subsequent offense, such person shall be guilty of a class A felony, and the punishment shall be life imprisonment."
"(a ) The controlled substances listed in this section are included in schedule II;
"(b ) any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin or independently by means of chemical synthesis or by combination of extraction and chemical synthesis: ....
....
(5) cocaine, its salts, isomers and salts of isomers."
These statutes are similar to the Uniform Controlled Substances Act. This court in State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976), in an opinion by Chief Justice Fatzer, observed:
"The Uniform Controlled Substances Act, (K.S.A. 65-4101 et seq.) does not define 'possession.' (See K.S.A. 21-3102.) 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).....
To continue reading
Request your trial
-
State v. Grissom, No. 66268
...inference by the jury or court [251 Kan. 880] of the occurrence of the fact in issue. [Citation omitted.]" State v. Flinchpaugh, 232 Kan. 831, 835, 659 P.2d 208 Grissom cites State v. Doyle, 201 Kan. 469, 478-799, 441 P.2d 846 (1968), for the proposition that in order to prove corpus delict......
-
State v. Northrup, No. 65911
...doubt of each element of the crime charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Flinchpaugh, 232 Kan. 831, 835, 659 P.2d 208 (1983). When the sufficiency of the evidence is challenged, the standard of appellate review is whether, after reviewing all o......
-
U.S. v. Blackston, No. 90-3750
...testimony. Id. at 140-41, 258 A.2d at 770-71 (footnote omitted). 19 2. The Supreme Court of Kansas's decision in State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208 (1983), typifies the second category. In Flinchpaugh, samples of the defendant's blood, which were extracted following an automob......
-
Schaill by Kross v. Tippecanoe County School Corp., No. 88-1288
...premises or elsewhere. See, e.g., People v. Spann, 187 Cal. App. 3d 400, 403-09, 232 Cal. Rptr. 31, 32-36 (1986); State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208, 211-13 Throughout the proceedings before the district court and on appeal, TSC has consistently disclaimed any intention to emp......
-
State v. Grissom, No. 66268
...inference by the jury or court [251 Kan. 880] of the occurrence of the fact in issue. [Citation omitted.]" State v. Flinchpaugh, 232 Kan. 831, 835, 659 P.2d 208 Grissom cites State v. Doyle, 201 Kan. 469, 478-799, 441 P.2d 846 (1968), for the proposition that in order to prove corpus delict......
-
State v. Northrup, No. 65911
...doubt of each element of the crime charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Flinchpaugh, 232 Kan. 831, 835, 659 P.2d 208 (1983). When the sufficiency of the evidence is challenged, the standard of appellate review is whether, after reviewing all o......
-
U.S. v. Blackston, No. 90-3750
...testimony. Id. at 140-41, 258 A.2d at 770-71 (footnote omitted). 19 2. The Supreme Court of Kansas's decision in State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208 (1983), typifies the second category. In Flinchpaugh, samples of the defendant's blood, which were extracted following an automob......
-
Schaill by Kross v. Tippecanoe County School Corp., No. 88-1288
...premises or elsewhere. See, e.g., People v. Spann, 187 Cal. App. 3d 400, 403-09, 232 Cal. Rptr. 31, 32-36 (1986); State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208, 211-13 Throughout the proceedings before the district court and on appeal, TSC has consistently disclaimed any intention to emp......