State v. Bailey ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 125,065
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant,
v.
LONNIE DEAN BAILEY JR.,
Appellee.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Opinion filed
December 16, 2022. Reversed and remanded with directions.
Christopher Lyon, assistant county attorney, and Derek Schmidt, attorney general, for appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.
Before HURST, P.J., MALONE and BRUNS, JJ.
PER CURIAM: The Leavenworth County District Court dismissed a felony charge
of possession of methamphetamine on the grounds that the State failed to present
sufficient evidence at the preliminary hearing to bind defendant Lonnie Dean Bailey Jr.
over for trial. This court finds, however, that the evidence, and reasonable inferences
drawn therefrom, presented at the preliminary hearing was sufficient to bind Bailey over
for trial. Accordingly, the judgment of the district court is reversed, and this case is
remanded with instructions to reinstate the felony charge and set the matter for trial.
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FACTUAL AND PROCEDURAL BACKGROUND
The ultimate facts that would support Bailey's conviction are somewhat disputed,
but for the purpose of this appeal, this court is required to examine and draw inferences
from the evidence that are favorable to the prosecution. See State v. Washington, 293
Kan. 732, 734, 268 P.3d 475 (2012) (evidence presented at the preliminary hearing
should be viewed in a light favorable to the prosecution).
On July 2, 2021, officers from the Leavenworth Police Department, including
Officer La Carol Kennedy, were dispatched to an apartment in Leavenworth County in
response to a reported trespass. Upon their arrival, the officers encountered a man—
whom Officer Kennedy recognized as Bailey—inside the apartment even though he was
not on the lease and an eviction notice had been served on the residence the previous day.
The officers arrested Bailey for criminal trespassing and two outstanding warrants.
Immediately following Bailey's arrest, Sergeant Brandon Mance of the
Leavenworth Police Department arrived on the scene, helped escort Bailey from the
apartment, and then searched Bailey incident to arrest prior to placing him in a police
vehicle. Officer Kennedy was nearby but did not watch Sergeant Mance search Bailey.
During the search, Sergeant Mance testified that he discovered a folded-up envelope in
Bailey's inside pants pocket which contained an opaque, crystalline substance which
Sergeant Mance recognized as methamphetamine.
Sergeant Mance gave the envelope containing the suspected methamphetamine to
Officer Kennedy, the investigating officer. While still at the scene, Officer Kennedy field
tested the crystalline substance which tested presumptively positive for containing
methamphetamine. Bailey was then transported to Leavenworth County Jail and
subsequently charged with one count of possession of methamphetamine, a severity level
5 drug felony.
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On February 18, 2022, the district court conducted a preliminary hearing to
determine if there was sufficient evidence to bind Bailey over for trial on the felony drug
charge. Sergeant Mance and Officer Kennedy testified at the preliminary hearing. On
direct examination, Sergeant Mance was asked if he recognized Bailey and he candidly
responded, "I couldn't point him out." Sergeant Mance was, however, able to identify the
State's exhibits depicting the envelope and substance that he discovered during his search
of the individual. Despite not being able to identify Bailey, Sergeant Mance referred to
the person arrested and searched as "Mr. Bailey" in his testimony.
During her testimony at the preliminary hearing, Officer Kennedy was able to
identify the defendant as Bailey—the person she arrested on the day in question. Officer
Kennedy further identified the State's exhibits as the envelope and substance handed to
her by Sergeant Mance following Sergeant Mance's search incident to Bailey's arrest.
However, Officer Kennedy testified that she "was not immediately present" when
Sergeant Mance searched Bailey and, therefore, did not personally witness Sergeant
Mance discover the envelope and substance on Bailey during the search.
Following the officers' testimony, the defense argued that there was insufficient
evidence that the alleged methamphetamine was found on Bailey, and thus he should not
be bound over for trial.
"[BAILEY'S ATTORNEY]: Your Honor, the defense would argue that the
evidence presented by the State—the officer that supposedly searched Mr. Bailey cannot
identify Mr. Bailey, and the officer that tested the drugs cannot say where the drugs came
from except for that she got it from the officer, so I would say the State lacks identity in
this case, Your Honor.
"THE COURT: [State]?
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"[THE STATE]: Your Honor, Sergeant Mance identified the name of the subject
as Lonnie Bailey, and Officer La Carol [Kennedy] identified the defendant . . . . There is
probable cause to believe that the defendant possessed the methamphetamine.
"THE COURT: Well, I heard the officer say that he couldn't identify who he took
the drugs from. He gave a name, but he didn't indicate how he knew that name. And she
certainly doesn't know where he got it.
"[THE STATE]: You—Your Honor, there was testimony they were both there.
Sergeant Mance searched the defendant 'cause he is a male. He said he gave the substance
he found to Officer La Carol Kennedy, and she field-tested the substance; it was
presumptive positive for methamphetamine.
"THE COURT: I understand. But he doesn't identify where he found it, on whose
person.
"[THE STATE]: He—he said the name was Lonnie Bailey, he just can't identify
him, because he hasn't i—been around him that much, but he said the person's name was
Lonnie Bailey.
"THE COURT: And I didn't hear any testimony of how he knew that name. I . . .
"[THE STATE]: He . . . That's the name he testified to. He's just—he knows the
name from the investigation.
"THE COURT: All right. All right. The Court does not believe that there is a
sufficient nexus, and I don't think there's any evidence to show that—that this person
sitting here is the person that he searched, so the Court at this time will find that the State
has not established probable cause. The charge against the defendant then will be
dismissed."
In its subsequent journal entry, the district court dismissed the case. The State now
appeals pursuant to K.S.A. 2021 Supp. 22-3602(b)(1).
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ANALYSIS
The sole issue presented in this appeal is whether the district court erred in finding
there was insufficient evidence presented at the preliminary hearing to establish the
probable cause necessary to bind Bailey over for trial on the felony possession of
methamphetamine charge.
Standard of Review and Governing Law
This court reviews the district court's dismissal of a complaint for lack of probable
cause de novo, reviewing the evidence anew and applying the applicable law. State v.
Anderson, 270 Kan. 68, 71, 12 P.3d 883 (2000) ("When the State appeals the dismissal of
a complaint, an appellate court's review of an order discharging the defendant for lack of
probable cause is de novo."); State v. Hernandez, 40 Kan. App. 2d 525, 527, 193 P.3d
915 (2008) ("An appellate court reviews de novo whether the evidence presented at the
preliminary hearing was sufficient to establish probable cause.").
Prior to being bound over for trial, "every person charged with a felony shall have
a right to a preliminary examination before a magistrate, unless such charge has been
issued as a result of an indictment by a grand jury." K.S.A. 2021 Supp. 22-2902(1). The
magistrate shall then bind the defendant over to the district judge "[i]f from the evidence
it appears that a felony has been committed and there is probable cause to believe that a
felony has been committed by the defendant . . . ." K.S.A. 2021 Supp. 22-2902(3).
Therefore, "the magistrate at a preliminary hearing examines the evidence to
determine (1) whether a crime has been committed and (2) whether there is probable
cause to believe that the accused committed the crime." Washington, 293 Kan. at 733; see
Hernandez, 40 Kan. App. 2d at 526 ("Under K.S.A. 22-2902(3), a defendant shall be
bound over if the evidence at the preliminary examination shows that a felony has been
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committed and there is probable cause to believe it was committed by the defendant."). If
the magistrate determines there is not probable cause to believe the defendant committed
the charged crime, then the magistrate "shall discharge the defendant." K.S.A. 2021
Supp. 22-2902(3). That is what occurred here.
"'Probable cause at a preliminary examination signifies evidence sufficient to
cause a person of ordinary prudence and caution to conscientiously entertain a reasonable
belief of the accused's guilt.'" Washington, 293 Kan. at 734 (quoting State v. Berg, 270
Kan. 237, 238, 13 P.3d 914 [2000]); see State v. Phillips, 312 Kan. 643, 664, 479 P.3d
176 (2021).
"In determining if this standard is satisfied, the judge at a preliminary hearing must draw
inferences favorable to the prosecution from the evidence presented and should not be
concerned with sufficiency of the evidence to support a conviction. Even where the
evidence is weak, the defendant should be bound over for trial if the evidence tends to
disclose that the offense charged was committed and that the defendant committed it.
[Citations omitted.]" Washington, 293 Kan. at 734.
The evidence presented at a preliminary hearing "needs only to establish probable cause,
not guilt beyond a reasonable doubt. The court's role is not to determine the wisdom of
the decision to file charges or to determine whether the possibility of a conviction is
likely or remote." Anderson, 270 Kan. at 71; see Hernandez, 40 Kan. App. 2d at 526-27.
This is not a strenuous evidentiary standard.
The district court erred in finding there was insufficient evidence presented at the
preliminary hearing to establish the probable cause necessary to bind Bailey over for
trial on the felony charge of possession of methamphetamine.
Bailey concedes that the State presented sufficient evidence to establish probable
cause to believe that someone committed the felony of possession of methamphetamine.
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Bailey argues, however, that the State did not present sufficient evidence to establish
probable cause to believe that he committed that felony. Bailey relies on two facts:
(1) Sergeant Mance could not identify Bailey at the preliminary hearing; and
(2) Officer Kennedy did not witness Sergeant Mance search Bailey and was not
immediately present when Sergeant Mance discovered the envelope containing the
methamphetamine.
The district court agreed with Bailey and dismissed the felony possession charge.
Although Sergeant Mance could not identify Bailey at the preliminary hearing and
Officer Kennedy did not personally observe Sergeant Mance search Bailey, the district
court erred in failing to draw reasonable inferences from the evidence in favor of the
prosecution. See Washington, 293 Kan. at 734. The preliminary hearing is not the stage at
which the court determines if there is sufficient evidence to support a conviction but
merely if the State presented enough evidence for a "person of ordinary prudence and
caution to conscientiously entertain a reasonable belief of the accused's guilt."
Washington, 293 Kan. at 734. Here, that standard was achieved.
Officer Kennedy was present for the entire incident and immediately identified
Bailey when she arrived at the apartment. While neither Sergeant Mance nor Officer
Kennedy testified that Bailey was the only suspect at the scene, the obvious inference
from their testimony—especially when drawn in favor of the prosecution as required—is
that Bailey was, in fact, the only suspect at the scene. None of the evidence presented at
the preliminary examination supports the inference that there were other suspects seized
and searched during the incident that could have led to confusion about from whom
Sergeant Mance seized the alleged drugs. Officer Kennedy identified the suspect as
Bailey, that suspect was subsequently searched by Sergeant Mance, and the evidence
obtained was then turned over to Officer Kennedy. The mere fact that Officer Kennedy
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did not personally observe the search would not cause a person of ordinary prudence and
caution to suddenly doubt the otherwise obvious identity of the person being searched.
The testimony presented at the preliminary examination and the reasonable inferences
favorable to the prosecution drawn therefrom supports the conclusion that Sergeant
Mance seized the suspected methamphetamine from Bailey during the search incident to
his arrest on July 2, 2021.
CONCLUSION
The State presented sufficient evidence at the preliminary hearing to cause a
person of ordinary prudence and caution to conscientiously entertain a reasonable belief
that Bailey was, in fact, the suspect on whose person Sergeant Mance discovered the
envelope containing suspected methamphetamine and, therefore, to reasonably believe
that Bailey was guilty of felony possession of methamphetamine. Accordingly, the
district court erred in finding there was insufficient evidence to establish the probable
cause necessary to bind Bailey over for trial on the felony charge. The judgment of the
district court is therefore reversed and remanded with instructions to reinstate the felony
charge.
Reversed and remanded with directions.
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