State v. Martens, 84,635.
| Decision Date | 20 September 2002 |
| Docket Number | No. 84,635.,84,635. |
| Citation | 54 P.3d 960,274 Kan. 459 |
| Parties | STATE OF KANSAS, Appellee, v. ALROY V. MARTENS, Appellant. |
| Court | Kansas Supreme Court |
Peter T. Maharry, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.
Russ K. Roe, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
MODIFIED OPINION
The opinion of the court was delivered by
This is a direct appeal by the defendant, Alroy V. Martens, from his convictions following a bench trial for three felony counts of sale of marijuana, and one count each of felony manufacture of methamphetamine, felony possession of marijuana with intent to sell, felony cultivation of marijuana, felony possession of drug paraphernalia, felony possession of a stimulant, felony possession of marijuana without a tax stamp affixed, and misdemeanor possession of marijuana.
In our original opinion filed March 15, 2002, State v. Martens, 273 Kan. 179, 42 P.3d 142 (2002), we reversed in part and remanded with directions. On March 21, 2002, Martens filed a motion for clarification under Supreme Court Rule 7.06 (2001 Kan. Ct. R. Annot. 51). No response was filed. We grant the motion and modify our original opinion.
Martens contends on appeal that the district court committed error by: (1) denying his motion to arrest judgment; (2) convicting him of manufacture of methamphetamine when the evidence was only sufficient to show attempt to manufacture; and (3) allowing the late endorsement of two crucial witnesses for the State whose testimony substantiated his sale of marijuana.
During June and July of 1998, a confidential informant purchased marijuana from Martens in a series of controlled buys. Following the controlled buys, a search warrant was issued for Martens' residence. During the subsequent search, officers discovered numerous items associated with the cultivation of marijuana and what appeared to be a methamphetamine lab.
Martens waived his right to a jury trial, and a bench trial was conducted. The district court found Martens guilty of the charges set forth in the preceding paragraphs.
Martens filed a motion for judgment of acquittal on the charge of manufacturing methamphetamine. The stated basis for the motion was that "the state presented no evidence whatsoever that the defendant manufactured methamphetamine." In addition, counsel for Martens filed a motion to arrest judgment of conviction, arguing that the information was jurisdictionally defective in that it failed to sufficiently charge the crime of attempted manufacture of methamphetamine. In denying the motion for judgment of acquittal, the district judge stated: "I think Mr. Martens, according to my earlier findings, was charged under a statute which prohibited both or either... kind of conduct [attempt to manufacture or manufacture of a controlled substance]."
Martens was sentenced to a controlling term of 49 months' confinement in connection with the primary offense of "manufacture or attempt to manufacture methamphetamine" under K.S.A. 1997 Supp. 65-4159. Martens was also sentenced to a term of 15 months each for the three convictions for sale of marijuana, to run consecutive to each other but concurrent to the base sentence and, in addition, was sentenced to 36 months of postrelease supervision. In other words, the district court fashioned the sentence so that if Count 5 were reversed and not retried, Martens would still serve a controlling sentence of 45 months.
The Court of Appeals affirmed the district court's decision. In doing so it held that because K.S.A. 1997 Supp. 65-4159 creates a single offense of manufacturing a controlled substance, the complaint was fatally defective in failing to incorporate the elements of attempt. The Court of Appeals found, however, that because the amended complaint charged Martens with both manufacturing or attempting to manufacture a controlled substance and alleged the elements of unlawful manufacture of methamphetamine, it "fully informed Martens of the crime with which he was charged." 29 Kan. App.2d at 366. Without further comment, the Court of Appeals concluded that the amended complaint was not jurisdictionally defective.
In addition, the Court of Appeals found the evidence sufficient to support Martens' conviction for manufacturing methamphetamine. Further, that court held that the late endorsement of two witnesses for the State did not result in surprise or prejudice to Martens.
Martens timely petitioned for review. This court granted his petition for review.
According to Martens, Count 5 of the amended complaint was fatally defective as to the charge of manufacturing or attempting to manufacture methamphetamine in that it failed to include the essential elements of attempt. Martens argues that the Court of Appeals found attempt to manufacture a controlled substance was a separate and distinct crime from the offense of manufacture of a controlled substance, and that the complaint did not include the elements of attempt and was therefore fatally defective as to that crime. Martens asserts that the district court improperly convicted him of attempt to manufacture methamphetamine after he was charged with the manufacture of methamphetamine under K.S.A. 1997 Supp. 65-4159, and, therefore, he believes his conviction is void for lack of subject matter jurisdiction.
Martens followed the proper procedure and filed a motion for arrest of judgment. Therefore, we must determine whether the amended complaint clearly informed Martens of the precise offense charged against him. This court's review of an allegedly defective complaint or information is unlimited. State v. Crane, 260 Kan. 208, 221, 918 P.2d 1256 (1996).
On appeal, the State admitted that the amended complaint failed to allege the elements of attempt, but contended it was not required to list them because K.S.A. 1997 Supp. 65-4159 encompassed by definition the attempt to manufacture a controlled substance.
In his petition for review, Martens asserts that the Court of Appeals held there were two criminal charges in Count 5 of the complaint: (1) attempt to manufacture methamphetamine and (2) the actual manufacture of methamphetamine. Martens argues that the Court of Appeals found the attempt charge jurisdictionally defective and the manufacture charge proper, but erred in upholding his conviction because the district court convicted him of attempted manufacture of methamphetamine.
Our analysis of this issue involves the interpretation of K.S.A. 1997 Supp. 65-4159. Interpretation of a statute is a question of law, and our review is unlimited. An appellate court is not bound by the district court's interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Here, the district court stated that it found Martens "guilty of manufacturing or attempting to manufacture as the statute states." In addition, the district judge stated: "I think Mr. Martens, according to my earlier findings, was charged under a statute which prohibited both or either ... kind of conduct." These statements establish the fact that the district court believed that K.S.A. 1997 Supp. 65-4159 included both the actual manufacture of methamphetamine as well as the attempted manufacture of methamphetamine.
In its review of this case, our Court of Appeals distinguished the crime of attempt to manufacture methamphetamine from the crime of manufacture of methamphetamine, stating:
The legislature enacted 65-4159 in 1990, and subsequently amended it in 1993 and 1994. The 1990 and 1993 statutes included language prohibiting "the unlawful manufacturing or attempting to unlawfully manufacture any controlled substance." K.S.A. 65-4159; K.S.A. 1993 Supp. 65-4159. In 1994, however, the legislature extensively revised 65-4159, dividing it into four subsections and changing the language of the first subsection to read: "(a) 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." The 1994 amendment omitted the words "or attempting to unlawfully manufacture" from the statutory prohibition subsection.
Although subsections (b) and (c) of 65-4159 still mention "attempting to unlawfully manufacture," those subsections only...
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...This statute confers broad discretionary power on the trial court in allowing a late endorsement of a witness. State v. Martens, 274 Kan. 459, 471, 54 P.3d 960 (2002). An appellate court will generally uphold a late witness endorsement unless the defendant was surprised and the testimony wa......
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...of the statutes. Manufacturing methamphetamine requires proof of manufacturing or the ability to manufacture (State v. Martens, 274 Kan. 459, 466, 54 P.3d 960 [2002]), while possession of methamphetamine does not. Possession of methamphetamine requires proof of possession, while manufacturi......
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State v. Knight
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Kotila v. Commonwealth of Kentucky, 2000-SC-0341-MR.
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