No. 122,253
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ROBERT CASH SCHEUERMAN,
Appellant.
SYLLABUS BY THE COURT
1.
The Fourth Amendment to the United States Constitution protects the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures. However, a defendant must have a reasonable expectation of
privacy in the place searched before determining whether such defendant's Fourth
Amendment rights were violated.
2.
A person who lacks an ownership or possessory interest in the property searched
lacks a legitimate expectation of privacy in that property.
3.
When the sufficiency of the evidence is challenged in a case decided on stipulated
facts, an appellate court's review is unlimited, but the facts are still viewed in the light
most favorable to the State when testing their sufficiency. Moreover, a defendant is
precluded from challenging factual evidence within a stipulation by entering into a
stipulation of facts, but a defendant can still challenge the legal effect of the stipulated
facts.
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4.
K.S.A. 2020 Supp. 21-5109(b) defines lesser included offenses as including not
only offenses in which the elements of the lesser crime are identical to some of the
elements of the crime charged, but also lesser degrees of the same crime.
5.
If the facts are sufficient to convict the defendant of the charged crime, those same
facts are also sufficient to convict on any lesser included offense, provided all the
elements of the lesser included offense are identical to some of the elements of the crime
charged. This is not so where the lesser included offense is a lesser degree of the charged
crime and all its elements are not identical to some of the elements of the charged crime.
6.
Possession of methamphetamine with intent to distribute contrary to K.S.A. 2020
Supp. 21-5705(d)(3)(B), a severity level 3 drug felony, is a lesser included offense of
possession of methamphetamine with intent to distribute contrary to K.S.A. 2020 Supp.
21-5705(d)(3)(C), a severity level 2 drug felony, because it is a lesser degree of the same
crime.
7.
Evidence establishing that a defendant possessed at least 3.5 grams but less than
100 grams of methamphetamine is insufficient to satisfy the quantity element of
possessing methamphetamine with intent to distribute contrary to K.S.A. 2020 Supp. 21-
5705(d)(3)(B) because the quantity of drugs possessed is outside the element requiring
possession of at least 1 gram but less than 3.5 grams.
Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed April 16, 2021.
Affirmed in part, conviction reversed, and sentence vacated.
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Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
J. Colin Reynolds, assistant county attorney, M. Levi Morris, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before POWELL, P.J., GREEN and HILL, JJ.
POWELL, J.: Robert Cash Scheuerman was charged, inter alia, with possession of
methamphetamines with intent to distribute following a traffic stop and search of the
vehicle he was riding in. Scheuerman sought to suppress the evidence from the search,
but the district court denied the motion. Following a bench trial on stipulated facts, the
district court found Scheuerman guilty of a less severe version of possession of
methamphetamine with intent to distribute.
Scheuerman now appeals both the district court's denial of his suppression motion
and its guilty finding. For reasons more fully explained below, we find Scheuerman lacks
standing to challenge the legality of the search because he lacked a reasonable
expectation of privacy in the automobile. But we agree with Scheuerman that insufficient
evidence supports his conviction for the less severe version of possession of
methamphetamine with intent to distribute because the quantity of methamphetamines he
stipulated to possessing does not satisfy the quantity element of the crime. Thus, we
affirm the district court's denial of Scheuerman's motion to suppress, but we reverse his
conviction and vacate his sentence.
FACTUAL AND PROCEDURAL BACKGROUND
On August 8, 2016, Detective David Paden of the Barton County Sheriff's Office
was on the lookout for Scheuerman, who had an active arrest warrant. Paden saw a silver
Chrysler, which he associated with Scheuerman, drive past him. Paden pulled alongside
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the car and identified Scheuerman as the passenger, prompting him to initiate a traffic
stop. Paden radioed for backup because he had information that Scheuerman would not
allow himself to "go peaceably."
Paden ordered the driver and owner of the car, Gwen Finnigan—Scheuerman's
girlfriend—out of the vehicle. As Paden and Sergeant Lloyd Lewis approached the
vehicle, they noticed Scheuerman holding a gun to his temple. In accordance with the
Sheriff's Office policy, Finnigan was taken to the county jail because Scheuerman had a
gun. Following a stand-off lasting over an hour, Scheuerman finally put the gun down,
got out of the car, and surrendered to the officers. While being placed in Paden's patrol
vehicle, Scheuerman told Paden any "dope" in the car belonged to him, not Finnigan.
During the stand-off, Finnigan remained detained at the jail until the situation was
resolved.
The Sheriff's Office decided to impound the car because it was blocking traffic.
Lewis first retrieved the gun from the car and then performed an inventory search. During
the search, Lewis found methamphetamine in a black backpack, which also held a holster
and a magazine for the gun.
These events prompted the State to charge Scheuerman with possession of
methamphetamine with intent to distribute at least 3.5 grams but less than 100 grams,
criminal possession of a firearm, interference with law enforcement, possession of drug
paraphernalia, and no drug tax stamp.
Scheuerman sought to suppress the evidence obtained from the search of the car,
alleging the officers lacked probable cause to stop the car initially or to search it.
Following an evidentiary hearing, the district court denied the motion.
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Scheuerman agreed to a bench trial based on stipulated facts to preserve his
objection to the denial of his suppression motion. In exchange for his admission to certain
incriminating facts, the State agreed to amend the first count to the lesser charge of
possession of methamphetamine with intent to distribute at least 1 gram but less than 3.5
grams. It also agreed to dismiss all the other charges against Scheuerman.
The district court found Scheuerman guilty of the amended charge and sentenced
him to 73 months in prison with 36 months' postrelease supervision.
Scheuerman timely appeals.
I. DID THE DISTRICT COURT ERR BY DENYING SCHEUERMAN'S SUPPRESSION
MOTION?
Scheuerman argues the district court erred when it denied his motion to suppress
the evidence from the search. Scheuerman asserts the inventory search was illegal
because the police did not have a reason to impound the car; instead, they should have
asked Finnigan what she wanted done with the car.
The State responds first by arguing Scheuerman lacked the standing to challenge
the search because he did not own the car. Alternatively, it also argues law enforcement
had probable cause to search the car and there was nothing improper about the inventory
search.
Standard of Review
We apply a bifurcated standard of review when reviewing a district court's
decision on a motion to suppress. We review the district court's factual findings to
determine whether they are supported by substantial competent evidence, but the ultimate
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legal conclusion is reviewed de novo. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966
(2018). "'Substantial competent evidence is legal and relevant evidence a reasonable
person could accept to support a conclusion.'" State v. Talkington, 301 Kan. 453, 461,
345 P.3d 258 (2015). We do not reweigh evidence or assess witness credibility. When the
facts supporting the district court's decision are not disputed, the ultimate question of
suppression is a legal one subject to our unlimited review. The State bears the burden to
establish the lawfulness of a warrantless search or seizure. Hanke, 307 Kan. at 827.
Analysis
"The Fourth Amendment to the United States Constitution protects the 'right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.'" Talkington, 301 Kan. at 461. However, a defendant must have a
reasonable expectation of privacy in the place searched before determining whether such
defendant's Fourth Amendment rights were violated. 301 Kan. at 461-62; see Katz v.
United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J.,
concurring).
The State argues Scheuerman lacks standing to challenge the search of the car
because Finnigan owned the car, not Scheuerman. The State made this argument at the
suppression hearing, but the district court rejected it on the grounds that somehow the
State could not assert both that Scheuerman lacked standing to object to the search and
rely on his admission there were drugs in the car.
The term "standing" is typically used to determine whether someone's personal
rights have been violated. However, in the context of searches and seizures, standing is
more properly placed in substantive Fourth Amendment law than within traditional
standing. See Rakas v. Illinois, 439 U.S. 128, 140, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978);
Talkington, 301 Kan. at 473. But see State v. Richard, 300 Kan. 715, 727-28, 333 P.3d
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179 (2014) ("Nevertheless, standing to challenge a search is 'a component of subject
matter jurisdiction, which may be raised for the first time on appeal.'").
"'[A] defendant cannot object to the seizure of evidence without proper standing to
challenge the validity of the search. On the issue of standing, the burden is on the
defendant to show an expectation of privacy in the property searched.' State v. Gonzalez,
32 Kan. App. 2d 590, 593, 85 P.3d 711 (2004)." Talkington, 301 Kan. at 476. "Fourth
Amendment rights are personal rights that may not be vicariously asserted." 301 Kan. at
476. "A person who is aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by a search of a third person's premises or
property has not had any of his Fourth Amendment rights infringed. . . . [Only]
defendants whose Fourth Amendment rights have been violated" may challenge the
search. Rakas, 439 U.S. at 134.
As we have stated, a person must have a personal expectation of privacy in the
place searched to have standing to challenge the search. To demonstrate a legitimate
expectation of privacy, a defendant must show "a subjective expectation of privacy in the
area searched and that the expectation was objectively reasonable." Talkington, 301 Kan.
at 477. A person who lacks an ownership or possessory interest in the property searched
lacks a legitimate expectation of privacy in that property. This lack of ownership or
possessory interest is dispositive. State v. Wickliffe, 16 Kan. App. 2d 424, 429, 826 P.2d
522 (1992).
Although a passenger in a car does not generally have standing to challenge the
search of a car that does not belong to the passenger, the passenger can challenge the
search if it results from an illegal stop. State v. Maybin, 27 Kan. App. 2d 189, 200, 2 P.3d
179 (2000). While Scheuerman challenged the legality of the stop before the district
court, he does not challenge before us the district court's refusal to suppress the evidence
on this basis.
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Scheuerman does not dispute he was not the car's owner. Although he gave
Finnigan the money to buy the car, the car was registered in her name. Because
Scheuerman lacks any ownership or possessory interest in the car, he lacks the standing
to challenge the search of the car. And, as he did not challenge the search of the backpack
containing the methamphetamine before the district court, he cannot now claim he had a
possessory interest in the backpack.
The district court's reasoning that the State could not have it "both ways" by both
challenging Scheuerman's standing to challenge the search and relying on his admission
that the drugs were his is incorrect; the issue of the admissibility of Scheuerman's
statements concerning the drugs is a different legal issue from whether he can challenge
the search. However, the district court correctly denied the motion to suppress as
Scheuerman could not challenge the search because the car belonged to Finnigan. Thus,
we affirm the district court's denial of Scheuerman's motion to suppress as being correct
for the wrong reason. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015)
(holding if district court reaches correct result, its decision will be upheld even if it relied
on wrong ground).
II. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT SCHEUERMAN'S CONVICTION FOR
POSSESSION OF METHAMPHETAMINE WITH INTENT TO DISTRIBUTE?
Scheuerman also argues the evidence was insufficient to support his conviction for
possession of methamphetamine with intent to distribute because he was convicted of
possessing at least 1 gram of methamphetamine but less than 3.5 grams, but he stipulated
to possessing at least 3.5 grams of methamphetamine. Scheuerman asserts the different
severity levels for possession of methamphetamine with intent to distribute are mutually
exclusive. Because the State did not provide any evidence Scheuerman possessed less
than 3.5 grams of methamphetamine, Scheuerman claims there was no evidence to find
him guilty of the amended charge. Scheuerman also argues that because the district court
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found him guilty of possessing less than 3.5 grams of methamphetamine, there is no
evidence of intent to distribute. See K.S.A. 2020 Supp. 21-5705(e)(2) (creating rebuttable
presumption of intent to distribute upon finding possession of at least 3.5 grams of
methamphetamine).
The State argues the root of Scheuerman's argument is not sufficiency of the
evidence but whether the drug severity levels are separate or lesser included offenses.
The State argues the lower drug severity levels are lesser included offenses of the higher
drug severity levels of the same crime, meaning it had the authority to charge a lower
severity level in exchange for Scheuerman agreeing to a trial by stipulated facts.
Standard of Review
Scheuerman argues the appropriate standard of review is for sufficiency of the
evidence. The State counters that both the sufficiency of the evidence standard and the
statutory interpretation standard apply. We agree. Scheuerman argues the fact he
stipulated to possessing at least 3.5 grams of methamphetamine does not prove he
possessed at least 1 gram but less than 3.5 grams of methamphetamine. Ultimately, this is
a sufficiency of an evidence argument. But whether the evidence of possession of a
greater amount of methamphetamine is sufficient to support a conviction of a lesser
amount does require statutory interpretation, and statutory interpretation is a legal
question subject to de novo review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015
(2019).
In general, our standard of review when a criminal defendant challenges the
sufficiency of the evidence supporting his or her conviction is "'whether, after reviewing
all the evidence in a light most favorable to the prosecution, the appellate court is
convinced a rational factfinder could have found the defendant guilty beyond a
reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary
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conflicts, or make witness credibility determinations.' [Citation omitted.]" State v.
Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).
However, when the sufficiency of the evidence is challenged in a case decided on
stipulated facts, our review is unlimited, but the facts are still "viewed in the light most
favorable to the State when testing their sufficiency." State v. Darrow, 304 Kan. 710,
715, 374 P.3d 673 (2016). Moreover, a defendant is precluded from challenging factual
evidence within a stipulation by entering into a stipulation of facts. State v. Bogguess,
293 Kan. 743, 745, 268 P.3d 481 (2012). But a defendant can still challenge the legal
effect of the stipulated facts. See State v. Weber, 297 Kan. 805, 814, 304 P.3d 1262
(2013).
Analysis
"Due process requires the State to prove every element of the charged crime."
State v. Banks, 306 Kan. 854, 858, 397 P.3d 1195 (2017). To determine what elements
the State must prove, we look to the statute. State v. Torres, 308 Kan. 476, 488, 421 P.3d
733 (2018).
K.S.A. 2020 Supp. 21-5705(a)(1) proscribes a person from possessing
methamphetamine with the intent to distribute. The State originally charged Scheuerman
with possessing at least 3.5 grams but less than 100 grams, a severity level 2 drug felony.
See K.S.A. 2016 Supp. 21-5705(d)(3)(C). As part of its agreement with Scheuerman to
try the case on stipulated facts, the State amended the charge to possessing at least 1 gram
but less than 3.5 grams of methamphetamine, a severity level 3 drug felony. See K.S.A.
2016 Supp. 21-5705(d)(3)(B). Additionally, a rebuttable presumption of an intent to
distribute is created if a defendant possesses 3.5 grams or more of methamphetamine.
K.S.A. 2016 Supp. 21-5705(e)(2).
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Scheuerman argues his stipulation to the fact that he possessed at least 3.5 grams
of methamphetamine means he cannot be convicted of possessing at least 1 gram but less
than 3.5 grams of methamphetamine. The State argues he can because the crime of
possessing at least 1 gram but less than 3.5 grams of methamphetamine is a lesser
included offense of the crime of possessing of at least 3.5 grams of methamphetamine. In
other words, if Scheuerman stipulated to facts sufficient to find him guilty of the original
offense, there is also sufficient evidence to convict him of a lesser included offense. For
reasons we will explain, we must disagree.
As it relates to lesser included offenses whose elements are wholly contained
within the originally charged crime, the State is correct that if the facts are sufficient to
convict of the charged crime, the facts are also sufficient to convict of a lesser included
crime. "If a lesser offense is to be considered a lesser included offense under the law, all
elements necessary to prove the lesser offense must be present and be required to
establish the elements of the greater offense charged." State v. Woods, 214 Kan. 739, 744,
522 P.2d 967 (1974), disapproved of on other grounds by Wilbanks v. State, 224 Kan. 66,
579 P.2d 132 (1978). But our statute defining lesser included offenses is broader and
includes not only offenses in which the elements of the lesser crime are identical to some
of the elements of the crime charged, but also lesser degrees of the same crime. Compare
K.S.A. 2020 Supp. 21-5109(b)(1) (lesser degree of same crime) with K.S.A. 2020 Supp.
21-5109(b)(2) (all elements of lesser crime identical to some elements of charged crime).
This means the elements of a lesser included offense under Kansas law may not all be
included within the charged crime. Thus, if the facts establish guilt of the charged crime,
they do not always mean guilt of a lesser included offense.
The fatal flaw in the State's argument here is that not all elements of the amended
charge of which Scheuerman was convicted are contained within the originally charged
crime. Scheuerman was originally charged with possessing with intent to distribute at
least 3.5 grams but less than 100 grams of methamphetamine, a severity level 2 drug
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felony under K.S.A. 2016 Supp. 21-5705(d)(3)(C). The amended charge was possessing
with intent to distribute at least 1 gram but less than 3.5 grams of methamphetamine, a
severity level 3 drug felony under K.S.A. 2016 Supp. 21-5705(d)(3)(B). Given that the
amended charge is the lesser degree of the originally charged crime—severity level 3
drug felony versus severity level 2 drug felony—the amended charge is clearly a lesser
included offense of the originally charged crime. But the amended charge's elements are
not all contained within the originally charged crime. The amended charge's quantity
element requires possessing at least 1 gram but less than 3.5 grams of methamphetamine,
while the originally charged crime requires possessing at least 3.5 grams but less than
100 grams.
Scheuerman stipulated to possessing a quantity of methamphetamines of at least
3.5 grams but less than 100 grams. But the plain language of the amended charge
required the State to prove a quantity of at least 1 gram but less than 3.5 grams. See
K.S.A. 2016 Supp. 21-5705(d)(3)(B); PIK Crim. 4th 57.020 (2014 Supp.) (elements of
possession with intent to distribute controlled substance). Scheuerman's stipulation to
possessing at least 3.5 grams of methamphetamines cannot provide a factual basis to
satisfy the quantity element of his crime of conviction.
Two cases previously decided by our court support our conclusion that proof of
possessing a higher quantity of drugs in this context does not establish the proof
necessary to convict a defendant of possessing a lesser amount. While the cases address
the appropriateness of a lesser included jury instruction, they are helpful because one of
the steps in determining whether a lesser included jury instruction should have been
given is whether the instruction was factually appropriate. See State v. McLinn, 307 Kan.
307, 318, 409 P.3d 1 (2018). An instruction is factually appropriate if "there is some
evidence which would reasonably justify a conviction of the lesser included offense."
State v. Brown, 300 Kan. 565, 585, 331 P.3d 797 (2014).
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Most on point is a case relied upon by the State, State v. Palmer, No. 111,624,
2015 WL 802733 (Kan. App. 2015) (unpublished opinion). In Palmer, the defendant was
convicted of possession with intent to distribute at least 3.5 grams of methamphetamine.
On appeal, Palmer argued the jury should have been instructed on the lesser included
offenses of possessing less than 3.5 grams. Another panel of our court held that while
lower severity levels of possession of methamphetamine are lesser included offenses of
the higher severity levels, it was factually inappropriate to instruct on the lesser included
offense because it was undisputed that the defendant possessed 10.26 grams of
methamphetamine. 2015 WL 802733, at *7. Put another way, because it was undisputed
that Palmer possessed 10.26 grams, there was no evidence that would support a
conviction of possessing amounts less than 3.5 grams.
In State v. Winn, No. 111,474, 2016 WL 1169422 (Kan. App. 2016) (unpublished
opinion), the defendant was charged with a severity level 2 drug felony of possession of
marijuana with intent to distribute. Winn claimed the district court should have sua
sponte instructed the jury on the lesser severity level 3 and level 4 offenses of the crime.
The panel noted the obvious difference in the statutory alternatives was the weight of the
marijuana the defendant possessed, but each alternative required the defendant have the
intent to distribute. 2016 WL 1169422, at *6. While the panel held the lower severity
levels were lesser degrees of the crime of possession of marijuana with intent to
distribute, and thus lesser included offenses, it concluded that the lesser included offense
instructions sought by Winn were not factually appropriate because Winn did not
challenge the evidence that he possessed a weight of marijuana greater than the rebuttable
presumption of intent to distribute. 2016 WL 1169422, at *8.
Our court has also held in the context of theft—which, like drug possession
crimes, differs in severity depending on the amount of property taken—a defendant
cannot be convicted of the lesser offense when the evidence only establishes the more
severe charged crime. See K.S.A. 2020 Supp. 21-5801 (theft statute); State v. Bryant, 22
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Kan. App. 2d 732, Syl. ¶ 4, 922 P.2d 1118 (1996) (despite misdemeanor theft being
lesser included offense of felony theft, no lesser jury included instruction required when
"unrefuted" evidence established value of goods stolen over felony limit); State v. Perry,
No. 97,052, 2008 WL 3367544, at *6 (Kan. App. 2008) (unpublished opinion) (same).
We can extrapolate from Winn and Palmer that possession of methamphetamine in
amounts of at least 3.5 grams cannot support a conviction for possession of
methamphetamine in an amount less than 3.5 grams. While Scheuerman's stipulation to
possessing at least 3.5 grams and less than 100 grams is sufficient to prove the possession
with intent to distribute element given the statutory presumption, see K.S.A. 2016 Supp.
21-5705(e)(2), it cannot prove the quantity element. The less severe charge of possession
of methamphetamine with intent to distribute required the State to prove Scheuerman
possessed at least 1 gram but less than 3.5 grams of methamphetamine. Scheuerman's
stipulation to possessing at least 3.5 grams of methamphetamine is insufficient evidence
to support a conviction of this charge because the quantity of drugs he possessed is in
excess of the charged amount.
Scheuerman's conviction of possession of methamphetamine with intent to
distribute contrary to K.S.A. 2016 Supp. 21-5705(d)(B)(3) is reversed, and the
corresponding sentence is vacated.
Affirmed in part, conviction reversed, and sentence vacated.
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