State v. Delarosa

Buser, J.: Rudy Delarosa appeals from his conviction by a juiy of possession of marijuana and/or its primary active ingredient tet-rahydrocannabinol (THC). We affirm the conviction. Factual and Procedural Background At about 9:30 in the evening on June 4,2009, Garden City Police Officer Clint Brock was on patrol with Officer Jason Chase in Garden City, Kansas. The officers drove to the 200 block of Washington Street to serve a curfew citation. Upon their arrival, the officers walked through an alleyway toward the residence where they intended to serve the citation. Each officer was dressed in his “street gang unit uniform” with pistol, flashlight, and taser. As Officer Brock walked toward the residence, he was observed by a man standing at the end of the alleyway. The man began to whistle. Officer Brock ran towards the end of the alleyway, around a building, and onto Washington Street. There, the officer saw — 254 — seven or eight people standing around a blue vehicle. The area was known for gang activity and illegal narcotics. As Officer Brock approached the group, he observed something suspicious—Delarosa “tossed something behind him into the grass.” In particular, Officer Brock testified that Delarosa was looking at him when “[h]e turned to the side and tossed an object behind him.” The item landed about 2 to 5 feet behind Delarosa. The officer asked Delarosa what he had just thrown, and Delarosa responded, “A roach.” According to Officer Brock, the term “roach” means “the last little bit of a marijuana cigarette that they re not able to, I guess, ingest without burning themselves or— swallowing. A very small bit of marijuana.” (Emphasis added.) Later that evening, Delarosa told Officer Burke that “earlier” he had “smoked marijuana, but that he didn’t have any on him.” Officer E. J. Ochs arrived at the scene, and Officer Brock asked him to search the grassy area where Delarosa had thrown the “roach.” During his search of that area Officer Ochs discovered a blue metallic pipe. According to Officer Brock, this type of pipe is “commonly used for smoking marijuana.” At the scene, no one claimed ownership of the pipe. Of note, the vehicle Delarosa was standing beside at the time he encountered Officer Brock contained a plastic baggy of marijuana. Delarosa was charged with possession of “a hallucinogenic drug . . . Marijuana and/or its active ingredient Tetrahydrocannabinol, a Schedule I drug as listed in K.S.A. 65-4105(d)(16) and (24),” and possession of drug paraphernalia, a class A nonperson misdemeanor. Delarosa’s case proceeded to a trial by juiy. At trial, Harold Riddle, a chemist with the Kansas Bureau of Investigation (KBI), testified that he conducted several forensic tests on the blue metallic pipe recovered by Officer Ochs. According to Riddle, he performed these tests “looking for components of marijuana, and specifically tetrahydrocannabinol.” As a result of tire testing, Riddle “detected tetrahydrocannabinol, or THC, which is the active ingredient of marijuana, in the residues [sic] of the pipe.” In Riddle’s opinion, the metal pipe tested positive for THC. — 255 — The jury found Delarosa guilty of possession of marijuana and/ or its active ingredient THC. Delarosa was found not guilty, however, of possession of drug paraphernalia. He was sentenced to 14 months’ imprisonment but granted a 12-month probation. Delarosa appeals. Sufficiency of the Evidence For his first issue on appeal, Delarosa contends: “The testimony at trial proved only possession of THC and not marijuana; thus, there was insufficient evidence to sustain Mr. Delarosa’s conviction.” “ ‘ “'When the sufficiency of the evidence is challenged in a criminal case, the standard of review 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.” ’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). On appeal, Delarosa cites the expert testimony of Riddle that THC was, in fact, found in the pipe: “[T]he chemist testified only that he tested for and found THC.” We agree that this expert testimony was direct evidence sufficient to prove the State’s claim that Delarosa possessed THC. The question tiren becomes: Was there sufficient evidence produced at trial to prove that Delarosa possessed marijuana? Dela-rosa responds in the negative, arguing that Riddle “did not testify that he tested for or found marijuana.” The crux of Delarosa’s argument is that the jury “could not have found the defendant guilty of possession of marijuana, because there was absolutely no evidence presented at trial to prove that Mr. Delarosa possessed marijuana.” Contrary to Delarosa’s argument, whether Riddle specifically testified that he tested the pipe for marijuana is not determinative of this question on appeal. In considering the sufficiency of proof of a conviction, we consider all the evidence, both direct and circumstantial. Moreover, “[a] conviction of even tire gravest offense ‘ “can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom.” ’ [Citation omitted.]” McCaslin, 291 Kan. at 710. As a result, we have carefully reviewed the entire — 256 — trial record to ascertain whether sufficient evidence existed to prove that Delarosa possessed marijuana. At trial, Riddle testified as follows: “On [tire blue metallic pipe], tlie tests which I performed were to first take an extract of the residues [sic] in the pipe by using a solvent, in this case petroleum ether. And tiren tire extract, it was actually divided into three different samples for three separate tests. I performed a thin-layer chromatography test, a Du-quenois-Levine, or a color test, and then also a gas chromatography mass spectrometry test, all looking for components of marijuana, and specifically tetrahy-drocannabinol.” Riddle also testified that he “detected tetrahydrocannabinol, or THC, which is the active ingredient of marijuana, in the residues [sic] of the pipe.” Thus, the uncontroverted expert testimony established that the THC found in the pipe’s residue was a “component” or “ingredient” of marijuana. This expert testimony established die intrinsic relationship between THC and marijuana—that THC is one of the primary active ingredients of marijuana. The State emphasizes this analysis on appeal: “As THC is a component/active ingredient of marijuana, a jury could have reasonably inferred that Delarosa possessed marijuana based on any evidence that he possessed a pipe with THC [residue].” This is essentially the same point the State made to the jury in closing argument: “As to tire first point, that the defendant possessed marijuana. Remember, again, you heard the testimony of a KBI chemist, who said that he had tested this item using scientifically valid tests, and detected THC, which is the active ingredient in marijuana. I think that we can say that that evidence alone establishes beyond a reasonable doubt that there was marijuana in the pipe.” Of course, Riddle’s expert testimony was only part of the proof of Delarosa’s possession of marijuana. As detailed earlier, the jury was also informed: (1) Delarosa, upon seeing Officer Brock in uniform, tossed an item—apparently the pipe—on the ground; (2) the pipe seized was identified as “commonly used for smoking marijuana”; (3) when specifically asked, Delarosa identified the thrown item as a “roach”; (4) the term “roach” relates to “[a] veiy small bit of marijuana”; (5) Delarosa admitted (after tossing the “roach”) that earlier he had “smoked marijuana, but that he didn’t have any on him”; (6) the vehicle Delarosa was standing beside at the time — 257 — he initially was confronted by Officer Brock contained a plastic baggy of marijuana; and (7) the area where the vehicle and Dela-rosa was found was known for gang activity and illegal narcotics. Given the totality of the expert and lay testimony (including both direct and circumstantial evidence) produced at trial, we are convinced that, “ ‘ “viewed in the light most favorable to the prosecution,” ’ ” a rational jury could have found Delarosa guilty beyond a reasonable doubt of possession of the marijuana contained in the pipe. See McCaslin, 291 Kan. at 710. Alternative Means For his second and related claim of error, Delarosa contends his “right to a unanimous jury verdict was violated because the State alleged, in a single count of the complaint, that the crime could be committed by alternative means—by possessing marijuana, or by possessing THC—and there was not substantial evidence to support possession of marijuana.” Jury unanimity is statutorily required in Kansas. K.S.A. 22-3421; State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). Delarosa’s argument is predicated on the alternative means rule established by our Supreme Court in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994). Timley established: “ ‘[Wjhere a single offense may be committed in more than one way, there must be juiy unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to tire means by which the crime was committed so long as substantial evidence supports each alternative means.’ ” 255 Kan. at 289 (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]). In reviewing an alternative means case, an appellate court must determine if a. rational trier of fact could have found each means of committing the crime proven beyond a reasonable doubt. Wright, 290 Kan. at 202. For purposes of Delarosa’s argument, it is unnecessary to address whether,, in fact, the crime of possession of marijuana and/ or its primary active ingredient THC is an alternative means crime. This is because, as detailed earlier, our review of the trial record convinces us that substantial evidence supports both possession of marijuana and THC. As a result, assuming without deciding that — 258 — Delarosa has properly identified an alternative means crime, there is no danger of a less than unanimous verdict. Both means that Delarosa allege—possession of marijuana and .possession of THC—were proven by substantial evidence such that a rational trier of fact could have found each purported means of committing the crime proven beyond a reasonable doubt. See Wright, 290 Kan. at 202. Finally, our dissenting colleague would reverse and remand the conviction because the criminal charge is duplicitous. Our colleague conducts this appellate review and arrives at this judgment while candidly admitting that “neither party addresses tire problem with the complaint/information and jury verdict form.” State v. Delarosa, No. 105,534, slip op. at 9 (Green, J., dissenting). Indeed, in the district court, Delarosa never raised a duplicity challenge and, as a result, the State was not provided an occasion to address this claimed error. Of course, because of Delarosa’s failure to complain at trial, the district court never had the opportunity to review the issue, rule on it, and remedy any infirmity. Moreover, on appeal Delarosa is not heard to complain of duplicitous charging, and the State was not alerted to the need to brief the matter. Two long-standing rules of law underscore that an appellate court should resist die temptation to, sua sponte, seek out and discover error when that purported error is not presented to the appellate court. First, issues not raised before the trial court generally may not be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Second, an issue not briefed by the appellant is deemed waived or abandoned on appeal. State v. Martin, 285 Kan. 994, 998, 179 P.3d 457, cert. denied 555 U.S. 880 (2008). As Justice Allegrucci once wrote for a majority of our Supreme Court: “We refrain from basing our decision on grounds not addressed by the lower courts or the parties, where the countervailing arguments have not been made and certainly have not been considered.” State v. Ibarra, 282 Kan. 530, 544, 147 P.3d 842 (2006). Accordingly, whetiier die charging document was duplicitous is not properly before us for review and decision. Affirmed. — 259 — <tt t> n