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STATE v. BISHOP
February 16, 1990.
STATE OF KANSAS, Appellee,
DONNA M. BISHOP, Appellant.
Donna Bishop appeals her conviction of one count of
transporting alcoholic liquor in an open container. K.S.A.
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.
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
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:
"(a) No person shall transport in any vehicle upon
a highway or street any alcoholic liquor unless such
"(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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