Opinion
111,215.
06-26-2015
STATE of Kansas, Appellee, v. Travis James JOHNSON, Appellant.
Johnathan M. Grube and Ryan Eddinger, of Kansas Appellate Defender Office, for Appellant. Jodi Litfin, Assistant District Attorney, Chadwick J. Taylor, District Attorney, and Derek Schmidt, Attorney General, for Appellee.
Johnathan M. Grube and Ryan Eddinger, 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 MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
MALONE, C.J.
Travis James Johnson appeals following his convictions of possession of marijuana (second offense) and unlawful possession of drug paraphernalia. Johnson raises four issues: (1) the State failed to present sufficient evidence that he possessed marijuana; (2) the State failed to present sufficient evidence that he unlawfully possessed drug paraphernalia; (3) the district court erred when it classified his 1991 Kansas juvenile adjudication of burglary as a person felony for criminal history purposes; and (4) the district court erred in denying his motion for a departure sentence. For the reasons stated herein, we affirm Johnson's convictions but remand for resentencing.
On November 5, 2011, around 10:30 p.m., Deputy Matt Boling of the Shawnee County Sheriff's Office was dispatched to Little Caesar's Pizza in North Topeka in response to a call regarding a suspicious vehicle lingering in the parking lot. When Boling arrived, he observed a vehicle parked on the sidewalk. Boling parked behind the vehicle and approached it. He could see two people inside the vehicle conversing. When he made contact, it appeared to him as though he had surprised the vehicle's occupants.
Boling first asked the driver to move the vehicle off the sidewalk. Boling then asked both occupants for identification. The driver was Patrick Carroll and the passenger was Johnson. Boling ran a warrants check on both men as he stood by the vehicle's bumper in order to “keep an eye on them.” Boling discovered that there was an outstanding warrant for Carroll's arrest. Around this time, Deputy Marcus Scheid arrived on the scene to assist Boling in arresting Carroll. Boling then asked Carroll for consent to search the vehicle, which Carroll granted.
Boling asked Johnson to step out of the vehicle while he conducted the search. After a brief search, Boling found a clear plastic bag of marijuana underneath the passenger seat where Johnson had been sitting. He later explained its location as follows: “[u]nderneath the passenger seat of the vehicle, there was webbing that, just your basic foam that fills, for the cushion part of the seat, that fills up the seat, and it was, it was wedged up underneath it.” Boling said that “if somebody [was] sitting in the seat, it would have been right in between their legs.”
Boling arrested Johnson and read him his Miranda rights. He then asked Johnson if the marijuana found under the passenger seat belonged to him. Johnson responded, “It must be yours.” Boling searched Johnson's person and found a box of rolling papers in his front left pants pocket. He later testified that rolling papers of this type are commonly used to roll marijuana blunts. He acknowledged that these papers may also be used to roll tobacco cigarettes. Boling did not find any loose tobacco on Johnson's person.
The State charged Johnson with possession of marijuana (second offense) and unlawful possession of drug paraphernalia with intent to use. Johnson's case proceeded to a jury trial. The State called as witnesses Boling, Scheid, and a forensic scientist who had tested the marijuana. When the State rested its case, Johnson made an oral motion for directed verdict. After hearing arguments from both counsel, the district judge stated:
“Based on the, the testimony that the court has heard, the court believes there is a jury question here in this matter. Proximity is an issue, but again, I'd, the observations, the reach, the statements by Detective Boling about the defendant's access to that area iswas, clearly from his testimony, one that would be easy to reach.
“The court's going to deny the motion for the directed verdict/judgment of acquittal.”
Johnson did not present any evidence, and the jury convicted him of both counts. Prior to sentencing, Johnson filed a motion for dispositional or durational departure. At the sentencing hearing, the district court denied Johnson's motion and sentenced him to 28 months' imprisonment. Johnson timely appealed the district court's judgment.
Sufficiency of the Evidence
Johnson first claims the State failed to present sufficient evidence that he possessed marijuana. He also claims the State failed to present sufficient evidence that he unlawfully possessed drug paraphernalia. The State responds that there was sufficient evidence to support both convictions. We will address these issues together.
When the sufficiency of evidence is challenged in a criminal case, the appellate court reviews all the evidence in the light most favorable to the prosecution and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). In determining whether there is sufficient evidence to support a conviction, the appellate court will not reweigh the evidence or the credibility of witnesses. 299 Kan. at 525, 324 P.3d 1078.
A verdict may be supported by circumstantial evidence, if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). A conviction of even the gravest offense can be based entirely on circumstantial evidence. 298 Kan. at 689, 317 P.3d 54.
Johnson was convicted of possession of marijuana in violation of K.S.A.2011 Supp. 21–5706(b)(3). At trial, the district court instructed the jury that in order to establish this charge, the State had to prove each of the following claims:
“1. The defendant possessed marijuana.
“2. This act occurred on or about the 5th day of November, 2011, in Shawnee County, Kansas.
“ ‘Possession’ means 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.
“A person acts ‘with knowledge’ or ‘knowingly’ when the person is aware:
of the nature of his conduct that the State complains about;
or
of the circumstances in which he was acting.
“A person acts ‘with intent’ when it is the person's desire or conscious objective to do the act complained about by the State.”
In cases where the defendant does not exclusively possess the premises upon which drugs are found, it cannot be inferred that the defendant knowingly possessed the drugs. State v. Fortune, 28 Kan.App.2d 559, 570, 20 P.3d 74, rev. denied 271 Kan. 1039 (2001). In order to establish a defendant's constructive possession of drugs, more than mere presence or access to the drugs is required to sustain a conviction. State v. Cruz, 15 Kan.App.2d 476, 489, 809 P.2d 1233, rev. denied 259 Kan. 777 (1991).
In State v. Marion, 29 Kan.App.2d 287, 290, 27 P.3d 924, rev. denied 272 Kan. 1422 (2001), this court stated that other incriminating factors tending to prove a defendant's knowing possession of drugs include the following: (1) his or her proximity to the area where the drugs are found; (2) the fact that the drugs are found in plain view; (3) proximity of defendant's possessions to the drugs; (4) a defendant's previous participation in the sale of a controlled substance; (5) his or her use of controlled substances; (6) suspicious behavior by the defendant; and (7) incriminating statements of the defendant. See also PIK Crim.3d 67.13–D.
Johnson does not dispute the fact that the substance found under the passenger seat was marijuana. However, he contends that the State failed to prove that he intentionally and knowingly possessed that baggie of marijuana. Johnson points to the following facts as weighing against a conviction on this charge: he was not the owner of the vehicle in which the marijuana was found; no personal items belonging to him were found underneath the seat; he never admitted the marijuana belonged to him; and the marijuana was not in plain view. Johnson contends that the State failed to present any evidence that he exercised control over the marijuana and maintains that he was just sitting in a seat which, unbeknownst to him, had marijuana underneath it.
As support, Johnson cites this court's opinion in State v. Beaver, 41 Kan.App.2d 124, 132, 200 P.3d 490 (2009). In that case, the defendant was charged with multiple drug offenses, including possession of methamphetamine with intent to sell. The charges arose out of the execution of a search warrant at a residence. The defendant was present when the warrant was executed, but he did not reside in the home. The defendant was detained at the back door of the home, approximately 3–4 feet from the kitchen table. On top of the table, the officers saw a digital scale. In addition, the officers saw money, bags of a crystal substance, and another bag of a crystal substance visible in an open drawer. No drugs or paraphernalia were found on the defendant's person. 41 Kan.App.2d at 125, 200 P.3d 490.
A district magistrate judge conducted a preliminary hearing and found probable cause to bind the defendant over on the charges. The defendant later moved to dismiss all charges for lack of probable cause. The district court granted the motion. 41 Kan.App.2d at 126, 200 P.3d 490. On appeal, this court affirmed the dismissal of the charges. This court determined that without more than the defendant's mere presence and proximity to the illegal drugs, there was no probable cause to believe that the defendant was in constructive possession of the illegal drugs and drug paraphernalia found on the kitchen table. 41 Kan.App.2d at 132, 200 P.3d 490.
The State argues that the circumstantial evidence in this case, viewed in the light most favorable to the State, was sufficient to show Johnson's constructive possession of the marijuana. The State points out that the marijuana was found underneath the passenger seat where Johnson was sitting and was within his reach. Furthermore, Johnson had rolling papers in his pocket that could be used to roll a marijuana cigarette. Based on these facts, the State contends that it presented sufficient evidence for the jury to reasonably find Johnson guilty of possession of marijuana.
As previously stated, this court has identified seven possible incriminating circumstances that the State can prove to link a defendant to drugs found on the premises. Marion, 29 Kan.App.2d at 290, 27 P.3d 924. Of those seven factors, only two apply in Johnson's case. First, Johnson was in close proximity to the area where the drugs were found. Boling found the bag of marijuana underneath the passenger seat where Johnson had been sitting. Boling testified that the bag of marijuana “would have been right in between [Johnson's] legs.” The second applicable factor is the likelihood of Johnson's use of the controlled substance as evidenced by his possession of the rolling papers.
Johnson was not in exclusive possession of the vehicle, so it cannot be inferred that he knowingly possessed the marijuana found underneath the seat. See Fortune, 28 Kan.App.2d at 570, 20 P.3d 74. The mere fact that Boling found the bag of marijuana underneath the passenger seat where Johnson had been sitting is insufficient to support the conviction of possession of marijuana, especially when the bag of marijuana was not in plain view. As previously stated, more than mere presence or access to the drugs is required to sustain a conviction. Beaver, 41 Kan.App.2d at 132, 200 P.3d 490 ; Cruz, 15 Kan.App.2d at 489, 809 P.2d 1233.
On the other hand, the State offered more evidence than Johnson's mere presence and proximity to the illegal drugs. Upon searching Johnson's person, Boling found a box of rolling papers in his front left pants pocket. Boling testified that rolling papers of this type are commonly used to roll marijuana blunts. Although Boling acknowledged that the papers may also be used to roll tobacco cigarettes, he did not find any loose tobacco on Johnson's person. In addition, when Boling asked Johnson if the marijuana belonged to him, Johnson provided a sarcastic response that the marijuana “must be yours.” This is not the typical response one would expect to receive from a person who had no knowledge that the marijuana was underneath the seat. When Boling asked about the marijuana, Johnson had received his Miranda warnings and understood the serious nature of the situation. He did not simply deny possession of the marijuana when asked a direct question about it. The weight to be given to this evidence was for the jury to decide.
Johnson's case certainly presents a close call. However, reviewing all the evidence in the light most favorable to the State, we conclude there was sufficient evidence for a rational factfinder to find Johnson guilty of possession of marijuana. As stated above, a verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. The evidence need not exclude every other reasonable conclusion or inference. Brooks, 298 Kan. at 689, 317 P.3d 54. We will go so far as to say that this case presents the bare minimum of evidence that is necessary to support a conviction. However, considering our standard of review, we are unwilling to substitute our judgment, as a matter of law, for that of the 12 jurors who heard the evidence at trial.
Johnson also claims the State failed to present sufficient evidence that he unlawfully possessed drug paraphernalia with intent to use in violation of K.S.A.2011 Supp. 21–5709(b)(2). We have previously set forth our standard of review and the principles of law applicable to reviewing the sufficiency of the evidence to support a conviction.
Unlike the bag of marijuana found underneath the passenger seat, the rolling papers were found on Johnson's person in his front left pants pocket. Although rolling papers may be legally used to roll tobacco cigarettes, Boling testified that rolling papers of this type are commonly used to roll marijuana blunts. Almost all items of drug use paraphernalia also have a legitimate use such as pipes, syringes, hypodermic needles, etc. See K.S.A.2011 Supp. 21–5701(f) (defining drug paraphernalia). Also, Boling did not find any loose tobacco on Johnson's person. Mere possession of the rolling papers, which have a legitimate use, would be insufficient evidence to support a conviction of possession of drug paraphernalia with intent to use. However, Johnson's possession of the rolling papers together with the discovery of marijuana underneath the passenger seat where Johnson had been sitting was sufficient to support the conviction.
We are aware of the general rule prohibiting a factfinder from stacking inferences, i.e., basing an inference on another inference in order to find a defendant guilty based on circumstantial evidence. See State v. Rice, 261 Kan. 567, 587, 932 P.2d 981 (1997). But we do not believe the jury violated that rule in this instance. The evidence that Johnson possessed rolling papers on his person was established by fact, not by an inference. Likewise, the evidence that Johnson had access to marijuana underneath his seat and right between his legs was established by fact, not by an inference. The jury was permitted to consider these undisputed facts established by the evidence in deciding whether Johnson was guilty of each of the offenses for which he was charged.
In summary, the fact that Johnson possessed the rolling papers on his person helps support his conviction of possession of marijuana. Likewise, Johnson's constructive possession of the marijuana helps support his conviction of unlawful possession of drug paraphernalia with intent to use. As previously stated, we believe this case presents the bare minimum of evidence necessary to support the convictions. But applying our deferential standard of review, we conclude there was sufficient evidence in the light most favorable to the State to support both convictions.
Criminal History Calculation
Next, Johnson contends the district court erroneously classified his 1991 Kansas juvenile adjudication of burglary as a person felony for criminal history purposes. But for this error, Johnson asserts that his criminal history score would be F and he would have been subject to a lesser presumptive sentence. The State responds that the district court properly classified Johnson's adjudication of burglary as a person felony.
Whether a prior conviction is properly classified as a person or nonperson offense involves the interpretation of the Kansas Sentencing Guidelines Act (KSGA). Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
On appeal, Johnson first contends that the district court erred by classifying his 1991 juvenile adjudication of burglary as a person felony for criminal history purposes based on our Supreme Court's holding in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court Order September 19, 2014. He argues that under the holding in Murdock all convictions for crimes committed prior to the enactment of the KSGA must be classified as nonperson offenses for criminal history purposes. Next, Johnson argues that the district court violated his constitutional rights because, in order to classify his 1991 juvenile adjudication of burglary as a person felony, the district court engaged in the sort of judicial factfinding prohibited by the United States Supreme Court in Descamps v. United States, 570 U.S. 1, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
The Kansas Supreme Court recently resolved this issue in State v. Dickey, 301, Kan. ––––, ––– P.3d –––– (110,245, filed May 22, 2015). The facts in Dickey are almost identical to the facts herein, as Dickey involved the defendant's challenge to the classification of his 1992 Kansas juvenile adjudication of burglary as a person felony for criminal history purposes. In Dickey, our Supreme Court ruled that under K.S.A. 22–3504(1), a defendant may challenge for the first time on appeal the classification of his or her prior convictions and/or the resulting criminal history score used to sentence him or her under the KSGA. 301 Kan. ––––, Syl. ¶ 3. The court also ruled that a stipulation or lack of an objection regarding how those convictions should be classified as a matter of law for the purpose of determining the defendant's criminal history score will not prevent a subsequent challenge under K.S.A. 22–3504(a) of his or her prior convictions. 301 Kan. ––––, Syl. ¶ 4.
The Dickey court found that the holding of Murdock is inapplicable to determining whether a prior burglary conviction or adjudication should be classified as a person or nonperson offense because the classification of a prior burglary conviction or adjudication for criminal history purposes is controlled by K.S.A.2014 Supp. 21–6811(d). 301 Kan. ––––, Syl. ¶ 6. The court further found that the constitutional protections described in Apprendi are implicated when a district court, for purposes of enhancing a defendant's sentence for a current conviction, makes findings of fact at sentencing that go beyond merely finding the existence of a prior conviction or the statutory elements that make up the prior conviction. 301 Kan. ––––, Syl. ¶ 7.
Finally, the Dickey court held that the district court was constitutionally prohibited from classifying the defendant's prior burglary adjudication as a person felony under K.S.A.2014 Supp. 21–6811(d) because doing so necessarily resulted from the district court making or adopting a factual finding (i.e., the prior burglary involved a dwelling) that went beyond simply identifying the statutory elements that constituted the prior burglary adjudication. Because burglary of a dwelling was not included within the statutory elements making up the defendant's burglary adjudication under K.S.A.1991 Supp. 21–3715, the burglary adjudication should have been classified as a nonperson felony for criminal history purposes. 301 Kan. ––––, Syl. ¶ 8.
Based on Dickey, we conclude the district court erred by classifying Johnson's 1991 juvenile adjudication of burglary as a person felony for criminal history purposes. The case must be remanded so that the district court can resentence Johnson applying the correct criminal history score.
Denial of Departure Sentence
Finally, Johnson argues that the district court erred in denying his motion for a dispositional or durational departure sentence. He asserts that he had steady employment at the time of sentencing and that much of his criminal history is “antiquated.” Johnson contends that these mitigating factors, viewed as a whole, constituted substantial and compelling reasons for the district court to grant a departure.
Under K.S.A. 21–4721(c)(1) [now codified at K.S.A.2014 Supp. 21–6820(c) ], appellate courts lack jurisdiction to review challenges to presumptive sentences. State v. Sprung, 294 Kan. 300, 317, 277 P.3d 1100 (2012). Johnson's controlling sentence was within the presumptive range for his conviction of possession of marijuana (second offense), and thus, K.S.A. 21–4721(c)(1) is applicable here. This court lacks jurisdiction to review Johnson's presumptive sentence, and his final claim on appeal is dismissed.
Affirmed in part, dismissed in part, vacated in part, and remanded for resentencing.
ARNOLD–BURGER, J., dissenting.
I must respectfully dissent from my colleagues on the sufficiency of the evidence to convict Travis James Johnson of possession of marijuana and possession of drug paraphernalia.
The facts that led the jury to find Johnson guilty of both charges after 46 minutes of deliberation are not in dispute. Johnson was a passenger in a vehicle. The driver allowed the police to search the vehicle. The police discovered marijuana under Johnson's seat. There was no indication that it was visible to Johnson or anyone else. Johnson denied the marijuana was his. Upon a search of Johnson, police found a package of rolling papers in his front left pants pocket.
The majority has correctly set forth the standard of review, and I will not repeat it here. But based on the evidence when viewed in the light most favorable to the prosecution, I am not convinced that a rational factfinder could have found Johnson guilty beyond a reasonable doubt. See State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). In other words, findings of guilt were not justifiable based on the evidence presented. As the Kansas Supreme Court so aptly noted in State v. Williams, 229 Kan. 646, 648–49, 630 P.2d 694 (1981) :
“Convictions based upon circumstantial evidence, as in the instant case, can present a special challenge to the appellate court. Juries are permitted to draw justifiable inferences from proven circumstances and established facts; but the appellate court must determine whether findings based upon inferences are justifiable by applying additional rules of law.” (Emphasis added.)
So I will begin by examining the additional rules of law that guide us in this case.
In order for the jury to find Johnson guilty of possession of marijuana, the State must prove that he intentionally and knowingly possessed marijuana. K.S.A.2011 Supp. 21–5706 ; K.S.A.2011 Supp. 21–5111(v). Because the marijuana was found in an automobile containing more than one person, Johnson's mere presence in the vehicle, without more, cannot sustain his conviction for possession. See State v. Faulkner, 220 Kan. 153, 160, 551 P.2d 1247 (1976). Circumstances which have been held sufficiently incriminating to support an inference of possession are (1) incriminating statements made by defendant; (2) suspicious behavior on the part of the defendant; (3) previous drug sales by defendant; (4) defendant's use of narcotics; (5) proximity of defendant to the area where drugs were found; (6) drugs found in plain sight; and (7) other drugs or paraphernalia found on defendant. State v. Abbott, 277 Kan. 161, 168, 83 P.3d 794 (2004) (citing Faulkner and State v. Rios, 19 Kan.App.2d 350, 357, 869 P.2d 755 [1994] ).
In this case, Johnson made no incriminating statements. There was no evidence of furtive movements in the car or any suspicious behavior. The car was parked in front of a pizza shop, and Johnson was holding a pizza box on his lap. He was cooperative with police. There was no evidence presented that Johnson was using drugs at the time or had ever used or sold narcotics. The marijuana was not found in plain view. The officer indicated he had no idea how long the marijuana had been in the car. There was no odor of burning marijuana coming from the car or any evidence presented of previously burned marijuana on the floor or in the ashtrays. There were no stems or vegetation noted on the floor of the car, and the officer checked with a flashlight. Johnson was not the owner of the vehicle in which the marijuana was found, and there was no evidence presented that there were any personal items belonging to him found underneath the seat or anywhere in the car. There was no evidence that he exercised any control over the marijuana. This leads us back to the sole factors that weigh against Johnson: his proximity to the marijuana, albeit tucked under the cushion of the seat and frame, and the package of rolling papers in his pocket. It should be noted that the officer had not discovered the package of rolling papers at the time he arrested Johnson for possession of marijuana. Even the prosecutor admitted in her closing statement that “I know there's not very much evidence.” I would find such scant evidence insufficient as a matter of law to support a conviction for possession of marijuana. See Abbott, 277 Kan. at 167–68, 83 P.3d 794 (evidence sufficient to link passenger to drugs based on furtive movements, proximity, previous drug sale, and drugs found in his underwear); State v. Marion, 29 Kan.App.2d 287, 290–91, 27 P.3d 924 (evidence sufficient to link defendant to cocaine and drug paraphernalia found in shared residence where spoon with cocaine residue found in plain view and drug paraphernalia found in living room where defendant slept), rev. denied 272 Kan. 1422 (2001); Rios, 19 Kan.App.2d at 358–59, 869 P.2d 755 (evidence insufficient to link defendant to large amount of marijuana found in car trunk where State proved defendant's mere presence in the car); State v. Cruz, 15 Kan.App.2d 476, 492, 809 P.2d 1233 (evidence insufficient to link employees to cocaine who were found coming and going from basement of vacant house owned by their boss where large stash of cocaine found), rev. denied 249 Kan. 777 (1991).
As to the drug paraphernalia charge, the State was required to prove that Johnson knowingly and intentionally possessed rolling papers with the intent to store, contain, ingest, inhale, or otherwise introduce marijuana into his body. K.S.A.2011 Supp. 21–5709(b)(2) ; K.S.A.2011 Supp. 21–5111(v). It can be inferred that the knowing possession of items that can be used to ingest illegal drugs, as opposed to any legitimate use, are drug paraphernalia. But the mere possession of a legitimate or legal item itself is not enough. There must be evidence that the item was possessed with the intent to aid in the introduction of marijuana into Johnson's body. The jury must consider things like the proximity of the item to a controlled substance, evidence that it was actually used to ingest a controlled substance, expert testimony about its use, and the scope of legitimate use of the item in the community. The jury was informed of this inference in its instructions. But there was very little evidence that the rolling papers were used or intended to be used to ingest illegal drugs. There was no marijuana on the rolling papers. There was no evidence presented of burnt marijuana blunts composed of rolling papers in the car. There was no smell of burning marijuana in the car. There was no evidence presented that Johnson was a marijuana user or that he was under the influence of marijuana at the time. But there was evidence that rolling papers are widely available in the community for the legitimate use of rolling tobacco cigarettes. The only contrary evidence was the officer's testimony that rolling papers are also often used to roll marijuana cigarettes and there was marijuana in the car. Again, I would find such scant evidence insufficient as a matter of law to support a conviction for possession of drug paraphernalia.
Moreover, the jury and the majority were able to justify the findings of guilty only by the impermissible stacking of inferences. When a fact is established by circumstantial evidence, the circumstances must be proven and cannot be inferred from other circumstances. State v. Rice, 261 Kan. 567, 587, 932 P.2d 981 (1997).
There was insufficient circumstantial evidence to support the charge of possession of the marijuana. Likewise, there was insufficient circumstantial evidence that the rolling papers were drug paraphernalia. But when the jury and the majority stacked these two inferences, guilt was magically established beyond a reasonable doubt. Johnson must have possessed the marijuana because he had rolling papers, and he must have intended to use the rolling papers to ingest marijuana because he possessed marijuana. Yet there was no evidence to independently support either inference. This was impermissible inference stacking and as such cannot support the jury's verdict. I would find the evidence insufficient to support the convictions.