Opinion
111,656.
07-17-2015
STATE of Kansas, Appellee, v. Corey LATHAM, Appellant.
Michelle A. Davis, of Kansas Appellant Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Michelle A. Davis, of Kansas Appellant Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This case comes before this court on appeal from a probation revocation. We affirm, finding substantial evidence supporting the fact Latham violated his probation and finding no abuse of discretion in the district court's decision to revoke probation.
Corey Latham pled guilty to one count of possession with intent to distribute a controlled substance and one count of possession of controlled substances. Latham also entered a Brady plea to one count of criminal possession of a firearm. Latham then filed a motion for downward dispositional departure which the district court granted, sentencing him to 18 months' probation with an underlying sentence of 42 months' imprisonment. As a condition of probation, Latham could not possess or consume alcohol or drugs without a legal prescription from a physician.
The State subsequently alleged Latham had violated that term and condition of his probation by possessing marijuana and drug paraphernalia on October 3, 2013, and a warrant issued. Following an evidentiary hearing, the district court found by a preponderance of the evidence that Latham had violated his probation. Latham appeals from the district court's revocation of his probation and order that he serve a modified sentence of 37 months' imprisonment.
The traffic stop
Approximately 1 month prior to obtaining the warrant, Officer Jared Henry had stopped a vehicle Latham was driving. Officer Henry issued a traffic ticket to Latham, then requested consent to search the vehicle because he believed Latham was involved in the trafficking of marijuana. After Latham consented, Officer Henry and a canine searched the vehicle but found no drugs.
The trash pull
During the traffic stop, Officer Henry obtained an address and a fingerprint which connected Latham to an arrest for the charge of possession of marijuana. Due to that information, Officer Henry performed a trash pull at Latham's residence, removing five standard white trash bags and one plastic grocery sack. The evidence obtained from the bags included: empty boxes of sandwich bags; two 1–gallon bags containing a sticker that read, “For Medical Use Only. May cause drowsiness. Not for resale. Please keep away from children. Grown with advanced grand master nutrients”; a bag containing a green botanical substance Officer Henry recognized as marijuana; multi-gallon vacuum-sealed bags containing marijuana residue; plastic baggies containing marijuana residue; and a bag containing approximately 10 grams of marijuana.
Officer Henry performed a field test on the bag containing the 10 grams of marijuana and believed the other residue had a similar appearance to the tested residue. The officer testified the vacuum-sealed bags were regularly used for trafficking large amounts of narcotics. Based on the evidence obtained in the trash pull in combination with some other factors, he obtained a search warrant for Latham's residence.
The residential search
On October 3, 2013, officers executed the search warrant at Latham's residence. In the dining room area inside a hutch the officers found two glass jars containing a small amount of marijuana residue and an odor of marijuana and a small bag of marijuana. In the kitchen trash officers obtained a bag containing an identical “For Medical Use Only” sticker as had been found in the trash pull.
Latham was not at the residence when the police initially entered his home. When Latham arrived, the officers handcuffed him, put him in the back of a police car, and advised him of his Miranda rights.
Latham told Officer John Groh a man named either Kim or Ken came to the house and offered to provide some “good marijuana.” Latham said he refused, telling the individual he could not engage in any kind of illegal activity because he was on probation. Latham explained the man had put the plastic bag in the kitchen trash without Latham's permission. Latham also told Officer Henry “he could set up a deal that was really big but that that was contingent upon him being released.”
The probation revocation hearing
At the probation revocation hearing, Latham testified Officer Groh never advised him of his Miranda rights and that he did not remember a conversation with Officer Groh regarding an individual named Kim or Ken. Further, he denied having offered to set up a deal in exchange for his release. Latham said the officers manufactured evidence against him and harassed him.
The district court heard testimony regarding all of the evidence obtained from the trash pull and from the residence. Additionally, the district court heard Latham's testimony regarding the fabricated evidence. After weighing the evidence, the district found:
“It's clear he's violated his probation. It's clear he was in possession of marijuana, and he's knowingly hanging around somebody with marijuana. There's no doubt. Clearly, by a preponderance of evidence, he's in violation of his probation. Whether it's a good criminal case or not for my purposes doesn't matter. I find by the evidence as heard, seen, read, reviewed and relayed by witnesses, all the witnesses, the defendant is in violation of the probation by virtue of being in possession, living in a house with marijuana in it knowingly.”
Accordingly, the district court revoked Latham's probation and ordered him to serve a modified sentence of 37 months' imprisonment.
Issue on appeal
On appeal, Latham argues the State failed to prove a violation of a condition of his probation by a preponderance of the evidence, as the State did not establish that he knowingly possessed marijuana or drug paraphernalia.
To sustain an order revoking probation, the State must first establish commission of the violation by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). This burden “is established when the evidence demonstrates a fact is more probably true than not true.” State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). Our review of a factual determination is generally governed by the substantial competent evidence standard. Inkelaar, 38 Kan.App.2d at 315, 164 P.3d 844. Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). Under this standard, “it is not for this court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses.” State v. Hartpence, 30 Kan.App.2d 486, 493, 42 P.3d 1197 (2002).
Once there is evidence of a probation violation, the decision to revoke probation rests within the sound discretion of the district court. Gumfory, 281 Kan. at 1170, 135 P.3d 1191. Judicial discretion is abused if the action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Turner, 300 Kan. 662, 675, 333 P.3d 155 (2014). Latham bears the burden of showing such abuse of discretion. See State v. Brown, 300 Kan. 565, 571, 331 P.3d 797 (2014).
In State v. Carrasco, 28 Kan.App.2d 683, 684, 19 P.3d 202 (2001), we reviewed the elements for the offense of possession of marijuana:
“Possession of marijuana requires the following essential elements: ‘(1) that the defendant possessed the marijuana, and (2) that [he] did so intentionally. Possession of a controlled substance requires that one have control over the substance with knowledge of and the intent to have such control.’ [Citations omitted.] Knowledge of the presence of the controlled substance with the intent to exercise control is essential. [Citation omitted .]”
Although Latham is correct that knowledge is an essential element of possession, Latham fails to recognize that a conviction of even the gravest offense may be based on circumstantial evidence. State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). As long as the evidence in question provides a basis from which the factfinder may reasonably infer the existence of the fact in issue, a verdict may be supported by circumstantial evidence. See State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). In a probation revocation proceeding, the State's burden is lower than in a criminal prosecution, as the State must prove only that a “fact is more probably true than not true.” Inkelaar, 38 Kan.App.2d at 315, 164 P.3d 844.
At the revocation hearing, the State presented ample circumstantial evidence demonstrating Latham's knowledge he possessed marijuana and drug paraphernalia. The evidence recovered from the trash pull at Latham's residence, the evidence found inside Latham's residence, and the lack of credibility of Latham's statements is sufficient to show guilty knowledge by a preponderance of the evidence, as detailed below.
Officer Henry provided a list of evidence obtained from Latham's outside garbage. As previously noted, this list included: empty boxes of sandwich bags; two 1–gallon bags with a “For Medical Use Only” sticker; several sandwich bags containing marijuana residue; vacuum sealed bags containing residue; and a knotted bag containing 10 grams of marijuana.
Officer Henry testified stems, seeds, and leafy material were present. He explained that based on his training and experience he was able to identify the “green botanical substance” as marijuana and was able to identify a strong marijuana odor. Additionally, the officer testified the packaging he found was consistent with packaging used for trafficking large quantities of narcotics. Other items discovered in the trash included: a prescription bottle belonging to Latham's girlfriend; mail addressed to Latham and his girlfriend; a Department of Corrections Residential and Service Center appointment card, naming Latham as the client; and a receipt identifying Latham as the customer.
Further, officers obtained the two glass jars containing a small amount of marijuana residue and a small bag of marijuana from inside the residence. A bag located in the kitchen trash contained the same “For Medical Use Only” sticker as the bags discovered outside. Officer Groh testified this sticker was “consistent with a [marijuana] dispensary.” He said he had seen this type of sticker before in Colorado “where marijuana is actually medically dispensed .” This bag contained residue; Officer Groh testified the “green botanical substance ... looked like high-grade marijuana.”
The district court also heard Latham's testimony that the officers were creating evidence and conspiring against him. Latham stated:
“Because I was on probation for the charge previously, and every time they pulled my [sic ] over they always asked, What are you doing out? You're not supposed to be out. Why ain't you in jail ... And I get constantly pulled over for sometimes tickets that's not even—like, they said I had loud music, and my music wasn't even on.”
Latham denied having signed the form advising him of his Miranda rights and denied that Officer Groh had reviewed the form with him or had advised him of those rights. Latham testified there was a baby shower at the residence from 6–9 p.m. the evening of the search, apparently to suggest that another person could have left the marijuana items in the residence. But no guests or gifts were there at 7 p.m. Latham testified that the guests had planned to go to another venue, but he had not expected them to leave until after Latham returned to the residence to get his son from his girlfriend. Based on the evidence and testimony presented, the district court determined Latham's story was not credible. It is not this court's prerogative to reevaluate witness credibility. See Hartpence, 30 Kan.App.2d at 493, 42 P.3d 1197.
Having carefully reviewed the record of the revocation proceedings, we find substantial competent evidence supporting the district court's conclusion that Latham violated his probation by knowingly possessing marijuana and drug paraphernalia. We find no evidence of arbitrary, fanciful, or unreasonable judicial action and therefore find no abuse of discretion in the district court's revocation of Latham's probation.
Affirmed.