State v. Washington, 62063

• Decision Date: 14 April 1989
• Docket Number: No. 62063,62063
• Citation: 772 P.2d 768,244 Kan. 652
• Parties: STATE of Kansas, Appellee, v. Luther C. WASHINGTON, Appellant.
• Court: Kansas Supreme Court

Page 768

772 P.2d 768

244 Kan. 652

STATE of Kansas, Appellee, v. Luther C. WASHINGTON, Appellant.

No. 62063.

Supreme Court of Kansas.

April 14, 1989.

Syllabus by the Court

1. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. Generally, an issue not presented to the trial court will not be considered on appeal.

3. Under the facts of this case, where the informant is not a "mere tipster," and obviously possessed knowledge which is relevant and may have potentially assisted the defendant in defending the charges against him, the district court erred in refusing to require the identification of the informant without first conducting an in camera hearing to determine if the testimony of the informant would be relevant and helpful to the defense.

Charles D. Dedmon, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Mona Furst, Asst. Dist. Atty., argued the cause, and Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

ALLEGRUCCI, Justice:

The defendant, Luther C. Washington, was charged with one count of possession of heroin, a class B felony, in violation of K.S.A.1988 Supp. 65-4127a, and one count of possession of marijuana, a class D felony, in violation of K.S.A.1988 Supp. 65-4127b. Following a trial to the court, the defendant was convicted on the heroin count and acquitted on the marijuana count. The defendant was sentenced to a term of imprisonment of 5 to 20 years for the possession of heroin conviction. Defendant appeals the conviction.

On May 5, 1987, Wichita police officers entered a motel room occupied by defendant, pursuant to a search warrant issued the same day. Probable cause for the search warrant was based upon information received by a confidential informant who informed the police that he had previously purchased heroin at the motel. A Wichita police officer stated in the application for a search warrant that he had observed the informant make a "controlled buy" in Room 121 of the motel, returning from the room with heroin which had not been on his person prior to entering the motel.

When the police officers executed the warrant, they found the defendant alone in the motel room "standing just outside of the bathroom door looking at the door as we were coming in." One of the officers present testified at trial that the defendant immediately went into the bathroom of the motel room. When the officer reached the bathroom, he noticed that the defendant "had his hand inside the toilet, that the toilet had been flushed, the water was circulating and going down. The individual was still holding a plate and in a sideway motion was moving the plate in the water as if he was washing it."

The defendant was then arrested and the officers commenced a search of the motel room. Police recovered apothecary bowls, spoons, a syringe, scales, a white powder found in a suitcase, a green balloon from the top of the dresser, and a baggie containing a "green botanical substance" from the motel nightstand. A Wichita police department chemist testified that his tests revealed that the green botanical substance was marijuana. The green balloon yielded a tan powder which, according to the testimony of the police chemist, tested "[p]ositive for heroin."

The motel room was registered in the name of James Evans. A Wichita police officer testified that the name James Evans did not appear in their computer. The motel room was under police observation for approximately an hour and a half prior to the execution of the search warrant, and the police observed a number of persons come and go from the motel room. The district court concluded that there was sufficient evidence that the defendant was guilty of the charge of possession of heroin, but that there was insufficient evidence to convict on the marijuana charge. The court stated:

"The evidence of trying to destroy evidence was successful by running to the bathroom in a time-honored way of flushing drugs down the drain. If it was marijuana, it would have been floating around in there.

"I am afraid I am convinced that there is circumstantial evidence from which I conclude it's been proven beyond a reasonable doubt Mr. Washington was in possession of heroin. No evidence of any needle marks. There were two suitcases, as I recall, in the room. There is no question that he was there, but I think that, there is no proof that he is the one that rented the room. He was just there, in possession, whoever was in possession was expecting a lot of visitors to get a lot of drugs, but there wasn't any supplies there, either. Sure wouldn't be time to take it all and flush it down the stool if they came in unexpectedly and it must have been unexpected because when he saw them he ran for the bathroom. So I am going to find there is a reasonable doubt of Count 2, but I am going to find he was guilty of Count 1. The reason I conclude that is I am not sure possession of that residue--it shows an activity going on at the time. That's what I am finding, Mr. Washington, that you were in possession of it.

"I am going to state exactly what I am relying upon so that if in law this evidence is insufficient, there will be an adequate record.

"I am relying upon the presence of paraphernalia, measuring devices, mortar, pestle, mixing devices, balloons in which it's commonly kept in which a residue was found and the testimony that you were swishing that plate in the toilet, and you had to be familiar with it. At least, you knew where the toilet was. If you were just taken by surprise in there and didn't know whose they were, there wouldn't be any reason to destroy whatever it was.

"So I think they have proved that. But absent any, bringing any clerk or anybody to say that you rented that room, they may be correct in their theory that you were using that name, but there is so much more in that line that I am choosing not to rely on that. Strong conjecture, a good surmise, is different than proof beyond a reasonable doubt."

The defendant first challenges the sufficiency of the evidence against him. In addressing this issue, we must determine whether the evidence, viewed in the light most favorable to the prosecution, could convince a rational factfinder that the defendant was guilty of the charges beyond a reasonable doubt. State v. Walter, 234 Kan. 78, 82-83, 670 P.2d 1354 (1983). We have held that possession of a controlled substance requires specific intent to exercise control over the substance, with knowledge of the nature of the substance. See State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976). The possession of a controlled substance may be immediate and exclusive, jointly held with another, or constructive as where the drug is kept by the accused in a place to which he has some measure of access and right of control. State v. Bullocks, 2 Kan.App.2d 48, 49-50, 574 P.2d 243, rev. denied 225 Kan. 846 (1978). Proof of the required elements for possession of a controlled substance may be established by circumstantial evidence. State v. Anthony, 242 Kan. 493, 502-03, 749 P.2d 37 (1988); State v. Faulkner, 220 Kan. at 160, 551 P.2d 1247; State v. Rose, 8 Kan.App.2d 659, 664, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983); State v. Bullocks, 2 Kan.App.2d at 49, 574 P.2d 243.

The defendant argues that the district court's reasoning was based upon inferences not supported by the evidence. However, we think sufficient evidence exists to support the conviction regardless of the inferences made by the court. The motel room was under police surveillance for approximately an hour and a half prior to the execution of the search warrant. Several people were observed entering and leaving the room during the police surveillance, but the defendant was not one of them. The defendant was alone in the motel room in which heroin was found to be present. The defendant demonstrated some control over the contents of the motel room by apparently attempting to conceal and destroy material contained in the room. We note, on the other hand, that the inferential value of the circumstantial evidence present in the case is somewhat limited. Other persons had also been present in the motel room, though they were not present at the time that the police executed the search warrant. There is apparently no evidence with regard to the substance that was actually on the dish that the defendant attempted to clean in the motel toilet. The district court's conclusion that the substance on the dish must have been heroin, since marijuana would have floated and been observable in the toilet bowl, is conjectural at best. However, viewing the evidence in the light most favorable to the State, we find there is sufficient evidence to support the conviction of the defendant for possession of heroin.

The defendant also contends that the police chemist failed to adequately identify the tan substance as heroin. The defendant contends that the chemist's opinion that the tan powder tested "positive for heroin" does not foreclose the possibility that the substance was not heroin, but merely establishes that it was a material sharing some of the chemical characteristics of heroin. We do not agree; however, the defense made no objection at trial to the form of the chemist's opinion. Instead, the only objections made by the defense during the chemist's testimony were foundation objections, arguing that the chemist had not been demonstrated to be competent to administer the chemical tests. Since this issue was not presented to the trial court, it will not be considered on appeal.

The defendant next challenges the district court's refusal to order the...