Opinion
No. 108,862.
2013-11-8
STATE of Kansas, Appellee, v. Allyn RHODES, Appellant.
Appeal from Geary District Court; David R. Platt, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; David R. Platt, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Police found a pill bottle and pen casing fashioned into a homemade smoking device in Allyn Rhodes' truck. He admitted they were his and that it was a pipe. Although there was no visible residue on the items, testing revealed they contained trace amounts of cocaine. Rhodes appeals his convictions for possession of cocaine and possession of drug paraphernalia. He submits two claims of error. First, Rhodes contends that the burden of proof instruction given to the jury constituted reversible error. However, because the Kansas Supreme Court has found an identical instruction to the one used here to be legally appropriate and we are duty bound to follow Supreme Court precedent, this claim of error fails. Second, Rhodes contends that there was insufficient evidence to support his convictions. But he admitted the paraphernalia was his, and our Supreme Court has held that possession of any amount of a controlled substance is sufficient for conviction on a possession charge even if the amount recovered is so minute as to be unusable or immeasurable. Accordingly, we affirm his convictions.
Factual and Procedural History
Dave Quintaner—Rhodes' parole officer—went to Rhodes' home to search Rhodes' vehicle and his home. Quintaner was accompanied by Sergeant Todd Godfrey and Detective Alvin Babcock. Rhodes was not at home, but Quintaner, Godfrey, and Babcock found Rhodes at work. When Rhodes finished working, Quintaner, Godfrey, and Babcock went with Rhodes to his home to complete the search.
Rhodes' home and vehicle were searched. Babcock searched the bed of Rhodes' truck and found a rolled-up white napkin. In the napkin was a pill bottle with a hole in it and a pen casing inside the pill bottle. Babcock believed that the pill bottle and pen casing were used as a homemade smoking device. After waiving his Miranda rights, Rhodes admitted that the pill bottle belonged to him and that it was a pipe.
The pill bottle and pen casing were sent to the Kansas Bureau of Investigation for testing. Although there was no visible residue in the pill bottle or pen casing, they were tested for controlled substances and were determined to have trace amounts of cocaine.
The State charged Rhodes with one count of possession of cocaine and one count of possession of drug paraphernalia.
A jury trial was held and the jury found Rhodes guilty of both possession of cocaine and possession of drug paraphernalia. Rhodes was sentenced to 40 months of imprisonment.
Rhodes filed a timely notice of appeal.
Analysis
The burden of proof instruction given was not legally erroneous.
Rhodes argues that the district court erred when it gave an inaccurate jury instruction on the State's burden of proof. He contends that the instruction, by solely using the word “any” instead of “each,” does not require the State to prove beyond a reasonable doubt each and every element of the crime charged.
Rhodes failed to object to the jury instruction; therefore, the clearly erroneous standard of review is appropriate. See K.S.A.2012 Supp. 22–3414(3). “An appellate court reviewing a district court's giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). To determine whether it was clearly erroneous to give or fail to give an instruction, the reviewing court must necessarily first determine whether an error occurred. Thus, the court must review the merits of the claim of error; this presents a legal question subject to unlimited review. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012).
Only after determining that the district court erred in giving or failing to give a particular instruction would a reviewing court engage in the reversibility inquiry. The test for clear error requiring reversal is whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This assessment would involve a review of the entire record and a de novo determination. The burden of showing clear error remains with the defendant. Williams, 295 Kan. at 516.
The district court gave the following jury instruction on the test to determine whether Rhodes was guilty or not:
“If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.”
This exact instruction was questioned in State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). Our Supreme Court found that the use of the word “any” in the jury instruction did not create any confusion and was legally appropriate. Moreover, if any confusion did occur it was cleared up by the jury instructions that set out the individual elements for each of the crimes charged, which all contained the following language: “ ‘To establish this charge, each of the following claims must be proved.’ “ 296 Kan. at 1123.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). Herbel was reaffirmed in State v. Smyser, 297 Kan. 199, 203–06, 299 P.3d 309 (2013). Herbel is dispositive of Rhodes' argument. The district court's use of this burden of proof jury instruction was legally appropriate and jury instruction Nos. 5 and 6 regarding the individual elements of each of the crimes charged included the following language: “To establish this charge, each of the following claims must be proved.” Therefore, the district court did not err when it gave the above jury instruction on the State's burden of proof. There was sufficient evidence to support Rhodes' convictions.
Rhodes contends that there was insufficient evidence to support his convictions, particularly his conviction for possession of cocaine. He argues that the State failed to prove that Rhodes intentionally and knowingly possessed cocaine.
When the sufficiency of evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there was sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or evaluate the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Rhodes contends that the State failed to prove that he knowingly or intentionally possessed cocaine. What Rhodes fails to realize is that a conviction of even the gravest offense can be based entirely on circumstantial evidence. See State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
When viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have found Rhodes guilty beyond a reasonable doubt. There was testimony that Rhodes admitted that the pill bottle and pen casing, collectively, created a pipe and that it was his. The pill bottle and pen casing tested positive for the presence of cocaine. Circumstantial evidence suggests that through ownership of the pill bottle and pen casing and because they tested positive for cocaine, then Rhodes knowingly and intentionally possessed cocaine. Moreover, possession of any amount of a controlled substance is sufficient for conviction on a possession charge, even if that amount is so minute as to be unusable or immeasurable. State v. Brown, 245 Kan. 604, 613–14, 783 P.2d 1278 (1989); State v. Green, 32 Kan.App.2d 789, 796, 89 P.3d 940,rev. denied 278 Kan. 849 (2004). Therefore, there was sufficient evidence to support Rhodes' convictions for possession of drug paraphernalia and possession of cocaine.
Affirmed.