Michelle A. Davis won in State v. Taylor, No. 114,779 (Kan. App. July 21, 2017), obtaining a reversal of Johnson County theft and trafficking in contraband convictions. Police arrested Mr. Taylor after a traffic accident and during a search of his car found two loaded handguns. A record check showed that one of the guns had been reported as stolen 14 to 20 months earlier. When booking Mr. Taylor into the jail, officers found a baggie of marijuana in one of his shoes. The state charged Mr. Taylor with theft of the gun and trafficking in contraband for introducing marijuana into the Johnson County Jail.
With regard to the theft conviction, the COA first found that the prosecutor had made improper and prejudicial comments related to the law of theft that required at least a new trial. But the COA went on to consider whether sufficient evidence supported the conviction and allowed a new trial. [n.a. This is an interesting way to write the appellate opinion. The COA could also have just ruled on the sufficiency issue, which would have rendered the prosecutorial error issue moot.]
The COA noted that the state charged that Mr. Taylor obtained control over the gun with intent to permanently deprive the owner. The COA recognized precedent that had held that possession of recently stolen property without a satisfactory explanation can support a theft conviction. But in this case, the COA held that the original taking was not recent:
To conclude, when the only evidence supporting a defendant's theft conviction is the possession of stolen property, our Supreme Court has held that such convictions may be upheld based on possession alone if the defendant provides an unsatisfactory explanation about why he or she has the property and the property was recently stolen. Here, despite Taylor's unsatisfactory explanation, the handgun at issue had been stolen from Brown's house some 14 to 20 months earlier, which is too remote in time to be recent under [State v. Bamberger, 210 Kan. 508, 502 P.2d 760 (1972)]. Therefore, even when considered in the light most favorable to the State, based on our Supreme Court precedent, there was insufficient evidence to support that Taylor knew the handgun was stolen and therefore he intended to permanently deprive Brown of the handgun.
The COA also analyzed prior KSC case law regarding notice under the trafficking in a contraband statute. In particular, the COA noted that the statute purports to prohibit trafficking in "any item without the consent of the administrator." The KSC had rejected a claim that this provision was facially unconstitutional so long as it was implemented in a way that was consistent with Due Process, including notice: "Administrators of correctional facilities must provide persons of common knowledge adequate warning of what conduct is prohibited for two reasons: to provide fair notice and to safeguard against arbitrary and discriminatory enforcement." Applying this test to Mr. Taylor's prosecution, the COA held that the conviction for trafficking was unconstitutional as applied to him, rejecting the state's claim that controlled substances are per se contraband:
the actual language of the Kansas trafficking in contraband statute, which does not define what constitutes contraband outside of stating that contraband is "any item" brought into a correctional facility "without the consent of the administrator," controls the analysis for notice requirements. In [State v. Watson, 273 Kan. 426, 44 P.3d 357 (2002)], our Supreme Court explained that while it was constitutionally permissible for the legislature to vest administrators "with the authority of determining what items constituted contraband," the "any item" language of the trafficking in contraband statute did not provide notice to ordinary people what conduct would constitute a crime. As a result, the Watson court held that for the trafficking in contraband statute to be applied in a constitutionally permissible manner, administrators must provide people entering a correctional institution notice of what conduct they have deemed prohibited under the trafficking in contraband statute. Without making any exceptions regarding the nature of the items deemed contraband, our Supreme Court held that people are entitled to adequate notice of what items constitute contraband. This would give people adequate notice they could face criminal charges by bringing those items into the correctional institution. The individualized notice rectifies the fact notice is otherwise lacking in the trafficking in contraband statute. Thus, under the Watson court's construction, the trafficking in contraband statute could lawfully prohibit the introduction or attempted introduction of contraband from coming within a correctional facility only if the correctional facility's administrator has given notice of what items are forbidden. As a result, Taylor was entitled to notice. Here, however, the facility's administrator failed to do so.
Because Mr. Taylor was not provided adequate notice, the COA reversed the trafficking conviction. The COA also parenthetically noted that Mr. Taylor had been entitled to an instruction on notice.
[Update: the state did not file a PR and the mandate issued on July 31, 2017.]
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