Opinion
No. 105,851.
2012-06-1
STATE of Kansas, Appellee, v. Kyle D. MOORE, Appellant.
Appeal from Harvey District Court, Richard B. Walker, judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Ronald D. Innes, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Harvey District Court, Richard B. Walker, judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Ronald D. Innes, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MCANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kyle Moore appeals his drug conviction and sentence, arguing that the district court erroneously failed to define “controlled substance” for the jury and to specify which substance Moore was accused of intending to manufacture. Moore also argues that the district court incorrectly sentenced him for a drug severity level 2 crime instead of drug severity level 4 crime.
This all started when Detective Nef Torres followed Moore to the home of a friend after Moore and his companion were seen purchasing several packages of pseudoephedrine cold medicine at a pharmacy. When Torres confronted him, Moore told Torres that he purchased the pseudoephedrine in order to give to someone in Hutchinson who was going to use it to manufacture methamphetamine. Moore said he would provide additional information about the person in Hutchinson if Torres promised not to take Moore to jail. Torres responded that he could not make such a promise. Moore was arrested, charged, tried, and found guilty of possession of pseudoephedrine with intent to manufacture a controlled substance. The district court sentenced Moore to 55 months in prison and 36 months' postrelease supervision. Conviction
Moore's first challenge is to his conviction. He claims that the district court erroneously failed to instruct the jury on what constitutes a “controlled substance” under Kansas law. According to Moore, this failure constitutes reversible error because, without the definition, the jury could not know that the substance Moore was accused of manufacturing was an unlawful controlled substance. In other words, without a definition the jury would not know that methamphetamine is a controlled substance. Moore did not object at trial to the offending instruction, so in our review we apply the clearly erroneous standard. “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
Moore was convicted of violating K.S.A.2009 Supp. 21–36a09(a), which criminalizes possession of pseudoephedrine “with an intent to use the product to manufacture a controlled substance.” The court instructed the jury at trial:
“The defendant is charged with the crime of possession of pseudoephedrine with intent to use the product to manufacture a controlled substance. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant knowingly possessed pseudoephedrine with intent to use the product to manufacture a controlled substance; and
“2. That this act occurred on or about the 1st day of October, 2009, in Harvey County, Kansas.
“ ‘Manufacture’ means the production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly, by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. ‘Manufacture’ includes any packaging or repackaging of the substance or labeling or relabeling of its container.”
This claim of error clearly is doomed under our standard of review. Moore does not contend that methamphetamine is not a controlled substance. Nor does he contend that if only the jury had known that methamphetamine was a controlled substance he would have been acquitted.
Under our standard of review, in order to find reversible error we would have to determine that if the court had properly instructed the jury that methamphetamine is a controlled substance, there is a real possibility that the jury would have rendered a different (and more favorable) verdict for Moore. See State v. Miles, 293 Kan. 46, Syl. ¶ 1, 259 P.3d 701 (2011). In other words, in order to succeed, Moore would have to argue that had the jury been properly instructed, there is a real possibility that the jurors would have said to each other during deliberations: “We know from the testimony that Moore bought the pseudoephedrine so it could be used in the manufacture of methamphetamine, but now that we know from the court's instructions that methamphetamine is a controlled substance, I think we ought to acquit him.” We are not convinced that this is a winning argument. In fact, we conclude that there is no real possibility that the jury would have returned a more favorable verdict for Moore had the jury been instructed that pseudoephedrine is a controlled substance.
State v. Richardson, 290 Kan. 176, 224 P.3d 553 (2010), which Moore relies on, is based on entirely different circumstances. In Richardson, the defendant was charged with criminal fleeing based upon having committed five or more moving traffic violations during the course of a police chase. The district court failed to instruct the jury on what constituted a moving violation. The Supreme Court noted:
“Jurors may rely on their common knowledge and experience in evaluating testimony. [Citations omitted.] If the meaning of moving violation were subject to common popular knowledge and understanding, there would be no need for administrative regulations defining the phrase and no need for statutes specifically including or excluding certain infractions from its definition. The definition of moving violation is not a simple matter of common knowledge among jurors.” 290 Kan at 181.
The court concluded that under the harmless error test it could not tell whether the jury found that the defendant committed at least five moving violations among the defendant's various acts, and whether all of those were truly moving violations.
In the case now before us the jury was not confronted with a variety of acts of the defendant. Moore was accused of one act: buying pseudoephedrine in order to make methamphetamine. The jurors heard the testimony of Detective Torres. He testified that he was a narcotics detective trained to investigate cases involving controlled substances. Within that general regimen of drug training he received specialized training on the illegal manufacture of methamphetamine. He received his training from the Drug Enforcement Administration and the Kansas Bureau of Investigation. He testified that each sale of pseudoephedrine is registered in the pharmacy and there is a limit on the amount of pseudoephedrine a customer may purchase. He explained how pseudoephedrine is used to manufacture methamphetamine. He testified that when he was on duty on the day of Moore's arrest he was dressed in street clothes: “[S]o that's how I'm able to become acquainted and be friends with folks that are selling drugs.” He recounted his observations of Moore buying pseudoephedrine and Moore's admissions to him shortly before Moore's arrest.
Based on this testimony and the application of the jurors' common knowledge, we have no hesitation in concluding that they were able to determine that the methamphetamine Moore intended to make was a controlled substance. Moore's first claim fails. Sentence
Moore was sentenced for violating K.S.A.2009 Supp. 21–36a09(a), a drug severity level 2 felony. He claims he should have been sentenced according to K.S.A.2009 Supp. 21–36a09(b)(1), which prohibits use of or possession with intent to use “any drug paraphernalia to ... [m]anufacture, cultivate, plant, propagate, harvest, test, analyze or distribute a controlled substance.” A violation of this statute is a drug severity level 4 felony. K.S.A.2009 Supp. 21–36a09(e)(2).
Moore relies on the holding in State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989): “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” Moore claims the elements in K.S.A.2009 Supp. 21–36a09(a) are identical to the elements in K.S.A.2009 Supp. 21–36a09(b) and, therefore, he should have been sentenced according to K.S.A.2009 Supp. 21–36a09(b)(1), the lesser penalty term of the two provisions.
Moore raises an issue of statutory interpretation, over which our review is unlimited. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Our Supreme Court recently addressed this issue in a pair of opinions released the same day. See State v. Adams, No. 101,392, 2012 WL 1139316 (Kan.2012) (published opinion); State v. Snellings, No. 101,378, 2012 WL 1144318 (Kan.2012) (published opinion). Adams and Snellings were each convicted of violating K.S.A.2007 Supp. 65–7006(a), which prohibits possession of any of several listed precursor items “with intent to use the product to manufacture a controlled substance.” Adams was convicted for possessing lithium metal; Snellings for possessing pseudoephedrine or ephedrine. A violation of the statute is a severity level 2 drug felony, and each defendant was sentenced accordingly. In their respective appeals, Adams and Snellings argued K.S.A.2007 Supp. 65–7006(a) was identical to another statute—K.S.A.2007 Supp. 65–4152(a)(3). Adams, 2012 WL 1139316, at *18;Snellings, 2012 WL 1144318, at *4. The latter statute was a severity level 4 drug felony. K.S.A.2007 Supp. 65–4152(c). It prohibited use of or possession with intent to use “any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack repack, sell or distribute a controlled substance.” K.S.A.2007 Supp. 65–4152(a)(3). Adams and Snellings claimed they should have been sentenced under K .S.A.2007 Supp. 65–4152(a)(3), the lesser penalty provision. Adams, 2012 WL 1139316, at *18;Snellings, 2012 WL 1144318, at *4.
Our Supreme Court agreed with Adams and Snellings, overruling State v. Dalton, 41 Kan.App.2d 792, 207 P.3d 257 (2008), rev. denied 287 Kan. 767 (2009). See Adams, 2012 WL 1139316, at *20;Snellings, 2012 WL 1144318, at *10–12. Dalton was convicted of possession of red phosphorus with intent to manufacture methamphetamine, in violation of K.S.A.2006 Supp. 65–7006(a), and was sentenced accordingly. He appealed, arguing that he should have been sentenced in accordance with K.S.A.2006 Supp. 65–4152(a)(3). Dalton's argument rested on State v. Campbell, 279 Kan. 1, 106 P .3d 1129 (2005), in which our Supreme Court held that a defendant convicted of possession of ephedrine was entitled to be sentenced under K.S.A.2000 Supp. 65–4152 for possession of drug paraphernalia instead of being sentenced under K.S.A.2000 Supp. 65–7006(a) for possession of ephedrine with intent to manufacture. At the time of Campbell, drug paraphernalia was statutorily defined as including “ ‘products and materials of any kind which are used or intended for use in ... manufacturing ... a controlled substance.” ’ (Emphasis added.) 279 Kan. at 4 (quoting K.S.A. 65–4150[c] ). The Campbell court relied on the fact that the word “product” was in the statute defining drug paraphernalia and in K.S.A.2000 Supp. 65–7006(a).
After Campbell, the legislature removed the word “product” from K.S.A. 65–4150, the statute that defined drug paraphernalia. See L.2006, ch. 194, sec. 33. The Dalton court found that by removing the word “product” “the legislature clearly communicated its intent that drug paraphernalia does not include the products listed in K.S.A.2006 Supp. 65–7006(a).” 41 Kan.App.2d at 795. The State has previously relied on Dalton to argue that precursor ingredients such as red phosphorus, pseudoephedrine, and ephedrine are not included in the statutory definition of drug paraphernalia.
In overruling Dalton, the Adams and Snellings decisions stated the presence of the word “material” in the statute defining drug paraphernalia maintains identical elements in the two statutes because “material” has the same meaning as “product” in the statute that defines drug paraphernalia. Adams, 2012 WL 1139316, at *20;Snellings, 2012 WL 1144318, at *11–12. In sum, the decisions resurrected the ruling from Campbell.
All of this is related to Moore's case because K.S.A.2008 Supp. 65–7006(a) is word-for-word identical to K.S.A.2009 Supp. 21–36a09(a). The only difference between the two statutes is that one is found in the criminal code and the other in the chemical control code. Both are classified as severity level 2 drug felonies. In July 2009—before Moore committed the offense in this case—the legislature repealed K.S.A.2008 Supp. 65–4152(a)(3), the statute Adams and Snellings successfully argued was identical to the statute under which each was convicted. Also in July 2009, the legislature enacted K.S.A.2009 Supp. 21–36a09; Moore was convicted under subsection (a) and claims he should have been sentenced under subsection (b)(1), which carries the lesser penalty term.
As Moore points out, the language of K.S.A.2008 Supp. 65–4152(a)(3) is markedly similar to K.S.A.2009 Supp. 21–36a09(b)(1). K.S.A 2008 Supp. 65–4152(a)(3) prohibits possession with intent to use “any drug paraphernalia to ... manufacture ... a controlled substance.” Similarly, K.S.A.2009 Supp. 21–36a09(b)(1) prohibits possession of “any drug paraphernalia” with intent to “[m]anufacture ... a controlled substance.” And the statutory definition of drug paraphernalia in place at the time of Moore's crime included “materials of any kind which are used ... in ... manufacturing ... a controlled substance.” (Emphasis added.) K.S.A.2009 Supp. 21–36a01(f).
Applying the analysis of Snellings and Adams to Moore's case, pseudoephedrine is a material of any kind under the statutory definition of drug paraphernalia in place at the time of Moore's crime. The rulings emphasized the presence of the word “material” in the definition of drug paraphernalia as creating identical elements between the statute prohibiting possession of drug paraphernalia to manufacture a controlled substance and the statute prohibiting possession of precursor ingredients with the intent to use them to manufacture a controlled substance. The word “material” was in the statutory definition of drug paraphernalia in place at the time of Moore's crime, therefore creating identical elements to the statute under which Moore was sentenced in this case.
We are duty bound to follow Kansas Supreme Court precedence, absent some indication the court is departing from its previous position. Buchanan v. Overley, 39 Kan.App.2d 171, 175–76, 178 P.3d 53,rev. denied 286 Kan. 1176 (2008). In Adams and Snellings, our Supreme Court could not have been clearer. Moore's assertion that K.S.A.2009 Supp. 21–36a09(a) is identical to K.S.A.2009 Supp. 21–36a09(b)(1) is correct. He should have been sentenced according to the lesser penalty provision under K.S.A.2009 Supp. 21–36a09(b)(1).
The judgment of the district court is affirmed in part and vacated in part, and the case is remanded to the district court. Moore's conviction is affirmed, and his sentence for his conviction under K.S.A.2009 Supp. 21–36a09(a) is vacated and the case is remanded with directions to resentence him to a severity level 4 drug felony as provided for a violation of K.S.A.2009 Supp. 21–36a09(b)(1).