State v. Winter

523 P.3d 516 (Table)

STATE of Kansas, Appellee,

v.Lori Ann WINTER, Appellant.

No. 124,172

Court of Appeals of Kansas.

Opinion filed January 27, 2023.

MEMORANDUM OPINION

Per Curiam:

Lori Ann Winter appeals after a jury convicted her of possession of methamphetamine, possession of drug paraphernalia, and transporting an open container. On appeal, Winter challenges the district court's denial of her motion to suppress evidence obtained from the search of the vehicle she was driving at the time of a traffic stop. Winter also contends that there was insufficient evidence presented by the State to support either of her possession convictions without improper inference or presumption stacking. Finally, Winter contends that the district court erred by failing to give a nonexclusive possession instruction to the jury.

Based on our review of the record on appeal, we do not find that the district court erred in denying Winter's motion to suppress the evidence seized during the traffic stop. We also find that the State presented sufficient evidence to support Winter's possession convictions without relying upon impermissible inference or presumption stacking. Furthermore, we find that the district court's failure to give a nonexclusive possession instruction to the jury was not clearly erroneous. Thus, we affirm Winter's convictions.

FACTS

The parties have agreed to the following stipulated facts:

"In the matter at hand, Deputy Travis Davis affected a traffic stop on a [van] operated by the defendant on December 25, 2018, on U.S. 75 Highway within Jackson County, Kansas. The officer stopped the vehicle because the vehicle was traveling 75 mph in a 65 mph zone at approximately 9:07 p.m.

"The officer made contact with the defendant, Lori Winter, who was the driver of the vehicle. There were two other occupants inside the vehicle. During the initial contact with the defendant, the officer made observations ... which are captured upon video taken by the officer's body camera ... which caused the officer to believe the defendant was under the influence of certain illegal stimulants.

"Based upon the officer's observations, the officer requested the defendant to take standard field sobriety tests to determine whether the defendant was driving under the influence of alcohol and/or drugs. The officer noted no erratic driving nor the odor of alcohol nor the odor of any illegal drugs. The officer observed several other clues of impairment during the field sobriety tests, including the walk and turn test, one leg stand test and a preliminary breath test. The officer testified that the defendant failed both the walk and turn test and the one leg stand test. Alcohol was not detected on the preliminary breath test.

"Based upon his observations, the officer placed the defendant under arrest for suspicion of Driving Under the Influence.

"While the field sobriety tests were being completed another officer responded to the scene and approached the passenger side of the vehicle to speak with the passengers and detected the odor of marijuana coming from the vehicle.

"Based off the smell of marijuana emanating from the vehicle, the officers then searched the vehicle the defendant was operating. The officers discovered a black in color purse on the driver's floorboard which contained a glass pipe with a white residue. The item was subsequently tested by the KBI Laboratory, and methamphetamine was detected in the item. The officers also discovered a cup in the front center console that smelled of alcohol; a metallic flask that smelled of alcohol; and an unsealed vodka bottle under the rear passenger seat.

"After the search of the vehicle, Deputy Davis approached the defendant and informed her of her rights per Miranda. The defendant waived her rights and told the Deputy Davis that she was unaware of the pipe in her purse and that she didn't know why she smelled ... like burnt marijuana."

On January 9, 2019, the State charged Winter with one count of possession of methamphetamine, one count of possession of drug paraphernalia, one count of transporting an open container, and one count of driving under the influence. The State later dropped the driving under the influence charge. Winter filed a pretrial motion to suppress the evidence obtained from the search of the van she was driving at the time of the traffic stop. It is undisputed that the van was owned by her employer, that her son was the front seat passenger, and that his then girlfriend was the rear passenger. It is also undisputed that the other officer who arrived at the scene was Sergeant Heath Delany.

The district court held a suppression hearing on September 13, 2019. At the hearing, the State presented the testimony of Deputy Davis. He testified regarding his observations of Winter during the traffic stop as well as her failure of two field sobriety tests. In addition, Deputy Davis’ body camera footage from the traffic stop was submitted to the court as an exhibit and was reviewed by the district court. Although counsel presented legal arguments to the court, no other evidence was presented at the hearing. Following the hearing, the district court issued a written order denying the motion to suppress.

In its order denying the motion to suppress, the district court found:

"[Deputy Davis had] reasonable suspicion to ask Ms. Winter to participate in field sobriety testing. It was reasonable to extend the investigation to inquire further about Ms. Winter's lack of a driver's license on her person and whether she had any health conditions. Meanwhile, Officer Delany's actions during the stop did not delay it and it appears that he encountered the smell of marijuana just before the stop became more problematic ... [s]ince Sgt. Delany had already detected the smell of marijuana by this time the resulting search of the vehicle was lawful."

On January 20, 2021, the district court held a one-day jury trial. By agreement, the stipulated facts were admitted as a trial exhibit and the State read them to the jury during its opening statement. In its case in chief, the State presented the testimony of Deputy Davis. In addition, the State played his body camera footage from the traffic stop—which was admitted as an exhibit—to the jury. The State also offered—and the district court admitted into evidence over Winter's objection—the glass pipe, the zipper bag that held the glass pipe, a Kansas Bureau of Investigation (KBI) report showing that the white substance on the glass pipe tested positive for methamphetamine, and an alcohol bottle found during the traffic stop.

Deputy Davis again testified regarding the events surrounding the traffic stop as well as his observations of Winter. He recalled that when he approached the van, Winter told him she was speeding to pick up her grandkids who were stranded on the side of the highway. Although she looked for her driver's license, Winter was unable to find it and instead gave the officer her social security card. Deputy Davis described Winter as being "very animated" and making "fast movements" when he was speaking with her. According to the officer, Winter "had a hard time focusing on single tasks" and was acting in an "[e]rratic" manner.

Deputy Davis further testified regarding his training and experience including hundreds of traffic stops. He indicated that although it was common for drivers to be nervous when they were pulled over, Winter was acting like someone who was under the influence. In particular, Deputy Davis testified that her "kind of behavior is indicative of a person ... under the influence of certain stimulants like methamphetamine." He also stated that he knew the difference between someone who was nervous and someone who was possibly under the influence. Although Winter initially denied that she had been drinking or using drugs, she later stated that she had a large glass of wine earlier in the evening after the officer told her he suspected she was "on something."

According to Deputy Davis, Winter complied when he asked her to step out of the van and she agreed to complete field sobriety testing. The officer testified that he requested testing based on Winter's speech, demeanor, and admission to drinking alcohol. He further testified that although the preliminary breath test did not show that Winter was under the influence of alcohol, she failed the walk and turn test as well as the one-leg stand test. Based on her failure of two field sobriety tests, her erratic behavior, and the fact that she had initially been deceptive in responding to his questions, Deputy Davis suspected that Winter had been operating the vehicle under the influence of drugs. As a result, he asked her some additional questions about her driver's license, whether she had any health conditions, and whether she had ever been arrested.

While Deputy Davis was administering the field sobriety tests, Sergeant Delany had arrived at the scene. When he went to speak to the passengers still sitting in the van, Sergeant Delany smelled what he believed to be marijuana coming from the vehicle. Deputy Davis then went to the front passenger side of the vehicle and also smelled what he believed to be marijuana. At that point, the officers had the two passengers step out of the van and they conducted a search of the vehicle. Deputy Davis testified that he found an unsealed vodka bottle with alcohol in the bottom on the rear passenger floorboard, a metallic flask that smelled like alcohol on the front driver's side floorboard, a mixed drink in the center cupholder, a beer can with some liquid still in it inside the center console, and a glass pipe with residue inside a black purse sitting on the front driver's side floorboard.

Deputy Davis testified that the glass pipe was found inside a red zipper bag located inside the black purse. The pipe was wrapped up in a rag and there was also a spoon with residue found inside the purse. The officer explained that the purse was "right next to" where...