State v. MarionState v. Marion
- Reporters:
- , ,
- Before:
- Pierron
Kenneth Marion appeals his convictions of possession of cocaine, possession of drug paraphernalia, and delivering or possessing with the intent to deliver simulated controlled substances. On appeal, Marion argues that the evidence was insuffi
On July 27, 1999, Officer Richard Parsons stopped a vehicle driven by Thomas Lewis. Marion was a passenger in the vehicle but identified himself as Terry Fountain. Officer Parsons questioned Lewis about a burglary he was suspected of committing. Lewis consented to a search of his residence for the reportedly stolen items. Marion told Officer Parsons that he was living with Lewis at 424 West 4th Street, Junction City, Kansas.
Lewis’ residence was later searched. In the living room, there was a table, dresser, mattress, sleeping bag, and blankets. On the table in the living room lay a candle cut up into small pieces. There was also copper wire mesh which is commonly used in a crack pipe. In addition, officers found pieces of clear plastic baggies in the kitchen garbage can. A utility bill discovered in the pantry and mail discarded in the trash were addressed to Lewis. The officers did not find any evidence in the residence which indicated that Marion lived there.
In Lewis’ bedroom, there was a dresser and clothes hanging in the closet. The other bedroom was empty. Officer Parsons testified that Marion indicated that he used to live in the empty bedroom but was currently staying in the living room.
Sonia Gregoire, a Junction City Drug Task Force Officer, assisted with the search of Lewis’ residence. Upon entering the residence, Officer Gregoire observed a spoon covered with a white residue on the stove. Officer Gregoire testified that it was common to use a spoon for breaking down cocaine and that the process would leave a white residue on the spoon. Officer Gregoire further testified that she found baggies with the comers tom out. The comers are commonly tom out of baggies to package narcotics.
Officer Gregoire also found an assortment of baggies, baggie comers, razor blades, and candles cut up to look like crack cocaine. In addition, Officer Gregoire observed a tube of sports cream in the living room. She testified that it was common for purchasers of crack cocaine to place the substance in their mouths to check for a numbing sensation to ensure that the substance they were buying was actually cocaine. Officer Gregoire testified that if the
Three of the baggie comers discovered in the kitchen garbage can and the spoon which was on the stove tested positive for cocaine. The remainder of the property seized from the residence did not test positive for a controlled substance.
Based on this evidence, Marion was arrested and charged with numerous dmg offenses. Some of the offenses were dismissed, and Marion was tried and convicted by a jury of single counts of possession of cocaine, possession of drug paraphernalia, and delivering or possessing with the intent to deliver simulated controlled substances.
Marion’s first argument on appeal is that the evidence was insufficient to support his conviction of delivering or possessing with the intent to deliver simulated controlled substances in violation of
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Here, the State concedes that the legislature’s definition of a simulated controlled substance in
Marion further argues that his remaining convictions of possession of cocaine and possession of drug paraphernalia were not supported by sufficient evidence. Marion argues that there was no evidence which tended to indicate that he, as opposed to Lewis, was in possession of the cocaine and drug paraphernalia found at the residence.
When a defendant is in nonexclusive possession of the premises upon which drugs are found, it cannot be inferred -that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs. State v. Cruz, 15 Kan. App. 2d 476, Syl. ¶ 11, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). The Cruz court stated that “[possession” of a controlled substance “is having control over the [controlled substance] with knowledge of, and intent to have, such control. Possession and intent, like any element of a crime, may be proved by circumstantial evidence.” 15 Kan. App. 2d at 489. Other incriminating factors tending to prove a defendant’s knowing possession of drugs include
“ ‘a defendant’s previous participation in the sale of drugs, his use of narcotics, his proximity to the area where die drugs are found, and the fact that the drugs are found in plain view. Other factors noted in cases involving nonexclusive possession include incriminating statements of the defendant, suspicious behavior, and proximity of defendant’s possession^] to the drugs.’ [Citation omitted.]” 15 Kan. App. 2d at 489.
Here, other incriminating circumstances connected Marion to the cocaine and drug paraphernalia recovered from the residence. First, the spoon containing the cocaine residue was found in plain
Affirmed in part and reversed in part.