Opinion
No. 106,331.
2012-08-10
STATE of Kansas, Appellee, v. James R. GRIFFIN, Jr., Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. David Lowden, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. David Lowden, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
James R. Griffin, Jr., appeals his conviction and sentence for possession of cocaine, challenging the sufficiency of the evidence and the constitutionality of sentence enhancement based on criminal history that has not been proven to a jury. We affirm his conviction and sentence.
Factual and Procedural Background
James R. Griffin, Jr., was charged with possession of cocaine and possession of drug paraphernalia after his arrest on a parole violation. Griffin waived his right to a jury trial and agreed to a bench trial based solely on the testimony from a prior suppression hearing. Griffin stipulated to the fact that the substance he allegedly possessed tested positive for cocaine. The State moved to dismiss Griffin's possession of drug paraphernalia charge upon acceptance of the stipulated facts. The district court then found Griffin guilty of possession of cocaine based on the following testimony from the suppression hearing.
A parole violation warrant was issued for Griffin's arrest when authorities received a tip that Griffin was using narcotics in the basement of his sisters' home where he was living. Special Agent John Bradley Jones and two other agents went to the home to arrest Griffin. Griffin's sister, Teresa, answered the door and allowed officers to enter the foyer of the house. Agent Jones identified himself and asked to speak with Griffin. Griffin's sister pointed toward the stairs and said Griffin was downstairs. Agent Jones called out for Griffin to come upstairs because they had a warrant for his arrest. Griffin came upstairs and was placed under arrest. Agent Jones then asked the other officers, Special Agent Brandon Bansemer and Agent Richardson to go downstairs and clear the basement.
At the time of Griffin's arrest, another sister, Mona, and her daughter, Tasha, were present and asked if they could retrieve clothing for Griffin because he was wearing only boxer briefs and a t-shirt. Both Mona and Tasha went downstairs and retrieved clothing and shoes for Griffin from the living room area of the basement. Agent Bansemer was in that area of the basement at the time and testified the “owner,” presumably Mona, told him the living room of the basement was where Griffin slept and was under Griffin's immediate control. The living room had a futon, dresser, couch, coffee table, and clothing lying around. According to Agent Bansemer, Tasha pointed to a jacket on the couch and said, “[T]his is the jacket [Griffin] was wearing.” Before allowing Tasha to take the jacket upstairs, Agent Bansemer checked the pockets and discovered a pipe and a prescription bottle with two off-white rocks inside that were later verified to be cocaine. Mona testified the jacket was in a little linen closet. Tasha testified the jacket was lying on the couch in the basement living area. Although she could not recall who picked it up, she confirmed the jacket belonged to Griffin.
After the presentation of this evidence at the suppression hearing, Griffin argued, consistent with his motion to suppress, that the officers had no right to search the basement and everything discovered as a result of that illegal search should be suppressed. The district court denied the motion, and this issue has not been appealed.
Following his conviction, the district court granted Griffin's motion for a downward durational departure and sentenced Griffin to 18 months in prison. Griffin timely appeals.
Was There Evidence Sufficient to Support Griffin's Conviction?
Griffin first contends that, because the testimony at the suppression hearing was ambiguous as to where Agent Bansemer found the jacket, the evidence was insufficient to show he possessed or had control over the cocaine in the jacket pocket. The State maintains the evidence established that the jacket belonged to Griffin regardless of where it was found and, further, there was ample evidence of possession.
“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed 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.’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
“ ‘Possession of a controlled substance requires having control over the substance with knowledge of and the intent to have such control.’ [Citation omitted.]” State v. Johnson, 33 Kan.App.2d 490, 502, 106 P.3d 65 (2004). 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 [or she] has some measure of access and right of control.’ [Citation omitted.]” State v. Beaver, 41 Kan.App.2d 124, 129, 200 P.3d 490 (2009).
The State maintains Griffin's argument over the location of the jacket before it was retrieved is a request to reweigh the evidence. That may be, but both locations, the closet and couch, were in the area that Griffin used as a living/sleeping area. In either event, the jacket was identified as belonging to Griffin. Clearly, there was sufficient competent evidence to show Griffin had knowledge of and control over the cocaine found in his jacket.
To the extent Griffin is suggesting he was in nonexclusive possession of the basement living area and, thus, in nonexclusive possession of the jacket, other incriminating factors tending to prove a defendant's knowing possession of drugs include: (1) the defendant's previous participation in the sale of drugs; (2) the defendant's use of drugs; (3) the defendant's proximity to the area where the drugs are found; (4) the fact that the drugs are found in plain view; (5) incriminating statements of the defendant; (6) the defendant's suspicious behavior; and (7) the proximity of the defendant's possessions to the drugs. State v. Marion, 29 Kan.App.2d 287, 290, 27 P.3d 924,rev. denied 272 Kan. 1422 (2001).
Here, the following incriminating factors tended to show Griffin knowingly possessed and had control over the cocaine: (1) Griffin admitted to his parole officer that he had used cocaine the day before his arrest; (2) parole agents received a tip that Griffin was using narcotics in the basement of his sister's home; (3) Mona told Agent Bansemer that the basement living area, where the jacket was located, was the area where Griffin slept and lived; (4) the jacket was worn by Griffin; and (5) Agent Bansemer also discovered a spoon with burn marks and white residue in plain view on the coffee table in this same area.
Viewing the evidence in a light most favorable to the State, we are convinced the district court had more than enough evidence to find beyond a reasonable doubt that Griffin was in possession of the cocaine found in his jacket pocket.
Were Griffin's Constitutional Rights Violated When His Sentence Was Enhanced by Criminal History that Was Not Proven to a Jury?
Griffin next contends the use of his criminal history for sentencing purposes, without proving his criminal history to a jury beyond a reasonable doubt, increased the maximum possible penalty for his offense in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Griffin concedes this issue is controlled by State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and merely wishes to preserve the issue for federal review.
This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869,rev. denied 284 Kan. 949 (2007). There is no indication our Supreme Court is departing from its ruling in Ivory. See, e.g., State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011). Accordingly, we must reject Griffin's challenge to his sentence.
Affirmed.