State v. Strong

• Decision Date: 10 September 2021
• Docket Number: No. 121,865,121,865
• Citation: 499 P.3d 481
• Parties: STATE of Kansas, Appellee, v. Shameke Caesar STRONG, Appellant.
• Court: Kansas Court of Appeals

499 P.3d 481

STATE of Kansas, Appellee,

v.Shameke Caesar STRONG, Appellant.

No. 121,865

Court of Appeals of Kansas.

Opinion filed September 10, 2021.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

David Lowden, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Buser, P.J., Powell and Hurst, JJ.

Powell, J.:

While executing a search warrant at a house located within 1,000 feet of a school, Riley County police encountered Shameke Caesar Strong emerging from a bedroom in the house. A search of this bedroom yielded over 11 grams of methamphetamine. Strong was subsequently charged with and convicted of possession with intent to distribute methamphetamine within 1,000 feet of a school and possession of drug paraphernalia. Strong now appeals his possession with intent to distribute conviction, arguing the rebuttable presumption in K.S.A. 2018 Supp. 21-5705(e) —the statute which allows the jury to infer that Strong intended to distribute methamphetamine because he possessed 3.5 or more grams of methamphetamine—is unconstitutional. He also argues the jury instruction concerning this presumption was erroneous. For reasons we more fully explain below, we conclude K.S.A. 2018 Supp. 21-5705(e) is constitutional and the district court's jury instruction was legally appropriate. Finally, we decline to consider Strong's constitutional challenges to his sentence raised for the first time on appeal. Thus, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 31, 2018, police executed a search warrant on a home in Manhattan, Kansas, located within 1,000 feet of a school. During the search, Strong emerged from a bedroom, surprising police, who did not know he was at the house. Police searched the bedroom Strong exited and found mail addressed to Strong at a different address; cigarettes; lighters; a digital scale; two plastic baggies inside a black case, with one baggie containing 1.4 grams of methamphetamine and the other with 10.24 grams of methamphetamine; and 15 to 20 empty plastic baggies.

The State charged Strong with possession of methamphetamine with intent to distribute within 1,000 feet of school property, in violation of K.S.A. 2018 Supp. 21-5705(a)(1), (d)(3)(C), and (d)(5) ; and possession of drug paraphernalia, in violation of K.S.A. 2018 Supp. 21-5709(b)(1) and (e)(2)(A).

At trial, Detective Michael Parr, one of the officers involved in the search of the home, testified that based on his training and experience, most methamphetamine users have small supplies around one gram that can be broken into smaller doses. He testified people who possess larger amounts usually are looking to sell the methamphetamine.

Strong testified he did not live at the house police searched but was only there to use the shower due to problems with the water main at his house. Because he was planning to shower, Strong brought a bag with clothes and hygiene products and included his mail. Strong claimed he was unaware of any illegal drugs at the house.

The jury convicted Strong on both counts, and the district court sentenced him to 186 months in prison.

Strong timely appeals.

I. IS K.S.A. 2018 SUPP. 21-5705(e) 'S REBUTTABLE PRESUMPTION UNCONSTITUTIONAL ?

Strong argues the rebuttable presumption contained in K.S.A. 2018 Supp. 21-5705(e) is facially unconstitutional because it creates a mandatory presumption relieving the State from its burden to prove a defendant guilty beyond a reasonable doubt. The State counters the statute merely creates a permissive presumption which is applicable when a defendant possesses a certain amount of a drug, a presumption that the jury may reject.

Standard of Review

Determining the constitutionality of a statute is a legal question reviewed de novo. A presumption of constitutionality exists, and courts " ‘must resolve all doubts in favor of a statute's validity. Further, [a court] must interpret a statute in a manner that renders it constitutional if there is any reasonable construction that will maintain the legislature's apparent intent. [Citations omitted.]’ " State v. Gonzalez , 307 Kan. 575, 579, 412 P.3d 968 (2018).

"When interpreting a statute, a court first attempts to discern legislative intent through the statutory language, giving common words their ordinary meanings. Whaley v. Sharp , 301 Kan. 192, 196, 343 P.3d 63 (2014). When the language is plain and unambiguous, the court must give effect to its express language, rather than determine what the law should be. The court will not speculate about legislative intent and will not read the statute to add something not readily found in it. Graham v. Doktor [Dokter] Trucking Group , 284 Kan. 547, Syl. ¶ 3, 161 P.3d 695 (2007). It is only when the statute's language is unclear or ambiguous that the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain its meaning. Whaley , 301 Kan. at 196 [343 P.3d 63]." Nauheim v. City of Topeka , 309 Kan. 145, 149-50, 432 P.3d 647 (2019).

Preservation

Strong acknowledges he did not raise this issue before the district court but argues it meets an exception to the preservation requirement. Generally, a party may not raise constitutional issues for the first time on appeal, but there are exceptions to that general rule: (1) if the new issue involves only a legal question arising from proven or admitted facts and is finally determinative of the case; (2) if consideration of the issue is necessary to serve the ends of justice or prevent a denial of fundamental rights; and (3) if the district court was right for the wrong reason. State v. Johnson , 309 Kan. 992, 995, 441 P.3d 1036 (2019). Strong argues the first two exceptions apply here.

Another panel of this court determined it could hear a challenge to K.S.A. 2019 Supp. 21-5705(e) for the first time on appeal under the first exception. See State v. Holder , No. 120,464, 2020 WL 6108359, at *3 (Kan. App. 2020) (unpublished opinion), rev. granted 313 Kan. –––– (April 23, 2021); see also State v. Hinnenkamp , 57 Kan. App. 2d 1, 5, 446 P.3d 1103 (2019) (holding facial constitutional challenge fits within first exception). Whether K.S.A. 2018 Supp. 21-5705(e) is facially unconstitutional is a purely legal question involving no disputed facts, and a finding of unconstitutionality would be finally determinative of this case. Thus, we will consider the merits of Strong's argument.

K.S.A. 2018 Supp. 21-5705(e)'s Constitutionality

The State charged Strong with possessing at least 3.5 grams but less than 100 grams of methamphetamine within 1,000 feet of a school property under K.S.A. 2018 Supp. 21-5705(a)(1), (d)(3)(C), and (d)(5). Strong possessed over 11 grams of methamphetamine. This amount triggered a rebuttable presumption of intent to distribute. See K.S.A. 2018 Supp. 21-5705(e)(2). Strong argues the statutory presumption that he possessed the methamphetamine with the intent to distribute based on its weight unconstitutionally relieved the State of its burden to prove beyond a reasonable doubt he intended to distribute.

K.S.A. 2018 Supp. 21-5705(e)(2) reads, in relevant part:

"In any prosecution under this section, there shall be a rebuttable presumption of an intent to distribute if any person possesses the following quantities of controlled substances or analogs thereof:

....

"(2) 3.5 grams or more of heroin or methamphetamine."

Basing its instruction on the Pattern Instructions of Kansas (PIK) Crim. 4th 57.022 (2013 Supp.), the district court instructed the jury on this presumption as follows:

"You may presume that a person had the intent to distribute methamphetamine when the person possessed 3.5 grams or more. You may consider this presumption along with all other evidence in the case. You may accept or reject it in determining whether the State has met the burden to prove the required criminal intent of the Defendant. This burden never shifts to the Defendant."

Strong alleges K.S.A. 2018 Supp. 21-5705(e) is facially unconstitutional because it creates a mandatory rebuttable presumption which is forced upon the jury. To support his argument, Strong relies on Francis v. Franklin , 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).

In Francis , the United States Supreme Court addressed the different types of statutory presumptions, indicating that the threshold inquiry in these cases is determining the nature of the presumption—whether it is a mandatory presumption or permissive inference. 471 U.S. at 313-14, 105 S.Ct. 1965. "A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion." 471 U.S. at 314, 105 S.Ct. 1965. Mandatory presumptions "violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense.... A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury" that it should infer the conclusion based on the proven predicate facts. 471 U.S. at 314, 105 S.Ct. 1965. "A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." 471 U.S. at 314-15, 105 S.Ct. 1965. While the analysis focuses initially on the specific language challenged, if that portion could be reasonably understood as creating a presumption that relieves the State of its burden on an element of offense, the challenged language must be considered in context of all the instructions, which might explain the language "to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption." 471 U.S. at 315, 105...