State v. Kneisel
| Decision Date | 10 July 2015 |
| Docket Number | 111,544. |
| Citation | 353 P.3d 470 (Table) |
| Parties | STATE of Kansas, Appellee, v. Christopher KNEISEL, Appellant. |
| Court | Kansas Court of Appeals |
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.
Christopher Kneisel appeals from his conviction by a jury of possession of marijuana. He first argues that there was insufficient evidence that he knowingly possessed the marijuana found in his vehicle. He also argues that the district court violated his statutory and constitutional rights by submitting a written answer to a jury question. Finally, he argues that the State should have been required to prove his criminal history to the jury beyond a reasonable doubt. We find no reversible error and affirm the conviction and sentence.
On December 15, 2012, Officers Michael Malloy and Natalie Monas of the Kansas State University Police Department were on patrol in Manhattan. Around 5 p.m., Officer Malloy, who was driving, initiated a traffic stop when he noticed a Ford Crown Victoria with no visible license plate. After approaching the vehicle, Officer Malloy spoke with the driver, Kneisel, who was the only person in the vehicle. Kneisel was smoking a tobacco cigarette. Officer Malloy discovered that the vehicle's license plate had inadvertently fallen down in the back window, so he returned to the police car and verified that Kneisel was the vehicle's registered owner.
While Officer Malloy was preparing to issue him a warning for not correctly displaying the license plate, Kneisel opened his car door and placed a foot outside of the vehicle. Pursuant to his training, Officer Malloy immediately told Kneisel to get back in the vehicle. However, Kneisel turned towards Officer Malloy and began asking what he had done wrong. Both Officers Malloy and Monas began to approach the vehicle when Officer Monas—who was approaching the passenger side—alerted Officer Malloy that Kneisel was holding a knife. Officer Malloy drew his gun, and after Kneisel dropped the knife, they handcuffed and arrested him.
Shortly thereafter, an officer with the Riley County Police Department arrived with a dog trained to smell for drugs. When the dog indicated the presence of contraband, the officers searched the car and found forceps, rolling papers, clippers with a black, tarlike substance on the end, as well as used and unused syringes. In the car's ashtray, which was exposed, the officers also found a small bud of marijuana. Later, Officer Malloy tried to weigh the bud, but it was too light to register on the scale.
The State charged Kneisel with one count each of possession of marijuana and possession of drug paraphernalia. Since Kneisel had been previously convicted of possession of marijuana, the second possession of marijuana charge was a drug severity level 5 felony pursuant to K.S.A.2012 Supp. 21–5706. The district court conducted a jury trial on September 12, 2013, during which Officer Malloy testified for the State and Kneisel testified on his own behalf. Before the parties presented their evidence, the State moved to dismiss the possession of drug paraphernalia count, which the district court granted. Officer Malloy testified that smokers often use forceps to hold the remaining portion of a marijuana cigarette so that they can finish smoking it without burning their fingers. He also stated that rolling papers are often used to roll marijuana cigarettes. Officer Malloy stated that he noticed a loose substance in the vehicle, which he believed was marijuana shake. However, he agreed on cross-examination that he could not verify that it was marijuana since the officers did not test the substance.
Kneisel testified that he did not know that the marijuana bud was in his car. He also stated that he told police shortly after he was arrested that if he had known about the marijuana bud, he “would have smoked it already.”
About one hour after the jury began deliberations, the district court received a written note from a juror that asked, “When did [Kneisel] take possession of the vehicle?” After considering possible written responses with defense counsel, Britain Stites, and the prosecutor, Kendra Lewison, the district court summed up the discussion and agreement:
Ultimately, the jury found Kneisel guilty of possession of marijuana. Kneisel filed a motion for a new trial and judgment of acquittal, both of which the district court denied.
On January 6, 2014, the district court sentenced him to an underlying sentence of 20 months' imprisonment and granted a dispositional departure by ordering him to serve 12 months' probation. Kneisel filed a timely notice of appeal.
When reviewing the sufficiency of the evidence, this court reviews all the evidence in the light most favorable to the prosecution and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or determine a witness' credibility. 299 Kan. at 525, 324 P.3d 1078. Only in rare cases where the testimony is so incredible that no reasonable fact finder could find the defendant guilty beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983). Circumstantial evidence may support a verdict of even the gravest offense if the evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014).
Kneisel argues that there was insufficient evidence to find that he possessed the marijuana found in his vehicle. Possession of a controlled substance means having joint or exclusive control over an item with knowledge of and the intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control. State v. Tucker, 253 Kan. 38, 43, 853 P.2d 17 (1993) ; State v. Beaver, 41 Kan.App.2d 124, 129, 200 P.3d 490 (2009) ; PIK Crim. 4th 57.040. Control means to exercise restraining or directing influence over a certain object. State v. Flinchpaugh, 232 Kan. 831, 833–34, 659 P.2d 208 (1983). Possession may be immediate and exclusive, jointly held with another, or constructive, as when marijuana is kept by the accused in a place where he has some measure of access and right of control. State v. James, 48 Kan.App.2d 310, 330, 288 P.3d 504 (2012) (citing State v. Dean, 42 Kan.App.2d 32, 38, 208 P.3d 343 [2009] ), rev. granted 298 Kan. 1206 (2013). Both possession and intent can be shown by circumstantial evidence. State v. Gunn, 29 Kan.App.2d 337, 343, 26 P.3d 710, rev. denied 212 Kan. 1421 (2001).
Kneisel argues that the marijuana bud was so small, that it would not “have alerted him that he possessed it.” Although, he asserts that he may have at some point possessed the marijuana, he asserts that he did not on December 15, 2012. Kneisel presents no authority to suggest that this is the proper understanding of possession.
The evidence shows Kneisel was the registered owner of the Crown Victoria and he was the only person in the vehicle when Officer Malloy conducted the traffic stop. Kneisel did not testify, nor does the evidence suggest, that anyone else had access to the vehicle. The evidence also establishes that the ashtray which contained the marijuana bud was open and exposed to the driver. Thus, the evidence supports the conclusion that Kneisel was in exclusive possession of the vehicle and had exclusive access to the marijuana. See Dean, 42 Kan.App.2d at 38, 208 P.3d 343.
In addition, the officers found rolling papers, clippers with a black, tar-like substance on the end, as well as forceps, which Officer Malloy testified are often used to smoke the remaining portion of marijuana cigarettes. The only evidence suggesting that Kneisel was not aware of the presence of the marijuana was the small size of the bud and Kneisel's somewhat disingenuous and self-serving excuse, which the jury was free to consider and reject. Viewing the facts in a light most favorable to the prosecution, they support the finding that Kneisel knew of the marijuana's presence, providing sufficient evidence to find him guilty of possession.
Kneisel's next claim—that the district court deprived him of his statutory and constitutional rights to be present during a critical portion of the trial—implicated legal questions that are subject to unlimited review on appeal. State v. Killings, 301 Kan. 214, 340 P.3d 1186 (2015).
Kneisel recognizes that he did not raise this issue below. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before this court. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). However, our Supreme Court has recently held that “[t]he personal nature of the defendant's statutory and...
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