1

No. 122,253

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

ROBERT CASH SCHEUERMAN,

Appellant.

SYLLABUS BY THE COURT

1.

The Fourth Amendment to the United States Constitution protects the right of the 

people to be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures. However, a defendant must have a reasonable expectation of 

privacy in the place searched before determining whether such defendant's Fourth 

Amendment rights were violated.

2.

A person who lacks an ownership or possessory interest in the property searched 

lacks a legitimate expectation of privacy in that property.

3.

When the sufficiency of the evidence is challenged in a case decided on stipulated 

facts, an appellate court's review is unlimited, but the facts are still viewed in the light 

most favorable to the State when testing their sufficiency. Moreover, a defendant is 

precluded from challenging factual evidence within a stipulation by entering into a 

stipulation of facts, but a defendant can still challenge the legal effect of the stipulated 

facts.
2

4.

K.S.A. 2020 Supp. 21-5109(b) defines lesser included offenses as including not 

only offenses in which the elements of the lesser crime are identical to some of the 

elements of the crime charged, but also lesser degrees of the same crime.

5.

If the facts are sufficient to convict the defendant of the charged crime, those same 

facts are also sufficient to convict on any lesser included offense, provided all the 

elements of the lesser included offense are identical to some of the elements of the crime 

charged. This is not so where the lesser included offense is a lesser degree of the charged 

crime and all its elements are not identical to some of the elements of the charged crime.

6.

Possession of methamphetamine with intent to distribute contrary to K.S.A. 2020 

Supp. 21-5705(d)(3)(B), a severity level 3 drug felony, is a lesser included offense of 

possession of methamphetamine with intent to distribute contrary to K.S.A. 2020 Supp. 

21-5705(d)(3)(C), a severity level 2 drug felony, because it is a lesser degree of the same 

crime.

7.

Evidence establishing that a defendant possessed at least 3.5 grams but less than 

100 grams of methamphetamine is insufficient to satisfy the quantity element of 

possessing methamphetamine with intent to distribute contrary to K.S.A. 2020 Supp. 21-

5705(d)(3)(B) because the quantity of drugs possessed is outside the element requiring 

possession of at least 1 gram but less than 3.5 grams.

Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed April 16, 2021. 

Affirmed in part, conviction reversed, and sentence vacated.
3

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

J. Colin Reynolds, assistant county attorney, M. Levi Morris, county attorney, and Derek Schmidt, 

attorney general, for appellee.

Before POWELL, P.J., GREEN and HILL, JJ.

POWELL, J.: Robert Cash Scheuerman was charged, inter alia, with possession of 

methamphetamines with intent to distribute following a traffic stop and search of the 

vehicle he was riding in. Scheuerman sought to suppress the evidence from the search, 

but the district court denied the motion. Following a bench trial on stipulated facts, the 

district court found Scheuerman guilty of a less severe version of possession of 

methamphetamine with intent to distribute.

Scheuerman now appeals both the district court's denial of his suppression motion 

and its guilty finding. For reasons more fully explained below, we find Scheuerman lacks 

standing to challenge the legality of the search because he lacked a reasonable 

expectation of privacy in the automobile. But we agree with Scheuerman that insufficient 

evidence supports his conviction for the less severe version of possession of 

methamphetamine with intent to distribute because the quantity of methamphetamines he 

stipulated to possessing does not satisfy the quantity element of the crime. Thus, we 

affirm the district court's denial of Scheuerman's motion to suppress, but we reverse his 

conviction and vacate his sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 2016, Detective David Paden of the Barton County Sheriff's Office 

was on the lookout for Scheuerman, who had an active arrest warrant. Paden saw a silver 

Chrysler, which he associated with Scheuerman, drive past him. Paden pulled alongside 
4

the car and identified Scheuerman as the passenger, prompting him to initiate a traffic 

stop. Paden radioed for backup because he had information that Scheuerman would not 

allow himself to "go peaceably."

Paden ordered the driver and owner of the car, Gwen Finnigan—Scheuerman's 

girlfriend—out of the vehicle. As Paden and Sergeant Lloyd Lewis approached the 

vehicle, they noticed Scheuerman holding a gun to his temple. In accordance with the 

Sheriff's Office policy, Finnigan was taken to the county jail because Scheuerman had a 

gun. Following a stand-off lasting over an hour, Scheuerman finally put the gun down,

got out of the car, and surrendered to the officers. While being placed in Paden's patrol 

vehicle, Scheuerman told Paden any "dope" in the car belonged to him, not Finnigan.

During the stand-off, Finnigan remained detained at the jail until the situation was 

resolved.

The Sheriff's Office decided to impound the car because it was blocking traffic.

Lewis first retrieved the gun from the car and then performed an inventory search. During 

the search, Lewis found methamphetamine in a black backpack, which also held a holster

and a magazine for the gun.

These events prompted the State to charge Scheuerman with possession of 

methamphetamine with intent to distribute at least 3.5 grams but less than 100 grams, 

criminal possession of a firearm, interference with law enforcement, possession of drug 

paraphernalia, and no drug tax stamp.

Scheuerman sought to suppress the evidence obtained from the search of the car, 

alleging the officers lacked probable cause to stop the car initially or to search it. 

Following an evidentiary hearing, the district court denied the motion.
5

Scheuerman agreed to a bench trial based on stipulated facts to preserve his 

objection to the denial of his suppression motion. In exchange for his admission to certain 

incriminating facts, the State agreed to amend the first count to the lesser charge of 

possession of methamphetamine with intent to distribute at least 1 gram but less than 3.5 

grams. It also agreed to dismiss all the other charges against Scheuerman.

The district court found Scheuerman guilty of the amended charge and sentenced 

him to 73 months in prison with 36 months' postrelease supervision.

Scheuerman timely appeals.

I. DID THE DISTRICT COURT ERR BY DENYING SCHEUERMAN'S SUPPRESSION 

MOTION?

Scheuerman argues the district court erred when it denied his motion to suppress 

the evidence from the search. Scheuerman asserts the inventory search was illegal

because the police did not have a reason to impound the car; instead, they should have 

asked Finnigan what she wanted done with the car.

The State responds first by arguing Scheuerman lacked the standing to challenge 

the search because he did not own the car. Alternatively, it also argues law enforcement 

had probable cause to search the car and there was nothing improper about the inventory 

search.

Standard of Review

We apply a bifurcated standard of review when reviewing a district court's 

decision on a motion to suppress. We review the district court's factual findings to 

determine whether they are supported by substantial competent evidence, but the ultimate 
6

legal conclusion is reviewed de novo. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 

(2018). "'Substantial competent evidence is legal and relevant evidence a reasonable 

person could accept to support a conclusion.'" State v. Talkington, 301 Kan. 453, 461, 

345 P.3d 258 (2015). We do not reweigh evidence or assess witness credibility. When the 

facts supporting the district court's decision are not disputed, the ultimate question of 

suppression is a legal one subject to our unlimited review. The State bears the burden to 

establish the lawfulness of a warrantless search or seizure. Hanke, 307 Kan. at 827.

Analysis

"The Fourth Amendment to the United States Constitution protects the 'right of the 

people to be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures.'" Talkington, 301 Kan. at 461. However, a defendant must have a

reasonable expectation of privacy in the place searched before determining whether such 

defendant's Fourth Amendment rights were violated. 301 Kan. at 461-62; see Katz v. 

United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., 

concurring).

The State argues Scheuerman lacks standing to challenge the search of the car 

because Finnigan owned the car, not Scheuerman. The State made this argument at the 

suppression hearing, but the district court rejected it on the grounds that somehow the 

State could not assert both that Scheuerman lacked standing to object to the search and 

rely on his admission there were drugs in the car.

The term "standing" is typically used to determine whether someone's personal 

rights have been violated. However, in the context of searches and seizures, standing is 

more properly placed in substantive Fourth Amendment law than within traditional 

standing. See Rakas v. Illinois, 439 U.S. 128, 140, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978);

Talkington, 301 Kan. at 473. But see State v. Richard, 300 Kan. 715, 727-28, 333 P.3d 
7

179 (2014) ("Nevertheless, standing to challenge a search is 'a component of subject 

matter jurisdiction, which may be raised for the first time on appeal.'").

"'[A] defendant cannot object to the seizure of evidence without proper standing to 

challenge the validity of the search. On the issue of standing, the burden is on the 

defendant to show an expectation of privacy in the property searched.' State v. Gonzalez, 

32 Kan. App. 2d 590, 593, 85 P.3d 711 (2004)." Talkington, 301 Kan. at 476. "Fourth 

Amendment rights are personal rights that may not be vicariously asserted." 301 Kan. at 

476. "A person who is aggrieved by an illegal search and seizure only through the 

introduction of damaging evidence secured by a search of a third person's premises or 

property has not had any of his Fourth Amendment rights infringed. . . . [Only]

defendants whose Fourth Amendment rights have been violated" may challenge the 

search. Rakas, 439 U.S. at 134.

As we have stated, a person must have a personal expectation of privacy in the 

place searched to have standing to challenge the search. To demonstrate a legitimate 

expectation of privacy, a defendant must show "a subjective expectation of privacy in the 

area searched and that the expectation was objectively reasonable." Talkington, 301 Kan. 

at 477. A person who lacks an ownership or possessory interest in the property searched 

lacks a legitimate expectation of privacy in that property. This lack of ownership or 

possessory interest is dispositive. State v. Wickliffe, 16 Kan. App. 2d 424, 429, 826 P.2d 

522 (1992).

Although a passenger in a car does not generally have standing to challenge the 

search of a car that does not belong to the passenger, the passenger can challenge the 

search if it results from an illegal stop. State v. Maybin, 27 Kan. App. 2d 189, 200, 2 P.3d 

179 (2000). While Scheuerman challenged the legality of the stop before the district 

court, he does not challenge before us the district court's refusal to suppress the evidence 

on this basis.
8

Scheuerman does not dispute he was not the car's owner. Although he gave 

Finnigan the money to buy the car, the car was registered in her name. Because 

Scheuerman lacks any ownership or possessory interest in the car, he lacks the standing 

to challenge the search of the car. And, as he did not challenge the search of the backpack 

containing the methamphetamine before the district court, he cannot now claim he had a 

possessory interest in the backpack.

The district court's reasoning that the State could not have it "both ways" by both 

challenging Scheuerman's standing to challenge the search and relying on his admission 

that the drugs were his is incorrect; the issue of the admissibility of Scheuerman's 

statements concerning the drugs is a different legal issue from whether he can challenge 

the search. However, the district court correctly denied the motion to suppress as

Scheuerman could not challenge the search because the car belonged to Finnigan. Thus, 

we affirm the district court's denial of Scheuerman's motion to suppress as being correct 

for the wrong reason. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015)

(holding if district court reaches correct result, its decision will be upheld even if it relied 

on wrong ground).

II. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT SCHEUERMAN'S CONVICTION FOR 

POSSESSION OF METHAMPHETAMINE WITH INTENT TO DISTRIBUTE?

Scheuerman also argues the evidence was insufficient to support his conviction for 

possession of methamphetamine with intent to distribute because he was convicted of 

possessing at least 1 gram of methamphetamine but less than 3.5 grams, but he stipulated 

to possessing at least 3.5 grams of methamphetamine. Scheuerman asserts the different 

severity levels for possession of methamphetamine with intent to distribute are mutually 

exclusive. Because the State did not provide any evidence Scheuerman possessed less 

than 3.5 grams of methamphetamine, Scheuerman claims there was no evidence to find 

him guilty of the amended charge. Scheuerman also argues that because the district court 
9

found him guilty of possessing less than 3.5 grams of methamphetamine, there is no 

evidence of intent to distribute. See K.S.A. 2020 Supp. 21-5705(e)(2) (creating rebuttable 

presumption of intent to distribute upon finding possession of at least 3.5 grams of 

methamphetamine).

The State argues the root of Scheuerman's argument is not sufficiency of the 

evidence but whether the drug severity levels are separate or lesser included offenses. 

The State argues the lower drug severity levels are lesser included offenses of the higher 

drug severity levels of the same crime, meaning it had the authority to charge a lower 

severity level in exchange for Scheuerman agreeing to a trial by stipulated facts.

Standard of Review

Scheuerman argues the appropriate standard of review is for sufficiency of the 

evidence. The State counters that both the sufficiency of the evidence standard and the 

statutory interpretation standard apply. We agree. Scheuerman argues the fact he 

stipulated to possessing at least 3.5 grams of methamphetamine does not prove he 

possessed at least 1 gram but less than 3.5 grams of methamphetamine. Ultimately, this is 

a sufficiency of an evidence argument. But whether the evidence of possession of a 

greater amount of methamphetamine is sufficient to support a conviction of a lesser 

amount does require statutory interpretation, and statutory interpretation is a legal 

question subject to de novo review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 

(2019).

In general, our standard of review when a criminal defendant challenges the 

sufficiency of the evidence supporting his or her conviction is "'whether, after reviewing 

all the evidence in a light most favorable to the prosecution, the appellate court is 

convinced a rational factfinder could have found the defendant guilty beyond a 

reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary 
10

conflicts, or make witness credibility determinations.' [Citation omitted.]" State v. 

Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

However, when the sufficiency of the evidence is challenged in a case decided on 

stipulated facts, our review is unlimited, but the facts are still "viewed in the light most 

favorable to the State when testing their sufficiency." State v. Darrow, 304 Kan. 710, 

715, 374 P.3d 673 (2016). Moreover, a defendant is precluded from challenging factual 

evidence within a stipulation by entering into a stipulation of facts. State v. Bogguess, 

293 Kan. 743, 745, 268 P.3d 481 (2012). But a defendant can still challenge the legal 

effect of the stipulated facts. See State v. Weber, 297 Kan. 805, 814, 304 P.3d 1262 

(2013).

Analysis

"Due process requires the State to prove every element of the charged crime."

State v. Banks, 306 Kan. 854, 858, 397 P.3d 1195 (2017). To determine what elements 

the State must prove, we look to the statute. State v. Torres, 308 Kan. 476, 488, 421 P.3d 

733 (2018).

K.S.A. 2020 Supp. 21-5705(a)(1) proscribes a person from possessing

methamphetamine with the intent to distribute. The State originally charged Scheuerman 

with possessing at least 3.5 grams but less than 100 grams, a severity level 2 drug felony. 

See K.S.A. 2016 Supp. 21-5705(d)(3)(C). As part of its agreement with Scheuerman to 

try the case on stipulated facts, the State amended the charge to possessing at least 1 gram 

but less than 3.5 grams of methamphetamine, a severity level 3 drug felony. See K.S.A. 

2016 Supp. 21-5705(d)(3)(B). Additionally, a rebuttable presumption of an intent to 

distribute is created if a defendant possesses 3.5 grams or more of methamphetamine. 

K.S.A. 2016 Supp. 21-5705(e)(2).
11

Scheuerman argues his stipulation to the fact that he possessed at least 3.5 grams 

of methamphetamine means he cannot be convicted of possessing at least 1 gram but less 

than 3.5 grams of methamphetamine. The State argues he can because the crime of 

possessing at least 1 gram but less than 3.5 grams of methamphetamine is a lesser 

included offense of the crime of possessing of at least 3.5 grams of methamphetamine. In 

other words, if Scheuerman stipulated to facts sufficient to find him guilty of the original 

offense, there is also sufficient evidence to convict him of a lesser included offense. For 

reasons we will explain, we must disagree.

As it relates to lesser included offenses whose elements are wholly contained 

within the originally charged crime, the State is correct that if the facts are sufficient to 

convict of the charged crime, the facts are also sufficient to convict of a lesser included 

crime. "If a lesser offense is to be considered a lesser included offense under the law, all 

elements necessary to prove the lesser offense must be present and be required to 

establish the elements of the greater offense charged." State v. Woods, 214 Kan. 739, 744, 

522 P.2d 967 (1974), disapproved of on other grounds by Wilbanks v. State, 224 Kan. 66, 

579 P.2d 132 (1978). But our statute defining lesser included offenses is broader and

includes not only offenses in which the elements of the lesser crime are identical to some 

of the elements of the crime charged, but also lesser degrees of the same crime. Compare 

K.S.A. 2020 Supp. 21-5109(b)(1) (lesser degree of same crime) with K.S.A. 2020 Supp. 

21-5109(b)(2) (all elements of lesser crime identical to some elements of charged crime). 

This means the elements of a lesser included offense under Kansas law may not all be 

included within the charged crime. Thus, if the facts establish guilt of the charged crime, 

they do not always mean guilt of a lesser included offense.

The fatal flaw in the State's argument here is that not all elements of the amended 

charge of which Scheuerman was convicted are contained within the originally charged 

crime. Scheuerman was originally charged with possessing with intent to distribute at 

least 3.5 grams but less than 100 grams of methamphetamine, a severity level 2 drug 
12

felony under K.S.A. 2016 Supp. 21-5705(d)(3)(C). The amended charge was possessing 

with intent to distribute at least 1 gram but less than 3.5 grams of methamphetamine, a 

severity level 3 drug felony under K.S.A. 2016 Supp. 21-5705(d)(3)(B). Given that the 

amended charge is the lesser degree of the originally charged crime—severity level 3

drug felony versus severity level 2 drug felony—the amended charge is clearly a lesser 

included offense of the originally charged crime. But the amended charge's elements are 

not all contained within the originally charged crime. The amended charge's quantity 

element requires possessing at least 1 gram but less than 3.5 grams of methamphetamine,

while the originally charged crime requires possessing at least 3.5 grams but less than 

100 grams.

Scheuerman stipulated to possessing a quantity of methamphetamines of at least

3.5 grams but less than 100 grams. But the plain language of the amended charge 

required the State to prove a quantity of at least 1 gram but less than 3.5 grams. See 

K.S.A. 2016 Supp. 21-5705(d)(3)(B); PIK Crim. 4th 57.020 (2014 Supp.) (elements of 

possession with intent to distribute controlled substance). Scheuerman's stipulation to 

possessing at least 3.5 grams of methamphetamines cannot provide a factual basis to 

satisfy the quantity element of his crime of conviction.

Two cases previously decided by our court support our conclusion that proof of 

possessing a higher quantity of drugs in this context does not establish the proof 

necessary to convict a defendant of possessing a lesser amount. While the cases address

the appropriateness of a lesser included jury instruction, they are helpful because one of 

the steps in determining whether a lesser included jury instruction should have been 

given is whether the instruction was factually appropriate. See State v. McLinn, 307 Kan. 

307, 318, 409 P.3d 1 (2018). An instruction is factually appropriate if "there is some 

evidence which would reasonably justify a conviction of the lesser included offense." 

State v. Brown, 300 Kan. 565, 585, 331 P.3d 797 (2014).
13

Most on point is a case relied upon by the State, State v. Palmer, No. 111,624, 

2015 WL 802733 (Kan. App. 2015) (unpublished opinion). In Palmer, the defendant was 

convicted of possession with intent to distribute at least 3.5 grams of methamphetamine. 

On appeal, Palmer argued the jury should have been instructed on the lesser included 

offenses of possessing less than 3.5 grams. Another panel of our court held that while 

lower severity levels of possession of methamphetamine are lesser included offenses of 

the higher severity levels, it was factually inappropriate to instruct on the lesser included 

offense because it was undisputed that the defendant possessed 10.26 grams of 

methamphetamine. 2015 WL 802733, at *7. Put another way, because it was undisputed 

that Palmer possessed 10.26 grams, there was no evidence that would support a 

conviction of possessing amounts less than 3.5 grams.

In State v. Winn, No. 111,474, 2016 WL 1169422 (Kan. App. 2016) (unpublished 

opinion), the defendant was charged with a severity level 2 drug felony of possession of 

marijuana with intent to distribute. Winn claimed the district court should have sua 

sponte instructed the jury on the lesser severity level 3 and level 4 offenses of the crime. 

The panel noted the obvious difference in the statutory alternatives was the weight of the 

marijuana the defendant possessed, but each alternative required the defendant have the 

intent to distribute. 2016 WL 1169422, at *6. While the panel held the lower severity 

levels were lesser degrees of the crime of possession of marijuana with intent to 

distribute, and thus lesser included offenses, it concluded that the lesser included offense 

instructions sought by Winn were not factually appropriate because Winn did not 

challenge the evidence that he possessed a weight of marijuana greater than the rebuttable 

presumption of intent to distribute. 2016 WL 1169422, at *8.

Our court has also held in the context of theft—which, like drug possession 

crimes, differs in severity depending on the amount of property taken—a defendant 

cannot be convicted of the lesser offense when the evidence only establishes the more 

severe charged crime. See K.S.A. 2020 Supp. 21-5801 (theft statute); State v. Bryant, 22 
14

Kan. App. 2d 732, Syl. ¶ 4, 922 P.2d 1118 (1996) (despite misdemeanor theft being 

lesser included offense of felony theft, no lesser jury included instruction required when 

"unrefuted" evidence established value of goods stolen over felony limit); State v. Perry, 

No. 97,052, 2008 WL 3367544, at *6 (Kan. App. 2008) (unpublished opinion) (same).

We can extrapolate from Winn and Palmer that possession of methamphetamine in 

amounts of at least 3.5 grams cannot support a conviction for possession of 

methamphetamine in an amount less than 3.5 grams. While Scheuerman's stipulation to 

possessing at least 3.5 grams and less than 100 grams is sufficient to prove the possession 

with intent to distribute element given the statutory presumption, see K.S.A. 2016 Supp. 

21-5705(e)(2), it cannot prove the quantity element. The less severe charge of possession 

of methamphetamine with intent to distribute required the State to prove Scheuerman

possessed at least 1 gram but less than 3.5 grams of methamphetamine. Scheuerman's 

stipulation to possessing at least 3.5 grams of methamphetamine is insufficient evidence 

to support a conviction of this charge because the quantity of drugs he possessed is in 

excess of the charged amount.

Scheuerman's conviction of possession of methamphetamine with intent to 

distribute contrary to K.S.A. 2016 Supp. 21-5705(d)(3)(B) is reversed, and the

corresponding sentence is vacated.

Affirmed in part, conviction reversed, and sentence vacated.