Saturday, August 13, 2016

Possession of different drugs without a tax stamp is one offense

Lydia Krebs and Peter Maharry won in State v. Pribble, No. 108,915 (Kan. July 15, 2016), reversing a Sedgwick County no tax stamp conviction. The KSC considered whether a conviction for possession of marijuana with no tax stamp and a conviction for possession of methamphetamine with no tax stamp was the "same offense" for multiplicity purposes. After applying its precedent, the KSC concuded there was only one offense:

Viewing all of the statutory provisions together suggests that the legislature intended to impose a tax on the marijuana or controlled substances possessed by drug dealers and to make it a crime for those drug dealers to fail to evidence the payment of that drug tax with the appropriate stamps. Consequently, the clear purpose of K.S.A. 2010 Supp. 79-5201(c)'s definition of "dealer" is to differentiate between drug dealers and personal-use possessors of drugs, and, thereby, clarify who is a taxpayer under the act that can be subject to the criminal sanction of K.S.A. 79-5208. In that regard, the legislature's designation of more grams to be considered a marijuana dealer than that required to be a methamphetamine dealer has a basis in fact unrelated to establishing a unit of prosecution. Accordingly, we reject the proposition that K.S.A. 2010 Supp. 79- 5201(c) clearly indicates a legislative intent to make the possession of two separate drugs two separate units of prosecution under K.S.A. 79-5208.

Therefore, under the facts presented in this record, we hold that Pribble's possession of both marijuana and methamphetamine, at the same time and the same location, without the appropriate drug tax stamps affixed, without any proof that the drugs were acquired at different times, constituted a single crime that should not have been charged in two counts.

As a result, the KSC reversed one count of no tax stamp.

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