Finding of no possession upheld

Janine Cox won in State v. Crawford, No. 103,524 (Kan. App. Jan. 7, 2011)(unpublished), affirming Judge Sachse's dismissal of a Franklin County possession with intent to sell prosecution at preliminary hearing. The COA reviewed the record and law regarding constructive possession cases and held that the district court correctly dismissed the prosecution:

we turn to the evidence to determine whether there are incriminating circumstances linking Crawford to the drugs besides her mere presence at the scene. (1) Crawford's proximity to the drugs. The coin purse was found close to where she was standing, but Crawford denied it was hers and (2) the drugs in the coin purse were not in plain view. (3) Proximity of Crawford's possessions to the drugs. The officers searched the large purse on the table and determined that it was Crawford's, but the court suppressed the search and seizure of that purse. (4) Crawford's previous participation in the sale of a controlled substance. The only evidence of any prior involvement related to her arrest in January 2008, and those charges were dismissed. (5) Use of controlled substances. Crawford had been convicted of misdemeanor possession of paraphernalia which might infer prior use. (6) Suspicious behavior by her. We agree with the trial court that merely locking her cell phone would not constitute suspicious behavior under these facts. (7) Incriminating statements. All incriminating statements made after Crawford's arrest were suppressed and cannot be considered here.

At most, only two of the seven factors might support an inference of possession of the drugs; her proximity to the closed coin purse on the floor and her prior conviction for misdemeanor possession of paraphernalia. We agree with the district court that there was insufficient evidence linking Crawford to the possession of drugs found in the coin purse.

As a result, the COA affirmed the dismissal. [Update: the state did not file a PR and the mandate issued on February 10, 2011.]