State v. Thornton, 49193
| Decision Date | 06 May 1978 |
| Docket Number | No. 49193,49193 |
| Citation | 224 Kan. 127,577 P.2d 1190 |
| Parties | STATE of Kansas, Appellee, v. Hillard Amon THORNTON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The offense of possession with intent to sell a controlled substance, in violation of K.S.A.1977 Supp. 65-4127b(b )(3), becomes merged with the offense of sale, when a sale is consummated.
2. In an appeal from conviction of seven charges of violation of the Uniformed Controlled Substances Act, K.S.A. 65-4127b(b )(3), the record is examined and it is held (1) the trial court did not exclude alibi evidence; (2) the jury instructions were not erroneous; (3) the trial court did not abuse its discretion in the admission of rebuttal testimony; (4) the evidence was sufficient to support the convictions; and (5) the court erred in allowing the prosecution to charge and the jury to convict on both sale, and possession with intent to sell, where those charges all arose out of consummated sales of marijuana.
Michael G. Coash, of Bond, Bond & Coash, El Dorado, argued the cause and was on the brief for appellant.
Geary N. Gorup, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.
This is a direct appeal by the defendant, Hillard Amon Thornton, from convictions of seven charges of violation of the Uniformed Controlled Substances Act, K.S.A. 1977 Supp. 65-4127b(b )(3). All charges involved marijuana. Thornton was sentenced to concurrent terms of not less than two nor more than ten years on counts 1, 2, and 3, and to sentences of not less than two nor more than ten years on counts 4, 5, 6, and 7, these to be served consecutively to the sentence on count 1. Since the record is silent, we presume that the sentences on counts 4, 5, 6, and 7 are concurrent with each other. K.S.A. 21-4608.
Defendant contends that the trial court erred (1) in refusing to allow the defendant to present alibi evidence, (2) in his instructions to the jury, (3) in allowing the prosecution to present rebuttal evidence which did not refute, and which exceeded the scope of, defendant's evidence, (4) in finding that the evidence was sufficient to sustain the verdict, and (5) in allowing the prosecution to charge and the jury to convict on both possession with intent to sell, and sale, of the same marijuana.
The charges against Thornton stem from four separate incidents. On December 14, 1976, undercover narcotics agents contacted Thornton, after they had let it be known that they were in the market to purchase two pounds of marijuana. Thornton directed the officers to an address in El Dorado, and announced that he needed $285 for the two pounds. The officers refused to deal in that fashion and stated that they wanted to deal directly. Thornton then directed them to another residence, where he went in, stayed briefly, and returned to the car, telling the agents that they would have to leave for awhile because they were not supposed to be there when the marijuana came. They left, returned about fifteen minutes later, entered the residence, and one of the agents then purchased two pounds of marijuana from Stephen W. Carlisle for $285. The remaining six counts involved three other incidents. On December 17, 1976, Officer Grow purchased one ounce of marijuana from the defendant for $12. On December 22, he purchased an additional ounce for the same amount; and a similar transaction occurred on December 26.
Thornton was charged in count 1 with aiding, abetting and procuring another, Stephen W. Carlisle, to commit a crime, selling marijuana. Counts 2, 4, and 6, respectively, charged Thornton with separate sales of marijuana on December 17, 22, and 26. Counts 3, 5, and 7 charged Thornton with possession with intent to sell marijuana on December 17, 22, and 26.
The trial was held during April, 1977. Trial counsel had been appointed shortly prior thereto, and no notice of alibi had been given pursuant to K.S.A. 22-3218. The court denied defendant's request for leave to file notice of alibi out of time. Defendant's first contention is that it was error for the court to deny the defendant the right to produce alibi evidence, in view of the fact that less than a month after trial, in Talley v. State, 222 Kan. 289, 564 P.2d 504 (1977), we held the alibi statute, K.S.A. 22-3218, unconstitutional.
We have carefully examined the transcript in this case, and conclude that the alibi statute was not enforced by the court as against this defendant. The defendant was, of course, permitted to testify fully as to his alibi defense. The defendant was then permitted to call his alibi witnesses, and each testified on direct examination that the defendant was not at the locations designated in counts 2 through 7 inclusive, at the specified times. On cross-examination, each witness testified precisely where the defendant was during that period of time, and thus the alibi testimony was fully presented to the jury. The defendant does not now suggest the existence of other evidence which he was precluded from utilizing. We conclude that the defendant was not prejudiced, and the ruling of the trial court based upon K.S.A. 22-3218, while erroneous, was not prejudicial.
We turn next to defendant's contention that the court erred in using the word "procure" in the instructions relating to aiding and abetting in the sale of marijuana (count 1), and in using the same word in the instruction defining the defense of "procuring agent." The court instructed the jury in instruction No. 7 that, in order to establish the charge contained in count 1, the claim must be proved that the defendant did aid, abet or procure Stephen W. Carlisle to commit the crime of selling marijuana. This was immediately followed by a definitions instruction, in which the court stated:
By instruction No. 17, the court informed the jury that:
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State v. Schoonover
...of whether "the offenses merge and are, therefore, multiplicitous" (272 Kan. at 143, 32 P.3d 188), had emerged. State v. Thornton, 224 Kan. 127, 577 P.2d 1190 (1978), appears to be the first case discussing merger in the context of multiplicity (other than in a felony-murder case, e.g., Sta......
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Berkowitz, Application of
...and might well have run into allegations of duplicitousness, a variant of the problem of double jeopardy. See E. g., State v. Thornton, 224 Kan. 127, 577 P.2d 1190 (1978); State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976); Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973). The fact rema......
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State v. Anil, 79-162-C
...130 Ga.App. 215, 216-17, 202 S.E.2d 686, 687 (1973), aff'd 232 Ga. 316, 320, 206 S.E.2d 475, 479 (1974); State v. Thornton, 224 Kan. 127, 130, 577 P.2d 1190, 1192-93 (1978). But see State v. Milligan, 71 N.J. 373, 394-95, 365 A.2d 914, 926 Having concluded that the imposition of more than o......
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State v. Chiles
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