Opinion
No. 108,158.
2013-05-17
STATE of Kansas, Appellee, v. Shelley Lynn CUNNINGHAM, Appellant.
Appeal from Shawnee District Court; Marx Braun, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Marx Braun, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Shelley Lynn Cunningham was convicted of possession of methamphetamine and possession of drug paraphernalia. She appeals, challenging the sufficiency of evidence. When considering the evidence in the light most favorable to the State, we affirm her conviction.
Facts
On April 4, 2007, Officer Mitchell Soden of the Topeka Police Department initiated a traffic stop when his radar detected a car traveling 64 mph in a 35 mph zone. The driver, Cunningham, “moved kind of quickly about, [and] seemed ... generally agitated,” indicating to Soden “[p]ossible narcotics or alcohol use.” Soden verified Cunningham's tag and license. He discovered Cunningham was driving with a suspended license. Soden arrested Cunningham for driving with a suspended license.
Officer Soden searched Cunningham's vehicle incident to her arrest, looking for “[a]nything contraband and/or a current proof of insurance.” Soden discovered a small vinyl zipper bag in the car by the front console. There was “a lot of trash” in Cunningham's car. Another panel of this court remanded this case back to the district court for a State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010), cert. denied131 S.Ct. 2114 (2011), hearing. It does not appear the search of Cunningham's car incident to her arrest is being challenged. Therefore we will not address it.
The bag contained two glass pipes with white residue inside, indicating to Soden the presence of methamphetamine. There were two tiny Ziploc baggies with a whitish residue appearing to be methamphetamine. The powder tested positive for methamphetamine by the Kansas Bureau of Investigation. Soden did not request Cunningham to give a blood, breath, or urine sample as part of his investigation.
Cunningham told Soden there should not be anything in the car except residue, because she had quit using methamphetamine and “must have forgotten to take something out of the car.” Testifying at trial, Cunningham stated her car had been stolen about a month prior to her traffic stop by some people who had been staying with her and with whom she had been using methamphetamine. She testified she had quit using methamphetamine about 6 weeks prior to the traffic stop. She claimed she cleaned all of her methamphetamine from her car as part of her recovery process. Cunningham explained her agitation during the traffic stop was caused by her children being home alone at their father's house.
Was There Sufficient Evidence to Support a Conviction for Possession of Methamphetamine and Possession of Drug Paraphernalia?
On appeal, Cunningham asserts the State was unable to prove she knew or intended to exert control over the methamphetamine found in her car. Cunningham argues and the State concedes this is a constructive possession case.
“When examining the sufficiency of the evidence in a criminal case, 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. [Citations omitted.] The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. [Citation omitted.]” State v. Raskie, 293 Kan. 906, 919–20, 269 P.3d 1268(2012).
To sustain a conviction for possession of methamphetamine, the State must prove the defendant possessed or exercised control over the narcotics. K.S.A. 65–4160(a). Possession “requires specific intent to exercise control over the substance, with knowledge of the nature of the substance.” State v. Washington, 244 Kan. 652, 654, 772 P.2d 768 (1989). Possession may be 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.” 244 Kan. at 654. “Proof of the required elements for possession of a controlled substance may be established by circumstantial evidence.” 244 Kan. at 654. More than “mere presence or access to the drugs” is required to sustain a conviction. State v. Cruz, 15 Kan.App.2d 476, 489, 809 P.2d 1233,rev. denied 249 Kan. 777 (1991). But the State may rely on “other incriminating circumstances linking the defendant to the drugs.” State v. Anthony, 242 Kan. 493, 502, 749 P.2d 37 (1988). When no particular fact may be enough to support a conviction by itself, those other circumstances taken together may provide a “sufficient inference of knowing possession” to support a verdict. See State v. Faulkner, 220 Kan. 153, 160, 551 P.2d 1247 (1976).
In the light most favorable to the State, direct evidence and circumstantial evidence supports constructive possession. The methamphetamine was found in Cunningham's car, within her reach, in plain view. Cunningham also stated she must have “forgotten” to remove some methamphetamine, indicating the drugs were left over from a previous period. She also stated if there was any methamphetamine in her car, it should only be residue, further indicating at least some degree of prior intent and control.
Conclusion
The State presented sufficient evidence for a factfinder to reasonably find Cunningham guilty of both crimes beyond a reasonable doubt. On appeal this court reviews the evidence presented in the light most favorable to the State. We affirm.
Affirmed.