Opinion
No. 105,845.
2012-06-29
STATE of Kansas, Appellee, v. Lyle Wayne GORDON, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant Lyle Gordon appeals his conviction for possession of methamphetamine and possession of drug paraphernalia following a bench trial in Shawnee County District Court. He contends the evidence presented to the district judge hearing the case was insufficient to prove the charges. We find otherwise and affirm the convictions.
The appellate courts have offered varying statements of the standard of review to be applied to judgments entered in criminal cases tried to judges rather than to juries when witnesses and other evidence have been presented. In State v. Deines, 268 Kan. 432, 439, 997 P.2d 705 (2000), a prosecution for criminal damage to property, the Kansas Supreme Court looked at whether the trial judge's factual findings were supported by substantial evidence and those findings supported the legal conclusions. See also State v. Reichenberger, 209 Kan. 210, 215, 495 P.2d 919 (1972) (factual findings of the trial judge to be afforded same weight as jury determination if supported by substantial evidence); 209 Kan. at 221 (judge's legal conclusion supported by appropriate factual findings). In State v. Johnson, 258 Kan. 61, 66–67, 899 P.2d 1050 (1995), the court applied the same standard that governs review of jury verdicts: In reviewing a conviction following a bench trial, the appellate court considers the evidence in a light most favorable to the State, as the prevailing party, and asks if a rational factfinder could conclude the defendant was guilty beyond a reasonable doubt. See also State v. Halloway, 256 Kan. 449, 450, 886 P.2d 831 (1994) (same). We attempt no reconciliation of those authorities or suggest some procedural nuance that would account for the differing statements of the standard of review in the cases. Any substantive difference in the standards would not affect the result in this case.
Early on the morning of April 17, 2010, Gordon got into a row with his girlfriend to the point neighbors were disturbed by the noise and the police were summoned. After the officers arrived, Gordon continued carrying on loudly and belligerently. The officers arrested him for disorderly conduct. At the jail, Gordon was booked and searched. He had a small plastic bag containing white powder tucked inside a pack of rolling papers in his shirt pocket. The jailers confiscated those items. The white powder was chemically tested and found to methamphetamine. Gordon was charged with possession of the drug in violation of K.S.A. 21–36a06 and with possession of drug paraphernalia (the plastic bag) in violation of K .S.A. 21–36a09.
Gordon waived jury trial. The district court judge heard evidence in the case on November 8, 2010. The State called the Topeka police officer who arrested Gordon and a second officer who assisted in taking him into custody. The State then called the corrections officer who searched Gordon at the jail and found the plastic bag. By stipulation, the State offered a lab report showing the white powder in the plastic bag to be methamphetamine. The Stated rested. Gordon testified in his own defense. He offered no other evidence. Gordon told the judge the afternoon before his arrest he had been shopping at a Topeka supermarket for groceries and other supplies for a cookout. As he was leaving the store, one of the bags split and a jar of pickles fell to the pavement in the parking lot and broke. As Gordon was contemplating the mess, he noticed a derelict plastic bag in the parking lot. Gordon explained to the judge he was ever thrifty and resourceful and often picked up screws, washers, and other things that might catch his eye on the public way. The plastic bag, Gordon said, was one of those things. He did not notice the white powder in it when he put it in his pocket where it remained until the jail personnel retrieved it.
After hearing the evidence, the judge took a brief recess to consider the case. After returning to the bench, the judge found that the plastic bag had been discovered inside the rolling papers—a fact the judge plainly considered inconsistent with Gordon's testimony that he simply picked up the plastic bag and casually put it in his shirt pocket. The judge also referred to “discrepancies” in Gordon's testimony without specifying them. The judge concluded the State had proven the charges of possession of methamphetamine and drug paraphernalia beyond a reasonable doubt and pronounced Gordon guilty of both offenses. The judge later sentenced Gordon to an underlying prison term of 13 months on the methamphetamine conviction and placed him on probation for 18 months. Given Gordon's limited criminal history, that reflected a standard sentence under the guidelines. He received a 6–month concurrent sentence and probation on the misdemeanor drug paraphernalia conviction. Gordon timely appealed.
The sole issue on appeal is the sufficiency of the evidence to support the convictions. Gordon argues that the trial judge could have convicted him only by impermissibly stacking inferences and cites State v. Williams, 229 Kan. 646, 648–49, 630 P.2d 694 (1981), as recognizing and applying the doctrine. A reasonable inference may be properly drawn from a fact supported in the evidence. But another, more remote inference may not then be based on that inference alone. Thus, in a murder case, the State could prove the defendant was deeply in debt and then prove he purchased a $1 million life insurance policy on his wife a week before she drowned under suspicious circumstances. A proper inference would be that the defendant killed his wife for the insurance money. But the State could not succeed without proof of the purchase of the insurance policy. That is, it could not ask the factfinder to infer that the defendant purchased insurance because he was in debt and, in turn, to infer he killed his wife to collect on the unproven insurance policy given the suspicious circumstances of her death. That likely would be an impermissible stacking of inferences.
Gordon wants to apply that theory here. He says the judge impermissibly inferred he knew there was methamphetamine or some other illegal substance in the plastic bag simply because he picked it up from the supermarket parking lot. The judge would have to infer he saw the white powder and then infer he knew it to be an illegal drug-a conclusion he characterizes as an inappropriate stacking of inferences. The problem with the theory is the judge rejected Gordon's explanation as untruthful. The judge, therefore, neither drew inferences from it nor stacked inferences on it.
While the judge's findings of fact from the bench were not as extensive or pointed as they might have been, the judge noted “discrepancies” in Gordon's account. The judge also found his account incompatible with the plastic bag having been placed inside the rolling papers. Those determinations are supported in the evidence and reflect a rejection of Gordon's testimony as lacking credibility. And those determinations, whether viewed as taking the evidence favorably to the State or as findings supported by substantial evidence, are legally sufficient to warrant a conclusion of guilty beyond a reasonable doubt. That is, Gordon knowingly possessed the methamphetamine and placed it inside the pack of rolling papers for safe and secretive keeping.
Because Gordon neither objected to the district judge's findings nor requested more specific findings, we may presume the district judge found all the facts necessary to support the judgment of conviction. See State v. Harris, 293 Kan. 798, 808, 269 P.3d 820 (2012); State v. Edwards, 291 Kan. 532, 541, 243 P.3d 683 (2010). We need not depend upon that presumption to conclude the district judge found Gordon's testimony to be unworthy of belief on the critical issue-his acquisition and possession of the plastic bag knowing it contained methamphetamine. And we do not depend upon it. But the presumption buttresses our conclusion.
Affirmed.