Opinion
No. 105,233.
2012-07-13
STATE of Kansas, Appellee, v. Timothy ROGERS, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge. Randall L. Hodgkinson, of Kansas Appellate Defenders Office, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defenders Office, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Timothy Rogers appeals his convictions for possession of marijuana with intent to distribute in violation of K.S.A.2009 Supp. 21–36a05(a)(4), possession of drug paraphernalia with intent to use to distribute in violation of K.S.A.2009 Supp. 21–36a09(b)(1), and possession of marijuana without a tax stamp affixed in violation of K.S.A. 79–5204. We affirm the convictions.
Factual and Procedural Background
Rogers was a front seat passenger in a vehicle driven by Myesha Franklin during the early afternoon of July 27, 2009. Another passenger was in the rear seat. Officer Kevin Dorritie noticed Franklin failed to signal a turn as the vehicle was fishtailing on a dirt road.
Officer Dorritie stopped the vehicle. While making the stop or shortly thereafter, the officer noticed Rogers reach “down in a forward fashion like he was placing something or moved something between his legs.”
Officer Dorritie went to the driver's window and obtained driver's licenses from Franklin and Rogers and identification from the other passenger. Officer Jake Graber soon arrived and Officer Dorritie asked him to make contact with Rogers because Rogers' motions had caused him “concern for officer safety.”
Officer Graber approached the open front-passenger window and spoke with Rogers. The officer lowered his face to smell the interior of the automobile. Officer Graber testified that he detected an odor of unburnt or raw marijuana coming from inside the vehicle. By contrast, Officer Dorritie, testified he had not detected this odor while at the driver's window.
Officer Graber testified that his conversation with Rogers was about everyday matters but when he asked Rogers if the automobile contained drugs or weapons, Rogers' “demeanor changed.... He looked straight forward, he quit looking at me, carrying on a conversation.” Officer Graber testified that after some hesitation Rogers answered no.
Rogers attempted to change the subject. But Officer Graber asked again about drugs and weapons, telling Rogers “he needed to be honest with me, that I could smell marijuana.” Rogers told the officer he “would probably find marijuana under the seat that he was sitting on.”
Officer Graber removed Rogers from the automobile and handcuffed him. After being advised of his Miranda rights, Rogers advised “there was a Crown Royal bag under the seat, [that] contained approximately 2 ounces of marijuana and a scale.” Rogers admitted that the bag, its contents, and “all that was in the car” belonged to him.
Officer Dorritie found the Crown Royal bag, and inside it was a plastic baggie containing approximately 2 ounces of marijuana, a scale, a sifter or grinder used to process marijuana for smoking, and $129. No tax stamp was affixed to the marijuana. The officers also located a baggie of marijuana and a glass pipe in Franklin's purse.
Officer Graber took Rogers to the Reno County Detention Center. The officer advised Rogers during booking that he was being held for crimes including possession of marijuana with no tax stamp affixed. Rogers replied, “I would have been keeping better track of whom I sold” and abruptly stopped. Rogers then said he smoked a lot of marijuana but did not sell it.
Rogers was charged with possession of marijuana with intent to distribute, possession of drug paraphernalia with intent to use to distribute, and possession of marijuana without tax stamp affixed.
Rogers moved to suppress the evidence, arguing “Officer Graber's authority to continue his questioning ... and to search the vehicle was based upon his keen ability to smell [raw] marijuana, inside an enclosed plastic bag, which was located inside an enclosed Crown Royal bag located underneath a car seat.” Rogers maintained the State “cannot present testimony regarding Officer Graber's training and/or experience regarding the ability to detect the odor of marijuana within an enclosed container, because no such training exists.” Thus, Rogers concluded, “the odor of marijuana ... cannot be the probable cause for ... [the] search of the vehicle .”
At the suppression hearing, both officers testified to their training and experience. Officer Dorritie and Officer Graber were both trained in the detection of drugs and had about 1 year of experience as law enforcement officers. Part of the relevant training for both officers was to smell an open bag of raw marijuana. Officer Graber testified he had also encountered the odor of raw marijuana “anywhere from five to ten” times while serving as an officer.
The district court directly credited Officer Graber's testimony. It found that while Officer Graber may not have had “the world's most extensive training,” he “had received training and ... had been involved in prior cases.” As a result, the district court found Officer Graber was a “credible witness in that he smelled the marijuana [and] asked questions about it.” The district court denied the motion to suppress, concluding that the smell of marijuana gave Officer Graber probable cause “to search the vehicle and find the marijuana.”
The parties submitted the case for trial on stipulated facts which incorporated by reference the testimony from the suppression and preliminary hearings, at which both officers had testified. The district court found Rogers guilty and sentenced him to community corrections with an underlying prison term of 18 months. Rogers appeals.
Probable Cause Automobile Search
Rogers does not challenge the validity of the traffic stop, and he concedes “the smell of marijuana can provide an officer probable cause that can, in turn, justify further detention” to search. Rogers maintains probable cause did not exist in this case, however, because Officer Graber could not have smelled the raw marijuana. While other legal justifications for searching the vehicle may have existed, the parties and the district court have framed the issue this way: Whether or not there was probable cause to search the vehicle based solely on Officer Graber's smell of raw marijuana.
We review the district court's factual findings for substantial competent evidence, and its ultimate legal conclusion is subject to de novo review. See State v. Walker, 292 Kan. 1, 5, 251 P.3d 618 (2011).
Rogers argues Officer Graber “did not testify that he received training or otherwise had the ability to detect the odor of [raw] marijuana through sealed plastic baggies at a distance.”
“In the instant case, the minimal evidence regarding the training and experience are insufficient to conclude that [Officer] Graber was qualified to know and identify the odor of [raw] marijuana in a sealed baggie inside the car from his vantage point outside the car. [Officer] Graber never testified he has such canine-like odor detection skills. Without such evidence, [Officer] Graber's claim that he smelled marijuana does not constitute probable cause.”
Despite Rogers' statement of the argument, his challenge to the incriminating testimony by Officer Graber is more about the officer's credibility rather than his training and experience in smelling marijuana. As found by the district court, the officer's training and experience with smelling raw marijuana provided the foundation for his personal knowledge of the odor of raw marijuana. This training and experience was sufficient. Rogers' complaint that Officer Graber could not have smelled the odor because the marijuana was in a closed baggie is essentially an attack on the officer's credibility. It also presumes the bag was never open in the car shortly before the stop.
The district court specifically found Officer Graber's testimony to be credible, and “[i]t is not the function of the appellate court to reweigh evidence or determine the credibility of witnesses.” State v. Nunn, 244 Kan. 207, Syl. ¶ 15, 768 P.2d 268 (1989). Rogers provides no legal authority showing the officer's testimony was so inherently incredible that we should take the rare step of rejecting a credibility determination made in district court. See State v. Matlock, 233 Kan. 1, 3–5, 660 P.2d 945 (1983).
This court has, in fact, admitted similar testimony in another case. In State v. Goff, 44 Kan.App.2d 536, 536, 239 P.3d 467 (2010), rev. denied 292 Kan. 967 (2011), an officer conducted a traffic stop and “[a]fter approaching the vehicle ... smelled the odor of raw marijuana coming from inside.” A search found marijuana cigarettes in a prescription bottle and 15 bags of marijuana in a plastic container. The defendant argued “the officer could not have smelled marijuana from his position near the vehicle.” 44 Kan.App.2d at 537. But the district court credited the officer's testimony, and this court affirmed. 44 Kan.App.2d at 540–42.
We conclude the district court did not err in similarly crediting Officer Graber's testimony. The officer testified that through his training and experience he knew what raw marijuana smelled like and that he had smelled it in this instance. As a result, he had probable cause to search. Sec State v. Kirk, 40 Kan.App.2d 817, 820, 196 P.3d 407 (2008).
Intent to Distribute Marijuana
Rogers contends that “[a]pplying de novo review, this Court must find the [S]tate failed to prove beyond a reasonable doubt that [he] intended to distribute the marijuana.” As stated, Rogers challenges the sufficiency of the evidence but our review is not de novo. Neither of the cases Rogers cites. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009), or State v. Stegman, 41 Kan.App.2d 568. 573,203 P.3d 52 (2009), applied de novo review to the sufficiency of the evidence in a criminal case. The long-standing standard is “ ‘ “whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ‘ “ State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
“ ‘Distribute’ includes, but is not limited to, sale, offer for sale or any act that causes some item to be transferred from one person to another.” K.S.A.2009 Supp. 21–36a01(d). Thus, an intent to distribute includes an intent to sell. And for intent to sell, “there must be sufficient proof of possession of such drugs and proof that the possession was for the purpose of sale.” State v. Gibson, 30 Kan.App.2d 937, Syl. ¶ 16, 52 P.3d 339,rev. denied 274 Kan. 1115 (2002). This proof “may be circumstantial and may consist of evidence as to quantity of the narcotic, equipment found with it, place it was found, manner of packaging, and opinion of experts that the narcotic was packaged for sale.” 30 Kan.App.2d 937, Syl. ¶ 16.
Although Rogers had only 2 ounces of marijuana, this specific amount has been accepted as evidence of an intent to distribute. See State v. Brown, 779 So.2d 847, 850–851 (La.App.2000). In Brown, the 2 ounces had been repackaged into smaller amounts, which was not done here, but Rogers also had a scale. In the present case, both officers testified that scales are associated with the sale of marijuana, an association this court has accepted before. See, e.g., State v. Udell, 34 Kan.App.2d 163, 167–68, 115 P.3d 176 (2005).
Moreover, Rogers referred to sales while being booked. Although he argues on appeal that his statement was ambiguous, when considered with the rest of the evidence, the statement was some evidence of guilt. Finally, Rogers made the unambiguous statement at the scene that everything in the automobile belonged to him. Franklin had a baggie of marijuana in her purse, and this admission suggested Rogers as the source for her marijuana. Viewing all the facts in the light most favorable to the prosecution, there was sufficient evidence of Rogers' intent to distribute or sell marijuana.
Defective Complaint
Rogers contends we “must reverse [his] conviction under [C]ount II, because the district court lacked jurisdiction under the fatally defective complaint.” Rogers suggests the charge of possession of paraphernalia in Count II was pled based on “language ... from a repealed statute that is not found in the statute in force.” Our review is unlimited. See State v. Inkelaar, 293 Kan. 414, 433, 264 P.3d 81 (2011).
At the outset, Rogers did not raise this argument in the district court:
“A defendant challenging the sufficiency of the charging document for the first time on appeal must show the alleged defect either (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial.” Inkelaar, 293 Kan. 414, Syl. ¶ 5.
As we read his brief. Rogers is arguing the first ground, that the alleged defect prejudiced the preparation of his defense. Rogers suggests he “could have believed that his stipulation to the scale as paraphernalia would not place him at risk of conviction, because a scale is not used to package, or because packaging is not prohibited.” He also claims “there was no way ... to know whether he was facing a level 4 felony or a class A misdemeanor.”
Before comparing the pleading to the statutory language, we note the hypothetical nature of Rogers' argument. Rogers is not arguing that he was prejudiced, but only that he could have been prejudiced. This is not sufficient to merit reversal of the conviction. Inkelaar requires a showing that a defective complaint “prejudiced” the defendant. 293 Kan. 414, Syl. ¶ 5. Because Rogers does not brief actual prejudice, we consider the issue waived or abandoned on appeal. See McCaslin, 291 Kan. at 709.
If we were to consider this issue, we would not find prejudice. The charge of possession of paraphernalia in Count II alleged Rogers had violated a statute which took effect just weeks before he was arrested, K.S.A.2009 Supp. 21–36a09. See L.2009, ch. 32, sec. 9. As a result, the charging document cited the year, chapter, and section of the session laws, and it also noted the citation by which it would be codified: “Section 9 of Chapter 32 of the 2009 Session Laws of Kansas, to be codified at K.S.A.2009 Supp. 21–36a[0]9.” Given this description, Rogers had ample notice of the statute the State alleged he violated.
Count II went on to allege that Rogers possessed drug paraphernalia with the intent “to use to package a controlled substance for sale.” Rogers claims this language was taken from the superseded statute, but whatever its source, the statutory language in effect on the date of the crime was “to use any drug paraphernalia to ... distribute a controlled substance.” K.S.A.2009 Supp. 21–036a09(b)(1). So, while the State pled “to use to package ... for sale,” the statutory language was “to use ... to ... distribute.”
Rogers challenges “to package” on the basis that “a scale is not used to package,” but we are not persuaded. The officers testified that scales are used in marijuana sales, and the obvious means would be by measuring out certain amounts for packaging for later sale. Rogers also claims “packaging is not prohibited” by the statute, but it is prohibited when it is linked to distribution, which is the issue Here. And while the State pled “sale” instead of “distribute,” “sale” is included within the meaning of “distribute,” as already discussed. See K.S.A.2009 Supp. 21–36a01(d). We do not see prejudice to Rogers.
As a related argument, Rogers claims “there was no way” he could have known “whether he was facing a level 4 felony or a class A misdemeanor.” On the contrary, the State pled Count II as a “Severity Level D–4, Nonperson Felony,” and it also stated a “Sentencing Range of 10–42 months.” Moreover, Rogers could have considered that “sale,” the language pled by the State, is by definition included in the language used in the current statute, “distribute,” and that “distribute” is found in the subsection which is a “severity level 4 felony.” K.S.A.2009 Supp. 21–36a09(b)(1) and (e)(2). In summary, Rogers does not show the State's pleading of Count II prejudiced his preparation of a defense.
Sentencing
As just discussed, the State pled the possession of paraphernalia in Count II as a severity level 4 felony. The district court found Rogers guilty of Count II, and he was sentenced accordingly. On appeal, Rogers now argues his sentence “is illegal within the meaning of K.S.A. 22–3504” because he should have been sentenced for a class A misdemeanor. Rogers notes his “paraphernalia was used to cultivate zero plants. No testimony was presented that the paraphernalia was used for cultivation at all.”
Although Rogers did not raise this issue below, we will consider an allegedly illegal sentence for the first time on appeal. See State v. Brown, 34 Kan.App.2d 746, 770–71, 124 P.3d 1035 (2005), aff'd283 Kan. 658, 157 P.3d 624 (2007), Our review is unlimited. See State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011).
Using or possessing with intent to use drug paraphernalia to “cultivate” a controlled substance is a class A nonperson misdemeanor “if the drug paraphernalia was used to cultivate fewer than five marijuana plants.” K.S.A.2009 Supp. 21–36a09(e)(2). Rogers was not charged with possessing drug paraphernalia to cultivate marijuana but to package it for distribution or sale. The misdemeanor sentencing provision Rogers relies on does not apply to the facts or the charge in this case.
Affirmed.