CASE ANNOTATIONS

1. Conviction under former section (K.S.A. 65-4126); defendant standing on parking curtilage in front of house was on the premises. State v. McClelland, 215 Kan. 81, 523 P.2d 357.

2. Possession of marijuana upheld; lesser included offense of possession with intent to sell. State v. Collins, 217 Kan. 418, 420, 536 P.2d 1382.

3. Conviction hereunder upheld; opinion of expert witness admissible. State v. Brooks, 217 Kan. 485, 487, 488, 536 P.2d 1365.

4. Conviction hereunder affirmed; evidence sufficient; denial of motion for mistrial. State v. Eatmon, 220 Kan. 510, 553 P.2d 309.

5. Conviction hereunder after several trials upheld; alleged errors reviewed. State v. Crowley, 220 Kan. 532, 533, 552 P.2d 971.

6. Refusal to allow withdrawal of waiver of jury trial upheld; evidence properly allowed; conviction hereunder affirmed. State v. Daigle, 220 Kan. 639, 556 P.2d 400.

7. Crimes in which prior conviction is a necessary element distinguished from crimes considered in establishing penalties; charge of previous conviction in information not error. State v. Loudermilk, 221 Kan. 157, 160, 557 P.2d 1229.

8. Conviction hereunder reversed; hearsay evidence. State v. Collazo, 1 Kan. App. 2d 654, 574 P.2d 214.

9. No prejudicial error shown in admission of evidence; prior conviction; conviction affirmed. State v. Forsyth, 2 Kan. App. 2d 44, 574 P.2d 241.

10. Conviction of conspiracy to deliver cocaine affirmed. State v. Glazer, 223 Kan. 351, 352, 356, 574 P.2d 942.

11. Appeal from judgment of trial court acquitting defendant; state did not have jurisdiction; judgment affirmed. State v. Palermo, 224 Kan. 275, 579 P.2d 718.

12. Defendant charged hereunder; motion to suppress evidence sustained; warrantless arrest and search unreasonable, exigent circumstances nonexistent. State v. Platten, 225 Kan. 764, 766, 594 P.2d 201.

13. Alleged trial court errors reviewed on appeal from conviction hereunder; affirmed. State v. Jacques, 2 Kan. App. 2d 277, 278, 579 P.2d 146.

14. Conviction of illegal possession of heroin affirmed; no double jeopardy; permissible search and seizure; no overreaching. State v. Baylor, 2 Kan. App. 2d 722, 587 P.2d 343.

15. Conviction of possession of heroin with intent to sell upheld; Habitual Criminal Act (K.S.A. 21-4504) applied. State v. Newell, 226 Kan. 295, 296, 297, 300, 597 P.2d 1104.

16. Appeal from conviction hereunder. State v. Whitehead, 226 Kan. 719, 602 P.2d 1263.

17. Warrantless search of automobile upheld; trial court abused discretion in refusing to permit defendant's counsel to interview jurors. State v. Griffin, 3 Kan. App. 2d 443, 596 P.2d 185.

18. Convictions hereunder; possession of cocaine with intent to sell and mere possession are included offenses, merged with sale of cocaine when solely incidental thereto. State v. Hagan, 3 Kan. App. 2d 558, 562, 598 P.2d 550.

19. Conviction of possession of cocaine upheld; search of woman's pocketbook is immediately associated with person arrested and is incidental to the arrest. State v. Sabater, 3 Kan. App. 2d 692, 601 P.2d 11.

20. Conviction for possession of heroin upheld; nonexclusive possession requires additional incriminating circumstances linking the defendant to the drug. State v. Goodwin, 4 Kan. App. 2d 81, 603 P.2d 194.

21. Crime of simple possession of heroin not a lesser included offense of possession with intent to sell. State v. Brown, 5 Kan. App. 2d 149, 150, 613 P.2d 387.

22. Multiplicitous convictions, procuring agent defense, entrapment, vicarious liability theory discussed. State v. Becknell, 5 Kan. App. 2d 269, 615 P.2d 795.

23. Elements of conspiracy discussed; financial stake not necessary. State v. Becknell, 5 Kan. App. 2d 269, 615 P.2d 795.

24. Conviction of sale of cocaine upheld; alleged trial court errors reviewed. State v. Bright, 229 Kan. 185, 186, 623 P.2d 917.

25. Conviction of possession of a narcotic drug upheld even though no evidence was given that cocaine is a narcotic drug within the statutory definition. State v. Hermerding, 5 Kan. App. 2d 797, 798, 626 P.2d 210.

26. Conviction hereunder upheld; failure to fully comply with post-interception wiretap requirements, standing alone, does not require suppression nor does it render the interceptions unlawful. State v. Willis, 7 Kan. App. 2d 413, 643 P.2d 1112 (1982).

27. Specific intent to sell essential element of offering controlled substance for sale; failure of court to so instruct was error. State v. Werner, 8 Kan. App. 2d 364, 366, 367, 657 P.2d 1136 (1983).

28. Presence of controlled substance in bloodstream absent proof of prior knowledgeable possession not sufficient evidence to establish guilt of "possession" or "control" prohibited hereby. State v. Flinchpaugh, 232 Kan. 831, 832, 836, 659 P.2d 208 (1983).

29. Prior drug conviction in other jurisdiction may be used to increase offender's punishment for sentencing purposes. State v. Miles, 233 Kan. 286, 296, 297, 298, 662 P.2d 1227 (1983).

30. Owners of cordless phone, knowing equipment, have no expectation of privacy to conversation intercepted by FM radio. State v. Howard, 235 Kan. 236, 249, 679 P.2d 197 (1984).

31. Charges hereunder resulting from misdemeanor arrest pursuant to K.S.A. 22-2401(b) not defective. State v. Flummerfelt, 235 Kan. 609, 610, 684 P.2d 363 (1984).

32. Waiver of felony jury (K.S.A. 22-3403(1)) determined; defendant, prosecution and court must agree; two of three insufficient. State v. Siver, 237 Kan. 569, 701 P.2d 699 (1985).

33. Cited; prior theft convictions not element of felony theft (K.S.A. 21-3701). State v. Hanks, 10 Kan. App. 2d 666, 667, 708 P.2d 991 (1985).

34. Conviction hereunder; issue of sentencing under K.S.A. 21-4606a as first-time offender discussed. State v. Linsin, 10 Kan. App. 2d 681, 709 P.2d 988 (1985).

35. Where defendant's attorney admitted prior convictions in defendant's presence at stipulations and sentencing, enhancement of sentence proper. State v. Myers, 10 Kan. App. 2d 266, 274, 275, 697 P.2d 879 (1985).

36. Charge dismissed; 179-day period accused's motion to suppress evidence kept under advisement, right to speedy trial (K.S.A. 22-3402) examined. State v. Roman, 240 Kan. 611, 731 P.2d 1281 (1987).

37. Conviction affirmed; sentence following plea agreement examined. State v. McQueen, 12 Kan. App. 2d 147, 736 P.2d 947 (1987).

38. Conviction and sentence upheld; direct appeal of probation denial following guilty or nolo contendere plea dismissed. State v. Dantzler, 12 Kan. App. 2d 181, 737 P.2d 69 (1987).

39. Conviction affirmed; criteria to consider in sentencing (K.S.A. 21-4606), specific findings required before imposing fine examined. State v. McGlothlin, 242 Kan. 437, 747 P.2d 1335 (1988).

40. Conviction affirmed; two offenses charged in alternative, accomplice testimony cautionary instruction, circumstantial evidence of possession examined. State v. Anthony, 242 Kan. 493, 749 P.2d 37 (1988).

41. Use of inadmissible statements to impeach defendant's testimony, evidence of prior convictions and testimony surrounding circumstances thereof examined. State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989).

42. Construction of plea agreement as to information which should be known by the county attorney examined. State v. Smith, 244 Kan. 283, 767 P.2d 1302 (1989).

43. Propriety of searches and seizures, excessive sentencing examined. State v. Doile, 244 Kan. 493, 769 P.2d 666 (1989).

44. Identification of confidential informant (K.S.A. 60-436) when in camera hearing required to determine relevance of testimony to defense examined. State v. Washington, 244 Kan. 652, 772 P.2d 768 (1989).

45. Waiver of counsel, evidence of aiding and abetting, prosecutorial remarks during closing arguments, appearance at sentence modification hearing examined. State v. Buckland, 245 Kan. 132, 134, 777 P.2d 745 (1989).

46. Consent to search based on law enforcement officer's threat to obtain search warrant examined. State v. Brown, 245 Kan. 604, 783 P.2d 1278 (1989).

47. Application of federal Posse Comitatus Act, 18 U.S.C. § 1385, to use of investigator assigned to army CID as witness examined. State v. Roberts, 14 Kan. App. 2d 173, 786 P.2d 630 (1990).

48. Prosecutor's explanation of peremptory challenges of members of jury panel belonging to defendant's race examined. State v. Belnavis, 246 Kan. 309, 787 P.2d 1172 (1990).

49. Exclusion of evidence on grounds of remoteness that substantially impairs state's case examined. State v. Griffin, 246 Kan. 320, 787 P.2d 701 (1990).

50. Materials directly or indirectly obtained as "Fruit of Poisonous Tree" excluded from evidence. State v. Daly, 14 Kan. App. 2d 310, 311, 315, 789 P.2d 1203 (1990).

51. Ambiguous plea agreement as strictly interpreted against state, amendment in sentencing statute (K.S.A. 21-4603(3)(a)) as substantive in nature determined. State v. Marks, 14 Kan. App. 2d 594, 595, 796 P.2d 174 (1990).

52. Sale of crack cocaine not sufficient to support felony murder conviction; retrial for premeditated murder permitted. State v. Wesson, 247 Kan. 639, 647, 648, 802 P.2d 574 (1990).

53. Fact that petitioner's codefendants not as severely punished did not show constitutional error; sentence within statutory limits. Edwards v. State of Kan., 751 F. Supp. 197, 199 (1990).

54. Amendments to sentencing statutes regarding modification (K.S.A. 21-4603(3)(a)) and presumption of probation (K.S.A. 21-4606a) as substantive and applicable prospectively determined. State v. Sylva, 14 Kan. App. 2d 609, 610, 795 P.2d 947 (1990); affirmed 248 Kan. 118, 804 P.2d 967 (1991).

55. Test to determine whether search warrant meets constitutional requirements discussed; specificity, technical irregularities, search by affiant examined. State v. LeFort, 248 Kan. 332, 334, 806 P.2d 986 (1991).

56. Guidelines for determining reasonableness of impounding a vehicle examined. State v. Teeter, 249 Kan. 548, 550, 819 P.2d 651 (1991).

57. Informant's unsworn statement accompanying sworn application for search warrant, stale information, exception to exclusionary rule examined. State v. Hemme, 15 Kan. App. 2d 198, 806 P.2d 472 (1991).

58. Necessity of making specific findings pursuant to K.S.A. 21-4607(2) and (3) before imposing a fine, prospective application of K.S.A. 21-4603(3) examined. State v. McNett, 15 Kan. App. 2d 291, 807 P.2d 171 (1991).

59. Right to privacy of tenant's employees while on premises, evidence necessary to establish possession of drugs, showing of "safe house" examined. State v. Cruz, 15 Kan. App. 2d 476, 478, 809 P.2d 1233 (1991).

60. Effect of voluntary absence on defendant's right to be present at all stages of prosecution considered; constructive possession. State v. Galloway, 16 Kan. App. 2d 54, 55, 63, 817 P.2d 1124 (1991).

61. Circumstances may give rise to inference of intent to possess. State v. Perry, 16 Kan. App. 2d 150, 154, 823 P.2d 804 (1991).

62. Search warrant lacking sufficient definiteness as to subunit in multiple occupancy structure invalid; exception where affidavit contains description and affiant is officer executing warrant. State v. Dye, 250 Kan. 287, 826 P.2d 500 (1992).

63. Possession of cocaine and possession of drug paraphernalia are not multiplicitous charges. State v. Hill, 16 Kan. App. 2d 280, 282, 283, 284, 823 P.2d 201 (1992).

64. Instruction on conspiracy, testimony regarding defendant's dream, evidence of other illegal activities, reasonableness of search, multiplicity of convictions, sentence examined. State v. Tyler, 251 Kan. 616, 619, 840 P.2d 413 (1992).

65. Hearsay nature of certain conversations, statements, and reports of deceased confidential informant examined. State v. Rowe, 252 Kan. 243, 244, 843 P.2d 714 (1992).

66. Specific sentencing provisions of K.S.A. 21-4608(3) compared with K.S.A. 21-4608(8); K.S.A. 60-1507 issues examined where defendant returned to Wyoming on detainer. State v. Aleman, 16 Kan. App. 2d 784, 785, 830 P.2d 64 (1992).

67. Entrapment as defense and elements of instruction thereon examined. State v. King, 17 Kan. App. 2d 349, 838 P.2d 349 (1992).

68. State must prove underlying felony in prosecution for use of communication facility to facilitate violation of section. State v. Hill, 252 Kan. 637, 638, 640, 642, 645, 847 P.2d 1267 (1993).

69. Prosecution under K.S.A. 61-4141, based upon facilitation, requires proof of the actual commission of the underlying felony. State v. Garrison, 252 Kan. 929, 933, 850 P.2d 244 (1993).

70. While possession of cocaine not lesser degree of possession with intent to sell, it is an included crime. State v. Tucker, 253 Kan. 38, 43, 853 P.2d 17 (1993).

71. Whether intercepted conversations should be suppressed because they were unrelated to offenses described in wiretap application examined. State v. Gibson, 255 Kan. 474, 476, 492, 874 P.2d 1122 (1994).

72. Whether evidence should be suppressed as fruit of the poisonous tree because police illegally seized defendant examined. State v. Crowder, 20 Kan. App. 2d 117, 119, 887 P.2d 698 (1994).

73. Whether defendant's knowledge of proximity of school to location of sale is an essential element of subsection (d) violation examined. State v. Swafford, 20 Kan. App. 2d 563, 564, 890 P.2d 368 (1995).

74. Defendant is not required to intend to sell drugs within protected school zone for conviction under subsection (d). State v. Penny, 22 Kan. App. 2d 212, 914 P.2d 960 (1996).

75. Method of determining whether drug sale was within 1,000 feet of school discussed; section not unconstitutionally vague. State v. Prosper, 260 Kan. 743, 745, 926 P.2d 231 (1996).

76. Severity level of drug possession charge under K.S.A. 65-4162 should have been enhanced for conviction under prior statute (K.S.A. 65-4127b). State v. Crank, 262 Kan. 449, 452, 455, 989 P.2d 890 (1997).

77. Trial court setting aside plea agreement where prosecutor excluded certain convictions in calculating criminal history upheld. State v. Unruh, 263 Kan. 185, 188, 946 P.2d 1369 (1997).

78. Cited; conviction under K.S.A. 65-4127a should not have been counted as a prior conviction under K.S.A. 65-4161(c). State v. Kirk, 40 Kan. App. 2d 817, 820, 196 P.3d 407 (2008).