BY THE COURT
convict a defendant of possession with intent to distribute a
controlled substance under K.S.A. 2011 Supp. 21-5705(a), the
State must prove the defendant had knowledge of the nature of
the controlled substance. This knowledge requirement can be
established by proving the defendant either knew the identity
of the substance or knew that the substance was controlled. A
mistake of fact about the nature of a controlled substance
can negate the knowledge requirement.
of the judgment of the Court of Appeals in an unpublished
opinion filed February 17, 2017.
from Johnson District Court; Thomas Kelly Ryan, judge.
Jonathan Laurans, of Kansas City, Missouri, argued the cause,
and Christopher Angles, of The Angles Law Firm, LLC, of
Kansas City, Missouri, was with him on the briefs for
M. Gontesky, assistant district attorney, argued the cause,
and James Crux, legal intern, Stephen J. Obermeier, senior
deputy district attorney, Stephen M. Howe, district attorney,
and Derek Schmidt, attorney general, were with him on the
briefs for appellee.
bench trial on stipulated facts, the Johnson County District
Court convicted Yamuna Rizal of possessing a controlled
substance with the intent to distribute it at a gas station
she owned in Shawnee. On appeal, Rizal argues the evidence
was insufficient to support her conviction because of a
mistake of fact-that she believed the packets she sold
contained lawful incense, not a controlled substance. We hold
the State was required to prove that Rizal had knowledge of
the nature of the controlled substance she possessed and that
it proved this element through circumstantial evidence. As a
result, we affirm.
and Procedural Background
April 2012, Detectives Shawn Miller and Steve Hahne with the
Shawnee Police Department went to a Phillips 66 gas station
to investigate a tip that the store was selling synthetic
cannabinoids. When the detectives arrived, they found Rizal,
a coowner of the store, working behind the counter. She
agreed to let the detectives search behind the counter. They
soon discovered packages that appeared to contain synthetic
cannabinoids located under the counter, hidden from view. The
packages later tested positive for naphthoylindole, a
synthetic cannabinoid commonly called "K2."
Rizal's gas station was located across the street from an
State charged Rizal with possession with intent to distribute
naphthoylindole, a controlled substance, within 1, 000 feet
of a school. See K.S.A. 2011 Supp. 21-5705(a)(7) (making it
unlawful to "possess with the intent to distribute any
of the following controlled substances . . . any substance
designated in subsection (h) of K.S.A. 65-4105"); K.S.A.
2011 Supp. 65-4105(h)(2) (listing naphthoylindoles as
controlled substances); K.S.A. 2011 Supp. 21-5705(c)(1)(A)
(increasing the severity level for possession with intent to
distribute a controlled substance that occurs within 1, 000
feet of school property). The State also charged her with a
drug stamp violation.
filed a motion to suppress, claiming her Miranda
rights were violated and her consent to search was
involuntary. The district court held a suppression hearing
and denied the motion. Then the case went to a bench trial on
"1. On April 3, 2012, Det. Shawn Miller and Det. Steve
Hahne of the Shawnee Police Department responded to the
Phillips 66 located . . . in Shawnee, Johnson County, Kansas
regarding a tip that the store was selling synthetic
cannabinoids. This tip had come from the Johnson County Adult
Residential Center which had located some synthetic
cannabinoids at their facility which had purportedly come
from the Phillips 66 located in Shawnee.
"2. Both officers were dressed in plain clothes with
black vests marked 'Police' and police badges.
. . . .
"4. Upon entering the store Det. Miller introduces
himself to the woman working behind the counter. She is later
identified as the defendant, Yamuna Rizal, who is over the
age of 18 . . . .
"5. Rizal is wearing a 'DARE to Resist Drugs'
t-shirt during their contact and has a piece of fabric
printed with marijuana leaves covering the stool behind the
counter which is clearly visible to people purchasing items
at the counter.
"6. Det. Miller tells Rizal about the tip they have
received, he asks her if she is selling 'incense',
'flavored tobacco' or 'K2'. She says she is
not and that those products are illegal. During this
conversation a customer comes up and Det. Miller offers to
stand aside so Rizal can assist the customer. Det. Miller
then asks Rizal if [sic] 'just comes around the
corner here and checks' and Rizal says 'no'
(indicating she does not mind).
"7. Rizal initially says she does not know what Det.
Miller means by 'K2' and he then describes the
product. Det. Miller asks Rizal if she is the store ...