State v. Gunn, 85,144.

• Decision Date: 22 June 2001
• Docket Number: No. 85,144.,85,144.
• Citation: 26 P.3d 710,29 Kan. App.2d 337
• Parties: STATE OF KANSAS, Appellee, v. ROBERT R. GUNN, Appellant.
• Court: Kansas Court of Appeals

29 Kan. App.2d 337

26 P.3d 710

STATE OF KANSAS, Appellee, v. ROBERT R. GUNN, Appellant.

No. 85,144.

Court of Appeals of Kansas.

Opinion filed June 22, 2001.

Robert A. Anderson, of Robert A. Anderson Law Office, of Ellinwood, for the appellant.

Douglas A. Matthews, assistant county attorney, Rick J. Scheufler, county attorney, and Carla J. Stovall, attorney general, for the appellee.

Before KNUDSON, P.J., LEWIS, J., and WARREN M. WILBERT, District Judge, assigned.

KNUDSON, J.:

Defendant Robert R. Gunn was convicted by a jury of manufacturing methamphetamine, possession of methamphetamine, and possession of drug paraphernalia. After conviction, he was sentenced to 54 months on the charge of manufacturing methamphetamine and 11 months on each of the other two charges. The sentences were ordered to run concurrently. This is a direct appeal from defendant's convictions. On appeal, defendant challenges the sufficiency of evidence to support the jury's verdicts, contends the trial court abused its discretion in limiting cross-examination, and claims prosecutorial misconduct during closing argument. We affirm.

Defendant's troubles began on Christmas day of 1998. On that date, defendant and Donna Burris went into a Coastal Mart in Great Bend to buy some starter fluid. The store cashier recognized defendant but did not know Donna Burris. Defendant, after some inquiries, purchased six cans of starter fluid, Burris picked out some food, and defendant paid for all of the items.

There had been publicity in Barton County in recent months about the number of methamphetamine labs in the area. The clerks in the various stores had been asked to watch for persons buying large quantities of certain materials that might be used in the production of methamphetamine. The store cashier knew the ether in starter fluid could be used in the manufacture of methamphetamine. Later, when two police officers came into the store, the clerk told the officers about the purchases of the starter fluid by defendant.

The two officers continued on patrol in Great Bend. They knew that the ether in starter fluid was often used as a component of homemade methamphetamine, and they were looking for defendant and Burris. As they passed a Days Inn motel, they saw an unattended automobile with the trunk lid standing open parked in front of a room. Apparently, they were concerned a motel guest may have inadvertently failed to close the trunk on their car leaving the vehicle as an inviting target for thieves. The officers checked with the motel operator and were told it was the defendant who had been driving the car and he and another person had just checked into the motel.

The officers advised their superiors they suspected methamphetamine was being manufactured at the motel. They then made their way towards defendant's room and, as they approached it, saw that a window was open and detected a strong odor of anhydrous ammonia and ether coming from the room.

The officers then observed defendant come out of the room and walk to his vehicle. He left the door open, and through the open door they could see a sheet covering a door leading to the hallway and a towel along the bottom of the door. The odor coming from the room was overwhelming, and one of the officers had trouble breathing because of the odor.

After a time, Burris also exited the room. The police officers then contacted both defendant and Burris, who gave various explanations of what they were doing in the room and about the smell coming from the room. Defendant told the police that he and Burris had only stopped to fix their automobile. In the meantime, a search warrant had been obtained and the room was thoroughly searched.

The search yielded a number of items which fall under the description of drug paraphernalia. Among other things, there was a 64-ounce bottle containing liquid, which was still smoking when removed from a sink. This bottle was analyzed by the KBI laboratory and was found to contain anhydrous ammonia and methamphetamine. The search also revealed other components used in the manufacture of methamphetamine. After the search, defendant and Burris were taken into custody.

At the trial, a KBI forensic scientist testified that the "finished product" of methamphetamine was found in the room. The State introduced other evidence about the manufacture of methamphetamine, which explained that the manufacturing process could begin in one location and be finished in another. In terms of time, the testimony indicated it took between 20 and 30 minutes to begin producing methamphetamine and 30 minutes to 2 hours to obtain the finished product.

Defendant was convicted as charged. Burris was also charged, tried in a separate trial, and convicted.

MANUFACTURING METHAMPHETAMINE FOR INDIVIDUAL USE

Defendant argues the manufacture of methamphetamine does not include the manufacture of that substance for one's own personal use. He contends that the State was required to prove beyond a reasonable doubt that he was not manufacturing the methamphetamine for his own personal use. At trial, no evidence was introduced to indicate the methamphetamine seized from defendant's motel room was not manufactured for defendant's own personal use. Defendant presents as an issue whether manufacturing for one's personal use only is an element of the offense proscribed under K.S.A. 1998 Supp. 65-4159(a).

The issue raised is one of statutory interpretation which is a question of law subject to an unlimited standard of review by this court. State v. Patterson, 25 Kan. App.2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).

K.S.A. 1998 Supp. 65-4159(a) states: "Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog."

K.S.A. 1998 Supp. 65-4101(n) provides:

"`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 or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for the individual's own use or the preparation, compounding, packaging or labeling of a controlled substance: (1) By a practitioner or the practitioner's agent pursuant to a lawful order of a practitioner as an incident to the practitioner's administering or dispensing of a controlled substance in the course of the practitioner's professional practice...." (Emphasis added.)

We note that in 1999, the legislature amended 65-4101(n) by adding the word "lawful" to the statute; the statute then read "by an individual for the individual's own lawful use." (Emphasis added.) See L. 1999, ch. 170, § 3. We, of course, are concerned with the 1998 version of the statute, but defendant contends the 1999 amendment was substantive, rather than a clarification of existing law.

K.S.A. 1998 Supp. 65-4101(n) is part of the Kansas Uniform Controlled Substances Act and does define the manufacturing of a controlled substance. However, we do not believe the exceptions contained within the statute can be considered negative elements of the criminal offense of manufacturing under K.S.A. 1998 Supp. 65-4159(a).

In State v. White, 213 Kan. 276, 515 P.2d 1081 (1973), the court considered a similar issue. The defendant was charged and convicted for delivering a drug, secobarbital, contrary to K.S.A. 1971 Supp. 62-2602(1). On appeal, defendant contended the trial court erred in overruling her motion for discharge because the State failed to establish a prima facie case; that is, it failed to negate the fact that she was authorized to deliver drugs. K.S.A. 1971 Supp. 65-2602(1) made unlawful the delivery of drugs unless "delivered by a practitioner in good faith and in the course of his profession practice only."

Justice Schroeder rejected defendant's claim, stating:

"The general rule has always been in Kansas that the accused has the burden of introducing evidence as a matter of defense that he is within an exception or exemption in the statute creating the offense, where such exception or exemption is not part of the description of the offense. (State v. Braun, 209 Kan. 181, 495 P.2d 1000 [1972], and State v. Miller, 127 Kan. 487, 274 Pac. 245 [1929].) Accordingly, the prosecution has no duty to prove on its case in chief that the accused is not within the exception. This is a mere rule of procedure and does not relieve the state of its burden of proving guilt. (See, State v. Braun, supra and cases cited therein.)" 213 Kan. at 280.

Based upon the holding in White, we believe the pivotal question is whether the exceptions to the definition of manufacturing in 654101(n) can be said to be an integral part of the description of manufacturing in the criminal statute 65-4159(a).

Another panel of this court has considered the interplay between 65-4101(n) and 65-4159(a). In State v. Bowen, 27 Kan. App.2d 122, 132, 999 P.2d 286 (2000), the defendant requested the jury be given the statutory definition of manufacturing, including the "own use" exception. The Bowen panel concluded:

"[K.S.A. 1998 Supp. 65-4101(n)] appears to apply to legitimate commercial and research situations. The statute under which Bowen was charged, K.S.A. 1998 Supp. 65-4159(a), refers to the unlawful manufacture of the drug, not those situations involved in 65-4101(n). K.S.A. 1998 Supp. 65-4159(a) does not contain such an exception and does not refer to 65-4101. We believe the trial court was correct in its denial of the requested instruction." 27 Kan. App.2d at 132.

Because the Bowen panel granted a new trial to the defendant on other grounds, we recognize its...