Friday, December 05, 2008

Prior drug use is not automatically admissible in possession case

Shawn Minihan won in State v. Boggs, No. 96,921 (Kan. Dec. 5, 2008), getting a new trial in a McPherson County drug prosecution. Here is our previous blog entry on this case. The KSC agrees with the COA that evidence of prior drug use was not relevant to his possession case. The KSC applied its recent prior bad acts evidence case law and held that the evidence was not admissible in this case:

The State argues that Boggs' prior use of marijuana was relevant in this case to prove the intent element in both charges because intent is always a material fact in possession cases. In particular, the State asserts that this court has long permitted evidence of prior drug use to be admitted in cases involving possession of drugs or drug paraphernalia to prove the defendant's intent to use drugs, the defendant's knowledge that the particular substance possessed consisted of drugs or was drug-related, or to prove an absence of mistake or accident in possessing the contraband material.

The State correctly points out that this court has previously held that evidence of prior crimes or civil wrongs may be admissible under K.S.A. 60-455 to prove intent, knowledge, or absence of mistake or accident in cases involving possession of drugs or drug paraphernalia. The State fails to recognize, however, that in all cases where this court has held such evidence to be admissible on these bases, the question of the defendant's intent, knowledge, or claim of mistake or accident was a disputed material fact in issue.

. . . .

We agree and find the reasoning of the Court of Appeals sound. The issues of intent, knowledge, or absence of mistake or accident were not material to the resolution of Boggs' case, as the only issue in dispute was whether Boggs ever possessed the pipe and its contents at all.

. . . .

The instruction provided in this case states that in a nonexclusive possession case, factors including other crimes or civil wrongs of the defendant may be admitted to establish the defendant "knowingly possessed the controlled substance" charged in the information or complaint. In the past, factors such as a defendant's prior drug use or participation in the sale of drugs--evidence of other crimes or civil wrongs that fall squarely within the realm of K.S.A. 60-455--have been admitted both under the guise of that statute or independent from the statutory mandates. The ambivalence existing in this area of law is exemplified by the trial court's admission of the defendant's prior drug use without employing the safeguards of K.S.A. 60-455, yet giving a limiting instruction. Gunby abolished this ambiguity, making it clear that before any evidence of a defendant's other crimes or civil wrongs can be admitted, the court must apply the K.S.A. 60-455 safeguards.

Finally, we observe that although PIK Crim. 3d 67.13-D, which was applied in a modified form in this case, states that a jury may consider a defendant's use of a controlled substance as one of the factors in a nonexclusive possession case, the pattern instruction fails to adequately summarize the nuances of this court's case law relating to K.S.A. 60-455 evidence. Our decision in Gunby specifically bars the admission of any evidence of other crimes or civil wrongs independent of K.S.A. 60-455 or some other statutory basis. While a defendant's use of a controlled substance may be admitted--subject to the requirements of K.S.A. 60-455--when such evidence is relevant to prove a disputed material fact, the defendant's use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455. To the extent that PIK Crim. 3d 67.13-D suggests otherwise, the instruction is disapproved. To the extent that past appellate cases in this state suggest otherwise, they are also disapproved.

This is a pretty big case--the PIK instruction is given in almost all nonexclusive possession cases. So be ready to cite this case at the district court (and let your appellate attorney know if this issue is floating around in a case on appeal!)

[Update: this case was voted 2008 ADO case of the year!]

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