Opinion
No. 104,910.
2012-07-13
STATE of Kansas, Appellee, v. Lawson WEEKES, Appellant.
Appeal from Sedgwick District Court; Jeff Goering, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeff Goering, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
A Sedgwick County jury convicted Lawson Weekes of possession of methamphetamine, possession of drug paraphernalia, and driving with a suspended license. On appeal, Weekes argues that there was insufficient evidence to support his convictions for possession of methamphetamine and driving with a suspended license. He also argues that the district court erroneously relied on his previous convictions to enhance his sentence. Because the State concedes that there was not sufficient evidence to prove that Weekes was guilty of driving with a suspended license, we reverse that conviction. In all other respects, however, we affirm the convictions and sentences.
On the evening of January 21, 2009, Weekes was pulled over by two law enforcement officers because the license plate on his car was registered to a different vehicle. During the traffic stop, Officer Kasey Weidner ran a check on Weekes' driver's license, which revealed that his license was suspended. Weekes was placed under arrest and his hands were handcuffed behind his back.
Following the arrest, Officer Enrique Aguiniga–De La Torre asked Weekes if he had anything in his pockets. Weekes responded that he had something in his front left pocket. Officer Aguiniga reached into Weekes' pocket and found a glass pipe. After removing the pipe from Weekes' pocket. Officer Aguiniga patted Weekes down and placed him in the back seat of the patrol car. Because Weekes was “a large individual in stature,” Officer Aguiniga told him he would be most comfortable if he sat down on the passenger side seat and then scooted towards the door on the driver's side, which he did.
The officers waited until a tow truck could come to pick up Weekes' car before taking him to jail. While they waited, Officer Weidner began filling out the arrest report, and she noticed that Weekes was “moving around [or] squirming” in the back seat. After the tow truck came, the officers took Weekes to the Sedgwick County jail.
Upon arrival at the jail, Weekes was removed from the patrol car and Officer Aguiniga pulled up the back seat to look for contraband. In doing so, Officer Aguiniga found a clear plastic baggie with a substance he suspected to be methamphetamine. Subsequent testing confirmed that the baggie did in fact contain methamphetamine. Accordingly, Weekes was charged with driving while suspended, possession of methamphetamine, and possession of drug paraphernalia.
At trial, Officer Weidner testified that when she began her shift at 5 p.m. on January 21, 2009, she lifted up the back seat of the patrol car and found it to be clear of contraband. She also testified that Weckes was the only person placed in the back seat of the patrol car between the time her shift began and the baggie was found. After weighing the evidence, the jury found Weekes guilty of driving while suspended, possession of methamphetamine, and possession of drug paraphernalia. He was given a downward dispositional departure sentence of 12 months' probation—with an underlying 24–month prison sentence.
On appeal, Weekes raises three issues: (1) whether there was sufficient evidence to support his conviction for driving with a suspended license; (2) whether there was sufficient evidence to support his conviction for possession of methamphetamine; and (3) whether his constitutional rights were violated when the trial court used his prior convictions to enhance his sentence.
When a defendant challenges the sufficiency of the evidence in a criminal case, we review all of the evidence, viewing it in the light most favorable to the prosecution, to determine whether we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). In determining whether there is sufficient evidence to support a conviction, we generally will not reweigh the evidence or the credibility of witnesses. See State v.. Hall 292 Kan. 841, 858, 257 P.3d 272 (2011).
Weekes first contends that there was insufficient evidence to support his conviction for driving with a suspended license. Specifically, Weekes argues that the State failed to present evidence on the necessary element that he had received notice that his driving privileges had been suspended. See State v. Jones, 231 Kan. 366, 368, 644 P.2d 464 (1982) (holding that in a prosecution for driving while suspended under K.S.A.1981 Supp. 8–262, the State must offer proof that a copy of the order of suspension was mailed to the last known address of the licensee). In response, the State candidly concedes this issue. Thus, we conclude that Weekes' conviction for driving with a suspended license must be reversed.
Next, Weekes contends that there was insufficient evidence to support his conviction of possession of methamphetamine. Weekes argues that no evidence was presented at trial that he possessed the methamphetamine found under the back seat of the patrol car. Based on our review of the record, however, we find sufficient evidence on which a reasonable person could find that Weekes possessed the methamphetamine.
“ ‘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). When more than one person has had recent access to a car, a person's “mere presence in the vehicle [in which drugs were found], without more, would not sustain his [or her] conviction for possession.” State v. Faulkner, 220 Kan. 153, 160, 551 P.2d 1247 (1976). But the State can prove possession of controlled substances with circumstantial evidence. See State v.. Washington, 244 Kan. 652, 654, 772 P.2d 768 (1989); State v. Anthony, 242 Kan. 493, 502, 749 P.2d 37 (1988); State v. Marion, 29 Kan.App.2d 287, 290, 27 P.3d 924,rev. denied 272 Kan. 1422 (2001).
Here, Officer Weidner testified that there were no drugs behind the back seat of the patrol car prior to her shift, that Weekes was the only person in the back seat between the time her shift began and the drugs were found, and that the drugs were found immediately alter Weekes was removed from the back scat. Moreover, Officer Weidner testified that Weekes was moving or squirming around in the back seat of the patrol car following his arrest. Additionally, Weekes had a pipe commonly used for smoking methamphetamine in his possession when he was arrested. Accordingly, we conclude that there was substantial evidence to support Weekes' conviction for possession of methamphetamine.
Finally, Weekes contends that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when his prior criminal history was used to enhance his sentence without the prior crimes being proved to a jury beyond a reasonable doubt. Weekes concedes, however, that the Kansas Supreme Court rejected his argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). Furthermore, we are duty bound to follow Kansas Supreme Court precedent, absent some indication that it is departing from its previous position. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Because we find no indication that the Kansas Supreme Court is departing from its ruling in Ivory, we conclude that Weekes' challenge to his sentence is without merit. See McCaslin, 291 Kan. at 731–32 (reaffirming Ivory ).
Affirmed in part and reversed in part.