That'll teach me to petition for review!

In the ongoing march of post-McAdam litigation, one issue that has been in the background for a while is whether K.S.A. 65-4159 (manufacture--drug severity level 1) is identical to K.S.A. 65-4152 (use of paraphernalia to manufacture--drug severity level 4). This issue became more important for manufacture offenses occurring after May 20, 2004, the effective date of the legislative McAdam fix (which purports to return all manufacture related offenses to drug severity level 1).

In October, the COA held that the two statutes do not proscribe identical conduct in State v. Miles, an unpublished opinion in appeal 93260. I filed a petition for review to the KSC and last week got an order not only denying the petition for review, but on its own motion, the KSC ordered the COA opinion published. (Here is the link to the now-published case).

The COA distinguished the statutes as follows:

From a practical standpoint, the defendant's argument holds some validity. Due to the broad definition of drug paraphernalia provided by statute, it would be impossible to manufacture any controlled substance without drug paraphernalia.

. . . .

For purposes of identifying identical proscribed conduct under different statutes, however, the test is not whether proving one offense necessarily proves the other but whether the same conduct, as defined by the elements contained within each statute, is proscribed.

K.S.A. 65-4152(a)(3) possesses a crucial element which differs from the elements for manufacturing methamphetamine under K.S.A. 65-4159(a): physical control of drug paraphernalia. While drug paraphernalia is a factual prerequisite to the manufacture of methamphetamine, it is not a legal prerequisite. Consequently, based upon the plain language contained in the two statutes, we are convinced the legislature intended to criminalize two different acts. Under K.S.A. 65-4159(a), the legislature intended to criminalise the act of producing a controlled substance; under K.S.A.
65-4152(a)(3), the legislature intended to criminalize the possession, collection, or application of non-controlled substances or products with the intent to produce a controlled substance.

If anyone can tell me what the factual prerequisite/legal prerequisite distinction means, please let me know.

Anyway, you know that I am always looking for the silver lining, so here are a couple of good things that practitioners can use for trial practice.

First, "physical control" is a "crucial element" in a possession case. If the state requests a constructive possession instruction--in any kind of possession case--you should object citing this case and you should always request an instruction stating that "physical control" of the substance or paraphernalia is required for conviction.

Second, at a manufacture trial, you should request an instruction stating that manufacture does not include "the possession, collection, or application of non-controlled substances or products with the intent to produce a controlled substance." It sort of begs the question of what, then, is manufacture? I really don't know, but it must be something different than the quoted language. And you should raise a sufficiency issue in any case that only involves "the possession, collection, or application of non-controlled substances or products with the intent to produce a controlled substance." Perhaps this is an indication that the KSC is backing off or refining its broad defintion of manufacture in State v. Martens.

Finally, even though ordered published by the KSC, this is still a COA opinion. We will keep trying to get this to the KSC and maybe we can get some better discussion of these issues. In any case, be sure to file a notice of appeal in any case involving a drug severity level 1 offense.