State v. Stevens

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NOT DESIGNATED FOR PUBLICATION

No. 118,612


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARGO LANE STEVENS,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed February 8, 2019.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Brock R. Abbey, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON and GREEN, JJ.

PER CURIAM: A jury convicted Margo Lane Stevens of possession of
methamphetamine. She appeals, arguing that the State introduced insufficient evidence to
convict her. For the reasons stated below, we affirm.

Around 1 a.m. on August 25, 2016, Saline County Sheriff's Deputy Matthew
Smith pulled over a car in Saline County, Kansas. A woman named Rachel Cox was
driving the car. Stevens was in the front passenger seat of the car while another passenger
named Allen Cleveland was in the backseat. Deputy Smith called for backup because of
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the number of people in the car. Officer Micah Bunce of the Salina Police Department
and Deputy Craig Norris of the Saline County Sheriff's Office responded. After all three
officers arrived, they removed the three people from the car.

Deputy Norris performed a dog sniff search of the car using his K-9, Leroy. Leroy
alerted to the odor of a narcotic coming from the front passenger side door. After Leroy
alerted, the officers searched the car. Deputy Smith found a small plastic bag with
crystalline residue; the bag was between the driver's seat and the center console. Deputy
Smith next found a broken glass pipe he believed to be a methamphetamine pipe. The
pipe was on the car's floor on the front passenger side near the door and was partially
covered by torn carpeting. The officers also found a pink purse belonging to Stevens; the
purse did not contain anything illegal. Deputy Norris took pictures after the search,
including pictures of the plastic bag, pipe, interior of the vehicle, and Stevens' purse.
Deputy Smith took the plastic bag and pipe into custody as evidence.

The officers arrested Stevens on an outstanding warrant from another county.
Officer Bunce performed a limited search before putting Stevens in his police car. The
search was limited because Stevens is a woman and all of the officers at the stop were
men; a woman officer was not available to perform a more thorough search. Stevens was
wearing a short, stretchy dress with no pockets and tight boots that went about halfway
up her calf. Officer Bunce patted down the waistband area of Stevens' dress and did not
find anything. He did not search Stevens' boots. He put Stevens in handcuffs.

Officer Bunce next put Stevens in the backseat of his police car. Stevens was upset
and placed her feet in an elevated position on the partition dividing the backseat from the
front of the police car. Officer Bunce told Stevens she needed to calm down and put her
feet down. After Stevens calmed down, she asked Officer Bunce to remove a lanyard
with keys from her neck and give the lanyard to another person so they could take care of
her dog. Officer Bunce used his flashlight to illuminate the car and took the lanyard off
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Stevens. When Officer Bunce was doing this, he noticed a pill on the floor in the backseat
of the car. Stevens also noticed the pill and immediately and adamantly denied that it was
hers. Officer Bunce then had Stevens remove her boots and shake them out so he could
check for drugs and contraband inside. Officer Bunce did not find anything in Stevens'
boots. The officers suspected the pill was ecstasy, and Deputy Smith took it into custody
as evidence.

The State charged Stevens with possession of ecstasy for the pill and possession of
paraphernalia for the pipe. The plastic bag, the broken pipe, and the pill all later tested
positive for methamphetamine. After testing showed the pill was methamphetamine and
not ecstasy, the State amended the possession charge to possession of methamphetamine.
Stevens pleaded not guilty and the case went to a jury trial.

At trial, the State called all three officers to testify. Deputy Smith and Deputy
Norris testified about the search of the car and how they located and photographed the
pipe and plastic bag. Officer Bunce testified about searching Stevens and putting her in
the backseat of the police car. He also testified about finding the pill on the floor when he
went to remove her lanyard for her. Officer Bunce described the backseat as "one solid
piece of plastic" with a metal cage partition dividing it from the front seat and a solid
floor pan ensuring that nothing from the front seat can move to the backseat and vice
versa. Officer Bunce further testified that he searched the backseat of the police car at the
start of his shift per department policy, and no pill was visible when he conducted this
initial search. He testified that no one else had been placed in the backseat of the car
between his search at the beginning of his shift and the time he put Stevens in the
backseat. He said that police department records showed that no one had been placed in
the backseat of the car in the 48 hours preceding Stevens' arrest.

In addition to the officers, the State called an evidence technician to establish the
chain of evidence for the pipe, plastic bag, and pill. The State also called the KBI forensic
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chemist who tested the items for drugs. The State introduced the pipe, plastic bag, and
pill as evidence, as well as nine pictures Deputy Norris took of the items and the inside of
the car. The State also introduced bodycam footage from Officer Bunce showing his
discovery of the pill in the police car. The bodycam video had only visual footage; the
audio footage was redacted for trial. Stevens cross-examined the officers but not the
evidence technician or the chemist.

Stevens took the stand in her defense. She testified that after the car was pulled
over but before the officers approached the car, Allen, the backseat passenger, was
shuffling around and moving objects and said, "Oh shit, I got shit on me." She testified
that he placed something on the floor between the front passenger seat and the door—
which is where the pipe was later found—but she did not look to see what the item was.
She testified that she did not have any methamphetamine in the car or on her person.

Stevens contradicted Officer Bunce's claim that she put her feet up on the
plexiglass divider in the police car. She argued that she could not have feasibly done so
because the space is small, she is 5'7" tall, and she was handcuffed. She also contradicted
the State's theory that the pill fell out of her boots while her feet were raised by pointing
out that her boots were extremely tight, so tight that they were "suctioned" to her leg and
she struggled to get them off when Officer Bunce told her to do so. Finally, she testified
that the floorboard of the backseat was dirty and had "clumps of dirt everywhere," and
therefore the pill may have been there when Officer Bunce searched the car at the start of
his shift and simply been obscured by dirt and thus remained undiscovered.

The trial court instructed the jury on three alternative means by which it could find
Stevens guilty of possession of methamphetamine. The jury could find Stevens possessed
methamphetamine in the pipe, the pill, and/or the plastic bag. The jury convicted Stevens
for possessing methamphetamine in the pill, but it did not find she possessed the pipe or
the plastic bag. The jury acquitted Stevens on the possession of paraphernalia charge.
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Did the State Introduce Sufficient Evidence to Support Stevens' Conviction?

On appeal, Stevens argues that the State did not introduce sufficient evidence to
support her conviction for possession of methamphetamine. "'When the sufficiency of
evidence is challenged in a criminal case, this court reviews the evidence in a light most
favorable to the State to determine whether a rational fact-finder could have found the
defendant guilty beyond a reasonable doubt.' [Citation omitted.]" State v. Rosa, 304 Kan.
429, 432-33, 371 P.3d 915 (2016). Appellate courts do not "reweigh evidence, resolve
evidentiary conflicts, or make determinations regarding witness credibility" when
reviewing a conviction for sufficiency of the evidence. State v. Dunn, 304 Kan. 773, 822,
375 P.3d 332 (2016). An appellate court will only reverse a conviction in rare cases
where the testimony is so incredible "that no rational factfinder could find the defendant
guilty beyond a reasonable doubt." State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945
(1983). "'A conviction of even the gravest offense can be based entirely on circumstantial
evidence and the inferences fairly deducible therefrom. If an inference is a reasonable
one, the jury has the right to make the inference.'" State v. Brooks, 298 Kan. 672, 689,
317 P.3d 54 (2014).

Stevens argues that a reasonable jury could not have found beyond a reasonable
doubt that she possessed the pill found in the police car. The trial court correctly
instructed the jury that "possession" is defined as "having joint or exclusive control over
an item with knowledge of and the 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."

Here, the State presented Officer Bunce's testimony that he thoroughly searched
his car for contraband at the start of his shift. Officer Bunce also testified that no one else
had been in the backseat of the car between the time Officer Bunce searched for
contraband and the time Stevens was detained. Further, Officer Bunce testified that he
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did not thoroughly search Stevens before putting her in the back of the car because
Stevens is a woman and he is a man. Officer Bunce testified that he only patted down
Stevens' waistband; he did not conduct a thorough patdown or check Stevens' boots.
Officer Bunce also testified that Stevens put her feet up on the plexiglass divider between
the front and back of the car. Using this evidence, the State's theory of the offense was
that there was no pill in the backseat of the police car until Stevens was placed there, and
Stevens had the opportunity to carry the pill with her into the car undetected either in her
boots or otherwise on her person because she was not thoroughly searched.

Stevens, on the other hand, testified that Officer Bunce's search could not have
been as thorough as he claimed because the floor of the car was dirty. Thus, Stevens
argued, the pill may have been present at the beginning of Officer Bunce's shift and he
may have simply failed to see the pill because it was obscured by dirt on the floor.
Stevens also testified that her dress was pocketless, stretchy, and tight and her boots were
so tight they were "suctioned" to her legs. Finally, Stevens denied putting her feet up on
the plexiglass, claiming it would have been physically impossible for her to do so
because of the small size of the backseat, her 5'7" height, and the fact that she was
handcuffed. Stevens' theory of the case was that Officer Bunce either did not search or
did not thoroughly search, and the pill could therefore have been in the car before Stevens
but remained undiscovered because it was hidden by dirt. Stevens bolstered her argument
by claiming that there is no way she could have hidden a pill on her person because her
clothing and boots were skintight.

On appeal, Stevens argues that the record lacks sufficient evidence to convict her
of possession because the drugs were in a semi-public place—the backseat of a police
car. She cites State v. Cruz, 15 Kan. App. 2d 476, Syl. ¶ 11, 809 P.2d 1233 (1991): "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." In Cruz, this court
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overturned two men's convictions for possession of cocaine. There, a tenant hired two
men to hang curtains in his rental house. While the men were performing the job, a police
officer went to the house and found cocaine hidden in a couch in the basement. The men
were charged with and convicted of possession of cocaine. The State presented evidence
that one of the men was in the basement for "four to five seconds" and the State did not
show that the other man entered the basement at all. 15 Kan. App. 2d at 489. This court
concluded that the evidence did "not give rise to or justify the inference which allows a
finding of guilt beyond a reasonable doubt." 15 Kan. App. 2d at 490. This court found
that "all that the State proved" was that the men were hired to hang curtains in the house.
15 Kan. App. 2d at 488.

Cruz outlines four incriminating factors a court can consider to determine
possession of drugs found in places nonexclusively controlled by the defendant: (1) the
defendant's prior sale or use of drugs; (2) the defendant's proximity to where the drugs
were found; (3) whether the drugs were in plain view; and (4) incriminating statements or
suspicious behavior by the defendant. 15 Kan. App. 2d at 489.

With respect to the first factor, the parties agree that the State did not produce any
evidence at trial that Stevens had previously used or sold drugs. As to the second factor,
the evidence at trial showed Officer Bunce found the pill near Stevens' feet in the
backseat of the police car. While Stevens' attempts to minimize the significance of this
proximity, she was undeniably in close proximity to the drugs. The third factor weighs
against Stevens because, here, the drugs were in relatively plain view, as the pill was
visible on the floor of the car as soon as Officer Bunce shone his flashlight on the area.
With respect to the fourth factor, the parties agree that Stevens did not make any
incriminating statements here. The State notes that Officer Bunce testified that Stevens
contorted her body around in the backseat of the car prior to the discovery of the pill, and
was "upset" both before and after Officer Bunce found the pill. The State does not
characterize this behavior as "suspicious." In sum, the State argues that Stevens'
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proximity to the pill and the fact that the pill was in plain sight together establish "more
than mere presence and access" to the drug. See 15 Kan. App. 2d at 489.

The State is correct. This case is distinguishable from Cruz because here Officer
Bunce testified that he thoroughly searched the car at the start of his shift and no one
entered the backseat of the car until Stevens was detained. Officer Bunce also testified
that the pill was not present in the car until after Stevens was detained in the backseat.
This testimony provides a strong causal and temporal link between Stevens and the pill.
In Cruz, there was no testimony that the basement was searched for drugs before the
men's presence in the house and that drugs did not appear in the basement until after the
men went to the house. Cruz therefore lacked testimony establishing the strong temporal
and causal link present here.

The remainder of Stevens' arguments on appeal amounts to an invitation that this
court reweigh the evidence. For example, she argues that "[i]f the State is advancing an
argument that Bunce's search of Stevens failed to uncover a pill she had on her person,
then it is completely plausible that Bunce's search of his patrol vehicle could have failed
to uncover a pill that was present in the car." While Stevens is correct that this is
plausible, the State's theory is also plausible and is supported by Officer Bunce's
testimony that he searched the car and that his prearrest search of Stevens was not
thorough, thus providing the opportunity for Stevens to bring the pill with her into the car
and then either willfully or accidentally drop the pill.

Stevens also argues that "there is no reason to believe that she could have been
concealing a pill in her dress" because the dress was short and tight and did not have
pockets. Further, Stevens argues the fact that Stevens requested Officer Bunce get her
lanyard makes it "much more likely that she was not responsible for the pill found in the
car and was not even aware of its presence" because it would be irrational for her to draw
Officer Bunce's attention to the backseat if she had discarded the pill in the car.
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Stevens is asking this court to reweigh the evidence in light of her favored theories
and arguments. This court cannot reweigh evidence while conducting a sufficiency of the
evidence review. Dunn, 304 Kan. at 822. Here, the jury evidently credited Officer
Bunce's testimony that there were not any drugs in the car until Stevens was placed in the
backseat. The jury also likely credited Officer Bunce's testimony that his predetention
search of Stevens was not thorough. While Stevens is correct that her dress was short and
stretchy and the bodycam footage supports this fact, this alone does not foreclose the
possibility that she brought the pill into the car on her person. A reasonable jury could
conclude that Stevens had the pill on her person somewhere other than the waistband area
that Officer Bunce searched. Stevens herself also conceded that a pill could fit in her boot
although she testified that if a pill was in her boot, it would not have fallen out because
the boots were tight and she couldn't have used her hands to work it out of her boot
because she was handcuffed. A reasonable jury could find Stevens guilty of possession of
methamphetamine beyond a reasonable doubt on the basis of the State's evidence and
reasonable inferences derived from that evidence. We therefore affirm Stevens'
conviction.

Affirmed.