State v. Smith

• Decision Date: 07 December 1979
• Docket Number: No. 50274,50274
• Citation: 603 P.2d 638,4 Kan.App.2d 149
• Parties: STATE of Kansas, Appellee, v. Tyrone P. SMITH, Appellant.
• Court: Kansas Court of Appeals

Page 638

603 P.2d 638

4 Kan.App.2d 149

STATE of Kansas, Appellee, v. Tyrone P. SMITH, Appellant.

No. 50274.

Court of Appeals of Kansas.

Dec. 7, 1979.

Syllabus by the Court

1. Intent, like any element of a crime, may be shown by acts, circumstances and inferences deducible therefrom.

2. In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt?

3. In order to sustain a conviction for possession of narcotics or dangerous drugs for purpose of sale, there must be sufficient proof of possession of such drugs, and proof that the possession was for the purpose of sale. Such proof may be circumstantial and may consist of evidence as to quantity of the narcotic, equipment found with it, place it was found, manner of packaging, and opinion of experts that the narcotic was packaged for sale.

4. In the absence of competent evidence that one pound of marijuana is more than a reasonable amount for an individual's personal use, possession of that quantity is insufficient standing alone to support an inference that it is possessed for sale.

5. Where the state's evidence shows that marijuana may be purchased by the handful, by the brick, by the bag, or by the cigarette, and there is no evidence that any one of these forms is more characteristic of marijuana for sale than the others, the fact that marijuana is packaged in brick form does not support an inference that it is packaged for sale.

6. Simple possession of marijuana under subsection (A ) of K.S.A.1978 Supp. 65-4127b is a lesser included offense of possession with intent to sell under subsection (B ) of that statute.

7. The appropriate remedy where a defendant has been convicted of a higher offense but the evidence supports only a lesser included offense is to sentence the defendant for the lesser offense.

8. In a prosecution for possession of marijuana with intent to sell where the only probative evidence on intent was that the marijuana was in the form of a one-pound brick it is Held : (a) to find an intent to sell the jury could only have indulged in pure speculation rather than drawing reasonable inferences from the evidence; and (b) defendant should be resentenced for simple possession of marijuana.

Stephen M. Joseph of Glover, Joseph & Bergman, Wichita, for appellant.

Douglas R. Roth, Asst. Dist. Atty., Robert T. Stephan, Atty. Gen., and Vern Miller, Dist. Atty., for appellee.

Before FOTH, C. J., and PARKS and MEYER, JJ.

FOTH, Chief Judge:

Defendant was convicted by a jury of possession of marijuana with intent to sell. K.S.A.1978 Supp. 65-4127b(b). On appeal he contends the evidence was insufficient to establish his intent to sell.

Intent, like any element of a crime, may be shown by acts, circumstances and inferences deducible therefrom. State v. Faulkner, 220 Kan. 153, Syl. P 13, 551 P.2d 1247 (1976); State v. Evans, 219 Kan. 515, 519-20, 548 P.2d 772 (1976). The standard for appellate review where the sufficiency of the evidence is challenged has recently been reformulated in State v. Voiles, 226 Kan. 469, Syl. P 6, 601 P.2d 1121 (1979):

"In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? Following Jackson v. Virginia, --- U.S. ----, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)."

The state's evidence in this case showed that defendant was arrested after officers observed him place a brown paper bag in his car. When approached by the officers as he walked away from the car, defendant first attempted to swallow and then threw away a clear plastic bag containing white powder. That bag was never found, but one of the officers opined from his brief view of it that it contained either heroin or cocaine.

The brown bag in the car proved to contain approximately one pound of marijuana. It was in brick form, and was one-half of the customary two-pound or one kilogram brick. The primary testimony relied on to show that defendant intended to sell the marijuana was given by Detective Jack Henderson, a Wichita detective who had been assigned to narcotics for 31/2 years, part of that time as an undercover agent. His testimony was: (1) When he was making an undercover buy of a one-pound brick his cover story would be that he needed it to sell, not that it was for personal use. (2) The one-pound brick of marijuana was worth $90 to $150, depending on quality. (3) One pound could be broken down into 18 to 20 "one ounce" packages or bags which could be resold for $10 to $15 each. (4) The largest supply he had ever observed being held for personal use was two ounces; he had never seen anyone with a one-pound brick for personal use.

As to the kind of proof which might demonstrate an intent to sell narcotics, in State v. Faulkner, 220 Kan. at 160-1, 551 P.2d at 1254, the Court quoted approvingly from 28 C.J.S. Drugs and Narcotics Supplement § 211:

"In order to sustain a conviction for possession of narcotics or dangerous drugs for purpose of sale, there must be sufficient proof of possession of such drugs, and proof that the possession was for the purpose of sale. Such proof may be circumstantial and may consist of evidence as to quantity of the narcotic, equipment found with it, place it was found, manner of packaging, and opinion of experts that the narcotic was packaged for sale."

As may be seen, the state's evidence upon which it must rely here is essentially limited to the quantity of marijuana and its packaging in brick form. Of the other three elements referred to in Faulkner there is no evidence: there was no narcotics equipment found with the marijuana; the car in which it was found does not suggest a selling operation; and there was no expert opinion that it was packaged for sale. We do...