State v. White
| Decision Date | 10 October 2014 |
| Docket Number | 109,953. |
| Citation | 337 P.3d 71 (Table) |
| Parties | STATE of Kansas, Appellee, v. Laveina S. WHITE, Appellant. |
| Court | Kansas Court of Appeals |
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., LEBEN and ATCHESON, JJ.
Police officers found a vial, a syringe, and a baggie containing methamphetamine in Laveina White's car during a traffic stop. White was convicted of possession of methamphetamine, possession of drug paraphernalia, and a traffic offense.
On appeal, she claims that the district court wrongly told the jury that drug paraphernalia “shall include” syringes, giving it no choice but to convict her. But the court went on to give the jury a series of factors to use in deciding whether any object is drug paraphernalia, so the instruction as a whole fairly told the jury what it had to decide. White also claims that the evidence was insufficient to show that she intended to possess the methamphetamine and the syringe, but we find sufficient circumstantial evidence tying her to these items.
White also raises two other issues that we cannot review. She challenges the admission of certain evidence, but she failed to object when the evidence was presented at trial and thus has not preserved her objection for appeal. She also challenges her sentence, but she recognizes that Kansas Supreme Court precedent provides that we have no jurisdiction to consider the specific sentencing claim she is making. We have found no reversible error, and we affirm the district court's judgment.
On appeal, White challenges the sufficiency of the evidence to convict her for possession of methamphetamine and the syringe found in her car. Accordingly, we must review the evidence presented at trial in some detail. Sufficiency of the evidence is judged by taking the evidence in the light most favorable to the State (since the jury found the facts in its favor). State v. McBroom, 299 Kan. 731, Syl. ¶ 5, 325 P.3d 1174 (2014). Unless otherwise noted, we set forth the trial evidence with that standard in mind.
After receiving reports of drug sales, prostitution, and gambling at a service station on the corner of Meridian and McCormick Streets in Wichita, Police Officers Kevin Dykstra and Matthew Balthazor, who specialize in investigating narcotics, conducted surveillance there in February 2011. Late one evening, they watched a green Chevy Blazer pull up to the east side of the station, followed by a white Saturn, which parked next to the driver's-side door. Officer Dykstra testified that a man had gotten out of the front passenger seat of the Blazer, circled around the front of it, and knelt down next to the passenger's side of the Saturn to speak to the people inside. A female wearing a turquoise shirt then exited the driver's seat of the Blazer and stood next to the service station in between the two vehicles, actively looking around the business and at the street. After about 10 minutes, the Saturn drove away, the man and woman returned to the Blazer, and the woman drove the Blazer through the service station's parking lot toward an exit until she stopped for “[m]aybe 10 seconds” facing Dykstra and Balthazor's marked police car. She then backed up and pulled into a parking stall.
The male and the female in turquoise exited the car and lifted the hood. A third woman—Laveina White—also got out of the car. The three began testing the lights on the vehicle, and the woman in turquoise walked along the front of the service station, stopping to look directly at the police officers several times. Then a green Saturn SUV arrived, and a man got out and looked at the Blazer. The man and the woman in turquoise from the Blazer left on foot. The man from the green Saturn drove his SUV away, and White followed in the Blazer. The police followed White. After making several turns, the Saturn abruptly pulled into a private drive, and White had to make an evasive maneuver to avoid hitting it.
White then failed to signal 100 feet before a turn (as Kansas traffic law requires), and the officers pulled her over. Dykstra said that when he approached the Blazer, White “seemed to be nervous, she was looking around frantically, she was placing ... her head in her hands and was shaking her head” no from side to side. Balthazor, who conducted the traffic stop, noted that White's voice was shaky, that she was having a hard time concentrating, and that she was making quick, jerky movements—which can be an indicator of drug use. The address on White's driver's license did not match the area where White said she was living, and she told Balthazor that she had been living with a friend from church named Carl, but that she did not know Carl's last name. She also said that she had gone to the service station to drop her friends off and that they had initially stopped when exiting the parking lot because they had seen the marked patrol car and one of the Blazer's lights wasn't working. She also indicated that it smelled like something was burning in the Blazer.
White initially could not find proof of insurance for Balthazor, but her registration information indicated that she owned the Blazer. Balthazor returned to his patrol car to write her traffic citations for failing to signal and for driving on a restricted driver's license. But White began waving some documents at Balthazor, which turned out to be an expired proof of insurance, so he placed the citation on the hood of his car and approached her. He asked White to get out of the Blazer and later indicated that, at that point, she was not free to leave. Balthazor told White that she had looked like she had been trying to avoid detection by police when she was at the gas station; he said that he knew a lot of narcotic activity occurred there. He then asked if there was anything illegal in her vehicle, and she said there was not. She then gave him permission to search the vehicle.
Dykstra and a supervisor searched the Blazer and found a vial and syringe on the floorboard behind the driver's seat. They also found a baggie containing what proved to be methamphetamine in the socket for the vehicle's cigarette lighter in the center console, a checkbook that didn't belong to White, and a knotted baggie with a torn end that contained a residue from an unknown substance. Balthazor read White her Miranda rights, and she denied any knowledge of the methamphetamine in her vehicle. She also initially denied knowing about the vial and syringe but then clarified that one of her children was diabetic, so there was a bag of unused syringes in the Blazer. When Balthazor asked about drug use, White said that she had prescription seizure medication but had not taken it that day and had not used methamphetamine for 2 months.
The State charged White with possession of methamphetamine, possession of drug paraphernalia, driving in violation of restrictions, and a traffic infraction (failing to signal a turn within 100 feet).
Before trial, White's attorney filed a motion to suppress the evidence of the drugs and her statements to police regarding her activities at the service station. The district court denied the motion at an evidentiary hearing, finding that the officers properly stopped her for a traffic violation and had a reasonable suspicion to extend the traffic stop to search her car. White did not object and renew her motion to suppress at trial.
At trial, White testified that she and her friends had gone to the service station to buy cigarettes and that none of the people in her Blazer had talked with the people in the white Saturn. She said that she knew the officers were at the Valero. She also said that when her group initially tried to leave the Valero, the lights on the Blazer were not working, so she called her friend, who managed to get the dash lights to work. The State admitted into evidence the methamphetamine, vial, and a photo of the syringe recovered from the Blazer. The parties agreed on the jury instructions, and White's attorney told the court, “I want to put on the record we have no objection to the instructions in their current form.”
The jury found White guilty of possession of methamphetamine, possession of drug paraphernalia, and the traffic infraction. The district court sentenced her to 18 months of probation, which included mandatory drug treatment, with an underlying prison sentence of 12 months for the possession-of-methamphetamine conviction and a consecutive 12–month jail sentence for the misdemeanor drug-paraphernalia conviction. The court fined White $60.00 for the traffic infraction.
White has appealed to this court.
White claims on appeal that the district court should have granted her motion to suppress the evidence found in her vehicle as well as her statements to the police during the search. But she did not object to the evidence when it was admitted at trial, and K.S.A. 60–404 requires that a party raising an evidentiary claim make a contemporaneous objection to the evidence at trial:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
In State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009), the Kansas Supreme Court held that K.S.A. 60–404 precludes appellate courts from considering evidentiary claims if the parties raising the claims failed to make contemporaneous objections at trial. The Kansas Supreme Court has specifically applied King to a ...
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