State v. George, 88,920

• Decision Date: 04 April 2003
• Docket Number: No. 88,920,88,920
• Citation: 65 P.3d 1060,31 Kan.App.2d 430
• Parties: STATE OF KANSAS, Appellee, v. ROGER CLARK GEORGE, Appellant.
• Court: Kansas Court of Appeals

31 Kan.App.2d 430

65 P.3d 1060

STATE OF KANSAS, Appellee, v. ROGER CLARK GEORGE, Appellant.

No. 88,920

Court of Appeals of Kansas

Opinion filed April 4, 2003.

David R. Gilman, of Overland Park, and John Jenab, of Jenab & Kuchar, of Olathe, for appellant.

Melissa D. Thiesing, county attorney, and Carla J. Stovall, attorney general, for appellee.

Before BEIER, P.J., WAHL, S.J., and PADDOCK, S.J.

WAHL, J.:

Roger Clark George appeals his convictions of possession of marijuana, criminal possession of a firearm, no drug tax stamp, and possession of drug paraphernalia. On September 12, 2000, officers with the Neosho County Sheriff's office received information from a confidential informant (CI) that Roger Clark George was growing marijuana north of his residence in a heavily-wooded area. The CI also said George was starting to pick the marijuana for drying and he usually used a four-wheel ATV to check and harvest the marijuana. According to the CI, George was also known to grow marijuana south of his residence. On September 26, 2000, officers received an anonymous call stating George was growing marijuana north and south of his residence.

On September 29, 2000, officers conducted a flyover of the property at issue, which was owned by George's mother. During the flyover, officers saw what they believed to be marijuana. This prompted Officer Taylor to walk the property, at which time he saw a small building approximately 200-300 yards from George's house and across a county-line road. Through an uncovered window on the building, Officer Taylor saw marijuana hanging from a string.

At the time Officer Taylor saw the marijuana in the building, he had not yet walked the entire property and had not discovered any growing marijuana. After seeing marijuana in the building, Taylor ceased walking the property and set up surveillance of the building with other officers. During surveillance, officers watched as George arrived at the building on a four-wheel ATV. George entered the building, and the officers arrested him when he came out. Officers did not enter the building at this time.

Officer Taylor applied for a search warrant. At the time of the application, he was unaware there was no marijuana growing on George's property as he had ceased walking the property upon seeing marijuana in the building. The judge issued the search warrant. The resulting search revealed 10 marijuana plants in the building and marijuana in George's truck.

The State charged George with possession of marijuana, a violation of K.S.A. 65-4162(a)(3), possession of drug paraphernalia, a violation of K.S.A. 65-4152(a)(3), criminal possession of a firearm, a violation of K.S.A. 2002 Supp. 21-4204(a)(4), and no drug tax stamp, a violation of K.S.A. 79-5208. George posted bond pending trial.

George filed a motion to suppress evidence, arguing, in part, the affidavit supporting the application for a search warrant failed to state that some information provided by the CI was untrue. The court overruled the motion.

George was arraigned on May 2, 2001, and his jury trial was scheduled for September 26-27, 2001. At the State's request, George agreed to reschedule the trial to October 24-25 because a KBI chemist was unavailable for the September dates. Soon after rescheduling the trial, the State learned two key officers, Officer Taylor being one, were unavailable for the October dates. The State attempted to reschedule the trial within the statutory 180-day limit, which was identified by the State as on or before November 2, 2001, but no trial dates were available with the court during that time. The soonest available dates were December 13-14, which fell within 90 days after the expiration of the 180-day period.

After confirming that all witnesses were available for the December dates, the State filed a motion for continuance due to the absence of a material witness and attached an affidavit as required by K.S.A. 60-240(c) in support thereof. The affidavit explained the anticipated content of the two officers' testimony, namely that their testimony would relate to facts supporting the search warrant and the evidence subsequently seized. The affidavit also stated the officers would be out of state on the October dates and were unavailable for the trial.

The court held a hearing on the State's motion during which George objected to the continuance. After the State reiterated what prompted the need for a continuance, the court found there was good cause and granted the State's motion for a continuance and set George's trial for December 13-14.

George filed a motion to dismiss pursuant to K.S.A. 22-3402 for failure to bring him to trial in a timely manner. In the motion, George argued the State failed to make reasonable efforts to procure the material evidence as required by K.S.A. 22-3402(3)(c). The court held another hearing where George argued the State failed to show the case could not proceed to trial without Officer Taylor and Sheriff Keath, noting there were two other officers on the scene at some point. The State explained the import of Officer Taylor's testimony as he took part in the flyover, walked the property, found the building, applied for the search warrant, and Mirandized and interviewed George. The State described Officer Taylor as the "main witness" in the case.

The State argued circumstances regarding the need for the continuance were out of its control because the officers would be out of town on the October dates and the State attempted, to no avail, to reschedule the trial within the 180-day limit....