Opinion
110,628.
11-21-2014
STATE of Kansas, Appellee, v. Eric D. WHETZELL, Appellant.
Maradeth Frederick, of The Frederick Law Office, LLC, of Frontenac, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Maradeth Frederick, of The Frederick Law Office, LLC, of Frontenac, for appellant.
Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J. and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Eric D. Whetzell appeals his convictions for one count of possession of marijuana and one count of possession of drug paraphernalia. His singular argument on appeal is that the evidence at trial was insufficient to sustain either conviction.
Facts
In October 2012, Whetzell lived in Mulberry, Kansas, with his daughter, Lori Edwards. That month, he was hospitalized as a result of a mental illness. While he was in the hospital, Lori went into Whetzell's bedroom and found what appeared to be illegal drugs in a nightstand. Lori then called Tim Pelican, the Mulberry Chief of Police.
Chief Pelican obtained a search warrant and searched Whetzell's house. In the nightstand in the room identified as Whetzell's, he found and seized a pipe, a black nylon bag, a metal key ring, and a substance that appeared to be marijuana. He also found a set of scales in a car matching the description of Whetzell's car. Chief Pelican sent the seized items to the KBI for testing.
Three samples of the suspected marijuana were tested by the KBI. Two of the samples contained THC, the active ingredient in marijuana. One sample contained K–2, a form of synthetic marijuana. Residue from the pipe seized from Whetzell's house also tested positive for K–2.
Whetzell was charged with one count of possession of marijuana and one count of possession of drug paraphernalia. At trial, Whetzell testified that he normally kept his bedroom door locked because he believed his children might steal his loose change. He also testified that Lori was upset with him because he told her to give the car keys to his son, Kyle. Whetzell noted that he had been away from the house for 4 or 5 days prior to Chief Pelican's search. He denied that any of the items found by Chief Pelican were his and denied using marijuana. On cross-examination, however, he admitted to smoking marijuana a few months before the search and between the date of the search and the date of the trial.
Whetzell was found guilty on both counts. He timely appeals.
Analysis
Whetzell claims the State failed to present sufficient evidence to convict him of either possession of marijuana or possession of drug paraphernalia. Specifically, he argues the State failed to establish that he actually possessed the drugs and paraphernalia.
When reviewing the sufficiency of the evidence following a conviction in a criminal case, the appellate court looks at all the evidence in a light most favorable to the prosecution and determines 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). This court will not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. A conviction may be based entirely on circumstantial evidence and the reasonable inferences deducible from that evidence. State v. McCaslin, 291 Kan. 697, 710–11, 245 P.3d 1030 (2011), overruled on other grounds State v. Astorga, 299 Kan. 395, 402, 324 P.3d 1046 (2014).
Whetzell was convicted of possessing marijuana and a pipe under K . S.A.2013 Supp. 21–5706(b)(3) and K.S.A.2013 Supp. 21–5709(b)(2), which prohibit possession of certain drugs and drug paraphernalia. As used in those statutes, “possession” is defined as “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.2013 Supp. 21–5701(q). In other words, possession may be constructive if an item is knowingly kept in a place where a defendant has some measure of access and right of control. However, if “the defendant does not exclusively possess the premises upon which drugs [or drug paraphernalia] are found, it cannot be inferred that the defendant knowingly possessed the drugs [or drug paraphernalia] unless there are other incriminating circumstances linking the defendant to the drugs [or drug paraphernalia].” State v. Dean, 42 Kan.App.2d 32, 38–39, 208 P.3d 343 (2009). Such incriminating circumstances could include: (1) a defendant's prior sale of a controlled substance, (2) his or her use of a controlled substance, (3) his or her proximity to the location of the drugs or drug paraphernalia, (4) the fact the items were found in plain view, (5) incriminating statements by the defendant, (6) suspicious behavior by the defendant, and (7) the proximity of a defendant's possessions to the drugs. 42 Kan.App.2d at 39.
Clearly, several of the factors listed above are not present in this case. There was no evidence Whetzell sold any drugs. Further, he was hospitalized during the search, so he was nowhere near the drugs and pipe at the time they were found. The items were not found in plain view but rather inside a nightstand. Whetzell did not engage in any suspicious behavior.
Notwithstanding the absence of these particular factors, however, there were several incriminating factors that linked Whetzell to the drugs and the pipe found in his home. First, Lori explicitly identified the bedroom containing the drugs and pipe as Whetzell's. Further, Whetzell admitted that he usually kept his bedroom door locked to keep his children out of his room. This indicates that he had access and some measure of exclusive control over his bedroom. Based on the statutory definition, this control is circumstantial evidence that establishes Whetzell possessed the items within the bedroom, which included the nightstand and its illicit contents. Finally, Whetzell admitted at trial that he used marijuana both before and after the search that led to his arrest in this case.
In Dean, the defendant challenged his conviction for possession of marijuana without tax stamps affixed. In that case, police found a brick of marijuana inside a dresser while executing a search warrant. Dean was not home at the time of the search. But the bedroom in which the marijuana was found had photographs of Dean and contained only male clothing. The police also found Dean's wallet on top of the dresser and a photo identification card of Dean in a drawer of the dresser. Similar to this case, Dean argued that there was insufficient evidence to show that he possessed the marijuana. A panel of this court found that the circumstantial evidence indicated that the bedroom belonged solely to Dean and that he clearly had exclusive possession of the dresser containing the marijuana. As a result, it upheld Dean's conviction based on constructive possession. 42 Kan.App.2d. at 39.
Whetzell argues that, due to his hospitalization, he had no access or control over the room for at least 4 or 5 days prior to Chief Pelican's search. However, this argument is unpersuasive. The defendant in Dean was found to have constructively possessed marijuana despite being away from his house at the time the marijuana was found. Here, despite Whetzell's hospitalization, the record clearly indicates the room in which the marijuana and pipe were found was his and that he typically exercised exclusive control over that room by locking it. Viewed in the light most favorable to the prosecution, the circumstantial evidence in this case could lead a rational factfinder to find Whetzell guilty of both counts beyond a reasonable doubt.
Affirmed.