State v. Pribble, 375 P.3d 966

Background

Police executed a search warrant at Pribble’s home and seized drug-buy money, >800 grams marijuana, >14 grams methamphetamine, paraphernalia, and no drug tax stamps on the drugs.
Pribble was charged with multiple drug offenses including two counts under K.S.A. 79-5208: possession of marijuana without a drug tax stamp and possession of methamphetamine without a drug tax stamp.
A jury convicted Pribble on the charged counts; he appealed arguing multiplicity, prosecutorial misconduct in closing argument, and Apprendi error in sentencing.
The Court of Appeals affirmed; the Kansas Supreme Court granted review.
The Kansas Supreme Court held the two drug-tax-stamp counts (marijuana and methamphetamine) arose from the same conduct and, under the statutory scheme, constituted a single unit of prosecution on these facts — reversing one count and remanding for resentencing.
The court rejected reversal for prosecutorial misconduct (although it found several improper remarks, it held they were not prejudicial) and rejected Pribble’s Apprendi challenge to guideline sentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Multiplicity of two K.S.A. 79-5208 counts (marijuana v. methamphetamine)	Two counts are multiplicitous because the failure to affix tax indicia at same time/place is a single offense	Counts are separate because statute differentiates marijuana and controlled substances (different tax rates/definitions)	Convictions arose from same conduct; statutory scheme read as imposing one tax/crime here — one count reversed and remanded for resentencing
Prosecutorial misconduct in closing argument (misstating law, vouching, shifting burden)	Prosecutor misstated possession law, vouched for credibility, and shifted burden to defense	Remarks fell within permissible argument or were harmless in context given evidence and jury instructions	Some statements misstated law and were improper vouching, but not grossly prejudicial; no reversible error
Burden-shifting by prosecutor (arguing defense could have subpoenaed witnesses)	Such comments impermissibly shift burden to defendant	Prosecutor may note absence of evidence supporting defense theory and rebut inference; defendant testified so no Fifth Amendment issue	Comment was permissible rebuttal pointing out weakness of defense theory, not an improper burden shift
Sentencing enhancement using prior convictions (Apprendi challenge)	Prior convictions used to increase guidelines sentence without jury finding violates Apprendi	Kansas precedent allows judicial factfinding of prior convictions for sentencing	Court declined to overrule Ivory; application of prior convictions for guideline sentence did not violate Apprendi

Key Cases Cited

Apprendi v. New Jersey, 530 U.S. 466 (2000) (constitutional rule regarding facts that increase penalty beyond statutory maximum)
State v. Schoonover, 281 Kan. 453 (2006) (two-part multiplicity/unit-of-prosecution test)
State v. Thompson, 287 Kan. 238 (2008) (definition and danger of multiplicity)
State v. Raskie, 293 Kan. 906 (2012) (factors for assessing prosecutorial misconduct prejudice)
State v. Marshall, 294 Kan. 850 (2012) (standard for reviewing closing-argument error)
State v. Miller, 293 Kan. 535 (2011) (preservation rule and prosecutor latitude)
State v. Bunyard, 281 Kan. 392 (2006) (misstatement of law in closing not permitted)
State v. Inkelaar, 293 Kan. 414 (2011) (harmlessness standard re: prosecutorial error)
State v. Peppers, 294 Kan. 377 (2012) (limits on prosecutor expressing personal belief in witness credibility)
State v. Duong, 292 Kan. 824 (2011) (permissible jury argument about absence of evidence and defendant’s failure to present corroboration)
State v. Ivory, 273 Kan. 44 (2002) (judicial use of prior convictions in sentencing upheld)