State v. Hagan

• Decision Date: 10 August 1979
• Docket Number: No. 49841,49841
• Citation: 598 P.2d 550,3 Kan.App.2d 558
• Parties: STATE of Kansas, Appellee, v. Jerry W. HAGAN, Appellant.
• Court: Kansas Court of Appeals

Page 550

598 P.2d 550

3 Kan.App.2d 558

STATE of Kansas, Appellee, v. Jerry W. HAGAN, Appellant.

No. 49841.

Court of Appeals of Kansas.

Aug. 10, 1979.

Syllabus by the Court

1. The crime of possession of a controlled substance, in violation of K.S.A.1978 Supp. 65-4127a, becomes merged with the crime of sale, when the sale is of the possessed controlled substance.

2. Convictions of possession of a controlled substance, in violation of K.S.A.1978 Supp. 65-4127a, and sale of a controlled substance, when the sale is of the possessed controlled substance, constitute proscribed multiplicitous convictions. The defendant may be convicted of one but not both crimes.

3. In a narcotics case it is held (1) there were multiplicitous convictions, (2) physical evidence seized incidental to the defendant's arrest was admissible evidence, (3) there was no error in submission to the jury of exhibits not expressly shown of record to have been admitted into evidence, (4) there was no error in failing to give a limiting instruction, and (5) defendant was not entitled to an entrapment instruction.

Harry L. Najim, Wichita, for appellant.

Robert J. Sandilos, Asst. Dist. Atty., Vern Miller, Dist. Atty., and Curt T. Schneider, Atty. Gen., for appellee.

Before REES, P. J., and PARKS and SWINEHART, JJ.

REES, Judge:

Defendant appeals from convictions on four counts of possession of cocaine (counts 1, 3, 5 and 7), and three counts of sale of cocaine (counts 2, 4 and 6). Each of the seven convictions was for violation of K.S.A.1978 Supp. 65-4127a.

In 1977 an informant financed by and under the immediate direction of law enforcement officers made separate purchases of cocaine from defendant in Wichita on April 4, April 26, and May 27. On June 8, defendant was arrested during negotiation for but prior to completion of a fourth sale. Counts 1 and 2 arose out of the April 4 incident, counts 3 and 4 out of the April 26 incident, counts 5 and 6 out of the May 27 incident, and count 7 out of the June 8 incident.

The events of each incident were essentially the same except that the fourth was cut short. A time and place of meeting was arranged by telephone. The informant, accompanied by a detective, proceeded by car to the rendezvous. The detective absented himself or waited in the car while the informant met with defendant alone. After determining defendant had the cocaine to be purchased, the informant reported that fact to the detective, was given the purchase money by the detective, made the purchase, and delivered the merchandise to the detective.

Directed at counts 1 and 2, 3 and 4, and 5 and 6, defendant argues that convictions of possession of cocaine and sale of cocaine cannot stand if both arise from the incident, or transaction, and the possessed cocaine is the cocaine sold. He argues this constitutes impermissible multiplicity. Defendant's contention is that (1) possession of narcotic drugs is an included crime of possession of narcotic drugs with intent to sell, and (2) the crime of possession of narcotic drugs with intent to sell merges with the crime of sale of narcotic drugs upon consummation to the sale of the possessed narcotic drugs; therefore, (3) where the unlawful possession of narcotic drugs is possession of the sold narcotic drugs at the time and place of sale, defendant cannot be convicted of both possession and sale.

Possession of cocaine, possession of cocaine with intent to sell, and sale of cocaine are each a class C felony. Thus, accurately speaking, the first issue before us concerns a claimed included offense, not a Lesser included offense. State v. Newell, 226 Kan. ---, 597 P.2d 1104 (1979).

In pertinent part, K.S.A. 21-3107 reads:

"(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.

"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (A ) A lesser degree of the same crime;

"(B ) An attempt to commit the crime charged;

"(C ) An attempt to commit a lesser degree of the crime charged; or

"(D ) A crime necessarily proved if the crime charged were proved." (Emphasis supplied.)

A Judicial Council comment following K.S.A. 21-3107 notes the statute's main objective is the formulation of limitations upon unfair multiplicity of convictions or prosecutions. Defendant claims there has been improperly imposed upon him a multiplicity of convictions.

As noted, defendant makes a syllogistic argument. His first premise, possession is an included crime of possession with intent, is supported by case authority of which State v. Collins, 217 Kan. 418, 420, 536 P.2d 1382 (1975) (a marijuana case), is representative. We find this premise sound.

Defendant's second premise, the crime of possession with intent to sell merges with the crime of sale upon consummation of the sale, is supported by State v. Thornton, 224 Kan. 127, 130-131, 577 P.2d 1190 (1978) (another marijuana case). Neither do we find nor has our attention been called to contrary Kansas authority.

The State's argument is that the convictions may stand because the crime of possession is not an included offense of the crime of sale. Supporting case authority stems from State v. Ford, 117 Kan. 735, 232 P. 1023 (1925) (a liquor case), includes State v. Woods, 214 Kan. 739, 742-746, 522 P.2d 967 (1974) (a marijuana case), and is found by analogy in cases such as State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978). Although Kansas decisions having to do with K.S.A. 21-3107 and its principles are, with few exceptions addressed to consideration of what constitutes a lesser included crime, the authority of those cases is applicable to the extent of their consideration of what constitutes an included crime. With great frequency, there is at issue in the decisions the K.S.A. 21-3107(3) instruction requirement, a requirement directed to lesser included crimes, not included crimes. Included crimes are not restricted by K.S.A. 21-3107(2) to only those falling within the three categories (see 223 Kan. at 716) identified by subsections (A ), (B ), (C ) and (D ) of that statute; the statute says that an included crime may be one within those categories.

In the present case and as to each of the first three incidents, or transactions, the State, as a matter of prosecutorial selectivity, stood free to choose among charges of possession, possession with intent, and sale. Each of several crimes established by the same conduct of a defendant may be alleged as a separate count in a single information. K.S.A. 21-3107(1). It is proper to charge by several counts of an information the same offense committed in different ways or by different means to the extent necessary to provide for every possible contingency in the evidence. State v. Pierce et al., 205 Kan. 433, 437, 469 P.2d 308 (1970). We do not question these principles. The question at hand lies a step or two further along.

Contrary to a case involving marijuana, sale of cocaine and possession of cocaine with intent to sell are offenses of the same class as possession of cocaine. Successful prosecution of no one of the three would result in the availability of a greater sentence than either of the other two. Conviction of defendant of both possession of cocaine with intent to sell and possession of cocaine would not support imposition of two sentences; they are included offenses (State v. Collins, 217 Kan. at 420, 536 P.2d 1382), and K.S.A. 21-3107(2) prohibits conviction of both. Conviction of defendant of both possession of cocaine with intent to sell and sale of cocaine would not support imposition of two sentences; the crimes would merge (State v. Thornton, 224 Kan. at 130-131, 577 P.2d 1190). May the State obtain multiple convictions in the present case through its chosen exercise of prosecutorial selectivity? We believe not.

We are satisfied that a crime is defined by identification of its constituent elements; the crime is the aggregate of its elements; and if, for whatever reason, one crime merges into another crime, each and all elements of the former crime merge into the other crime. We conclude that the crime of possession of cocaine, and included crime of possession of cocaine with intent to sell, merges into the crime of sale of cocaine upon consummation of the sale. Possession becomes an included crime within proscription of multiple convictions imposed by the first sentence of K.S.A. 21-3107(2). We caution that our conclusion is limited to those instances where the possession of the contraband was solely for the purpose of and solely incidental to its sale and the sale is consummated. Otherwise, there is no merger and possession and sale are separate, distinct crimes. We believe our conclusion is in accord with decisions of other jurisdictions. State v. Ballinger, 110 Ariz. 422, 425, 520 P.2d 294 (1974); Estevez v. State, 130 Ga.App. 215, 216-217, 202 S.E.2d 686 (1973), Aff'd 232 Ga. 316, 320, 206 S.E.2d 475 (1974).

Defendant argues the trial court erroneously failed to suppress and admitted as exhibits transparent plastic packets containing cocaine seized incidental to defendant's arrest on June 8. On that date, the State's Modus operandi was interrupted following the informant's report to the detective that defendant had cocaine. At that point in the script, a small platoon of officers, armed with weapons but not with arrest or search warrants, stormed the residence of Billy Bevis and Michael Hickman at 227 Garnett. Defendant was apprehended, put to the wall and patted down in a dark hallway at a bathroom door held closed by the occupant of the bathroom, the informant. Upon removal of defendant from that particular spot, the bathroom door...