State v. Thompson, No. 94,254.

Decision Date05 December 2008
Docket NumberNo. 94,254.
Citation200 P.3d 22
PartiesSTATE of Kansas, Appellee, v. Dennis W. THOMPSON, Appellant.
CourtKansas Supreme Court

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Ty Kaufman, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the briefs for appellee.

MODIFIED OPINION1

The opinion of the court was delivered by LUCKERT, J.:

On petition for review, we examine the Court of Appeals' decision reversing Dennis W. Thompson's conviction for possession of lithium metal with the intent to manufacture a controlled substance and vacating his sentences for manufacture of methamphetamine and possession of pseudoephedrine with the intent to manufacture a controlled substance. State v. Thompson, 2008 WL 142103 (Kan. App.2008) (unpublished opinion).

The following issues are subject to our review: (1) Are Thompson's convictions of possession of pseudoephedrine with the intent to manufacture a controlled substance and possession of lithium metal with the intent to manufacture a controlled substance, both in violation of K.S.A. 65-7006(a), multiplicitous; (2) in sentencing Thompson for his conviction for possession of pseudoephedrine with the intent to manufacture a controlled substance, did the district court err by imposing a sentence in conformity with a severity level 1 drug felony rather than employing the identical offense sentencing doctrine and imposing a sentence for a severity level 4 drug felony which is the sentence for possession of drug paraphernalia with the intent to manufacture; and (3) in sentencing Thompson for his conviction for manufacture of methamphetamine, did the district court err by imposing a sentence in conformity with a severity level 1 drug felony rather than employing the identical offense sentencing doctrine and imposing a sentence for a severity level 4 drug felony which is the sentence for possession of drug paraphernalia with the intent to manufacture?

FACTS AND PROCEDURAL BACKGROUND

This is the second time this case has been before this court on petition for review. Because the detailed facts are reported in the related previous appellate opinions of this court and the Court of Appeals, we will not extensively narrate the underlying facts and circumstances. See State v. Thompson, 36 Kan.App.2d 252, 138 P.3d 398 (2006), rev'd and remanded 284 Kan. 763, 166 P.3d 1015 (2007) (Thompson I). Some discussion of the procedural background of the case is necessary to an understanding of the issues in this appeal, however.

Thompson was convicted by a jury of five felonies and two misdemeanors and sentenced to a controlling term of 158 months' imprisonment. His convictions involved the following drug-related offenses: (1) manufacture of methamphetamine in violation of K.S.A. 65-4159, a severity level 1 drug felony; (2) possession of pseudoephedrine with the intent to manufacture a controlled substance in violation of K.S.A. 65-7006(a), a severity level 1 drug felony; (3) possession of lithium metal with the intent to manufacture a controlled substance in violation of K.S.A. 65-7006(a), a severity level 1 drug felony; (4) possession of methamphetamine in violation of K.S.A.2007 Supp. 65-4160, a severity level 4 drug felony; (5) possession of drug manufacture paraphernalia in violation of K.S.A. 65-4152(a)(3), a severity level 4 drug felony; (6) possession of marijuana in violation of K.S.A. 65-4162(a)(3), a class A misdemeanor; and (7) possession of drug use paraphernalia in violation of K.S.A. 65-4152(a)(2), a class A misdemeanor.

Before trial, Thompson had filed a suppression motion and a motion in which he argued the various charges were multiplicitous. The district court had denied Thompson's requests for relief. Consequently, the district court sentenced Thompson on the seven counts and imposed the sentence corresponding to that crime's severity level.

On appeal from the jury verdict and district court rulings, Thompson raised a number of issues before the Court of Appeals. He challenged the district court's denial of his motion to suppress the evidence recovered from the search of Thompson's vehicle and garage. In addition, he challenged his multiple drug-related convictions based upon sufficiency of the evidence, evidentiary error, and multiplicity. Finally, he challenged his sentences. The Court of Appeals rejected Thompson's argument regarding sufficiency of the evidence but reversed his convictions after holding that the district court erred in denying Thompson's motion to suppress. As a result of this ruling, the Court of Appeals did not decide the other issues.

This court subsequently granted the State's petition for review on the single suppression issue and denied Thompson's cross-petition for review in which he sought review of the Court of Appeals' ruling that there was sufficient evidence to support his conviction of manufacture of methamphetamine. In Thompson I, we reversed the portion of the Court of Appeals' decision regarding the suppression of evidence and remanded the case to the Court of Appeals for consideration of the issues not addressed in the panel's opinion.

On remand, in State v. Thompson, 2008 WL 142103 (Thompson II), the Court of Appeals once again concluded sufficient evidence supported Thompson's conviction of manufacture of methamphetamine and also, for the first time, addressed and rebuffed Thompson's arguments regarding evidentiary error. In addition, applying State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), which was filed after Thompson's briefs were submitted, the Court of Appeals rejected most of Thompson's multiplicity arguments.

But the Court of Appeals agreed with three of Thompson's arguments. First, regarding Thompson's convictions, the panel concluded his conviction for possession of lithium metal with the intent to manufacture is multiplicitous with his conviction for possession of pseudoephedrine with the intent to manufacture a controlled substance. Based upon this, the panel reversed Thompson's conviction for possession of lithium metal with the intent to manufacture a controlled substance, a severity level 1 drug felony. The other two successful arguments related to the application of the identical offense sentencing doctrine. Applying that doctrine, the panel reversed Thompson's two remaining severity level 1 drug felony convictions-manufacture of methamphetamine and possession of pseudoephedrine with the intent to manufacture a controlled substance-and remanded for new sentences commensurate with severity level 4 drug felony offenses. Thompson II, 2008 WL 142103 at *4-*5.

Both parties filed petitions for review. We granted the State's petition for review in which it sought review of the multiplicity and sentencing issues on which the Court of Appeals had ruled in favor of Thompson. We denied Thompson's cross-petition for review in which he sought (1) review of the holdings relating to the admission of certain trial testimony, and (2) reversal of his conviction of manufacture of methamphetamine based upon sufficiency of the evidence. This court has jurisdiction under K.S.A. 20-3018(b).

POSSESSION OF PRECURSORS

The State charged Thompson with two violations of K.S.A. 65-7006(a), one for possession of pseudoephedrine with the intent to manufacture methamphetamine and one for possession of lithium metal with the intent to manufacture methamphetamine.

K.S.A. 65-7006(a) provides:

"(a) It shall be unlawful for any person to possess ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product to manufacture a controlled substance."

Although a current violation of K.S.A. 65-7006(a) is a severity level 2 drug felony, the version of the statute in effect at the time Thompson committed these offenses, K.S.A. 65-7006(a) (2002 Furse), ranked a violation of the provision as a severity level 1 drug felony.

The State argues the two severity level 1 drug offenses under K.S.A. 65-7006(a) should be affirmed because the legislature, by listing individual substances in the statute without inserting any limiting language, indicated its intent to permit a separate prosecution for each substance, meaning Thompson could be convicted in separate counts for possession of pseudoephedrine and for possession of lithium metal. The district court accepted this view.

In reviewing the district court's determination, the Court of Appeals, applying the controlling authority of Schoonover, disagreed. The panel construed K.S.A. 65-7006(a) to require a single unit of prosecution for multiple items possessed within the statutory list. In other words, an accused cannot be separately prosecuted for the possession of each of the items listed in the statute. See Thompson II, 2008 WL 142103 at *5. Consequently, the Court of Appeals held that Thompson's convictions of possessing two of the prohibited items are multiplicitous.

In its petition for review, the State contends that the Court of Appeals erred in its statutory interpretation of K.S.A. 65-7006(a).

STANDARD OF REVIEW/STATUTORY CONSTRUCTION

Questions involving multiplicity and statutory interpretation are questions of law subject to unlimited appellate review. State v. Harris, 284 Kan. 560, Syl. ¶ 3, 162 P.3d 28 (2007); State v. Fisher, 283 Kan. 272, 312, 154 P.3d 455 (2007); State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).

When reviewing a statute, an appellate court first attempts to give effect to the intent of the legislature as expressed. When the language of a statute is plain and unambiguous, the court must give effect to that language, rather than determine what the law should or should not be. The court will not speculate as to legislative intent or read such a statute to add something not...

To continue reading

Request your trial
74 cases
  • State v. Peterson
    • United States
    • United States State Supreme Court of Washington
    • November 18, 2021
    ...... See, e.g. , Marcy , 628 P.2d at 74-75 ; State v. Sasai , 143 Haw. 285, 295 n.12, 429 P.3d 1214 (2018) ; State v. Thompson......
  • Alston v. State
    • United States
    • Court of Special Appeals of Maryland
    • June 26, 2013
    ......See also State v. Thompson , 200 P.3d 22, 34 (Kan. 2009) (quoting State v. Clements , 734 P.2d 1096, 1100 (Kan. 1987), in which, explaining the rationale of its decision to ......
  • State v. Reyna, No. 100,000 (Kan. 6/4/2010)
    • United States
    • United States State Supreme Court of Kansas
    • June 4, 2010
    ......Thompson, 287 Kan. 238, 258, 200 P.3d 22 (2009), we reiterated that "[i]f the elements in overlapping provisions are identical, the due process ......
  • State v. Pal
    • United States
    • United States State Supreme Court of Wisconsin
    • April 28, 2017
    ......Thompson , 287 Kan. 238, 200 P.3d 22, 28 (2009) ("In a unit of prosecution case, the court asks how the legislature has defined the scope of conduct ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT