State v. Espinoza ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,656
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JESSICA N. ESPINOZA,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed September 25,
2020. Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before BRUNS, P.J., WARNER, J., and BURGESS, S.J.
PER CURIAM: Jessica Espinoza appeals her convictions for possession of an opiate
and possession of a stimulant. She contends that the evidence submitted at trial—which
described her act of tossing a pill bottle containing Vyvanse and Oxycodone into the back
seat of her car—was insufficient to show she "possessed" those substances. We disagree.
Because the State produced sufficient evidence of the knowledge and intent necessary to
prove her possession of both opiates and stimulants, we affirm Espinoza's convictions.
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FACTUAL AND PROCEDURAL BACKGROUND
On the morning of April 11, 2018, officers from the Clearwater Police Department
waited for Espinoza to arrive for work at the Clearwater Nursing and Rehabilitation
Center in order to investigate her involvement in the theft of another employee's car. The
officers watched Espinoza's vehicle arrive in the parking lot and approached as it came to
a stop. Espinoza was in the passenger seat and began to exit the vehicle as the officers
advanced.
One of the arresting officers described the interaction that followed at trial:
"[A]s [Espinoza] was exiting she had, like, a bag. I thought it was a purse at the time, but
it was some kind of medical, like, her medical supplies for work in one hand, and then
when I told her she was being detained, as she was stepping in front of the vehicle, she
went like that with her hand and there was a green bottle that was thrown out of her hand
back into the vehicle. She was placed into handcuffs and I picked up the green bottle."
The officer explained he was unsure whether the green bottle came from Espinoza's
pocket or if she simply had it in her hand prior to tossing it back into the vehicle. The
officer handcuffed Espinoza and placed her in his patrol vehicle; he then retrieved the pill
bottle. The bottle's label stated it was Vyvanse—a controlled substance—and was
prescribed to a woman named Marion Norwood. The pill bottle contained 6 blue-and-
white capsules, later identified as Vyvanse, and 20 pink pills wrapped in a cellophane
wrapper, later identified as Oxycodone.
The State charged Espinoza with possession of an opiate, possession of a
stimulant, and theft. Espinoza proceeded to trial, and a jury found her guilty of both
possession charges but not guilty of theft. The district court sentenced Espinoza to an
underlying prison term of 11 months, then suspended that sentence and placed Espinoza
on probation for 12 months. Espinoza appeals.
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DISCUSSION
When a defendant challenges the sufficiency of the evidence in a criminal case, we
review the entire record in a light most favorable to the State and ask whether we are
convinced that a rational fact-finder could have found the defendant guilty beyond a
reasonable doubt. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). For the
evidence to be sufficient, "there must be evidence supporting each element of [the]
crime." State v. Kettler, 299 Kan. 448, 471, 325 P.3d 1075 (2014). But direct proof of
each element is not required; circumstantial evidence is sufficient to support a verdict
when "it permits the factfinder to draw a reasonable inference regarding the fact(s) in
issue." State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017). In reviewing the
sufficiency of the evidence, we do not reweigh evidence, resolve evidentiary conflicts, or
make determinations about the credibility of witnesses. Chandler, 307 Kan. at 668; State
v. Lloyd, 299 Kan. 620, 632, 325 P.3d 1122 (2014).
Espinoza argues the State presented insufficient evidence that she possessed the
bottle of Vyvanse and Oxycodone. Specifically, Espinoza argues her action of tossing the
pill bottle into the back seat was inadequate to show that she had knowledge of the
presence of the controlled substances or an intent to exercise control over them.
For both possession charges, the State was required to prove that Espinoza
possessed a controlled substance—Vyvanse and Oxycodone, respectively—and that the
act "occurred on or about the 11th day of April, 2018, in Sedgewick County, Kansas."
The only question relevant to the resolution of Espinoza's appeal is whether the State
produced evidence from which a jury could find that she possessed the bottle of pills.
"Possession" is defined in K.S.A. 2019 Supp. 21-5701(q) and in the court's instructions to
the jury to mean "having joint or exclusive control over an item with knowledge of and
intent to have such control or knowingly keeping some item in a place where the person
has some measure of access and right of control." Knowledge and intent are matters of
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human experience to be weighed based on the evidence—that is, questions of fact. See
State v. Stringfield, 4 Kan. App. 2d 559, 561, 608 P.2d 1041 ("Intent is normally
a question of fact for the jury, and may be shown by acts, circumstances and inferences
reasonably deducible therefrom and need not be established by direct proof. [Citations
omitted.]"), rev. denied 228 Kan. 807 (1980).
At trial, the arresting officer testified that when he approached Espinoza, she had a
bag and a green pill bottle in her hands. When he informed Espinoza that she was under
arrest, she tossed the pill bottle back into the vehicle. But the officer saw Espinoza with
the pill bottle in her hand and saw her throw it. And after placing Espinoza in handcuffs,
the officer picked up the bottle and found it contained two controlled substances. The
jury could reasonably infer from Espinoza's attempt to discard the pill bottle before being
arrested that she knew of the controlled substances the bottle contained and that she
intended to exercise control over them. Viewing the evidence in the light most favorable
to the State, we conclude the evidence was sufficient to support the jury's verdict.
Affirmed.
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