State v. Young
| Decision Date | 02 October 2015 |
| Docket Number | 111,913. |
| Parties | STATE of Kansas, Appellee, v. James H. YOUNG, Sr., Appellant. |
| Court | Kansas Court of Appeals |
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Robert A. Walsh, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and GARDNER, JJ.
A jury convicted James Young of possession of methamphetamine with intent to distribute within 1,000 feet of school property, unlawful use of a communication facility, unlawful possession of oxycodone, and possession of methamphetamine without a tax stamp. Young appeals, raising numerous claims of error. We affirm in part and reverse in part.
We set forth facts relating to the initial stop as background, as its legality is not challenged. On September 7, 2013, Officer Levi Herring of the Concordia Police Department was working the overnight shift when he noticed two men leave a convenience store and get into a truck. While following the truck, Herring noticed the right brake light was broken, the left brake light was very dim, and the truck's turn signal was not used for the proper distance before making a turn. Herring stopped the truck. William Sallee was its driver, and Young was its passenger.
Young claims that at some point after Herring stopped them but before he arrived at the truck's window, driver Sallee pulled something from his pocket and threw it outside the passenger window near where Young was sitting.
Herring approached the truck and asked for Sallee's driver's license and proof of insurance. When Herring returned to his patrol car, he ran a search on Sallee's driver's license and learned it was suspended. Herring then arrested Sallee and placed him in the back seat of his patrol car. Herring went back to the truck and asked Young if he had a valid driver's license or if someone else could move the truck. As he was speaking with Young, Herring noticed a small baggie containing a crystallized powdery substance on the ground outside the truck. Young denied knowing anything about it. Herring then asked Young to step out of the truck, and as he opened the door, Herring noticed a similar baggie between the seat and the door of the truck.
After placing Young in handcuffs and seating him on the truck's tailgate, Herring called for back-up and searched the rest of the truck. Inside the truck Herring found a case that contained syringes, needles, and a spoon or broken end of a spoon. He also found a third baggie which appeared to be similar to the other two. He found a fourth, but empty baggie, on the ground on the driver's side of the truck. Both Sallee and Young denied knowing anything about the recovered items.
As he was questioning Sallee, Herring noticed that Young was texting on his cell phone, even though his hands were handcuffed behind his back. Herring took the phone from Young, looked at its screen, and noticed what he thought to be an incriminating text message referencing a drug deal. In his report, Herring recorded the message as saying: “I can't turn an eight ball into 300, because I wouldn't get anything out of it.” Young testified that the message actually said: “This isn't [a] full eight, bro, because if I get all gone, doesn't recover my 300.”
After he took Young's phone, Herring searched Young and found in his pocket a bottle containing one gray pill. An identical pill was found by Herring's back-up, Deputy John Primeaux, on the ground outside the truck. Young told Herring that the pill inside the bottle was oxycodone, and subsequent testing by the KBI confirmed it to be so. Herring also found over $1,300 in small denominations of cash in Young's wallet.
The substance in one of the baggies was tested and was found to be methamphetamine. Herring testified that the collective weight of the three baggies of methamphetamine, including the baggies themselves, was 1.2 grams.
A Cloud County jury convicted Young as charged. The district court sentenced Young to a concurrent 136–month prison sentence for three offenses, and a consecutive 11–month prison sentence for his possession of oxycodone.
Did sufficient evidence show possession of more than 1 gram of methamphetamine?
Young's first three arguments focus on the weight of the methamphetamine. First, Young alleges that the State presented insufficient evidence that the methamphetamine he was charged with possessing exceeded more than 1 gram. To prove the charges of possession of methamphetamine with intent to distribute within 1,000 feet of school property and possession of methamphetamine without a tax stamp, the State had to prove that Young possessed more than 1 gram of methamphetamine. See K.S.A.2014 Supp. 21–5705(d)(3)(B), 21–5705(d)(5) ; 79–5204(a), K.S.A.2014 Supp.79–5201(c).
Herring testified three baggies of methamphetamine and one empty baggie were found. No evidence was presented about the weight or the actual dimensions of the baggies. Herring described all four baggies as “square, clear little bagg [ies]” whose “rough weight,” meaning the weight of all the methamphetamine plus the weight of the three baggies, was 1.2 grams. And in her closing argument, defense counsel described the baggies as follows: “sometimes when you think about a bagg[ie], you know, you think about a sandwich bag, and these are not sandwich bags, [but] very, very small bags.”
Only one of the baggies was actually sent to the KBI for chemical testing. The KBI forensic chemist testified that the substance in that baggie was methamphetamine and that its net weight, excluding the weight of the baggie, was 0.24 grams.
The weight of the methamphetamine was never challenged at trial. Defense counsel never suggested that the methamphetamine might have weighed less than 1 gram or that the baggies could have weighed 0.2 grams or more. Young now contends the actual weight of the methamphetamine was less than 1 gram because the weight of the baggies was not taken into account, and that the jury could not have reasonably inferred that the baggies weighed less than 0.2 grams.
When a criminal defendant challenges the evidence's sufficiency, the standard of review is “whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Raskie, 293 Kan. 906, 919–20, 269 P.3d 1268 (2012). The appellate court, however, will not “reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.” 293 Kan. at 920, 269 P.3d 1268. Further, the guilty verdict can be based on circumstantial evidence and any reasonable inferences drawn from the evidence. State v. Scaife, 286 Kan. 614, 618–19, 186 P.3d 755 (2008).
Weighing a controlled substance with its baggie is not prohibited when the jury has the opportunity to view and handle the evidence, because jurors can use their common knowledge and experience when determining guilt. See State v. Beasely, No. 93,432, 2005 WL 2715672, at *2 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 985 (2006) (). And testing the substance of one item rather than each item is sufficient where a clear inference arises, through similar appearance or packaging or other evidence, that all items contain the same controlled substance. See State v. Jennings, 33 Kan.App.2d 244, 253, 99 P.3d 1145 (2004), rev. denied 279 Kan. 1009 (2005).
The jurors in this case had a full opportunity to view and handle the evidence, as the three baggies containing methamphetamine were marked as Exhibit 1 and all exhibits went to the jury room at the time of the jury's deliberations. The jurors were able to use their common sense and knowledge to reasonably infer that the baggies did not weigh 0.2 grams or more. True, the margin for error is small, as the difference between the statutory requirement and the collective weight is only 0.2 grams. But even though jurors may or may not know the weight of 0.2 grams in the abstract, they could handle the three baggies containing methamphetamine and compare the size and relative weight of the baggies to the contents of the baggies, giving them a factual basis for their determination. See Beasley, 2005 WL 2715672, at *2. Accordingly, the jury could reasonably infer from the testimony given at trial and from their own handling of the evidence that the weight of the plastic baggies was negligible and that the weight of the methamphetamine was thus more than 1 gram.
Viewing the evidence in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found that Young possessed more than 1 gram of methamphetamine. As noted by this court in State v. Johnson, 31 Kan.App.2d 687, 692, 71 P.3d 481 (2003) : We find that such a showing was made.
Did the State misstate evidence during closing argument?
Young next argues that the prosecutor stated facts not in evidence when he said in closing argument that the methamphetamine weighed 1.2 grams, because the only evidence presented showed that 1 .2 grams represented the combined weight of the methamphetamine and the baggies.
Young admits that he did not object at trial to the State's argument. Still, as both parties agree, a prosecutorial misconduct claim regarding comments made during closing arguments can be reviewed by an appellate court even if not objected to at trial. State v. Crawford, 300 Kan. 740, 744, 334 P.3d 311 (2014). We first ask whether the comments constitute misconduct, meaning the comments fall “outside the wide latitude allowed in discussing the...
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State v. Brazzle, 116,649
...case squarely addresses the question suggested by the concurring opinion in State v. Young , No. 111913, 2015 WL 5750541, at *15 (Kan. App. 2015) (unpublished opinion) (Atcheson, J., concurring):"As the majority notes, Young testified he had a physician's prescription for the oxycodone, a c......