Newspaper article The Topeka Capital-Journal

Appeals Court Tosses Lyon County Home Owner's Drug Conviction, Says Prosecutor Misled Jury

Newspaper article The Topeka Capital-Journal

Appeals Court Tosses Lyon County Home Owner's Drug Conviction, Says Prosecutor Misled Jury

Article excerpt

The Kansas Court of Appeals castigated a Lyon County prosecutor for "undeniably gross and flagrant" errors in statements he made to a jury as the court overturned an Emporia's man's drug convictions and acquitted him of the most serious charge.

A drug task force of Lyon County sheriff's deputies and Emporia police knocked on the door of a mobile home in late 2013 and found Preston Dobson, a man with outstanding warrants, along with the smell of marijuana and a glass pipe on a living room table.

In Dobson's possession the officers found small plastic bags and a syringe. After obtaining a search warrant, they found drug paraphernalia, including a glass pipe, digital scale and what they described as a "homemade smoking device" with methamphetamine inside. In a bedroom, they found a grinder with small amounts of marijuana.

Steven Carroll, another man in the mobile home, admitted the pipe belonged to him. Dobson said he had been staying at the residence, owned by Matthew Judd, for several days.

Judd was charged with felony possession of methamphetamine, felony possession of marijuana and a misdemeanor count of possession of paraphernalia. He was convicted on all counts during a one-day trial in July 2014.

Judd was sentenced to 30 months in prison but appealed the convictions to the Court of Appeals, arguing there was a lack of evidence to convict him, jury members had not properly been instructed on the law and a prosecutor erred during closing arguments.

On Friday, three judges agreed.

"Consistent with Kansas law, a verdict convicting Judd of possession of the contents of the case, including the methamphetamine, rested on unmoored speculation rather than reasoned inference," wrote Judges G. Gordon Atcheson, David Bruns and Richard Walker.

State law and Kansas court precedent has determined the presence of drugs in a common area is not sufficient evidence to convict all occupants in a home of possession. In this case, the methamphetamine and paraphernalia could have belonged to Dobson or Carroll, not Judd.

"Simply put, a person does not necessarily own everything he or she possesses (think hedge clippers borrowed from a neighbor) or possess everything he or she owns (think a car loaned to a child at college)," the Court of Appeals ruled. …

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