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NOT DESIGNATED FOR PUBLICATION

No. 122,813

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

TIMOTHY HEDMAN JR.,

Appellant.

MEMORANDUM OPINION

Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed February 5, 2021.

Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., HILL and BUSER, JJ.

PER CURIAM: In this direct appeal, Timothy Hedman Jr. challenges his 

convictions of felony possession of tetrahydrocannabinol (THC) and misdemeanor 

possession of drug paraphernalia. Hedman claims that the State presented insufficient 

evidence to support his convictions and that the district court committed clear error by 

instructing the jury that the term "'drug paraphernalia' includes a vaping device." We 

reject both claims and affirm the district court's judgment.
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FACTS

On June 30, 2019, Clay Center Police Chief Bill Robinson was working an 

investigation that led him to a house on McBrathney Street. When he arrived at the 

house, Hedman was sitting in the yard. Hedman identified himself and because Robinson 

believed there was an outstanding arrest warrant for Hedman, he asked Officer Tiffany 

Dahlquist to check with dispatch for warrants. The dispatcher confirmed that there was a 

warrant for Hedman's arrest, so Dahlquist arrested and handcuffed Hedman.

Robinson began to search Hedman's pockets incident to the arrest, and he found 

that "Hedman's pockets were crammed full of stuff." Robinson retrieved flashlights, a 

hose clamp, a pocketknife, and a bottle of fluid that Hedman identified as "vape fluid."

Hedman also told Robinson that his broken vaping pen was in his pocket and he was at 

the house to get parts to fix his vaping pen. There were so many items in Hedman's 

pockets that Robinson could not hold all of them in his hands, so he and Dahlquist 

walked Hedman to a police car to continue the search.

Officer Scott Galindo arrived at the scene and Robinson asked Galindo to

complete the search of Hedman. Galindo retrieved additional items from Hedman's 

pockets, including parts of a vaping device and cartridges for a vaping device. When 

Galindo pulled the vaping device parts from Hedman's left pocket, Hedman said that the 

other parts to his vaping pen were in another pocket. At no point during the encounter did 

Hedman say that the vaping device parts did not belong to him.

After returning to the law enforcement center, Galindo began a more thorough 

inventory of the items from Hedman's pockets. Galindo had been working with vaping 

devices for five years and had assembled and disassembled them. He believed that the 

parts from Hedman's pockets could be assembled into a complete vaping device. And

although Galindo believed that vaping devices were more commonly used to ingest 
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nicotine than to ingest illegal drugs, Galindo noticed that the liquid in two of the

cartridges recovered from Hedman was darker and thicker than the type of liquid he 

associated with nicotine products used for vaping. Suspecting that the liquid was not a 

tobacco product, Galindo field tested one of the suspicious cartridges and, when the field 

test showed the presence of marijuana or THC, he gave that cartridge and one other to 

Dahlquist to send to the Kansas Bureau of Investigation (KBI) for more testing.

Hedman was informed of his Miranda rights and agreed to speak with Dahlquist at 

the law enforcement center. When Dahlquist told Hedman that the cartridges from his 

pockets appeared to contain THC, Hedman said for the first time that he had just obtained

those parts that day at the house where he had first encountered the police. Hedman said 

he did not know that the cartridges contained marijuana.

On July 23, 2019, the State charged Hedman with one count of felony possession 

of marijuana and one count of misdemeanor possession of drug paraphernalia. The State 

later amended the charges to one count of felony possession of marijuana and/or THC 

and one count of misdemeanor possession of drug paraphernalia.

Hedman's one-day jury trial was held on January 10, 2020. Robinson, Galindo, 

and Dahlquist testified for the State. KBI chemist Patrick Porubsky, who tested the 

cartridges, testified that the residue contained THC. The State also showed the jury 

excerpts from body camera footage recorded during Hedman's initial encounter with 

police and his later interview with Dahlquist at the law enforcement center.

Hedman testified on his own behalf. He stated that on the day of his arrest, he was 

working at the house with a woman named Aprille, who lived there. While working, he 

found various vaping pen parts scattered about, so he asked Aprille if he could buy them 

from her and he put them into a bag, intending to use them to fix some vaping pens he 

had at his mother's home. Hedman said he did not look closely at the parts as he collected 
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them because he was working. He explained that he told the officers that the parts were 

his because he "had just bought them" and he did not mention at first that he had just 

bought them because he did not think it was relevant. Hedman maintained that none of 

the parts the officers found on him were his before that day. After hearing all the 

evidence, the jury found Hedman guilty of both charges.

On March 19, 2020, the district court sentenced Hedman to a controlling sentence 

of 14 months' imprisonment but granted probation for 18 months. Hedman timely 

appealed the district court's judgment.

SUFFICIENCY OF THE EVIDENCE

Hedman first claims that the State presented insufficient evidence to support his 

convictions. More specifically, he contends that the State presented insufficient evidence 

that he knew the cartridges contained THC residue. The State disagrees.

"'When a criminal defendant challenges the sufficiency of the evidence used to 

support a conviction, an appellate court looks at all the evidence "in a light most 

favorable to the State to determine whether a rational factfinder could have found the 

defendant guilty beyond a reasonable doubt." A reviewing court "generally will 'not 

reweigh evidence, resolve evidentiary conflicts, or make witness credibility 

determinations.'" [Citations omitted.]'" State v. Gonzalez, 311 Kan. 281, 286, 460 P.3d 

348 (2020).

The State charged Hedman with felony possession of marijuana and/or THC in 

violation of K.S.A. 2018 Supp. 21-5706(b)(3) and (b)(7). The State charged Hedman 

with misdemeanor possession of drug paraphernalia in violation of K.S.A. 2018 Supp. 

21-5709(b)(2). To obtain a conviction, the State needed to prove that Hedman unlawfully 

possessed THC and that he possessed a vaping device with the intent to use it to store or 

inhale THC. Hedman argues that the State failed to prove that he unlawfully "possessed"
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THC because he had just bought the parts for the vaping pen on the day of his arrest and 

he did not know that the cartridges contained THC residue.

"Possession" means having joint or exclusive control over an item with knowledge 

of and the intent to have such control or knowingly keeping some item in a place where 

the person has some measure of access and right of control. K.S.A. 2020 Supp. 21-

5701(q). As for controlled substances, Kansas appellate courts follow the majority view 

that the proof of the possession of any amount of a controlled substance is sufficient to 

sustain a conviction even though such amount may not be measurable or usable. See, e.g., 

State v. Brown, 245 Kan. 604, 613-14, 783 P.2d 1278 (1989); State v. Lundquist, 30 Kan. 

App. 2d 1148, 1151, 55 P.3d 928 (2002).

Hedman concedes that the State presented evidence that he physically possessed 

vaping cartridges that tested positive for THC, but he argues that the State failed to 

sufficiently prove that he knew the cartridges contained a controlled substance. In 

support, he cites State v. Rizal, 310 Kan. 199, 208, 445 P.3d 734 (2019), in which our

Supreme Court reiterated that "to sustain a conviction for possession of a controlled 

substance," the State must "prove that a defendant knew about the nature of the substance 

possessed." Kansas courts have recognized that "[p]ossession of a controlled substance 

requires specific intent to exercise control over the substance, with knowledge of the 

nature of the substance." (Emphasis added.) State v. Keel, 302 Kan. 560, Syl. ¶ 1, 357 

P.3d 251 (2015). And as the court noted in Rizal, "a mistake of fact about the nature of a 

controlled substance—meaning the actual belief that it is 'some other lawful substance 

that is not controlled—could negate the knowledge requirement." 310 Kan. at 209.

Hedman focuses on this language, arguing that the evidence showed he did not 

know the cartridges contained THC so there was insufficient evidence to support his 

conviction of possession of THC. He also argues that his lack of knowledge that the 
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cartridges contained THC "negates any finding that the State proved the required element 

that Hedman had the vape pen with the intent to use it as drug paraphernalia."

As Hedman points out, he testified at trial that he had just bought the cartridges 

that day and did not know the cartridges contained THC until Dahlquist told him at the 

law enforcement center. Dahlquist and Porubsky both testified that they could not tell just 

by looking at the cartridges whether they contained THC. Dahlquist and Galindo both 

testified that none of the parts or cartridges were marked in a way that revealed they 

contained THC or marijuana. Galindo also testified that vaping devices are more 

commonly used to ingest nicotine and that although he did not remember finding tobacco 

in Hedman's pocket, he would not dispute it if the body cameral footage showed that he 

did. Hedman asserts that "[t]his all points to the conclusion that Hedman did not know 

that there was residual THC in the vape pen."

Resolution of this issue is controlled by our standard of review. When a defendant 

challenges the sufficiency of the evidence to support a conviction, an appellate court 

looks at all the evidence in a light most favorable to the State to determine whether a 

rational fact-finder could have found the defendant guilty beyond a reasonable doubt.

Gonzalez, 311 Kan. at 286. Appellate courts do not reweigh evidence, resolve evidentiary 

conflicts, or make witness credibility determinations. 311 Kan. at 286. And a conviction 

of even the gravest offense can be based entirely on circumstantial evidence and the 

inferences fairly deducible therefrom. Rizal, 310 Kan. at 209-10.

The State's evidence established that Hedman possessed in his pockets materials 

necessary to make a vaping pen. Galindo testified that the dark color of the liquid in the 

cartridges tipped him off that the vaping pen was being used for marijuana. Porubsky

testified that the cartridges found on Hedman tested positive for THC residue. As the 

district court instructed the jury, it is unlawful to possess any amount of a controlled 

substance, even though such amount may not be measurable or usable.
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Hedman testified that he had just bought the vaping items and did not realize that 

they contained THC residue. This testimony, if believed by the jury, would have 

supported a not guilty verdict. But apparently the jury did not believe Hedman's 

testimony and appellate courts do not reweigh evidence or make witness credibility 

determinations. And any conviction can be based entirely on circumstantial evidence. 

The jury could have reasonably inferred from the evidence presented by the State that 

Hedman knew the vaping cartridges contained THC residue and that he intended to use

the vaping device to inhale THC. Viewing the evidence in a light most favorable to the 

State, we conclude there was sufficient circumstantial evidence to support Hedman's 

convictions of possession of THC and possession of drug paraphernalia.

Finally, we note that the record on appeal does not contain all the evidence that 

was before the jury. The jury saw body camera footage of the search and video of 

Dahlquist interviewing Hedman at the law enforcement center, but this video is not 

included in the record on appeal. When a defendant challenges the sufficiency of the 

evidence to support a conviction, an appellate court must review all the evidence in a 

light most favorable to the State to determine whether a rational fact-finder could have 

found the defendant guilty beyond a reasonable doubt. Gonzalez, 311 Kan. at 286. As the 

party claiming error, Hedman has the burden to provide a record that affirmatively shows 

prejudicial error. State v. Simmons, 307 Kan. 38, 43, 405 P.3d 1190 (2017). Because 

Hedman failed to provide this court with all the evidence presented to the jury that 

convicted him, his sufficiency of the evidence claim could fail for this reason alone. But 

more importantly, we find the evidence that Hedman did provide for us to review was 

sufficient to support his convictions based on our standard of review.

JURY INSTRUCTION ISSUE

Hedman next claims that the district court committed clear error by instructing the 

jury that the term "'drug paraphernalia' includes a vaping device." Hedman argues that the 
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jury instruction amounted to taking a question of fact away from the jury. The State 

argues that the district court did not err in instructing the jury.

The district court gave three jury instructions specific to the charge of possession 

of drug paraphernalia. Instruction No. 7 stated:

"The defendant is charged with unlawfully possessing drug paraphernalia with 

the intent to use it. He pleads not guilty.

"To establish this charge, the State must prove each of the following claims:

"1. The defendant possessed a vaping device with the intent to use it as drug 

paraphernalia to store, contain, inject, ingest, inhale or otherwise introduce 

into the human body THC.

"2. This act occurred on or about the 30th day of June, 2019, in Clay County, 

Kansas.

"'Possession' means having joint or exclusive control over an item with 

knowledge of and the intent to have such control or knowingly keeping some item in a 

place where the person has some measure of access and right of control.

"A defendant acts intentionally when it is the defendant's desire or conscious 

objective to do the act complained about by the State.

"A defendant acts knowingly when the defendant is aware of the nature of his or 

her conduct that the State complains about or of the circumstances in which he or she was 

acting."

Instruction No. 8 stated:

"In determining whether an object is drug paraphernalia, you shall consider, in 

addition to all other logically relevant factors, the following:

"1. The proximity of the object, in time and space, to a direct commission of 

a drug crime.

"2. The proximity of the object to controlled substances.

"3. The existence of any residue of controlled substances on the object.

"4. Expert testimony concerning the object's use."
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And Instruction No. 9 stated: "'Drug paraphernalia' means all equipment, and 

materials of any kind which are used or primarily intended or designed for use to store, 

contain, inject, ingest, inhale or otherwise introducing [sic] into the human body a 

controlled substance. 'Drug paraphernalia' includes a vaping device."

Hedman argues that the district court erred by instructing the jury that "'[d]rug 

paraphernalia' includes a vaping device" because doing so removed from the jury the 

question of fact on whether the vaping device constituted drug paraphernalia. The State 

argues that the Kansas Supreme Court has already decided this issue in its favor, citing 

Keel, 302 Kan. at 569-70.

"Appellate courts analyze each jury instruction claim under a three-step process: 

(1) whether the court can or should review the issue, that is, whether there is a lack of 

appellate jurisdiction or whether there was a failure to preserve the issue; (2) the merits of 

the claim; and (3) whether any error found was harmless. If the defendant did not make a 

contemporaneous objection to a jury instruction, appellate courts will review the claim of 

error for clear error. [Citations omitted.]" State v. Patillo, 311 Kan. 995, 1013, 469 P.3d 

1250 (2020).

Hedman did not object at trial to the jury instruction he now challenges, so this 

court reviews for clear error. This court finds clear error only if "it is 'firmly convinced 

that the jury would have reached a different verdict had the instruction error not 

occurred."' State v. Gray, 311 Kan. 164, 173, 459 P.3d 165 (2020). Hedman bears the 

burden to establish clear error and this court considers the entire record to determine 

whether he has met that burden. See 311 Kan. at 173.

Hedman admits that the Kansas Supreme Court has rejected the argument he now 

makes. In Keel, the Kansas Supreme Court held that, when considered in the context of 

the jury instructions as a whole, an instruction that stated "'[d]rug paraphernalia' shall 

include, but is not limited to: (1) Pipes, [and] (2) Bongs," was not clear error. 302 Kan. at 
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569-70. The district court in Keel also instructed the jury that the State had to prove 

"'[t]hat the defendant intentionally possessed drug paraphernalia to use to ingest, inhale or 

otherwise introduce into the human body methamphetamine and/or marijuana." 302 Kan. 

at 569. And it instructed the jury to consider all relevant factors to determine whether an 

object is drug paraphernalia. 302 Kan. at 570. The Kansas Supreme Court held that 

"[r]eading the instructions as a whole, they informed the jury that it had to do more than 

simply find that Keel was the possessor of a bong and/or pipes; it had to find that he was 

using or intended to use the items as paraphernalia facilitating the intake of controlled 

substances." 302 Kan. at 570.

The Keel court cited its prior holding in State v. Sisson, 302 Kan. 123, 351 P.3d 

1235 (2015), which "addressed a nearly identical argument" and "approved similar 

instructions regarding scales used as drug paraphernalia." Keel, 302 Kan. at 570. As in 

Keel, the Kansas Supreme Court in Sisson noted that other jury instructions required the 

State to prove "'[t]hat the defendant intentionally possessed with the intent to use scales 

as drug paraphernalia to distribute cocaine'" and instructed the jury that it should consider 

"'all other logically relevant factors'" to decide "'whether an object is drug 

paraphernalia.'" 302 Kan. at 131. Reading the instruction as a whole, the Sisson court 

found that the instructions were not erroneous because "they informed the jury that it had 

to do more than simply find that Sisson was the possessor of scales; it had to find that he 

was using or intended to use the scale as paraphernalia for use in distributing controlled 

substances." 302 Kan. at 132.

Sisson and Keel control the outcome of this issue for Hedman. As in those cases, 

the district court here instructed the jury that the State needed to prove that Hedman 

"possessed a vaping device with the intent to use it as drug paraphernalia to store, 

contain, inject, ingest or otherwise introduce into the human body THC." It also 

instructed the jury to consider "all other logically relevant factors" when deciding 

whether an object is drug paraphernalia. As pointed out in Sisson and reiterated in Keel, 
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"[w]hen reviewing jury instructions, an appellate court considers all the instructions 

together as a whole and does not isolate any one instruction." Sisson, 302 Kan. 123, Syl. 

¶ 5; Keel, 302 Kan. at 570 (citing Sisson).

Thus, under Sisson and Keel, the district court did not commit clear error by giving 

a jury instruction that defined "drug paraphernalia" to include a vaping device. As 

Hedman acknowledges, "[t]he Kansas Court of Appeals is duty bound to follow the 

precedent of the Kansas Supreme Court." See State v. Vrabel, 301 Kan. 797, 809, 347 

P.3d 201 (2015). Hedman asserts that the Kansas Supreme Court should revisit the issue 

and reconsider its previous holdings, but "[i]f the Supreme Court's holding needs to be 

refined, modified, or overturned, it is the province of the Supreme Court to effect that 

change, and until that happens, the Court of Appeals is duty bound to follow the existing 

precedent." 301 Kan. at 810.

Affirmed.