State v. Rosa

• Decision Date: 27 May 2016
• Docket Number: No. 108,807,108,807
• Citation: 304 Kan. 429,371 P.3d 915
• Parties: State of Kansas, Appellee, v. Gregory Stuart Rosa, Appellant.
• Court: Kansas Supreme Court

304 Kan. 429

371 P.3d 915

State of Kansas, Appellee,

v.Gregory Stuart Rosa, Appellant.

No. 108,807

Supreme Court of Kansas.

Opinion filed May 27, 2016

Korey A. Kaul, of the Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Adam Y. Zentner, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by Stegall

, J.:

Gregory Rosa challenges his conviction for possession of methamphetamine on three grounds: (1) the evidence was insufficient; (2) evidence of his prior drug use was improperly admitted; and (3) prosecutorial misconduct. We find no reversible error and affirm.

Factual and Procedural Background

On January 27, 2011, law enforcement officers executed a search warrant for a methamphetamine laboratory in Rosa's home in Leavenworth County, Kansas. The house had four long-term residents. Rosa and Maureen Evans were in a relationship at the time and lived together in the upstairs master bedroom where they were found during the raid. Randall Smith lived in a bedroom on the main floor. Smith was found hiding behind a water heater in the basement. Joshua Sigler also lived in the house but was not present during the raid. Brian Brice and O'rian Heckman were also in the house in a separate bedroom during the raid. Neither lived at the house, but both would sometimes “crash there.” Rosa owned the home and paid the utilities. Smith, Sigler, and Evans did not lease their rooms or otherwise pay rent.

The raid occurred following an investigation into the suspicious behavior of Evans, Smith, Brice, Heckman, and Sigler, who had purchased Sudafed

, a known drug precursor, multiple times throughout that month. Video from a Walmart on January 13, 2011, showed Heckman purchasing Sudafed while accompanied by Brice and Smith and then getting into a car owned by Rosa, although Rosa was not present. Video from the 14th showed Evans purchasing Sudafed. Slightly over an hour later, the video showed Brice purchasing Sudafed. On the 15th, video showed Sigler purchasing Sudafed, and then Heckman purchased Sudafed again approximately 15 minutes later.

At another store, a Walgreens, a log of pseudoephedrine

purchases showed that on January 11, 2011, Sigler purchased Sudafed followed by Brice purchasing Sudafed 4 minutes later. The log showed Sigler purchasing more Sudafed on the 16th, Heckman purchasing on the 17th, and Brice purchasing on the 26th. Police had stopped Sigler's vehicle earlier that January in relation to a robbery at a pharmacy and found several stolen bottles of tincture of iodine, another substance known to be used in the manufacture of methamphetamine. Smith, Brice, and Heckman were in Sigler's vehicle during the stop.

During the raid, police officers found evidence of an active red “P”—also called “red phosphorous” or “red and black”—methamphetamine laboratory in Smith's bedroom. There, officers discovered methamphetamine in a “sludge” inside a coffee pot. Testimony established Smith was cooking red “P” methamphetamine in that coffee pot the morning of the raid. Various containers of liquid containing methamphetamine were also found in Smith's closet, inside a green bag, and hidden inside the lining of a coat found in the room. Methamphetamine residue was found on a glass pie plate under Smith's bed. Much of the testimony of investigating officers was spent detailing the many items related to manufacturing methamphetamine found in Smith's bedroom. Officers also found a small plastic bag containing crystal “ice” methamphetamine residue hidden in a sunglasses case inside a dresser in a storage room used by Evans for her clothing, jewelry, and other personal items. Officers did not find methamphetamine in the common areas of the home or the master bedroom.

At trial, the State presented evidence of Rosa's prior drug use and general acquaintance with methamphetamine. Brice testified that Rosa used methamphetamine in front of him. Sigler testified that Rosa had been present at the house while he used methamphetamine and that he saw Rosa using drugs. Heckman testified that she had used drugs at Rosa's house with Rosa, Smith, Brice, Evans, and Sigler. Evans testified that she was aware of drug use at the house prior to Smith moving in. Additionally, during trial, the State asked Evans, “How did you get your meth?” and she replied, “From Greg [Rosa].” The State then repeated this, asking, “You got your meth from [Rosa]?” Evans replied, “Yes.”

Smith's testimony made it clear that he had operated a methamphetamine lab that produced red “P” methamphetamine in his bedroom. Brice testified that he and Heckman were also present in the room while Smith cooked the methamphetamine. Brice himself had been present when Smith cooked 10 to 15 times. According to Brice, Smith was in the process of cooking the methamphetamine the morning the raid occurred.

Evans testified Rosa directed her to drive the others to the store while he was at work because he suspected “they were up to no good.” When asked whether Rosa did not want to be associated with the others, Evans replied, “Yes. That's why he wanted the errand running done while he was at work or not at all is what he said.”

Evans further testified that Rosa had been in Smith's room, although she could not say what occurred in the room. Evans said there were times when Rosa would go with Smith into Smith's room and the door would be closed and locked. Evans also testified that she and Rosa had previously cleaned Smith's room. Evans said they discovered “[p]araphernalia and needles” as well as red marks and burn marks on the carpet while cleaning. Evans testified that Rosa had to replace the carpet because of the damage.

Additionally, there was testimony that Rosa smelled the cook in Smith's bedroom. Brice testified that once on Rosa's day off, when Smith was cooking methamphetamine, Rosa commented that he smelled something coming through the door of Smith's bedroom. Finally, Sigler testified that he told Rosa to kick Smith out because he was making methamphetamine. He told Rosa to get rid of Smith “[f]ive to ten” times, and he testified, “[Rosa] has been told on many occasions to get rid of [Smith] because of what he was doing.”

The State prosecuted Rosa on the theory that he possessed the methamphetamine found in his house. The State intended to prove its case by demonstrating that Rosa owned and exercised general control over all areas in the house and that he knew methamphetamine was in the house. Rosa defended against the charge of possession primarily by attempting to establish, through witnesses and arguments of counsel, that he did not know the other residents of the house were cooking and keeping methamphetamine in his house. In other words, Rosa did not deny he owned the premises or that the drugs were found on his premises, he only denied his knowledge of and intent to possess those drugs.

AnalysisThe evidence was sufficient .

Our standard of review on sufficiency challenges is well known and often stated: “When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. McClelland , 301 Kan. 815, 820, 347 P.3d 211 (2015)

.

As illustrated by the jury instructions, the charge Rosa was ultimately convicted of required the State to prove:

“1. That the defendant intentionally possessed methamphetamine; and

“2. That this act occurred on or about the 27th day of January 2011, in Leavenworth County, Kansas.”

See K.S.A. 2010 Supp. 21–36a06(a)

. Kansas law defines possession as “having joint or exclusive control over an item with knowledge of and 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.” K.S.A. 2010 Supp. 21–36a01(q).

Viewing the evidence in a light most favorable to the State, we have no difficulty concluding that the evidence was sufficient to prove that Rosa owned the premises, exercised lawful and factual control over all areas of the house, and knew there was methamphetamine present in the house—most significantly, in Smith's bedroom cook operation. Rosa was in and out of Smith's bedroom contemporaneously with the cook operation; he saw the cook; he smelled the cook; and he was told repeatedly about the cook by other guests and residents of the home. The question presented by this case is whether these facts, once sufficiently proven as they have been here, are legally sufficient to support the charge of possession.

“ ‘A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.’ ” McClelland , 301 Kan. at 820, 347 P.3d 211

(quoting State v. McCaslin , 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030 [2011] ). Thus, we must decide whether the State presented sufficient circumstantial evidence to prove that Rosa had “joint or exclusive control over an item with knowledge of and intent to have such control.” See K.S.A. 2010 Supp. 21–36a01(q). To the extent we must interpret and apply the statutory definition of possession, our review is unlimited. State v. Eddy , 299 Kan. 29, 32, 321 P.3d 12 (2014).

Normally, when a person is the sole occupant of a room or residence there is a logical inference of their dominion and control over the objects in that room or residence. See State v. Walker , 217 Kan. 186, 189–90, 535 P.2d 924 (1975)

. Although we allow the State to prove knowledge and intent by circumstantial evidence, when a defendant is in nonexclusive possession of the premises on which illegal drugs are found, the mere presence of or access to the drugs, standing alone, is insufficient to demonstrate possession absent other...