State v. Barnhart, 78,723

• Decision Date: 22 January 1999
• Docket Number: No. 78,723,78,723
• Citation: 266 Kan. 541,972 P.2d 1106
• Parties: STATE of Kansas, Appellant, v. Anthony C. BARNHART, Appellee.
• Court: Kansas Supreme Court

Page 1106

972 P.2d 1106

266 Kan. 541

STATE of Kansas, Appellant, v. Anthony C. BARNHART, Appellee.

No. 78,723.

Supreme Court of Kansas.

Jan. 22, 1999.

Syllabus by the Court

1. In order for K.S.A. 21-3108(2)(a) to bar a prosecution, the following three elements must coalesce: (1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.

2. When all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence, and occur in the same jurisdiction, the defendant may be tried upon several counts of one information.

3. If evidence is admitted at a prior prosecution of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the prior prosecution.

4. The object of the compulsory joinder statute is to prevent the prosecution from substantially proving a crime in a trial in which the crime is not charged and then retrying the defendant for the same offense in a trial where it is charged.

Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellant.

Debra J. Wilson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellee.

ABBOTT, J.:

This is an appeal by the State from the trial court's dismissal of criminal charges for possession of drug paraphernalia, a firearm, and methamphetamine which arose in August 1996. The trial court dismissed the charges on the ground of double jeopardy as provided in K.S.A. 21-3108(2)(a).

Defendant Anthony C. Barnhart was charged with possession of cocaine, methamphetamine, and drug paraphernalia arising out of defendant's conduct on October 6, 1995. Defendant was tried for the October 1995 crimes and convicted of possession of cocaine and possession of methamphetamine. During that trial, evidence concerning the August 1996 charges that are the subject of this appeal was introduced pursuant to K.S.A. 60-455 to show intent, knowledge, or absence of mistake or accident. Although of no importance to this appeal, the two convictions for the October 1995 offenses are on appeal and pending before the Court of Appeals.

Defendant moved to dismiss the charges that are the subject of this appeal because there had been a violation of his "right to be free from double jeopardy pursuant to the Fifth and Fourteenth Amendments of the U.S. Constitution, Section Ten of the Kansas Bill of Rights, and K.S.A. 21-3108(2)(a)." The motion was based on the fact that during the jury trial of the October 1995 charges, the State introduced substantial evidence of the present case pursuant to K.S.A. 60-455. Specifically, the evidence introduced included: (1) the testimony of Officer Cross regarding his arrest of defendant and the recovery of evidence including drug paraphernalia, a firearm, and methamphetamine; (2) the testimony of Deputy Guzman regarding the chain of custody of the evidence that Officer Cross recovered; and (3) the results of laboratory reports.

In order for K.S.A. 21-3108(2)(a) to bar a prosecution, the following three elements must coalesce: "(1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case." In re Berkowitz, 3 Kan.App.2d 726, 743, 602 P.2d 99 (1979). See State v. Fisher, 233 Kan. 29, 32, 661 P.2d 791 (1983).

The State argued that the 7-month time lapse between the two offenses defeated the third prong. The 1995 case (No. 95 CR 3522) was charged, a preliminary hearing was held, and defendant was bound over for trial before the defendant was ever charged in the case before us. The trial judge took the matter under advisement and told the parties that they could decide what evidence he would need to hear at the next hearing.

At the ruling on the motion to dismiss, the trial judge stated that he had examined a partial transcript of the jury trial and had reviewed

"the Berkowitz case cited by both parties, and the Mahlandt case, also the Brueninger case, and the case of State v. Fisher, and the case of State v. Baker. All of these cases stand for the following general proposition: That under the Kansas compulsory joinder statute if evidence is admitted of an offense not contained in the charge, the later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution."

The trial judge sustained defendant's motion to dismiss because the two cases could have been consolidated. The trial judge stated:

"The State argues that basically these cases were unlikely to have been consolidated because of the interest of judicial economy and so forth. I don't think that's the test. I think the test is whether they could have been. I think they clearly could have been.

"I think the Defendant's motion is a good one. The motion to dismiss this case is sustained. This case is dismissed."

The State timely appealed from the trial judge's order dismissing the complaint.

The States's appeal of the district court's dismissal involves a question of law. This court's review of questions of law is de novo. State v. Todd, 262 Kan. 916, 919, 941 P.2d 1374 (1997). K.S.A. 21-3108 provides in pertinent part:

"(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:

(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began."

In State v. Freeman, 236 Kan. 274, 280-81, 689 P.2d 885 (1984), this court explained:

"The double jeopardy clause of the Constitution of the United States protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The language of section 10 of the Bill of Rights of the Constitution of Kansas is very similar to the language contained in the Fifth Amendment of the Constitution of the United States. Both provide in effect that no person shall be twice placed in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does section 10 of the Bill of Rights of the Constitution of Kansas. Therefore, the three underlying protections contained in the double jeopardy clause of the Constitution of the United States are contained in section 10 of the Bill of Rights of the Kansas Constitution."

The Freeman court also explained that "[i]n order to implement and define the constitutional guarantees of the double jeopardy clause, the Kansas legislature enacted two statutes: (1) K.S.A.1983 Supp. 21-3107, multiple prosecutions for the same act, and (2) K.S.A. 21-3108, effect of former prosecution." 236 Kan. at 281, 689 P.2d 885.

Defendant cites In re Berkowitz, 3 Kan.App.2d at 742, 602 P.2d 99, wherein the court stated that under the Kansas compulsory joinder statute, "if evidence is admitted of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution."

Here, the first prong of the compulsory joinder test is met because the first prosecution ended in a conviction. The second prong is arguably met because pursuant to a successful K.S.A. 60-455 motion, the State introduced evidence of the 1996 crimes in the 1995 case. However, in State v. Edgington, 223 Kan. 413, 417, 573 P.2d 1059 (1978), the court held that the fact that some evidence used in the first trial is also used in the second trial does not necessarily bar prosecution. Rather, the question is whether the second crime was proved by the admission of evidence of the second crime in the first trial.

The record before us is such that we are satisfied that the three 1996 crimes were proven in the 1995 case. K.S.A. 22-3202 provides:

"(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."

Both cases are Johnson County cases and both cases contain charges of possession of methamphetamine and drug paraphernalia. Defendant notes that even the State's brief asserts that the evidence of the 1996 offense was relevant to prove the 1995 offense because of the striking similarities between the two. In State v. Howell, 223 Kan. 282, 285, 573 P.2d 1003 (1977), the court noted that " '[w]hen all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be tried upon several counts of one information ....' " (quoting ...