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Prior use/possession not relevant in possession case [NOT FINAL]

By Randall Hodgkinson

Shawn Minihan won in State v. Boggs, No. 96,921 (Kan. App. Nov. 21, 2007), getting a new trial in a McPherson County drug prosecution. This is great common-sense application of K.S.A. 60-455 to a situation we see too frequently--admission of prior possession convictions in subsequent possession prosecutions:

Furthermore, the prior crime evidence of smoking marijuana was not so relevant as to show some material or logical connection between it and the charged crimes. A fact finder could not have reasonably inferred that the later acts of possession of marijuana and possession of drug paraphernalia follow from or was logically connected to the former act of smoking marijuana. For example, a person could smoke marijuana and not later be in possession of marijuana or possession of drug paraphernalia. Thus, it would be a logical non sequitur to conclude that because a person previously smoked marijuana, the person would later possess either marijuana or drug paraphernalia.

And even if it meets the relevancy test included in K.S.A. 60-455, the COA held that where the defendant did not claim innocent or mistaken possession, prior acts are not relevant to show intent or absence of mistake:

When a defendant completely denies "that any of the charged conduct took place," the defendant's intent is not in issue and the evidence may not be admitted to prove it. Moreover, absence of mistake or accident and intent are closely related concepts. Unless a defendant has contended that the charged crimes were innocent in character, evidence of prior acts or convictions may not be admitted to show absence of mistake or accident. State v. Graham, 244 Kan. 194, 197, 768 P.2d 259 (1989). As a result, the trial court erred in admitting the prior crime evidence under K.S.A. 60-455 to show intent, knowledge, and absence of mistake or accident.

This could have a pretty big impact in a lot of nonexclusive possession prosecutions.

Full post as published by Kansas Defenders on November 21, 2007 (boomark / email).