Opinion
No. 105,762.
2012-05-11
STATE of Kansas, Appellee, v. Ernest E. TAYLOR, Sr., Appellant.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge. Christina M. Waugh, of Kansas Appellant Defender Office, for appellant. Mark A. Menefee, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge.
Christina M. Waugh, of Kansas Appellant Defender Office, for appellant. Mark A. Menefee, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ernest E. Taylor, Sr., was arrested for possession of cocaine when, after he fled a moving car on foot, police found cocaine and a digital scale inside of a black bag located in the center console of the car. Taylor appeals his conviction on this charge, arguing that the State did not prove beyond a reasonable doubt that he possessed the cocaine.
But even the most serious crimes may be proved by circumstantial evidence, and there is enough circumstantial evidence to conclude that Taylor possessed the cocaine. Taylor had exclusive control of the car at the time of the incident, the officer who inventoried the car testified that the bag containing the cocaine and the digital scale was in plain view, and the bag was next to Taylor's leg while he was seated in the driver's seat. Because Taylor had control and possession of the car at the time of the incident and because of his proximity to the bag containing the cocaine and digital scale, we affirm his conviction for possession of cocaine.
Factual Background
At about 2 a.m. on a December night in 2009, a police officer noticed a Toyota Yaris pull into a driveway and saw the driver get out. The officer ran the tag number through dispatch and learned that the tag was registered to a Chevrolet. The officer watched as the driver, later identified as Taylor, returned to the car about 2 minutes later. When the car left the driveway, the officer pulled his patrol car behind it and ran the tags a second time to confirm the information.
While following the car, the officer turned on his emergency lights and siren to make a traffic stop. As soon as the officer turned on the patrol lights, the Toyota accelerated; the officer pursued. After the Toyota made a left turn, the driver opened his door while the car was still moving, jumped out, and ran through an alley. The officer continued to pursue Taylor with his patrol car, but when Taylor jumped a fence, the officer parked and chased Taylor on foot. Taylor jumped another fence and continued to run from the officer. The officer continued the chase but eventually lost sight of Taylor.
With backup assistance and a thermal-imaging camera, the officer found Taylor in a nearby yard. Taylor admitted that he was the driver of the Toyota and said that there were warrants for his arrest. According to an officer, Taylor told the police that he had stopped at the house at 2 a.m. just to ask for directions but that he didn't know who lived there. (Taylor testified at trial that he stopped at the house to visit a woman he had spoken to earlier in the day.)
When backup officers arrived, they found the Toyota situated on a curb, still engaged in drive. The officer inventoried the car before having it towed. In an open compartment of the center console near the driver's right side, an officer found a black bag. Sticking out of the black bag was a clear plastic bag that contained cocaine; a digital scale was inside the black bag. The officer testified at trial that if someone were seated in the driver's seat, he or she would have had a straight view of the black bag. Taylor was charged with possession of cocaine, possession of cocaine with no tax stamp, and driving with no vehicle registration.
The charges were tried to the district court sitting without a jury. The court found Taylor guilty of possession of cocaine. Factoring in Taylor's criminal-history score, which included several previous drug-related offenses, the court sentenced Taylor to 12 months of probation, with an underlying 18–month prison sentence that would be served if he failed to successfully complete his probation.
Analysis
Taylor's main argument on appeal is that there was insufficient evidence to convict him for possession of cocaine. He contends the State failed to prove that he knew of the presence of the cocaine or that he intended to possess the cocaine. And Taylor argues that simply because he was in the car in which the cocaine was found, it cannot be inferred that he possessed the cocaine. But a conviction for even the gravest offense may be sustained by circumstantial evidence. State v. Davis, 275 Kan. 107, 118, 61 P.3d 701 (2003). In this case, there is enough circumstantial evidence to conclude that Taylor possessed the cocaine and the scale.
When the sufficiency of the evidence is challenged after the fact-finder has convicted the defendant, we must review of all the evidence in the light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). In determining whether there is sufficient evidence to support a conviction, we do not reweigh the evidence or the credibility of witnesses. State v. Jackson, 280 Kan. 16, 39–40, 118 P.3d 1238 (2005), cert. denied546 U.S. 1184 (2006).
These general rules have been further refined with regard to circumstantial evidence. A verdict may be supported by circumstantial evidence if the evidence provides a basis from which the fact-finder may reasonably infer the existence of the fact in issue. Evans v. State, No. 103,306, 2011 WL 1004609, at *2 (Kan .App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (October 3, 2011). However, the evidence need not exclude every other reasonable conclusion or inference. 2011 WL 1004609, at *2 (citing State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 [2008] ). The circumstances used to infer guilt must be proved and cannot be inferred or presumed from other circumstances. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).
We consider the evidence in connection with the charge, and here Taylor was charged with possession of cocaine. Kansas law provides that “[i]t shall be unlawful for any person to possess any opiates, opium or narcotic drugs....” K.S.A.2009 Supp. 21–36a06(a). Taylor argues that the State failed to prove that he knew the cocaine was in the car or that he intended to possess it.
Control and possession over drugs or other contraband is often at issue. See, e.g., State v. Cruz, 15 Kan.App.2d 476, 489, 809 P .2d 1233,rev. denied 249 Kan. 777 (1991). Taylor testified that he borrowed the car from a friend who had rented it and that the friend didn't know where Taylor was going with the car. Taylor had control and possession of the car containing the drugs, which he drove from Missouri into Kansas.
A drug-possession charge requires not only that Taylor have control over the cocaine but also that he do so with knowledge of—and the intent to have—such control. 15 Kan.App.2d at 489. Once again, though, possession and intent may be proved by circumstantial evidence. “[P]ossession of a controlled substance 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. [Citation omitted.]” State v. Washington, 244 Kan. 652, 654, 772 P.2d 768 (1989). In this case, Taylor had access and the right of control in the car.
Taylor argues that since he was not the person who rented the car, he did not know the items were present—and that it does not follow that the drugs are his simply because he was in the car. Taylor is correct that in a case in which more than one person has had recent access to the car, a person's “mere presence in the vehicle [in which drugs were found], without more, would not sustain his conviction for possession.” State v. Faulkner, 220 Kan. 153, 160, 551 P.2d 1247 (1976). But even if Taylor had not been in exclusive control of the car, other incriminating circumstances when taken together can “provide a sufficient inference of knowing possession to support the verdict.” 220 Kan. at 160. “Other circumstances which have been held sufficiently incriminating to link a defendant with illicit drugs in a vehicle are his previous participation in the sale of drugs, his use of narcotics, his proximity to the area where drugs are found and the fact the drugs were found in plain view.” 220 Kan. at 160. Here, Taylor's previous drug-related crimes, his proximity to the drugs, and the plain view of the drugs link Taylor to the cocaine and digital scale.
Taylor was driving the car by himself, so he had exclusive temporary possession and control of the car. The black bag containing the scale and cocaine were within Taylor's reach from the side of the center console near his right leg. The officer who inventoried the car testified that if someone were seated in the driver's seat, he or she would have a straight view of the black bag. And while Taylor maintained that he fled from the police because he was worried about violating his probation, he nevertheless jumped out of the moving car and fled on foot from the officer. The district court considered this action and found that it was highly suspicious that Taylor not only fled in the car but also jumped out of a moving car in an attempt to escape. These factors, when considered under Faulkner, support a finding that Taylor was in possession of the cocaine. Because Taylor had complete control over the car, had a direct view of the black bag containing the cocaine and scale, fled the moving car on foot, and was in close proximity to the drugs, a rational fact-finder could have found him guilty beyond a reasonable doubt of possessing cocaine.
Taylor raises one other argument on appeal—that the district court erred in sentencing by considering his past convictions without the existence of those convictions having been proved to a jury. He also contends that the district court erred in choosing the highest of the three potential sentences provided under Kansas sentencing laws. Both arguments have been rejected by the Kansas Supreme Court.
In State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), the court held that there is no violation of a defendant's constitutional rights when the sentencing court determines his sentence based in part on his prior conviction history. The court continues to follow its ruling in Ivory. State v. Turner, 293 Kan. 1085, 1092, 272 P.3d 19 (2012).
As for the district court's ability to choose between three potential sentences once it determines the correct grid box under the Kansas sentencing guidelines, K.S.A. 21–4704(e)(1) provides the district court with discretion to choose any of the three terms within the presumptive grid block, and the resulting sentence is a “guidelines sentence.” K.S.A. 21–4721(c)(l) provides that we have no jurisdiction to review a guidelines sentence, and the Kansas Supreme Court has held that this precludes an appellate court from considering any challenge to the district court's choice of sentence length from within the numbers provided within the applicable grid box. State v. Johnson, 286 Kan. 824, 842, 851–52, 190 P.3d 207 (2008). The court also continues to follow its ruling in Johnson. State v. Deal, 293 Kan. 872, 890–91, 269 P.3d 1282 (2012).
The district court's judgment is affirmed. Taylor's challenge to the district court's authority to choose a sentence from within the applicable grid box is dismissed for lack of jurisdiction.