Opinion
111,369.
06-26-2015
STATE of Kansas, Appellee, v. Christopher CADLE, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher Cadle appeals his convictions for possession of methamphetamine and drug paraphernalia. Cadle challenges not only the method by which the trial court addressed the jury's questions but the accuracy of the response as well. He also raises his speedy trial rights and challenges the sufficiency of the evidence supporting his convictions. We affirm Cadle's convictions.
Judy Davis was the manager at the Hutchinson Hobby Lobby in March 2010 during Cadle's employment at the store. Davis testified at the preliminary hearing, but unfortunately she had passed away by the time Cadle's trial occurred. The trial court allowed the court reporter to read Davis' preliminary hearing testimony to the jury. Davis explained Hobby Lobby's policy of searching employees' lockers on a random day of the month. She said it is mainly to search for store merchandise and that they search all of the employee lockers. Davis testified that Cadle's locker had a combination lock on it and they opened the lock by using the master list of combinations. In Cadle's locker, they found a box full of what appeared to be drug items. She was informed by her corporate office to report the box to the police. She testified that Cadle had been terminated by that time because he had not shown up to work for 3 days.
At the time of the incident, David Freerks had being working as a comanager at the Hobby Lobby for approximately 1 year. He explained that Hobby Lobby has a policy for random searches of employees' lockers. Freerks testified that Davis had shown him the box she found during a search of Cadle's employee locker. They called the police. Freerks testified Cadle had not shown up for work for a while and he was terminated as a result of the items found in his locker.
Dustin Loepp, a detective with the Hutchinson Police Department, responded to the call from Hobby Lobby. Freerks showed him the box marked “Chris C's box” and explained that Davis had found the box during a search of Cadle's locker. In the box, Loepp found glass test tubes, a torch-type lighter, bobby pins, pieces of plastic straws with the ends melted together, a plastic bottle with tubes coming out of it, and black electrical tape. Loepp had the glass tubes and straws tested for illegal drugs. Cynthia Wood from the Kansas Bureau of Investigation testified the items she received from Loepp tested positive for methamphetamine.
In his defense, Cadle called Samuel Courier, a fellow Hobby Lobby employee, to testify about the high traffic area around the employee lockers. Courier testified that family members of employees would frequently be in the locker area and it was not difficult to get the manager's log of the combinations. Cadle's wife Lindsay also testified that family members would regularly be in the area around the employee lockers. Lindsay said that Cadle did not have a combination lock on his locker most of the time.
The State originally charged Cadle in April 2010 with possession of methamphetamine and possession of drug paraphernalia. In July 2011, the State filed a journal entry of dismissal without prejudice due to the inability to get the case to trial because of Davis' failing health. The same charges were refiled against Cadle on October 12, 2011. Davis was able to testify at the preliminary hearing on February 1, 2012, but she passed away before the case went to trial. However, in July 2012, the trial court granted Cadle's motion to suppress the evidence seized from his locker because the State had not presented any evidence concerning the lawful nature of the search. See State v. Cadle, No. 108,402, 2013 WL 1149772, at * 2–3 (Kan.App.2013) (unpublished opinion). After the State filed an interlocutory appeal, the Court of Appeals reversed the trial court and held the court had erroneously shifted the burden to the State because Cadle had never met his burden of proving the search was unlawful in the first place under K.S.A. 22–3216. 2013 WL 1149772, at *5.
Cadle finally had a trial on October 29, 2013. After the jury got the case, it came back with a single question: “Can we see the box.” Without objection from either party, the trial court sent a written response back to the jury room stating, “No, the box was not admitted into evidence.” The jury convicted Cadle as charged and the court sentenced him to an underlying controlling prison term of 13 months' incarceration and granted a probationary term of 18 months' mandatory drug treatment. Cadle appeals.
Cadle first argues the trial court violated various statutory and constitutional rights by not answering the jury's questions in open court, by sending a written communication to the jury room, and by providing the jury with an erroneous answer because the box in question had actually been admitted into evidence. Cadle also argues a violation of his due process rights occurred when the jury was denied access to evidence that was admitted at trial.
As the State points out, Cadle's statutory argument pursuant to K .S.A. 22–3420(3) was rendered meritless by the legislature's 2014 amendments made to that statute. See L.2014, ch. 102, sec. 7. The legislature also clearly provided for the retroactive application of the amendments in K.S.A.2014 Supp. 22–3420(f) : “The amendments to this section by this act establish a procedural rule, and as such shall be construed and applied retroactively.” The amendments to K .S.A. 22–3420 provide that the court shall respond to jury questions either “in open court or in writing. ” (Emphasis added.) K.S.A.2014 Supp. 22–3420(d). Thus, we find no statutory violation. See State v. Roland, No. 109,624, 2015 WL 326410, at *11 (Kan.App.2015) (unpublished opinion); State v. Alvarez, No. 110,710, 2014 WL 7566066, at *8 (Kan.App.2014) (unpublished opinion).
We have unlimited review over Cadle's alleged constitutional violations. See State v. Hilt, 299 Kan. 176, 200, 202, 322 P.3d 367 (2014). Though Cadle did not object to the court's procedure for answering the jury's question as required by State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012), we will still consider it without the defendant having preserved the issue for appeal. See State v. Bowen, 299 Kan. 339, 354–55, 299 Kan. 339, 323 P.3d 853 (2014) (addressing identical issues on appeal despite the defendant's failure to object to the procedure at the district court).
Initially, we must address Cadle's argument that his due process rights were violated because the trial court denied the jury the opportunity to examine a piece of evidence admitted at trial. Pursuant to K.S.A. 22–3420(3), the jury may, after retiring for deliberations, request information as to any part of the law or evidence arising in the case. “The important consideration is that the jury be properly instructed on the essential issues presented at the trial, and this is particularly true in a criminal proceeding when the question presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried.” State v. Morris, 255 Kan. 964, 985–86, 880 P.2d 1244 (1994). A trial court is vested with a great amount of discretion in answering jury questions. State v. Bandt, 219 Kan. 816, 824, 549 P.2d 936 (1976).
Cadle claims the box found in his locker was admitted into evidence. The record is somewhat cloudy and the litigants' citation, or lack of citation, to the proper record does not help our review. When the prosecutor discussed the box with Detective Loepp at trial, the following transpired concerning the admission of the evidence:
“Q. [PROSECUTOR]: I'm now showing you what's been marked as State's Exhibit 6.
Do you recognize that?
“A. [DETECTIVE LOEPP]: Yes.
“Q. How do you recognize that?
“A. It is a package, item that I packaged and placed into evidence and appears to be the box through the paper.
“Q. Would you go ahead and examine it to make sure it's in the same condition that it was in.
“A. Yes. It is the box that I collected from the Hobby Lobby.
“[PROSECUTOR]: Ask for admission of State's Exhibit 6.
“[DEFENSE COUNSEL]: No objection.
“THE COURT: Be received.”
In their appellate briefs, neither party directs us to the discussion between the prosecutor and the trial court at the end of the State's case-in-chief. After the jury left the room for the parties to discuss motions, the following transpired:
“THE COURT: Be seated. The jury is now in the jury room. Just so I'm clear for the record, [Prosecutor], Exhibit 5 was not admitted?
“[PROSECUTOR]: That's correct, Your Honor.
“THE COURT: I do not show Exhibit 6 was ever admitted.
“[PROSECUTOR]: That's correct, Your Honor.
“THE COURT: You're not attempting to admit 6?
“[PROSECUTOR]: Well
“THE COURT: That's fine; I just want to make sure.
“[PROSECUTOR]: I didn't see any evidentiary value as to the box itself.
“THE COURT: Okay. That's fine. That answers my question.”
After the jury received the case, it came back with the following question: “Can we see the box. Signed presiding juror.” The following discussion occurred:
“THE COURT: The court proposes the following answer: No, the box was not admitted into evidence. Any objections to that response, Mr. Gilligan?
“[PROSECUTOR]: No, Your Honor.
“THE COURT: Mr. Landes?
“[DEFENSE COUNSEL]: No objection.
“THE COURT: Do counsel wish and defendant wish the jury brought back in or the question just sent back?
“[DEFENSE COUNSEL]: I think it's fine to just send it back.
“[PROSECUTOR]: I would agree, Your Honor.
“THE COURT: Instruction will be taken back.”
Cadle filed his appellate brief on September 11, 2014. In his brief, Cadle argues that Exhibit 6, “the box,” was clearly admitted into evidence and the trial court denied him his due process rights by not allowing the jury to see the box when requested. On January 7, 2015, the State filed a stipulation of fact in the district court signed by the prosecutor, Cadle's defense counsel, and the trial court stipulating: “That during the jury trial on October 29, 2013, the understanding of the parties was that State's Exhibit 6, the cardboard box labeled ‘Chris C's box,’ was not admitted into evidence.” Although it appears Exhibit 6 was initially admitted into evidence when the trial court “received it,” the discussion between the prosecutor and the trial court clearly stated Exhibit 6 was not admitted. Despite Cadle's argument to the contrary, Exhibit 6 was not admitted into evidence and defense counsel did not object during the discussion between the prosecutor and the trial court at the close of the State's case. Consequently, there was no violation of Cadle's due process rights.
In State v. Verser, 299 Kan. 776, 326 P.3d 1046 (2014), the court addressed a similar situation where the evidence requested had not been admitted into evidence. In discussing the four factors under the federal harmless error standard, the court stated:
“On the third factor, the information conveyed to the jury in answer to its question qualified as innocuous and insignificant. The jury asked to see the statements made by several witnesses to police and, if possible, to hear any recordings of those statements. The requested material had not been admitted into evidence, and the jury was simply informed of this fact. The answer was not substantive at all.” 299 Kan. at 790, 326 P.3d 1046.
In State v. Bruce, 255 Kan. 388, 397–98, 874 P.2d 1165 (1994), the court applied the invited error doctrine to the defendant's objection on appeal to the district court's response to a jury question. The record in Bruce indicated defense counsel had agreed to the response and replied “absolutely” when the response was read to counsel for objection before giving it to the jury. 255 Kan. at 396, 874 P.2d 1165 ; see State v. Adams, 292 Kan. 151, 159, 165, 254 P.3d 515 (2011) (invited error when defense counsel agreed to and signed a typewritten response to jury question summarizing evidence); State v. Cramer, 17 Kan.App.2d 623, 631–33, 841 P.2d 1111 (1992), rev. denied 252 Kan. 1093 (1993) (defense counsel said he “really [did not] have a problem with” responding to the jury's question with the State's proposed language). Neither defense counsel, nor Cadle, had any objection to the answer or the procedure in answering the jury's question. Having invited the response and participating in the method, Cadle cannot now claim error.
Although the legislature has eliminated Cadle's statutory argument of the method for answering a jury's question under K.S.A.2014 Supp. 22–3420, his statutory and constitutional right to be present at every stage of the criminal trial still exists. According to our Supreme Court in Verser, 299 Kan. at 788–89, 326 P.3d 1046, the procedure used by the trial court in this case violates a defendant's rights under the Sixth Amendment to the United States Constitution, which guarantees that a criminal defendant may be present at every critical stage of his or her trial. Thus, under Verser, the method by which the court's answer was delivered to the jury in Cadle's case violated his constitutional and statutory rights to be present at every critical stage of his trial even though he was present when the court discussed the jury's question with the attorneys and decided on an answer.
In light of this error, we apply the federal constitutional harmless error standard from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), to determine if the error requires us to reverse Cadle's convictions State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013). Under this standard,
“error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011).
In the context of the trial court's improper method of communicating its response to a jury question, we use the four-factor test in State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998), to determine whether the district court's error requires reversal. See Verser, 299 Kan. at 789–90, 326 P.3d 1046. Those factors are (1) the overall strength of the prosecution's case; (2) whether an objection was lodged to the improper communication; (3) whether the communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the ability of the posttrial remedy to mitigate the constitutional error. McGinnes, 266 Kan. at 132, 967 P.2d 763. We examine these factors in turn.
With respect to the first factor, the State's case against Cadle was based on strong, albeit circumstantial, evidence. Sufficient evidence, even for the gravest of offenses, may consist entirely of circumstantial evidence. See Ward, 292 Kan. 541, Syl. ¶ 13, 256 P.3d 801. The drug evidence was discovered in Cadle's locker. He was the only person assigned to that locker. Davis testified there was a combination lock on the locker and they used the code for Cadle's combination lock to open the locker. There was no collateral evidence present of thefts or misconduct involving the lockers. The evidence taken from Cadle's locker tested positive for methamphetamine. We find this circumstantial evidence compelling.
With respect to the other factors, Cadle did not object to the trial court's method of communicating with the jury. See State v. Gleason, 299 Kan. 1127, 1182–83, 329 P.3d 1102 (2014) (stating that a defendant's failure to object to the written answer suggests that it is harmless error). With respect to the third factor, Kansas courts have generally considered written answers to jury questions as being less critical than detailed jury communications such as reading back trial testimony. See State v. Womelsdorf, 47 Kan.App.2d 307, 322–24, 274 P.3d 662 (2012), rev. denied 291 Kan. 1256 (2013). Here, the jury asked to see a piece of evidence that had not been admitted at the trial. All the parties and the trial court agreed in the response to the jury's question. Further, the box with “Chris C's box” written on the outside was clearly inculpatory evidence and not exculpatory by any stretch of the imagination.
With respect to the final factor, Cadle did not raise this issue in a posttrial motion. Any error involving Cadle's right to be present at a critical stage of his trial was harmless.
Cadle also briefly argues the procedure used by the trial court violated his right to a public trial under the Sixth Amendment of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights because the communication of the court's response took place in the jury room, not the public courtroom. This argument was raised in Womelsdorf. The court in Womelsdorf found no violation of the right to a public trial, noting that in the same procedure used in Cadle's trial, the court's written responses to the jury's questions were available as part of the public court file and not hidden from public view. 47 Kan.App.2d at 324–25, 274 P.3d 662. Further, the discussion of the court's response was on the record in Cadle's presence. The analysis in Womelsdorf is persuasive. Here, the trial court's responses to the jury's question provided no new facts or legal principles to consider. The question was discussed on the record. Cadle does not contend this discussion took place somewhere other than in the open courtroom. The conduct of the trial court and both counsel in discussing the question and an appropriate response was on the record and in open court. No new testimony was involved. We find no violation of the constitutional right to a public trial.
Next, Cadle argues his statutory right to a speedy trial was violated. Cadle has not provided a standard of review or any analysis concerning a violation of a constitutional right to a speedy trial.
Whether the State has violated a defendant's statutory right to a speedy trial is a question of law. We conduct an unlimited review over such questions and owe no deference to the decision of the district court. State v. Thomas, 291 Kan. 676, 692, 246 P.3d 678 (2011) (quoting State v. Mitchell, 285 Kan. 1070, 1080, 179 P.3d 394 [2008] ). Likewise, to the extent that this appeal requires the application of or interpretation of K.S.A.2014 Supp. 22–3402(b) —formerly K.S.A. 22–3402(2) —we exercise unlimited review. See State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
The State alone is responsible for bringing the accused to trial within the statutory time limitation. State v. Breedlove, 295 Kan. 481, 486, 286 P.3d 1123 (2012). The accused has no obligation to take affirmative action to protect his or her statutory speedy trial right. 295 Kan. at 486, 286 P.3d 1123. The statutory speedy trial clock is triggered at arraignment. See Thomas, 291 Kan. at 692–94, 246 P.3d 678 (days between arraignment and next event were assessed against the State); State v. Vaughn, 288 Kan. 140, 146, 200 P.3d 446 (2009).
The State argues, pursuant to State v. Ransom, 234 Kan. 322, 673 P.2d 1101 (1983), and State v. Gill, 48 Kan.App.2d 102, 283 P.3d 236 (2012), rev. denied Kan. (2014) that the dismissal of the charges against Cadle and the subsequent refiling of ____ the same charges reset the statutory speedy trial clock. K.S.A.2014 Supp. 22–3402(e)(3) ; see 48 Kan.App.2d 102 at 111–14, 283 P.3d 236 ;. The court in Gill stated:
“Based on [United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982),] and the cases cited above applying K.S.A. 22–3402, we hold, as a matter of first impression, that when the State dismisses a charge and files another one, the constitutional speedy trial clock will start anew in the second case if the State dismissed the first case because of necessity or the charge in the second case is not identical to the charge that was previously dismissed.” (Gill, 48 Kan.App.2d at 113, 283 P.3d 236.
In Ransom, the State dismissed the case when critical witnesses were not available on the trial date. It then refiled the charges in a second case. The Ransom court held that if the State shows necessity for the dismissal of the first case, the statutory time commences anew upon arraignment in the second case. The court concluded that because the State had shown necessity, the statutory time commenced anew. As a result, the defendant's statutory speedy trial right had not been violated. 234 Kan. at 327–28, 673 P.2d 1101.
K.S.A.2014 Supp. 22–3402(e)(3) allows the time trial may be extended for the following reason: “there is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding 90 days.”
The time line of events in this case is as follows:
1. August 2, 2010, Cadle arraigned in 10CR0280 on charges of possession of methamphetamine and possession of drug paraphernalia;
2. October 1, 2010, Cadle files motion to suppress;
3. December 3, 2010, trial court hears evidence on motion to suppress and denies same;
4. January 25, 2011, case came on for trial but continued at request of defense;
5. Repeated continuances by defense counsel and case ultimately set for trial on July 19, 2011;
6. On July 18, 2011, the district court granted a dismissal of the case requested by the State. The journal entry states the case is “dismissed without prejudice for the reason that a witness for the State is having health issues and will not be available for a court appearance in the near future.”;
7. October 12, 2011, the State refiled the same charges against Cadle;
8. On November 22, 2011, defense requested the preliminary hearing be rescheduled to January 4, 2012;
9. January 4, 2012, case came on for preliminary hearing and State requested a continuance stating Davis' health deteriorated again;
10. February 1, 2012, preliminary hearing held, Judy Davis testified. Court found probable cause and bound Cadle over for arraignment;
11. February 6, 2012, arraignment in 11CR724, Cadle pled not guilty and bound over for trial;
12. April 9, 2012, Cadle filed a motion to suppress;
13. May 7, 2012, trial court heard motion to suppress. The court took the motion under advisement for submission of written briefs on the lack of State action;
14. May 9, 2012, State filed motion to dismiss Cadle's motion to suppress based on a lack of State action;
15. May 17, 2012, Cadle filed a response to the State's motion to dismiss;
16. May 22, 2012, case set for jury trial, but trial court granted order of continuance at the request of the State because physical evidence was being held out of county and unavailable for trial;
17. July 11, 2012, trial court granted Cadle's motion to suppress finding the State failed to meet its burden of proving the search and seizure were lawful;
18. July 12, 2012, the State filed an interlocutory appeal from the granting of the suppression motion;
19. March 15, 2013, the Court of Appeals reversed the trial court and held the trial court erroneously shifted the burden to the State because Cadle never met his burden of proving the search was unlawful in the first place under K.S.A. 22–3216. See State v. Cadle, No. 108,402, 2013 WL 1149772, *5 (Kan.App.2013) (unpublished opinion);
20. September 4, 2013, mandate in Court of Appeals case is issued. See Rule 7.03(b)(1)(C) (2014 Kan. Ct. Rule Annot. 62);
21. October 29, 2013, Cadle brought to trial.
This case is similar to Ransom. At the speedy trial hearing on July 16, 2012, the trial court specifically found the State had dismissed the original case because of the unavailability, due to health concerns, of one of its primary witnesses, Judy Davis. “It was dismissed because of the ... key witness was unavailable and did not appear, or at that time indications were it was unknown when ... the reporting party ... would be able to testify.”
Cadle offers no support for any claims that the State's decision to dismiss was “tactical.” There is no evidence the State was “operating tactically to try to gain an advantage over the other.” 234 Kan. at 326, 673 P.2d 1101. Instead, Cadle argues the State failed to demonstrate necessity to dismiss and refile the charges. The court in Ransom similarly found: “While the judge did not specifically find that the State made a showing of necessity, such a finding is implicit in the record and in the findings made.”234 Kan. at 327, 673 P.2d 1101.
Following Ransom, the State demonstrated an adequate showing of necessity to have dismissed and refiled the charges against Cadle. Cadle does not allege a sufficient number of days had passed to violate his speedy trial rights prior to the dismissal. The statutory speedy trial period then reset to February 6, 2012–the date of Cadle's arraignment. See K.S.A.2014 Supp. 22–3402(b) ; Thomas, 291 Kan. at 693, 246 P.3d 678.
From the date of Cadle's arraignment until he filed a motion to suppress on April 9, 2012, was 62 days. On May 7, 2012, the court heard arguments on the motion to suppress. At the hearing, the prosecutor asked the trial court to dismiss the motion to suppress due to the lack of any State action. Defense counsel requested additional time to file a written brief addressing the State's argument and case citations. The court granted the State 5 days to file a written brief and then 5 days for defense counsel to submit a response. The State filed its motion to dismiss on May 9, 2012, and defense counsel filed its response on May 17, 2012. The time from April 9, 2012, until May 17, 2012, was attributable to Cadle necessitated by Cadle's motion to suppress and the trial court ultimately taking the issue under advisement. The Kansas Supreme Court has held that when a defendant files a motion near the end of the statutory speedy trial period, “a reasonable time ... might well be charged to a defendant [to resolve the motion] under appropriate circumstances.” State v. Roman, 240 Kan. 611, 613, 731 P.2d 1281 (1987) ; see State v. Prewett, 246 Kan. 39, 43, 785 P.2d 956 (1990) (referencing Roman ).
On May 17, 2012, the speedy trial clock started to run again against the State. The time between May 17, 2012, until the trial court granted the motion to suppress and the State filed of the interlocutory appeal on July 12, 2012, consisted of 56 days attributable to the State. Cadle's case was on appeal until the Court of Appeals reversed the suppression by finding the trial court had erroneously shifted the burden to the State because Cadle had never met his burden of proving the search was unlawful in the first place. See State v. Cadle, No. 108,402, 2013 WL 1149772, *5 (Kan.App.2013) (unpublished opinion). The Clerk of the Appellate Court issued the mandate on September 4, 2013, and the decision was effective on that date. See Rule 7.03(b)(1)(C). Therefore the speedy trial count started again on September 4, 2013, and ran until Cadle was brought to trial on October 29, 2013. This final period consisted of 55 days. By our count, 173 days from the date of Cadle's arraignment on April 9, 2012, were attributable to the State. Consequently, we find no violation of Cadle's statutory right to a speedy trial under K.S.A.2014 Supp. 22–3402(b).
Last, Cadle argues there is insufficient evidence to support his convictions.
When the sufficiency of the 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 factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. Brown, 298 Kan. 1040, 1054, 318 P.3d 1005 (2014). Furthermore, this court has recognized that there is no distinction between direct and circumstantial evidence in terms of probative value. State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). “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. McCaslin, 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030 (2011).
Cadle's challenge to the sufficiency of the evidence revolves around the high traffic area of the employee lockers and the fact that if he was fired days before the search, it would have been ludicrous for him to leave things in his locker knowing he was fired. We have previously addressed the circumstantial nature of the evidence in the context of our analysis of the jury's question and will not repeat the same here. Again, there was sufficient evidence, albeit circumstantial, of Cadle's control over the locker where the drugs were discovered by Davis. We will not reweigh the evidence, or the believability of Davis' testimony, as Cadle would have us do. Viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have found Cadle guilty beyond a reasonable doubt.
Affirmed.