State v. Graham

• Decision Date: 20 January 1989
• Docket Number: No. 60988,60988
• Citation: 244 Kan. 194,768 P.2d 259
• Parties: STATE of Kansas, Appellee, v. Ronald GRAHAM, Appellant.
• Court: Kansas Supreme Court

Page 259

768 P.2d 259

244 Kan. 194

STATE of Kansas, Appellee, v. Ronald GRAHAM, Appellant.

No. 60988.

Supreme Court of Kansas.

Jan. 20, 1989.

Syllabus by the Court

1. The admission of certified copies of a defendant's two prior narcotics convictions and testimony regarding some of the occurrences surrounding those convictions, pursuant to K.S.A. 60-455, to show a material fact other than that defendant had a disposition to commit a crime, was proper.

2. When an accused has not been given notice of his rights as required by Miranda, the admissions made by the accused to police officers are inadmissible in the State's case in chief to establish guilt. The statements can be used for impeachment where (1) such statements are inconsistent with the accused's trial testimony bearing directly on the crimes charged, and (2) the accused's statements were not coerced or involuntary.

Thomas Jacquinot, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Deputy Appellate Defender, and Benjamin C. Wood, Chief Appellate Defender, were with him on the briefs for appellant.

Steven L. Opat, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

LOCKETT, Justice:

Ronald Graham appeals his convictions of one count of possession of methamphetamine, K.S.A. 1987 Supp. 65-4127b(b)(2); one count of possession of marijuana, K.S.A. 1987 Supp. 65-4127b(a)(3); and one count of possession of cocaine, K.S.A. 65-4127a. Due to two prior narcotics convictions, Graham was sentenced to life imprisonment. K.S.A. 65-4127a.

On November 6, 1986, Junction City police officer James Nixon, knowing that he had issued Ronald Graham a traffic ticket for driving with a suspended license, stopped a blue Camaro driven by Graham. The car was registered in the name of Alan Marks. Aware that a bench warrant had been issued for Graham's arrest that morning because of Graham's failure to appear for his court date, Nixon arrested Graham.

Nixon noticed that Graham's eyes appeared irritated and were extremely bloodshot. Nixon then searched Graham for weapons and contraband. In the watch pocket of the jeans Graham was wearing, Nixon found a plastic packet containing cocaine residue. In the lower right pocket of the black jacket Graham was wearing, Nixon found a plastic sandwich bag with eight small plastic packages containing cocaine. Between the bucket seat on the driver's side and the center console, the officer found a large plastic bag containing a large amount of methamphetamine. Within the center console, Nixon found another plastic bag containing marijuana. Finally, Nixon found three hand-rolled marijuana cigarettes. After Graham was booked into jail, another packet of marijuana was discovered in the jacket.

At Graham's trial, the State presented three witnesses, including Officer Nixon, who testified regarding the arrest. Certified copies of Graham's two prior narcotics convictions were also admitted into evidence.

Graham took the stand and testified that, on the day before his arrest, he and a friend, Steve Miller, were doing body work on the Camaro which belonged to their friend Alan Marks. He further stated that, after working on the car, he and Miller went to a club to have drinks. They left the club about 11:30 p.m. and ran into Alan Marks, who borrowed Graham's jacket.

Graham further testified that he spent the night at Miller's house. Waking during the night, he discovered that he had urinated in his pants. He went to the bathroom, disrobed and washed, and went back to sleep. Upon awakening the next day, he realized he was late for his court appearance. Since his pants were still wet, he put on Miller's pants, his own shirt, and Miller's jacket. He then drove Alan Marks' Camaro in the direction of the courthouse and was stopped by Officer Nixon. Graham stated that, when he was stopped by the officer, he believed his eyes appeared red and irritated because he had not worn glasses while working on Marks' automobile and may have received some weld burns to his eyes.

Though Graham had contended that (1) all the contraband found was located in clothing which did not belong to him and in an automobile which was not his, and (2) he had no knowledge of the presence of or intent to possess any of the drugs, the jury convicted him of one count each of possession of marijuana, possession of methamphetamine, and possession of cocaine. He appeals, raising numerous issues.

Initially, Graham argues that the admission of the certified copies of his two prior narcotics convictions and the testimony of two witnesses regarding some of the occurrences surrounding those convictions were erroneously introduced in the State's case in chief solely to prove his disposition to commit the offenses charged. The State claims the evidence of Graham's prior convictions was properly admitted to show knowledge, intent, and absence of mistake or accident under K.S.A. 60-455, which provides:

"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."

In ruling on the admissibility of other crimes evidence under K.S.A. 60-455, the trial court must: (1) determine if the evidence is relevant to prove one of the facts specified in the statute; (2) determine that fact is a disputed, material fact; and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury. State v. Breazeale, 238 Kan. 714, 719, 714 P.2d 1356, cert. denied 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 102 (1986) (citing State v. Myrick & Nelms, 228 Kan. 406, 420, 616 P.2d 1066 [1980]; State v. Bly, 215 Kan. 168, 523 P.2d 397 [1974].

Here, Graham is charged with possession of a controlled substance. Proof of possession is 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. In State v. Neal, 215 Kan. 737, 740, 529 P.2d 114 (1974), we cited with approval PIK Crim. 53.00 (now PIK Crim.2d 53.00), which defines "possession" as having control over a place or thing with knowledge of and the intent to have such control. See City of Hutchinson v. Weems, 173 Kan. 452, 249 P.2d 633 (1952); State v. Metz, 107 Kan. 593, 193 Pac. 177 (1920). This definition was also approved in State v. Adams, 223 Kan. 254, 256, 573 P.2d 604 (1977).

Because Graham's possession of the illegal substance itself may be susceptible to two interpretations, one innocent and the other criminal, then the intent with which the act was committed becomes the critical element in determining its character. State v. Nading, 214 Kan. 249, 254, 519 P.2d 714 (1974). Both knowledge and absence of mistake are factors relevant to 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, 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). See State v. Faulkner, 220 Kan. 153, 156-57, 551 P.2d 1247 (1976).

First, we will examine whether the certified copies of Graham's two prior convictions could be admitted under 60-455 to raise an inference that he was familiar with the controlled substance and had knowledge of and intended to exercise control over the substance. In State v. Faulkner, 220 Kan. 153, 551 P.2d 1247, the defendant claimed that, without a showing of the underlying facts and circumstances of the prior offense, the admission of the journal entry of judgment of his prior drug convictions to show intent, knowledge, and absence of mistake was improper. There, we found that 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 properly within the trial court's discretion. Here, unlike in Faulkner, sufficient evidence was presented to show the similarity of Graham's prior offenses. Therefore, the admission of the two certified copies of Graham's two prior convictions to show intent or knowledge was correct.

Without citations for support, Graham further attempts to distinguish the admission of the certified copies of his prior convictions into evidence under Faulkner by a somewhat convoluted argument that Faulkner only applies to specific intent crimes. We disagree with this argument. K.S.A. 60-455 does not distinguish between specific intent and general intent crimes, but rather provides that other crimes evidence is admissible on the issue of "intent." In addition, in State v. Crowley, 220 Kan. 532, 552 P.2d 971 (1976), we held admissible a prior conviction for simple possession where the defendant was charged with intent to possess heroin.

The crucial distinction in admitting other crimes evidence under 60-455 on the issue of intent is not whether the crime is a specific or general intent crime, but whether the defendant has claimed that his acts were innocent. Where criminal intent is obviously proved by the mere doing of an act, the introduction of other crimes evidence has no real probative value to prove intent. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). In Bly, we reasoned that, where an armed robber...