Opinion
112,073.
07-10-2015
STATE of Kansas, Appellee, v. Nicolas OTERO, Appellant.
Jennifer Wyatt, of Salina, for appellant. Jamie L. Karasek, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Jennifer Wyatt, of Salina, for appellant.
Jamie L. Karasek, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Nicolas Otero appeals his conviction for possession of drug paraphernalia following a bench trial. The sole issue raised on appeal is whether Otero' conviction was based on sufficient evidence. Viewing the record in the light most favorable to the prosecution as we are required to do in this case, we conclude that the State presented sufficient evidence to support Otero's conviction of possession of drug paraphernalia. In particular, we find that there was testimony presented by law enforcement officers upon which a finder of fact could find Otero guilty beyond a reasonable doubt. Accordingly, we affirm Otero's conviction.
Facts
At approximately 11:28 p.m. on November 24, 2013, McPherson Police Sergeant Isaac Marcantonio and Officer Jordan Baxter arrived at a house in response to a 911 hang-up call. Officer Baxter knocked on the door, and Otero answered. As Officer Baxter talked to Otero, he observed a clear plastic baggie containing a green leafy substance along with some other empty clear plastic baggies on the coffee table inside the living room. He believed that the substance in the baggie was marijuana.
Officer Baxter signaled to Sergeant Marcantonio to come to the door. As Sergeant Marcantonio approached the front door, he detected an odor of marijuana coming from the opened door of the house. On a coffee table inside the front door, the Sergeant observed plastic baggies that contained a green leafy substance he believed to be marijuana. Initially, Otero was the only person present at the door with the officers. Subsequently, Otero's female roommate also came to the front door. When the officers asked Otero about the items on the coffee table, he did not claim that they belonged to him.
At that point, Sergeant Marcantonio and Officer Baxter entered the residence and asked if there was anyone else present in the house. After Otero's roommate told them that her boyfriend was asleep in one of the bedrooms, they instructed her to get him. When she returned with her boyfriend, the Sergeant gave all three of them Miranda warnings, and each of them agreed to speak with the officers. When asked by Sergeant Marcantonio whose marijuana was on the table, Otero responded by asking what would happen if no one claimed the marijuana. The Sergeant told him that if no one claimed the marijuana, he would secure the residence and apply for a search warrant. He also stated that if no one claimed the marijuana, he would charge all three of them with possession. At that point, Otero stated that the marijuana was his.
Shortly thereafter, a fourth individual—Daniel Preston—entered the room and claimed that the marijuana was his. Otero agreed that the marijuana belonged to Preston and not to him as he had previously stated. Law enforcement photographed the items on the coffee table, which included baggies and cigars. Moreover, the officers located a grinder under a chair in the living room.
Next to a bed in one of the bedrooms, officers located an ashtray containing unwrapped cigars and a green substance. Next to the ashtray was a plastic cup with a baggie inside that also contained a substance the officers believed was marijuana. Officers located more clear plastic baggies in a bag hanging on the back of the door in this bedroom. In the other bedroom of the home, officers found a box of baggies, some ashes, and residue that appeared to be marijuana. The officers then placed Otero and Preston under arrest.
On December 3, 2013, the State charged Otero with one count of interference with law enforcement. Then on January 30, 2014, the State amended the complaint to add one count each of possession of paraphernalia and possession of tetrahydrocannabinol or possession of marijuana. Otero pled not guilty, and the district court held a bench trial.
At trial, Sergeant Marcantonio and Officer Baxter testified. The officers gave some conflicting testimony regarding the bedrooms in which they found alleged drugs and paraphernalia. Sergeant Marcantonio testified that Otero told him that his bedroom was the one in which they found the plastic cup containing a baggie of suspected marijuana and the ashtray containing unwrapped cigars and a green substance. Additionally, the Sergeant testified that Otero told him that he had previously resided in the other bedroom—the one in which the officers found empty baggies and suspected marijuana residue. However, Officer Baxter testified that one of the baggies of marijuana the officers collected was found in Preston's bedroom, which Otero had previously occupied and continued to store possessions.
Also testifying for the State was a forensic scientist from the Kansas Bureau of Investigation (KBI) who tested one of the baggies of green substance. She testified that the substance she tested was marijuana. However, the marijuana itself was not admitted into evidence because the district court determined that the State failed to prove the chain of custody. Otero did not present evidence in his defense after the State rested.
After hearing the State's evidence, the district court acquitted Otero on the interference with law enforcement and possession of marijuana charges. Nevertheless, the district court found Otero guilty of possession of drug paraphernalia, contrary to K.S.A.2014 Supp. 21–5709(b)(2), a class A misdemeanor. When announcing its verdict, the district court stated:
“[T]he court bases this on a number of items. First of all, when the officers walked in they saw several items on the coffee table that the officers testified they were familiar with that would be used in the use of marijuana. They smelled a strong order [sic ] of marijuana smoke, they saw baggies and they saw a grinder, they saw hollowed out cigars. One of the officers testified he saw what he believed to be marijuana ash. The defendant advised them that he resided in the home. He also told them where his bedroom was located or he told Officer Marcantonio where his bedroom was located. In that bedroom he saw clear plastic baggies and the Court is convinced beyond a reasonable doubt that the defendant did possess drug paraphernalia.”
On May 27, 2014, the district court sentenced Otero to 1 year of probation with an underlying 1–year jail sentence. Thereafter, Otero timely filed a notice of appeal.
Analysis
K.S.A.2014 Supp. 21–5709(b)(2) states that it is illegal to use or possess with the intent to use any drug paraphernalia to “store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body.” In contending that the State failed to present sufficient evidence at trial to support his conviction, Otero raises two arguments. First, Otero argues that the State failed to present sufficient evidence that he actually had possession of the alleged drug paraphernalia. Second, he argues that the State presented insufficient evidence that the items found in the house were actually drug paraphernalia.
When a defendant challenges the sufficiency of the evidence in a criminal case, we must review all of the evidence in a light most favorable to the State to determine whether we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. We are not, however, to reweigh the evidence, resolve conflicts in the evidence, or make witness credibility determinations. State v. Lloyd, 299 Kan. 620, 632, 325 P.3d 1122 (2014).
Otero's first argument is based on the fact that the alleged paraphernalia was found in areas of the house in which he had nonexclusive possession. For crimes involving controlled substances, possession is defined as “having joint or exclusive control over an item with knowledge of and intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.” K.S.A.2014 Supp. 21–5701(q). Moreover, the State may prove possession by direct or circumstantial evidence. See State v. Cruz, 15 Kan.App.2d 476, 489, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). When a defendant is in nonexclusive possession of the location in which drugs are recovered, however, “ ‘it cannot be inferred that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs.’ “ 15 Kan.App.2d at 489.
There are several factors that courts can look to in determining whether there is sufficient circumstantial evidence to link a defendant to drugs found in his or her nonexclusive possession. These factors also apply to a determination of whether a defendant is in possession of drug paraphernalia. See State v. Abbott, 277 Kan. 161, 167–68, 83 P.3d 794 (2004). These factors include: the defendant's proximity to where the drugs or paraphernalia were found; whether the drugs or paraphernalia were found in plain view; whether the defendant made incriminating statements; and the proximity of the defendant's other possessions to the drugs or paraphernalia. See 277 Kan. at 168 ; State v. Marion, 29 Kan.App.2d 287, 290, 27 P.3d 924, rev. denied 272 Kan. 1422 (2001). Generally, we require “more than mere presence or access to the drugs ... to sustain a conviction.” Cruz, 15 Kan.App.2d at 489.
Viewing the record in the light most favorable to the prosecution as we are required to do in the present case, we find that there is sufficient evidence to support Otero's conviction. When the law enforcement officers arrived, Otero was the only person in close proximity to the paraphernalia in plain view on the coffee table. Otero argues that plain view of paraphernalia should not count against someone in nonexclusive possession of it because paraphernalia has legitimate uses. Nevertheless, the officers also detected the odor of marijuana when they arrived at the residence, which supports a finding that the paraphernalia was being used for illegal purposes. Although there was conflicting evidence about which bedroom belonged to Otero, viewing the evidence in the light most favorable to the prosecution, drug paraphernalia was found directly next to the bed in a room that Sergeant Marcantonio testified was Otero's bedroom.
Otero's second argument is that the State failed to provide sufficient evidence that the items of alleged drug paraphernalia constituted drug paraphernalia. Otero relies on factors listed in PIK Crim. 4th 57.170, which is the jury instruction regarding factors to consider in determining whether an object is drug paraphernalia. The instruction includes statements by the person in control of the object concerning its use, the proximity of the object to a direct commission of a drug crime, the proximity of the object to controlled substances, the existence of any residue of controlled substances on the alleged paraphernalia, the existence and scope of legitimate uses for the object in the community, expert testimony concerning the object's use, and any evidence that the alleged paraphernalia can be or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia. PIK Crim. 4th 57.170. These factors are also found in K.S.A.2014 Supp. 21–5711.
Otero maintains that there was no evidence linking the hollowed-out cigars, baggies, or grinder to illegal drugs because none of the items were tested for residue. Furthermore, he argues that the district court deemed inadmissible the suspected marijuana found near the objects. Accordingly, Otero asks this court to conclude that there was no evidence that the items alleged to be paraphernalia were found in proximity to illegal drugs.
Nevertheless, Sergeant Marcantonio testified that the alleged paraphernalia could be used to introduce a controlled substance into the human body. Specifically, he testified that people take the wrappings off cigars, remove the tobacco, and then put marijuana into the wrapper of the cigar to smoke it. He also testified that baggies are used as a transport container for marijuana. Likewise, according to Sergeant Marcantonio, the grinder is used to grind full bulbs of marijuana into a finer substance that can be smoked or otherwise consumed. Further, when officers opened the grinder, it contained what appeared to be ground marijuana. Moreover, Sergeant Marcantonio smelled marijuana when he approached the house and both officers testified that the items were in close proximity to a green substance that they believed—based on their training and experience—was marijuana.
We, therefore, conclude that the evidence was sufficient to support Otero's conviction of possession of drug paraphernalia.
Affirmed.