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Insufficient evidence of constructive possession [NOT FINAL]

By Randall Hodgkinson

Charles O'Hara won in State v. Navarro, No. 97,428 (Kan. App. Dec, 21, 2007)(unpublished), reversing a Seward County possession with intent to sell conviction on sufficiency grounds:

Viewing the evidence in the light most favorable to the State, it seems likely that Navarro had some idea of what was going on, as he legally owned the property; a scale was found in plain view in the shop; it was obviously a large scale drug operation based on the amount of marijuana found; the only driveway to the shop went by Navarro's residence; the shop was nearby his residence; all of the lights were on and the door was open to the shop in the middle of the night; and there was a large amount of cash in his bedroom.

However, as Navarro argues, very few incriminating factors link him personally to the drugs. No evidence was presented at trial regarding previous drug use or sales by Navarro. Based on the testimony presented at trial, it appears that his brother's trailer was actually closer to the shop than Navarro's brick house and his daughter's trailer was likewise nearby. No evidence was presented that Navarro owned any of the items inside of the shop where the marijuana was found, i.e., the lawnmower, bicycles, guns, scale, baggies, and several adults and children lived on the property. The bricks of marijuana were not found in plain view as they were wrapped in paper and kept in feed bags inside of the barrels in the shop. Officer Dixon testified that he had to open the feed bag from one barrel and remove several tarps from the other barrel in order to see the marijuana. Finally, while having a large amount of cash is certainly suspicious behavior relating to narcotics sales, the vast bulk of the cash was found in a dresser with women's clothing and contained a withdrawal slip in Sally Navarro's name and a checkbook from Sally and Victor Navarro's bar. The manner in which the cash was found arguably leads to a stronger inference that it belonged to Sally Navarro.

In conclusion, the State failed to put on sufficient evidence of incriminating factors linking Navarro personally to the marijuana found on the property so as to find he constructively possessed the marijuana. As such, his conviction for possession of marijuana with intent to sell and failure to affix a drug tax stamp is reversed.

Nice job. It's good to see the COA hold fast to the rule that there has to be real evidence of possession, not just speculation on the part of the prosecution.

Full post as published by Kansas Defenders on January 19, 2008 (boomark / email).