State v. Flinchpaugh

• Decision Date: 19 February 1983
• Docket Number: No. 54756,54756
• Citation: 659 P.2d 208,232 Kan. 831
• Parties: STATE of Kansas, Appellant, v. Janet P. FLINCHPAUGH, Appellee.
• Court: Kansas Supreme Court

Page 208

659 P.2d 208

232 Kan. 831

STATE of Kansas, Appellant, v. Janet P. FLINCHPAUGH, Appellee.

No. 54756.

Supreme Court of Kansas.

Feb. 19, 1983.

Syllabus by the Court

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.

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 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 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)....'

"... 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.)"

Justice Burch, in a case concerning alleged unlawful possession of liquor, wrote:

"[C]orporeal possession is the continuing exercise of a claim to the exclusive use of a material thing. The elements of this possession are, first, the mental attitude of the claimant, the intent to possess, to appropriate to oneself; and second, the effective realization of this attitude." State v. Metz, 107 Kan. 593, 596, 193 P. 177 (1920).

The editors of PIK Crim.2d 64.06 in defining Unlawful Possession of a Firearm--Felony, added to the requirement in the statute (K.S.A. 21-4204) that the element of "possession of the firearm" be done "knowingly," commenting:

"This construction of the word 'possession' is consistent with many Kansas cases which recognize that the elements of possession require a mental attitude that the possessor intended to possess the property in question and to appropriate it to himself." See State v. Metz, 107 Kan. 593, 193 P. 177, and City of Hutchinson v. Weems, 173 Kan. 452, 249 P.2d 633 (1952).

" 'Control,' as used in [the] statute making it unlawful for any person to possess or control any narcotic drug, is given its ordinary meaning, namely, to exercise restraining or directing influence over ... Speaks v. State, 3 Md.App. 371, 239 A.2d 600, 604." Black's Law Dictionary 298 (5th ed. 1979).

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. The ability to control the drug is beyond human capabilities. The essential element of control is absent. Evidence of a controlled substance after it is assimilated in a person's blood does not establish possession or control of that substance. The Court of Special Appeals of Maryland has agreed:

"Once a narcotic drug is injected into the vein, or swallowed orally, we think it apparent that it is no longer within 'one's control' or held at 'one's disposal.' And it would likewise be beyond the taker's ability to exercise any restraining or directing influence over it. Consequently, once the drug is ingested and assimilated into the taker's bodily system, it is no longer within his control and/or possession in the sense contemplated by Section 277." Franklin v. State, 8 Md.App. 134, 138, 258 A.2d 767 (1969), cert. denied 257 Md. 733 (1970).

See State v. Downes, 31 Or.App. 1183, 572 P.2d 1328 (1977); and State v. Yanez, 89 N.M. 397, 553 P.2d 252 (Ct.App.1976).

The State also contends the presence of a controlled substance in one's bloodstream is sufficient circumstantial evidence alone to prove possession of the substance at the time immediately before the substance was introduced into the person's system. In other words, the person must have possessed the drug before it was ingested.

In Franklin v. State, 8 Md.App. 134, 258 A.2d 767, the defendant was brought to a hospital in a semi-conscious state. Several hours later he acknowledged he had taken heroin; the treating doctor testified the defendant's condition was entirely compatible with having had an overdose of heroin; and this evidence was held sufficient to support a conviction for possession of heroin.

In State v. Yanez, 89 N.M. 397, 553 P.2d 252, the defendant was convicted of possession of morphine. The defendant was observed by police participating in what was thought to be a drug sale. After the occurrence, the defendant purchased two hypodermic needles and went to a service station restroom. There police found...