NOT DESIGNATED FOR PUBLICATION
No. 124,075
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JERSON RAMIRO CONTRERAS,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; FAITH A.J. MAUGHAN, judge. Opinion filed September 2,
2022. Affirmed.
Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., MALONE, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: After Jerson Ramiro Contreras was sentenced for possession of
cocaine, he was placed on probation. The court revoked his probation after finding he had
committed several probation violations. Contreras appeals that revocation of his
probation, making three arguments: (1) The State did not prove he committed three of
the violations (there were more alleged); (2) a preponderance of the evidence standard for
probation violations is unconstitutional; and (3) the State's allegations were legally
insufficient to establish a probation violation.
1
We have reviewed the record on appeal and considered his arguments, and we are
convinced that the district court did not abuse its discretion when it revoked his
probation.
Contreras pleads guilty, is sentenced to probation, and then his probation is revoked.
Contreras pleaded guilty to possession of cocaine. The district court sentenced
Contreras to 32 months in prison. Based on his criminal history score and the severity
level of his crime, Contreras' presumptive sentence was incarceration in prison, according
to the sentencing guidelines. The court departed from the presumptive guidelines
disposition and placed him on 12 months' probation. The dispositional departure was
based on Contreras' lack of prior felony drug convictions, acceptance of responsibility,
and the availability of drug and alcohol treatment programs in the community.
Less than a month after Contreras started probation, the district court authorized a
warrant for Contreras' arrest. It was issued based on allegations that he tested positive for
cannabinoids/THC, committed domestic battery, and engaged in assaultive behavior. A
few days later, the district court authorized another warrant for Contreras' arrest. The
second warrant was issued based on allegations that Contreras committed the offenses of
• possession of marijuana;
• transporting an open container;
• driving while suspended;
• illegal tags;
• two counts of running a red light; and
• driving a vehicle that contained marijuana and alcohol.
At the probation violation hearing, the State withdrew the allegations in the first
warrant and proceeded on the allegations in the second warrant. The State called Officer
Benjamin Able. He testified that he stopped a car being driven by Contreras after he
2
witnessed it run two red lights. The car did not have a tag. Contreras told the officer that
his driving license was suspended. Neither Officer Able nor the State provided a certified
copy of Contreras' driving record showing he was suspended. At the time of the stop,
Officer Able performed a computer check and found nothing contrary to what Contreras
told him.
When Officer Able stopped Contreras' car he noticed a strong smell of fresh and
burning marijuana. This led him to believe there was marijuana in the car. He arrested
Contreras and removed the passenger from the car. He searched Contreras and found over
$5,000 in cash in Contreras' pocket. Contreras said he was unemployed and he could not
say where the money was from.
Officer Able searched the car and found marijuana "shake" on the floorboards and
center console. The defense objected to Able's testimony, arguing that the "shake" was
never tested so he could not testify that it was marijuana. Able then testified that he found
a green botanical substance consistent with marijuana, and the smell was coming from
the car.
Officer Able also found "blunts" and an open bottle of Hennessy Cognac on the
passenger floorboard. He testified that the liquid in the bottle smelled and looked like
alcohol. The "blunts" were not tested to confirm they were marijuana. The Hennessy
bottle was not tested to confirm it contained alcohol.
The defense argued that the State did not sufficiently prove that Contreras
possessed marijuana and alcohol because the evidence was never tested. The district
court found that Contreras committed all of the alleged violations in the second warrant,
noting that the burden of proof for probation violations is "more probably true than not
true." The court found that Contreras was a potential danger to the public, revoked his
probation, and ordered him to serve his prison sentence.
3
Sufficient evidence supports the district court's decision to revoke probation.
We review a district court's revocation of an offender's probation for an abuse of
discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020). A judicial action is
an abuse of discretion if it is
• arbitrary, fanciful, or unreasonable;
• based on an error of law; or
• based on an error of fact.
State v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021).
The burden of proof in a probation violation hearing is a preponderance of the
evidence—or that the probation violation is more probably true than not. State v. Lloyd,
52 Kan. App. 2d 780, 782, 375 P.3d 1013 (2016). Appellate courts review the district
court's factual findings for substantial competent evidence. See State v. Inkelaar, 38 Kan.
App. 2d 312, 315, 164 P.3d 844 (2007).
Contreras argues the district court erred by finding that the State met its burden of
proof for three of the allegations in the probation violation warrant.
Possession of marijuana
Contreras argues that the State did not establish that the green botanical substance
found in his car was marijuana, or that he possessed it. He argues that even if the State
proved he possessed the green botanical substance, it is not a criminal offense unless the
substance was proved to be marijuana. Contreras notes that the substance in his car was
neither field tested nor formally tested and the only evidence was Officer Able's
testimony that it was consistent in smell and appearance with marijuana.
4
The State argues that it was unnecessary to test the marijuana because "proof of
the identity of a substance by circumstantial evidence may be sufficient in a drug
prosecution where no chemical tests are admitted or available" to sustain a conviction
beyond a reasonable doubt—a higher burden than the one here. See State v. Northrup, 16
Kan. App. 2d 443, 449, 825 P.2d 174 (1992).
The district court found that Contreras possessed marijuana. We review this
finding to see if substantial competent evidence proves that the finding was more
probably true than not. Officer Able testified that he is familiar with the smell of
marijuana through his job and he noticed a strong smell of burnt and fresh marijuana
coming from Contreras' car. Officer Able also found what appeared to be several
marijuana buds under Contreras' seat, marijuana "shake" on the driver's and passenger's
floorboards and center console, and "blunts" in the car. He described the buds as a green
botanical substance consistent with marijuana in smell and appearance.
It is more likely than not that the green botanical substance that looked and
smelled like marijuana was indeed marijuana. It is more likely than not that Contreras
knew there was marijuana in his car because it smelled strongly of marijuana and was
located under his seat. There is substantial competent evidence that Contreras possessed
marijuana, and the district court did not err in finding that he violated his probation by
committing the crime of possession of marijuana.
Transporting an open container
Contreras argues the State did not prove that he knew there was a liquor bottle in
his car, which is required for the offense of transporting an open container. He notes that
it was found on the passenger sideboard and there was a passenger in his car when he was
pulled over, which shows he was not in the exclusive control of the bottle.
5
The State argues that Contreras knew or had reasonable cause to know that there
was an open bottle of liquor in his car. The liquor bottle was on the passenger side
floorboard, it was marked as Hennessy, there is no evidence that it was concealed or not
visible from the driver's seat, and it was within arm's reach of Contreras.
Once again we review this finding for substantial competent evidence proving that
the finding is more probably true than not true. Officer Able testified that he found an
open bottle labeled Hennessy in Contreras' car. There was some liquid in the bottle that
both looked and smelled like alcohol. Officer Able was familiar with the appearance and
smell of alcohol when he made that determination. We hold there is substantial
competent evidence proving that Contreras transported an open container, and the district
court did not err in finding that he violated his probation.
Driving while suspended
Contreras argues that the State failed to present sufficient evidence that his license
was suspended when he was pulled over. The State presented evidence of Contreras'
statement to Officer Able that his license was suspended, but presented no evidence that
confirmed the suspension. Contreras argues this is insufficient because it was not a crime
for him to drive if he mistakenly believed his license was suspended—thus, he did not
violate his probation by driving while suspended. The State argues there was sufficient
evidence to prove Contreras drove while suspended by a preponderance of the evidence.
Contreras told Officer Able that his license was suspended. Contreras only had an
ID card with him. Though Officer Able did not get a certified record that Contreras'
license was suspended, his computer check yielded no information contrary to what
Contreras had told him.
6
Contreras' admission that his license was suspended and his inability to provide a
license is substantial competent evidence that he committed the crime of driving while
suspended and thus violated his probation.
Even if the district court did abuse its discretion by finding Contreras committed
the crime of driving while suspended without evidence of his suspension, the district
court was still within its discretion to revoke Contreras' probation because it found that he
committed five other probation violations that Contreras did not contest. And Contreras,
who was unemployed, offered no explanation why he had over $5,000 stuffed in his left
pocket at the time he was stopped.
We see no abuse of discretion here.
We are bound by precedent.
Contreras argues that the burden of proof in probation revocation hearings—a
preponderance of the evidence—is unconstitutional.
We find Contreras' argument is meritless because this court is duty-bound to
follow Kansas Supreme Court precedent unless there is some indication that the court is
departing from its previous position. See State v. Rodriguez, 305 Kan. 1139, 1144, 309
P.3d 903 (2017). The constitutionality of a preponderance of the evidence standard is
long-settled Kansas law. "Proof beyond a reasonable doubt of the violation of a condition
of probation is not required by statute or constitution in a revocation proceeding." State v.
Rasler, 216 Kan. 292, 295, 532 P.2d 1077 (1975).
The Kansas Supreme Court has clearly stated that "[t]o sustain an order revoking
probation on the ground that a probationer has committed a violation of the conditions of
probation, commission of the violation must be established by a preponderance of the
7
evidence." State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). There is no
sign that the Supreme Court is departing from this position. Contreras' argument must be
denied.
Contreras' attack on the wording of the State's allegations is unpersuasive.
Contreras argues the district court erred by considering allegations that were
legally insufficient to establish a probation violation. He challenges allegations two and
four in the October 20 warrant:
"(2) On October 16, 2020, the defendant was driving a vehicle which contained
marijuana . . . .
"(4) On October 16, 2020, the defendant was driving a vehicle which contained
Alcohol . . . ."
The warrant alleged these actions violated the following condition of Contreras'
probation: "[T]he defendant shall not possess, use or consume Alcohol, Illegal Drugs, or
Drugs without a legal prescription, nor be present where others possess, use, or consume
alcohol or drugs."
Basically, Contreras argues the State did not allege sufficient facts to constitute a
probation violation because it did not require him to have any knowledge that there was
marijuana or alcohol in the car. He says, "Without some sort of knowledge on the part of
the defendant a court is not allowed to find a defendant violated his probation simply
because he was in a car where there was alcohol or in a car where there were illegal
drugs." Contreras cites no authority for this position.
This is an argument about the sufficiency of the warrant issued for Contreras'
arrest based on allegations. Such an attack should be made in a motion to quash the
8
warrant. Yet Contreras did not raise this issue in the district court. He identifies no
fundamental liberty interest at stake and the State argues that there are factual disputes on
this issue. We will not entertain this issue because Contreras failed to preserve it. See
State v. Johnson, 309 Kan. 992, 995-96, 441 P.3d 1036 (2019).
We decline to engage in a harmless error analysis at this point because we have
found no errors by the district court.
Affirmed.
9