State v. Berberich
| Decision Date | 24 May 1991 |
| Docket Number | No. 65306,65306 |
| Citation | 811 P.2d 1192,248 Kan. 854 |
| Parties | STATE of Kansas, Appellee, v. Thomas A. BERBERICH, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Under the circumstances of this case, the trial court was not required by K.S.A. 21-3107(3) to give a full range of lesser included offense instructions when two or more separate offenses are committed during the same transaction.
2. A violation of K.S.A. 79-5208 for possession of a controlled substance without affixing a tax stamp is a separate and distinct offense from possession of marijuana or a controlled substance and one is not an included offense of the other.
3. The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. The burden of proof is on the party challenging the constitutionality of the statute.
4. The Kansas Drug Tax Act, K.S.A. 79-5201 et seq., which imposes a tax on marijuana and controlled substances, does not violate due process provisions of the Fourteenth Amendment and is constitutionally valid.
Reid T. Nelson, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.
Randy M. Hendershot, Asst. Dist. Atty., argued the cause, and Gene M. Olander, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.
Thomas A. Berberich was convicted by a jury of: (1) possession of methamphetamine, K.S.A.1988 Supp. 65-4127b(a)(2); (2) possession of drug paraphernalia, K.S.A. 65-4152; (3) possession of marijuana, K.S.A.1988 Supp. 65-4127b(a)(3); and (4) possession of methamphetamine without affixing the official Kansas drug tax stamp, K.S.A. 79-5208. The trial court denied Berberich's motion to dismiss the charge of possession of methamphetamine with intent to sell as an included offense of the violation of K.S.A. 79-5201 et seq., the Kansas Drug Tax Act. Subsequent to his conviction, Berberich filed a motion to set aside his conviction claiming that the Kansas Drug Tax Act violates the due process clause of the Fourteenth Amendment to the United States Constitution on the grounds the act is an unconstitutional penalty and not a tax. The trial court found the Kansas Drug Tax Act did not violate the Fourteenth Amendment right to due process. Berberich also filed a motion asking that the trial court declare the penalties of the Kansas Drug Tax Act violate the separation of powers doctrine. This motion was also denied.
The relevant facts are as follows: When Officer Scott Holladay went to a house to execute a search warrant, he saw Berberich arrive at the house and carry a duffel bag to the door. Officer Holladay intercepted Berberich at the door of the house and searched him. Beside the doorway officers found a paper sack and a black duffel bag. Inside the duffel bag officers found Deering scales, which are commonly used to weigh drugs, with powder residue on the interior; a box that contained a bag with razor blades, a package of paper folds, and an empty package for an insulin syringe; a brass bowl which could screw into a pipe for smoking marijuana; a white cardboard box containing four plastic baggies of marijuana; and a pillbox with two separate compartments containing six grams of white powder and four and one-half grams of yellow-brown powder later proven to be methamphetamine. Neither of the prohibited substances had the required tax stamps.
At trial, Berberich admitted the drugs in the duffel bag were his. He stated he purchased and repackaged the drugs only for his own use due to job pressure and personal problems.
Prior to instructing the jury, the trial court denied Berberich's motion to dismiss the charge of possession of methamphetamine with intent to sell as being an included offense of the charge of possession of methamphetamine without a drug tax. The trial court determined even though possession is a common element of both crimes, there are other elements in each offense which distinguish them. On appeal, Berberich claims that the possession of methamphetamine is an included crime of the failure to pay the Kansas drug tax and the Kansas tax is an unconstitutional criminal penalty disguised as a tax and therefore violates the due process clause of the Fourteenth Amendment. It should be noted that on appeal the defense and the State argue the issue of whether possession of methamphetamine is an included crime of failure to pay the Kansas drug tax. However, the defendant was charged with, the jury was instructed on, and the defendant was convicted of a violation of K.S.A. 79-5208, possession of methamphetamine without affixing a Kansas drug tax stamp. It is this crime which we will consider in our discussion, not any civil penalty which could be imposed in another proceeding for failure to pay taxes.
POSSESSION OF METHAMPHETAMINE AS AN INCLUDED CRIME OF
POSSESSION OF METHAMPHETAMINE WITHOUT AFFIXING THE
KANSAS DRUG TAX STAMP
The record reflects that Berberich's motion to dismiss the charge of possession of methamphetamine with the intent to sell as being an included offense in the charge of possession without affixing a drug tax stamp was denied by the trial court.
Although Berberich was charged with possession of methamphetamine with intent to sell pursuant to K.S.A.1988 Supp. 65-4127b(b)(2), the jury found Berberich guilty of the lesser offense of possession of methamphetamine. The instruction on Count One stated:
The instruction for Count Three read:
K.S.A. 21-3107(2) provides:
In determining whether a lesser crime is a lesser included offense under K.S.A. 21-3107(2)(d), a two-step analysis or two-pronged test has been adopted. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime under K.S.A. 21-3107(2)(d) if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime. State v. Fike, 243 Kan. 365, Syl. p 1, 757 P.2d 724 (1988).
Berberich asserts that under either test set out in Fike, the illegal possession offense is a lesser included offense of the drug tax act violation; therefore, he cannot be convicted of both crimes. Berberich claims the first prong of Fike, the elements test, reveals that illegal possession is an included crime of the drug tax act violation as each offense requires proof that he intentionally possessed methamphetamine. Berberich claims the second prong of Fike, the evidence test, would require the State to prove possession of the same methamphetamine for him to be convicted of either offense. We disagree with Berberich's analysis of K.S.A. 21-3107(2)(d).
Prior to the adoption of the Kansas Criminal Code in 1969, Kansas followed the traditional common-law rule on instructing the jury on lesser included offenses, i.e., the elements test. G.S.1868, ch. 82, § 121 provided that upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto or of an attempt to commit the offense. G.S.1868, ch. 82, § 122 stated that upon the trial of an indictment for a felony the defendant may be found guilty of any other felony or misdemeanor necessarily included in that with which he is charged in the indictment or information. When the Kansas Criminal Code was adopted, K.S.A. 21-3107(2)(a), (b), and (c) replaced the 1868 codification of the common law.
Regarding the lesser included offense, 3 Wright, Federal Practice and Procedure: Criminal 2d § 515 (1982) states:
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