Opinion
No. 105,317.
2012-06-1
STATE of Kansas, Appellee, v. Larry G. OVERMAN, Appellant.
Appeal from Cherokee District Court; Oliver Lynch, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Appeal from Cherokee District Court; Oliver Lynch, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Larry Gene Overman appeals from his six drug convictions following a jury trial. On appeal, Overman raises three arguments. First, Overman argues that the State committed prosecutorial misconduct. We agree, but because of the overwhelming nature of the evidence against Overman, we find this error to be harmless. Next, Overman contends that the trial court erred in denying Overman's claim that his trial attorney was ineffective. We disagree. And finally, Overman maintains that the trial court erred in classifying one of Overman's convictions at sentencing. We agree. Accordingly, we affirm in part, vacate in part, and remand with directions to resentence Overman's conviction for possession of red phosphorous and iodine with intent to manufacture methamphetamine as a severity level 4 drug felony.
On March 24, 2008, at approximately 8 p.m., Officer David Holcomb went to Overman's trailer in Columbus, Kansas, to arrest him on a failure to appear warrant. Officer Holcomb knocked on the door, and Daniel Hart opened the door. Hart first denied that Overman was home but later whispered to Officer Holcomb that Overman was hiding in the trailer. Officer Holcomb saw someone move in the trailer, and he apprehended Overman.
When Officer Holcomb went inside the trailer to arrest Overman, he noticed several items associated with the manufacture of methamphetamine, including acetone, a baking dish with a red powdery substance in it, and a can of lighter fluid. When Officer Holcomb told Overman what the warrant was for, Overman told him that there might be some finished product in the trailer, but he did not know if there was. Officer Holcomb testified that he assumed Overman was referring to the completed powder methamphetamine.
Based on the items Officer Holcomb noticed while inside Overman's trailer, a search warrant was obtained. During the search, Kansas Bureau of Investigation (KBI) officers found the following items: a glass dish with red phosphorous residue, hydrogen peroxide containers, charcoal starter fluid, an electric hot plate with iodine stains, a black tin can with two plastic baggies of methamphetamine, a blue can of acetone, a blue funnel placed inside a glass container, coffee filters with red stains, an unlabeled pill bottle with 16 white pills, iodine, red paper towels, 50 match boxes with missing striker plates, HEET gas line antifreeze, drain cleaner, a glass jar with a 2–layer lid, a clear plastic bottle with red liquid, a 2–liter bottle with an unknown layered liquid, a red plastic funnel, digital scales, hydrochloric acid, a silver spoon with unknown residue, syringes, red straws, cotton balls, 3 glass tubes containing a burnt residue, a plastic pill bottle wrapped in black electrical tape with iodine crystals, a metal smoking device, plastic tubing with altered ends, and a glass jar with reddish stained rubber gloves. All of these items can be used to manufacture or use methamphetamine. Marijuana was also found in the trailer.
During the investigation, Officer Holcomb questioned Hart. Hart told Officer Holcomb that he had brought marijuana over to Overman's residence to smoke on the night Overman was arrested. Hart stated that he had been at Overman's for only 15–20 minutes before Officer Holcomb knocked on the door. Hart told Officer Holcomb that Overman asked Hart to lie to the officers about him not being home. Hart denied any knowledge about the chemicals or the methamphetamine in the trailer. At trial, Hart admitted that he had lied in his statement. Hart testified that he knew Overman was manufacturing methamphetamine, but he denied any knowledge about the manufacturing operation because he did not want to be charged with the crime.
The State charged Overman with manufacture of methamphetamine, possession of red phosphorous and iodine with the intent to use to manufacture a controlled substance, possession of methamphetamine, possession of marijuana, possession of paraphernalia with the intent to use to ingest a controlled substance, and use drug paraphernalia.
During the jury trial, Overman presented Michael Evans as an alibi witness. Evans testified that Overman had been trimming trees with him, but he could not remember exactly when that work was done. Evans testified that while they were working, Overman stayed with Evans for 2 days. After they finished the job, Evans and his wife dropped Overman off at his trailer around 5 or 6 p.m. Evans further testified that a couple of days later when he went to Overman's trailer he saw yellow tape on the trailer. Evans testified that he believed he had dropped Overman off on the night he was arrested, but Evans admitted that he was unsure about the time frame.
After hearing all of the evidence, a jury convicted Overman of all counts.
Did the State Commit Prosecutorial Misconduct?
Overman argues that the prosecutor committed misconduct during opening and closing statements. Overman contends that the prosecutor improperly appealed to the jury's sense of community and misstated the evidence. Overman requests that his conviction be reversed and his case be remanded for a new trial.
Overman concedes that he failed to object to the statements made by the prosecutor about which he now complains; however, because opening and closing arguments are not evidence, Overman was not required to contemporaneously object to preserve his claims of prosecutorial misconduct. State v. Hall, 292 Kan. 841, 846, 257 P.3d 272 (2011).
When analyzing prosecutorial misconduct claims, we apply a two-step framework. First, we must determine whether the prosecutor's comments were outside the wide latitude allowed prosecutors in discussing the evidence. If we find that the statements were outside the wide latitude, then we next must consider whether those statements constituted plain error; that is, whether the comments prejudiced the jury against the defendant and denied the defendant a fair trial. A finding of plain error requires reversal. Hall, 292 Kan. at 846 (citing State v. Richmond, 289 Kan. 419, 439, 212 P.3d 165 [2009];State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 [2004] ).
When analyzing whether the prosecutor's statements constitute plain error, we consider three factors to determine whether a new trial should be granted. The court must determine: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct reflected ill will on the prosecutor's part; and (3) whether the State's evidence is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these factors is individually controlling. “Before the third factor can override the first two factors, an appellate court must be able to say that the harmlessness test of both K.S.A. 60–261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.” Hall, 292 Kan. at 854 (quoting Richmond, 289 Kan. at 440).
Overman first takes issue with two similar comments that the prosecutor made during opening and closing arguments. First, Overman complains of the prosecutor's comments in opening arguments: “This case is about methamphetamine and how it gets into your community. Methamphetamine gets in your community because someone manufactures it, someone like the defendant Larry Overman.”
The prosecutor made a similar statement during closing arguments:
“You recall that during my opening statement I told you that this case was about methamphetamine and how it gets into your community. Now you have heard how methamphetamine gets into your community. Methamphetamine gets into your community because someone manufactures it. You've heard the evidence in this case. And based upon that evidence you can determine that the person who manufactured methamphetamine on March 24, 2008, in Columbus, Cherokee County, Kansas is defendant Larry G. Overman.”
Overman argues that the prosecutor made these comments to inflame the prejudices of the jury and to ask the jury to protect the community.
“ ‘Prosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law .’ “ Hall, 292 Kan. at 853 (quoting State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 [2006]; see Tosh, 278 Kan. at 90, 98;State v. Henry, 273 Kan. 608, 641, 44 P.3d 466 [2002] ).
To support his argument, Overman relies on State v. Witten, 45 Kan.App.2d 544, 251 P.3d 74 (2011), rev. denied October 7, 2011. In Witten, our court held that the prosecutor improperly attempted to inflame the passions of the jury by stating:
“We know about the drug activities. We know things are going on. We hear about methamphetamines and now we're addressing a real problem. We're addressing a real situation. Somebody in our community is selling methamphetamines. Now it's up to you and I ask you to find Mr. Witten guilty on both counts.” 45 Kan.App.2d at 553.
In finding that the prosecutor's statements were improper, the Witten court relied on State v. Finley, 273 Kan. 237, 245, 42 P.3d 723 (2002), which held that a prosecutor's comment that “ ‘we don't want people making meth in our communities' “ and a comment regarding on preventing “ ‘people from making meth in our community’ “ were improper because these comments inferentially asked the jury to render a verdict to protect the community. Witten, 45 Kan.App.2d at 553. In relying on Witten, Overman ignores the fact that the Witten court went on to find that although the prosecutor's comments were outside the wide latitude allowed to prosecutors, the misconduct constituted harmless error because of the overwhelming evidence against Witten.
Based on Witten and Finley, we find that the prosecutor's statements in this case were improper and that they intended to appeal to the passions of the jurors.
Now that we have determined that the prosecutor's comments were outside the wide latitude given to prosecutors, we must next decide whether those comments prejudiced the jury and denied Overman a fair trial. As the court stated in Witten, “[o]ur appellate courts have repeatedly reminded prosecutors to abstain from making the comments that appeal to the passions of the jurors. Prosecutors have to know by now that an argument exhorting jurors to be the conscience of the community is highly improper.” 45 Kan.App.2d at 554. Based on the caselaw that clearly disapproves of such comments, we determine that the prosecutorial misconduct must be considered gross and flagrant.
That leads us to the second factor which is whether the prosecutor's misconduct demonstrates ill will. Statements constitute ill will when the statements were intentional and not made in good faith. Tosh, 278 Kan. at 94. As stated earlier, Overman admitted that he failed to object to the prosecutor's statements. “While the lack of such an objection does not preclude this court from reviewing the prosecutorial misconduct issue, it nevertheless may play into our examination of whether the comments were made out of ill will.” State v. Miller, 284 Kan. 682, 720, 163 P.3d 267 (2007). Neither Overman nor the court gave the prosecutor any reason to believe that his comments were unacceptable. And although the prosecutor should have been aware that such comments were not permitted, the comments were limited to a couple of sentences in opening and closing arguments. Based on these facts, we conclude that the prosecutor's statements did not constitute ill will.
Finally, that brings us to the third factor, whether the prosecutor's comments were harmless in light of the entire record. Based on the record, we conclude that the State's evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. In this case, there was ample evidence that Overman was guilty of manufacturing methamphetamine. Overman conceded that there was overwhelming evidence of a methamphetamine lab in his trailer, but he denied that he was the one manufacturing it. Although Overman denied that the methamphetamine lab was his, it was located in his trailer, and numerous items were found in his drawers, cabinets, and near his bed. There was also evidence that Overman was home for at least a couple of hours before the officers came to arrest him. This means that if Overman was not the one manufacturing the methamphetamine he would have at least been aware that someone else was manufacturing methamphetamine in his trailer. Moreover, the testimony from Overman's only alibi witness was vague and he was unsure on the time frame. Based on all of this evidence, we conclude that the prosecutor's comments were harmless beyond a reasonable doubt.
In light of our assessment and conclusion that the prosecutor's comments were not motivated by ill will, and that the evidence against Overman was so overwhelming as to render the comments harmless beyond a reasonable doubt, we conclude that the prosecutor's comments, although improper to the point of being gross and flagrant, did not deny Overman a fair trial and so no reversal is required. Once again, we want to remind prosecutors to refrain from making these comments that appeal to the passions of the jurors. It is well known that statements that ask the jurors to be the conscience of the community are highly improper. And while we find that the statements in this case were harmless, we in no way condone these types of statements.
Misstatement of evidence
Next, Overman takes issue with comments that the prosecutor made during his rebuttal argument. Overman complains of the prosecutor's following statements: “Ladies and Gentlemen, every witness in this case has stated there is no reasonable doubt as to who manufactured methamphetamine on March 24, 2008. Larry Overman did.”
On appeal, Overman contends that the prosecutor committed misconduct when he told the jury that “every witness in this case has stated there is no reasonable doubt as to who manufactured methamphetamine on March 24, 2008. Larry Overman did.” Overman argues that there is no such testimony at trial and, therefore, the prosecutor was improperly stating facts not in evidence. Overman maintains that this misstatement was significant because the main issue was whether Overman was the one who was actually manufacturing the methamphetamine.
Our Supreme Court has held that in a closing argument, a prosecutor may draw reasonable inferences from the evidence but may not comment upon facts outside the evidence. See State v. Murray, 285 Kan. 503, 512, 174 P.3d 407 (2008). “A prosecutor ‘is given wide latitude in language and in manner [of] presentation of closing argument as long as the argument is consistent with the evidence. [Citation omitted.]’ “ State v. Warledo, 286 Kan. 927, 947, 190 P.3d 937 (2008). Additionally, when a prosecutor argues facts not in evidence, the first prong of the prosecutorial misconduct test is met, and we must consider whether the misstatement of fact constitutes plain error. State v. Ly, 277 Kan. 386, Syl. ¶ 4, 85 P.3d 1200,cert. denied541 U.S. 1090 (2004).
To understand the prosecutor's statement made in rebuttal argument, it is important to first look at Overman's closing argument. In Overman's closing argument, his attorney argued that the jury should not find Overman guilty of manufacturing methamphetamine because numerous items, discovered in the search of his trailer, were not submitted for fingerprinting. Overman further argued that had the items been submitted for fingerprinting, it would have created reasonable doubt. At least three times throughout Overman's closing argument, his attorney stated: “Every witness that testified in this case gives you reasonable doubt, every one.” Then, in response, the State opened its rebuttal argument with the complained-of comment of “every witness in this case has stated there is no reasonable doubt as to who manufactured methamphetamine on March 24, 2008. Larry Overman did.” Clearly, the complained-of statement made in rebuttal was in response to Overman's closing argument. The State went on to explain why certain items were not submitted for fingerprinting. The State further explained that the evidence in this case is circumstantial but that this circumstantial evidence clearly explains why the manufacturing items were in Overman's house.
Based on the record, Hart was the only witness to testify that Overman was the one who was manufacturing methamphetamine. The other witnesses who testified for the State were either officers or scientists who had no personal knowledge of who did the manufacturing, and therefore, they were not asked whether Overman was the one who manufactured the methamphetamine. Moreover, the only witness who testified on behalf of Overman was his alibi witness whose testimony was vague, and the alibi witness also admitted that he was not sure about the time frame of his testimony.
Therefore, we conclude that the prosecutor's misstatement of the evidence was not gross and flagrant and did not constitute ill will. The statement was clearly made in response to the defense's closing argument, and the misstatement was said only once and was further explained how it was supported by circumstantial evidence. Additionally, based on the overwhelming nature of the evidence, the misstatement was not likely to change the result of the trial.
Did the Trial Court Err in Determining that Overman's Trial Attorney was not Ineffective?
Next, Overman contends that the trial court erred in determining that his trial attorney was not ineffective. Overman maintains that the evidence found in his trailer was the result of an illegal search and that his attorney was ineffective for failing to object to the admission of this evidence.
In this case, Overman filed a motion for habeas corpus which the trial court treated as a motion for a new trial. A hearing on this motion occurred on August 16, 2010. At the hearing, the trial court addressed the suppression issue dealing with whether the search was illegally done and the trial court also addressed whether Overman's trial counsel was ineffective. Overman had the opportunity to testify as did his trial attorney, Robert Myers. Jon Rankin, the KBI officer who took the photographs at issue, also testified at the hearing.
When reviewing a denial of a K.S.A. 60–1507 motion following an evidentiary hearing before the trial court, an appellate court reviews the court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Appellate review of the trial court's ultimate conclusions of law is de novo. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007).
Substantial competent evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007).
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Consequently, the appellate court “reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
To merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently is insufficient. Rather, before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Overman argues that, Myers, his trial attorney, was ineffective for failing to object to the introduction of evidence from an illegal search. Overman contends that had Myers objected to the introduction of this evidence, then the evidence would have been suppressed or, at the least, would have given the trial court the opportunity to suppress it.
At the hearing, Overman testified that he did not think Myers did an adequate job representing him. Overman testified that Myers had failed to subpoena a witness, Cory McKinney, to support Overman's defense and that Myers had failed to object to evidence that was found during an illegal search. After further questioning, Overman admitted that he did not tell Myers about McKinney until after trial. And although Overman could not point to anything specifically that Myers failed to do, he testified that he wanted a new attorney and that he was uncomfortable with Myers representing him.
Myers testified that he did not have any knowledge of McKinney and that he had found out about the alibi witness very shortly before the trial. Myers further testified that the week before trial he met with Overman several times and that they discussed their trial strategy. Myers testified that Overman did not ask him to subpoena any other witnesses. Myers also testified that he thought the photographs had a proper foundation to be admitted and that he did not see a reason to object to them.
After hearing the testimony, the trial court concluded that Overman's motion for a new trial should be denied. The trial court held that the evidence would have still been admissible and the difference in the time and date on the photographs would have gone to the weight of the evidence rather than its admissibility. Additionally, the trial court denied Overman's claim that his trial attorney was ineffective. The trial court noted that there had been considerable preparation done as well as considerable discussions between Overman and his attorney. The trial judge stated: “As someone said there's no way to have filed a notice of alibi without doing some meeting, discussing and some preparation. So I think that argument fails as well.”
Based on the fact that Overman failed to show how Myers representation was deficient and based on Myers testimony that directly contradicted Overman's testimony, we find that substantial competent evidence supports the trial court's conclusion that Myers provided effective assistance of counsel.
Did the Trial Court Err in Classifying One of Overman's Convictions at Sentencing?
Finally, Overman appeals his sentence, arguing that one of his convictions was assigned the wrong severity level by the sentencing court. Overman contends that the identical offense sentencing doctrine applies. Overman argues that an offense of possession of red phosphorous and iodine with intent to manufacture methamphetamine as defined in K.S.A. 65–7006(a), a severity level 2 drug felony, must be classified as a severity level 4 drug felony because it has identical elements to the offense of possession of drug paraphernalia with intent to manufacture a controlled substance as defined in K.S.A. 65–4152(a)(3), which is a severity level 4 drug felony. Under Supreme Court Rule 6.09(b) (2011 Kan. Ct. R. Annot. 49), the State filed a letter of additional authority conceding this issue.
Under the identical offense sentencing doctrine, “ ‘[w]here 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.’ “ State v. Cooper, 285 Kan. 964, 966–67, 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 [1989] ). One example of where offenses may have identical provisions, as argued in this case, is where some provisions in two statutes overlap, the overlapping provisions apply to the charged crime, and the overlapping provisions are identical except for the penalty provisions. See State v. Campbell, 279 Kan. 1, 14–15, 106 P.3d 1129 (2005).
To determine whether two statutes contain identical provisions we are required to interpret the relevant statutes which presents a question of law subject to unlimited review. Cooper, 285 Kan. at 966.
Overman argues that this issue is controlled by State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005). In Campbell, our Supreme Court held that a charge for possession of ephedrine with the intent to use it to manufacture a controlled substance under K.S .A. 65–7006(a) was identical to a charge of possession of drug paraphernalia with the intent to use it to manufacture a controlled substance under K.S.A. 65–4152(a)(3). Campbell, 279 Kan. 1, Syl. ¶ 4. The Campbell court based this holding on the statute's definition, at the time, which stated that drug paraphernalia included “products and materials of any kind” used to make a controlled substance. 279 Kan. at 16. The Campbell court also noted that K.S.A. 65–7006(a) referred to ephedrine as a “product.” 279 Kan. at 16. Because both K.S.A. 65–4150(c) and K.S.A. 65–7006(a) included the term “products,” our Supreme Court held that the provisions overlapped. Based on that overlap, the Campbell court held that the elements were identical under both statutes and that the defendant must be sentenced under the statute with the lesser penalty. 279 Kan. at 16–17. In reaching this conclusion, the Campbell court approved of State v. Frazier, 30 Kan.App.2d 398, 42 P.3d 188,rev. denied 274 Kan. 1115 (2002), which also applied the identical offense sentencing doctrine to reach a similar result.
Since Campbell, the legislature amended K.S.A. 65–4150(c) to remove the word “products.” The amended statute still includes as drug paraphernalia “equipment and materials of any kind.” K.S.A. 65–4150(c). The State argues that the amendments removed the overlapping provisions so that the elements of the two statutes are no longer identical. To support its argument, the State cites State v. Dalton, 41 Kan.App.2d 792, 795, 207 P.3d 257 (2008), rev. denied 287 Kan. 767 (2009), which held that the amended statutes are no longer identical. On the other hand, Overman argues that the legislature failed to remove all of the overlapping and identical elements, meaning the holdings in Campbell and Frazier still apply and only the less severe sentence can be imposed.
In relying on Campbell and Frazier, Overman argues that red phosphorous and iodine are “materials” used in the manufacture of a controlled substance. Overman acknowledges that this issue was previously decided against him in Dalton, but he contends that Dalton was incorrectly decided.
Very recently, our Supreme Court addressed this same argument in State v. Snellings, 294 Kan. ––––, 273 P.3d 739 (Case No. 101,378 filed April 6, 2012). Our Supreme Court explained how the legislature's removal of the word “products” flowed from the Campbell court's focus on that word, but that the legislature ignored the Frazier court's holding when it failed to remove the word “materials.” Snellings, slip op. at 11. The Frazier court held that “[e]phedrine and pseudoephedrine fall within the definition of drug paraphernalia because they are materials used to manufacture a controlled substance.” (Emphasis added.) Frazier, 30 Kan.App.2d at 405. The Snellings court held that “the Campbell court's focus on ‘products' in K.S.A. 65–4150(c) does not necessarily imply that the same reasoning would not apply to the word ‘materials.’ “ Snellings, slip op. at 11.
Our Supreme Court further concluded that ephedrine and pseudoephedrine are “materials” and as a result, “the offense of possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine under K.S.A.2007 Supp. 65–7006(a) is identical to the offense of possession of drug paraphernalia with intent to manufacture methamphetamine under K.S.A.2007 Supp. 65–4152(a)(3).” Snellings, slip op. at 12. The Snellings court then vacated the defendant's sentence and remanded for resentencing. Snellings, *12.
The same day that Snellings was released, our Supreme Court also released State v. Adams, ––– Kan. ––––, ––– P.3d –––– (2012) (Case No. 101,392 filed April 6, 2012), which reached a similar conclusion. In Adams, our Supreme Court held that the elements of the offense of possession of lithium metal with intent to manufacture methamphetamine under K.S.A.2007 Supp. 65–7006(a) are identical to the elements of the offense of possession of drug paraphernalia with intent to manufacture methamphetamine under K.S.A.2007 Supp. 65–4152(a)(3). Adams, slip op. at 20. The court then vacated the defendant's sentence and remanded for resentencing. Adams, slip op. at 20.
Here, although our case involves red phosphorous and iodine rather than ephedrine and pseudoephedrine, the analysis in Snellings, still applies. Thus, according to Snellings, we hold that the offense of possession of red phosphorous and iodine with intent to manufacture methamphetamine under K.S.A. 65–7006(a) is identical to the offense of possession of drug paraphernalia with intent to manufacture methamphetamine under K.S.A. 65–4152(a)(3). As a result, the trial court erred in sentencing Overman for a severity level 2 drug felony. Thus, we vacate Overman's sentence for possession of red phosphorous and iodine with intent to manufacture methamphetamine and remand for resentencing on this count as a severity level 4 drug felony.
Affirmed in part, Overman's sentence for possession of red phosphorous and iodine with intent to manufacture methamphetamine is vacated and the case is remanded for resentencing on this count as a severity level 4 drug felony.