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No. 103,700 IN THE COURT OF APPEALS OF THE STATE OF KANSAS KENNETH FROST, Appellant, v. DAVID R. MCKUNE, Appellee.

SYLLABUS BY THE COURT

A prison regulation, K.A.R. 44-12-903(b), provides that "[n]o inmate shall possess" certain contraband items, including tobacco. An inmate violates this regulation by mere possession of the contraband; proof of knowing possession is not required.

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed October 1, 2010. Affirmed.

Michael G. Highland, of Bonner Springs, for appellant.

Matthew J. Donnelly, legal counsel, Lansing Correctional Facility, for appellee.

Before STANDRIDGE, P.J., MARQUARDT and LEBEN, JJ.

LEBEN, J.: Inmate Kenneth Frost appeals his prison disciplinary sanction for possession of tobacco. He contends he didn't know that tobacco was in the sandwich being passed down by inmates from cell to cell; he says he thought that it was a sandwich and that he was just the unlucky one who was passing it along when a guard spotted the action. In this appeal, he claims that he was denied due process when he wasn't allowed
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to call two witnesses and that the evidence wasn't sufficient to convict him because no one showed he knew that tobacco was in the sandwich.

But the prison regulation at issue, K.A.R. 44-12-903(b), doesn't require knowledge: it boldly states that "[n]o inmate shall possess . . . tobacco products . . . ." Simple enough--Frost possessed the tobacco when the guard came by. And the witnesses who weren't called would merely have said that as far as they knew Frost didn't know tobacco was in the sandwich, a matter irrelevant in determining whether Frost had violated the regulation at issue.

According to the evidence presented to a prison hearing officer, Frost was awakened from his sleep one night by another inmate, Thomas Green, who wanted Frost to "pass a sandwich down the run" of cells. At the time, Frost was under administrative segregation, limiting his contact with other inmates, but he told Green that he'd help in passing the sandwich along. Green tossed the sandwich toward Frost's cell, but Frost couldn't reach it. He threw his bedsheet out of the cell to try to drag the sandwich toward him, but a corrections officer spotted the movement. Frost successfully gained possession of the sandwich just before the corrections officer came on the scene. The officer saw Frost pull the sandwich into his cell and asked Frost for the sandwich; Frost gave it to him. The officer found tobacco inside. Frost testified that he was just helping to pass the sandwich along, like everyone else, and that he had no idea there was tobacco inside it. The corrections officer brought a disciplinary charge against Frost for possession of tobacco in violation of K.A.R. 44-12-903(b). Frost was found guilty and given a loss of good-time credits of 6 months (which was suspended unless he had further violations) and a fine of $20. Because the fine affects Frost's property, he was entitled to a minimum level of due process. See Washington v. Roberts, 37 Kan. App. 2d 237, 240, 152 P.3d 660 (2007).

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Both of Frost's claims that we've mentioned thus are premised on the theory that if he didn't know tobacco was in the sandwich, then he didn't do anything wrong. But actual knowledge of possession is not what is prohibited here--mere possession of tobacco in prison violates K.A.R. 44-12-903(b). Its language is clear, and a properly adopted regulation has the force of law. Frost has not claimed on appeal either that K.A.R. 44-12903 was adopted in some procedurally defective manner or that it is unconstitutional. Accordingly, we apply it according to its terms.

We confirm our plain-language reading of K.A.R. 44-12-903(b) by noting that there is some obvious logic behind it. Prison officials need to control various types of contraband to maintain discipline and security, and proof that an inmate has knowingly possessed contraband can be difficult. So some states and prisons have chosen to outlaw mere possession of contraband, whether knowing possession can be proved or not. See, e.g., People v. Ramsdell, 230 Mich. App. 386, 391-99, 585 N.W.2d 1 (1998). The Kansas Secretary of Corrections obviously made that choice when K.A.R. 44-12-903(b) was adopted as written. If the Secretary had meant only to prohibit knowingly possessing contraband, the regulation could easily have said, "No person shall knowingly possess tobacco." We decline to read words into this regulation that would so greatly change its meaning given the obvious difficulties inherent in controlling contraband in a prison setting.

We acknowledge that another panel of our court read "knowingly" into a similar prison regulation, K.A.R. 44-12-901(c), which by its own terms states that "[n]o inmate shall possess . . . any dangerous contraband." See McCormick v. Werholtz, 2010 WL 2978148, at *4 (Kan. App. 2010) (unpublished opinion). The inmate in McCormick argued that the contraband regulation was unconstitutionally vague because it did not

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require knowing possession. We are unable to find anything vague in the language used in the Kansas prison regulations forbidding possession of contraband; the McCormick court concluded that the regulation wasn't vague in the way the inmate suggested because there was an implied knowledge requirement. 2010 WL 2978148, at *4. The McCormick court relied by analogy on a criminal statute forbidding the possession of marijuana with intent to sell, where there must be proof that the defendant had control of the substance with the intent to possess it. See State v. Rose, 8 Kan. App. 2d 659, Syl. & 4, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983). Whatever the rule may be when interpreting a criminal statute in a full criminal proceeding, we are unwilling to add the word "knowingly" to the clear language chosen by the Secretary of Corrections in K.A.R. 4412-903(b). See State v. Horn, 291 Kan. ___, Syl.

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