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STATE v. BISHOP

February 16, 1990.

STATE OF KANSAS, Appellee,
v.
DONNA M. BISHOP, Appellant.



Donna Bishop appeals her conviction of one count of transporting alcoholic liquor in an open container. K.S.A. 41-804.

On October 28, 1988, Kansas Alcohol and Beverage Control officer Virgil Weigel, while watching the Rustin Retail Liquor Store at 17th and Washburn in Topeka, Kansas, observed a vehicle containing a male driver and four female passengers drive up in front of the liquor store. Bishop was later identified as the passenger in the left rear seat.

The driver went into the liquor store and emerged with a package which Agent Weigel observed being passed from the front seat to the back seat. He could not tell who was passing or receiving the package.

[14 Kan. App. 2d 224]

     

  Agent Weigel followed and stopped the vehicle. A backup agent observed liquor bottles in the vehicle. Two open bottles and two cups of liquid were seized. Weigel could not identify in which part of the car the containers were found, but he testified he thought the bottle being passed from front to back was one of the open containers.

  Bishop testified she did not have possession of any alcoholic liquor in the car that night, nor did she know that open containers were being transported. An unopened pint of alcoholic liquor was purchased by the driver and passed to the passenger sitting next to Bishop in the rear seat. All parties testified this bottle remained unopened.

  The passenger sitting in the middle of the back seat testified the unopened pint purchased by the driver was placed in her purse and not found by the agents. She was not aware there were open containers in the vehicle and did not smell alcohol.

  One of the other female passengers testified that three of the containers that were seized were in the front seat and she did not know where the other container was located.

  The trial court stated that under the circumstances Bishop should have been aware that alcoholic liquor in an open container was being transported. The court concluded proof of Bishop's constructive possession of the open containers was sufficient to support a guilty finding. Bishop appeals.

 
The trial court erred in applying the doctrine of constructive possession to find Bishop guilty of transporting alcoholic liquor in an open container.
  Bishop contends the State is required to show actual possession of an open container to support the conviction.
 
"In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court considers only the evidence in favor of the verdict to determine whether the essential elements of a charge are sustained. [Citations omitted.]" State v. Walker, 244 Kan. 275, 280, 768 P.2d 290 (1989).
  K.S.A. 41-804 in applicable part provides:

[14 Kan. App. 2d 225]

     

 
"(a) No person shall transport in any vehicle upon a highway or street any alcoholic liquor unless such liquor is:
"(1) In the original unopened package or container, the seal of which has not been broken and from which the original cap, cork or other means of closure has not been removed;
"(2) in the locked rear trunk or rear compartment, or any locked outside compartment which is not accessible to any person in the vehicle while it is in motion; or
"(3) in the exclusive possession of a passenger in a vehicle which is a recreational vehicle, as defined by K.S.A. 75-1212, or a bus, as defined by K.S.A. 8-1406, who is not in the driving compartment of such vehicle or who is in a portion of such vehicle from which the driver is not directly accessible.
"(b) Violation of this section is a misdemeanor punishable by a fine of not more than $200 or by imprisonment for ...

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