State v. BerberichState v. Berberich
The opinion of the court was delivered by
Thomas A. Berberich was convicted by a jury of: (1) possession of methamphetamine,
At trial, Berberich admitted the drugs in the duffel bag were his. He stated he purchased and repackaged the drugs only for his own use due to job pressure and personal problems.
Prior to instructing the jury, the trial court denied Berberich’s motion to dismiss the charge of possession of methamphetamine with intent to sell as being an included offense of the charge of possession of methamphetamine without a drug tax. The trial court determined even though possession is a common element of both crimes, there are other elements in each offense which distinguish them. On appeal, Berberich claims that the possession
of methamphetamine is an included crime of the failure to pay the Kansas drug tax and the Kansas tax is an unconstitutional criminal penalty disguised as a tax and therefore violates the due process clause of the Fourteenth Amendment. It should be noted that on appeal the defense and the State argue the issue of whether possession of methamphetamine is an included crime of failure to pay the Kansas drug tax. However, the defendant was charged with, the jury was instructed on, and the defendant was convicted of a violation of
POSSESSION OF METHAMPHETAMINE AS AN INCLUDED CRIME OF POSSESSION OF METHAMPHETAMINE WITHOUT AFFIXING THE KANSAS DRUG TAX STAMP
The record reflects that Berberich’s motion to dismiss the charge of possession of methamphetamine with the intent to sell as being an included offense in the charge of possession without affixing a drug tax stamp was denied by the trial court.
Although Berberich was charged with possession of methamphetamine with intent to sell pursuant to
“If you cannot agree that the defendant is guilty of possession of methamphetamine with intent to sell, you should then consider the lesser included offense of possession of methamphetamine.
“To establish this charge each of the following claims must be proved:
“1. That the defendant possessed a stimulant drug known as methamphetamine;
“2. That the defendant did so intentionally;
“3. That this act was done on or about the twelfth day of October, 1988, in Shawnee County, Kansas.”
The instruction for Count Three read:
“The defendant is charged in Count 3 with the offense of possessing methamphetamine without having paid Kansas drug tax.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally possessed methamphetamine;
“2. That the methamphetamine weighed more than one gram;
“3. That the defendant intentionally did not affix an official drug tax stamp on methamphetamine in his possession;
“4. That this act occurred on or about the 12th day of October, 1988 in Shawnee County, Kansas.”
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(b) an attempt to commit the crime charged;
“(c) an attempt to commit a lesser degree of the crime charged; or
“(d) A crime necessarily proved if the crime charged were proved.” (Emphasis added.)
In determining whether a lesser crime is a lesser included offense under
Berberich asserts that under either test set out in
Fike,
the illegal possession offense is a lesser included offense of the drug tax act violation; therefore, he cannot be convicted of both crimes. Berberich claims the first prong of
Fike,
the elements test, reveals that illegal possession is an included crime of the drug tax act violation as each offense requires proof that he intentionally possessed methamphetamine. Berberich claims the second prong of
Fike,
the evidence test, would require the State to prove possession of the same methamphetamine for him to be convicted of either offense. We disagree with Berberich’s analysis of
Prior to the adoption of the Kansas Criminal Code in 1969, Kansas followed the traditional common-law rule on instructing
the jury on lesser included offenses, i.e., the elements test. G.S. 1868, ch. 82, § 121 provided that upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto or of an attempt to commit the offense. G.S. 1868, ch. 82, § 122 stated that upon the trial of an indictment for a felony the defendant may be found guilty of any other felony or misdemeanor necessarily included in that with which he is charged in the indictment or information. When the Kansas Criminal Code was adopted,
Regarding the lesser included offense, 3 Wright, Federal Practice and Procedure: Criminal 2d § 515 (1982) states:
“This doctrine developed at common law to aid the prosecution in cases where the proof failed to show some element of the crime charged. It can be beneficial to the defendant, however, since the jury may temper justice with mercy by acquitting defendant of the offense charged and finding him guilty of the lesser offense. If the evidence is such that the jury could rationally find defendant guilty of the lesser offense but not of the greater, an instruction on the lesser offense must be given.
“One offense is necessarily included in another if it is impossible to commit the greater without also having committed the lesser. Thus murder includes such lesser offenses as second-degree murder, manslaughter, and negligent homicide. Robbery necessarily includes larceny, and assault with intent to rob. Rape necessarilyincludes assault with intent to rape. Assault with a dangerous weapon includes simple assault. Theft of property in excess of $100 includes the lesser wrong of theft of property of value not exceeding $100. In each of these instances some of the elements of the greater crime charged are in themselves enough to constitute the lesser crime.
“The rule also provides in terms that the jury may find the defendant guilty of an attempt to commit the offense charged—or an offense necessarily included therein—if an attempt is an offense. Although this is spelled out in the rule, in principle it seems indistinguishable from the general case of an offense necessarily included.
“The lesser offense doctrine does not apply if the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses, and the lesser offense is, therefore, completely encompassed by the greater. It is thought that to hold otherwise would invite the jury to pick between the two offenses in order to determine the punishment to be imposed, a duty traditionally left to the judge.
“The doctrine also does not apply if some element is required for the lesser offense but not for the greater. In this situation two different crimes are involved, and the lesser is not necessarily included in the greater, since it would be possible to commit the greater without also having committed the lesser.
“Conviction of a lesser-included offense is an implied acquittal of the greater offense. If the defendant has the conviction vacated on appeal, he cannot thereafter be tried for the greater offense.”
Berberich cites
State v. Adams,
“Where commission of one crime necessarily involves commission of a second, the offense so involved is said to be merged in the offense of which it is a part. However, when one of the two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both, though both are, in a sense, successive steps in the same transaction. Thus, the doctrine of merger does not apply where the offenses are separate and distinct, but only where the identical criminal act constitutes both offenses. The merger doctrine had its origin in the fact that, at the early common law; persons charged with misdemeanor were entitled to certain privileges not available to persons charged with felony. Since this situation no longer obtains and the distinction, if any, runs in the opposite direction, the original reason for the rule has disappeared and thus the conventional merger doctrine has become disfavored and either confined within narrow limits or abolished altogether.” 21 Am. Jur. 2d, Criminal Law § 21. When the underlying crime merges with the offense charged, the trial judge does not instruct the jury that the accused can be convicted of the underlying crime.
When the legislature enacted the Kansas Code of Criminal Procedure in 1969, it modified and enlarged the common law duty to instruct on lesser included offenses (the elements test)
by adding subsection (d) to
Berberich asks this court to overrule the Court of Appeals’ holding in
State v. Matson,
Berberich asserts that the Court of Appeals’ decision in
Matson
eliminated included offenses under 21-3107(2)(d) and violates the legislative intent prohibiting more than one conviction based upon a single act. We disagree with Berberich’s statement. He misreads the Court of Appeals’ opinion, which merely defined “lesser included crime” and did not limit the scope of
“The general rule is that a conspiracy to commit a crime is an offense separate and distinct from the crime that is the object of the conspiracy, and the legal consequences of a conspiracy to commit a crime are separate and distinct from the commission of the crime itself. Because the conspiracy is the crime and not its execution, it is punishable both where it fails in its object and where the intended crime is accomplished.” 16 Am. Jur. 2d, Conspiracy § 5. In Matson, the Court of Appeals followed the general rule that conspiracy is a separate crime from the object of the conspiracy.
A third example is burglary,
The same is true for the crime of possession of a controlled substance without affixing the tax stamp and the offense of possession of marijuana or a controlled substance. The Kansas Drug Tax Act provides “a dealer distributing or possessing marijuana or controlled substances without affixing the appropriate stamps, labels or
CONSTITUTIONALITY OF KANSAS DRUG TAX ACT
Subsequent to the district court determination that the Kansas Drug Tax Act did not violate the defendant’s Fourteenth Amendment right to due process, the Court of Appeals in
State v. Matson,
Berberich asserts the legislature when enacting the law recognized that dealers were unlikely to pay the tax, little revenue would be raised thereby, and the primary purpose of the tax would be to
“ ‘The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.’ ” State v. Durrant,244 Kan. 522 , 526,769 P.2d 1174 , cert. denied _ U.S --,106 L. Ed. 2d 600 (1989) (quoting Federal Land Bank of Wichita v. Bott,240 Kan. 624 , Syl. ¶ 1,732 P.2d 710 [1987], The burden of proof is on the party challenging the constitutionality of the statute. Durrant,244 Kan. at 526 .
In
State v. Durrant,
we found that
“While some have questioned the propriety of a government entity imposing a tax upon an illegal act, the United States Supreme Court has held that a tax may be imposed on an activity that is wholly or partially unlawful under state or federal statute. [Citation omitted.] In doing so, however, the government may not violate constitutional restrictions . . . .”244 Kan. at 528 .
The Court of Appeals in Matson, after reviewing our decision in Durrant, stated:
“[T]he United States Supreme Court has considered in a number of different circumstances whether a tax is, in fact, a penalty. In Lipke v. Lederer,259 U.S. 557 ,66 L. Ed. 2d 1061 ,42 S. Ct. 549 (1922), the court considered a federal prohibition era statute which made the manufacture and sale of liquor illegal and imposed a tax on the “ ‘illegal manufacture [and] sale’ ” of liquor. The court stated:
‘The mere use of the word “tax” in an act primarily designed to define and suppress crime is not enough to show that within the true intendment of the term a tax was laid. [Citation omitted.] When by its very nature the imposition is a penalty, it must be so regarded. [Citation omitted.] Evidence of crime ... is essential to assessment . . . [of the tax]. It lacks all the ordinary characteristics of a tax, whose primary function “is to provide for the support of the government” and clearly involves the idea of punishment for infraction of the law—the definite function of a penalty.’ Lipke,259 U.S. at 561-62 .
“In more recent decisions, however, the Court has backed away from this strong position against such taxes. In United States v. Sanchez,340 U.S. 42 ,95 L. Ed. 2d 47 ,71 S. Ct. 108 (1950), the Court upheld a federal tax on marijuana. The statute levied a tax on ‘every person who imports, manufactures, produces, compounds, sells, deals in, dispenses, prescribes, administers, or gives away marijuana.’340 U.S. at 43 . Additional penalties were provided for failure to pay the tax.
“The Court held that in enacting the statute, Congress had two objectives, namely, to raise revenue and at the same time to make it extremely difficult for persons to obtain the drug for illegal purposes. It said:
‘It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. [Citation omitted.] The principle applies even though the revenue obtained is obviously negligible [citation omitted].
‘The tax levied ... is not conditioned upon the commission of a crime. The tax is on the transfer of marijuana, to a person who has not paid the special tax and registered. Such a transfer is not made an unlawful act under the statute.’Sanchez, 340 U.S. at 44-45 .
“The Supreme Court has essentially followed the same reasoning in subsequent cases in which the question has been considered. In two separate cases, it upheld the constitutionality of a federal statute,26 U.S.C. § 3285 (1952) (now26 U.S.C. § 4401 [1988]), which taxed gambling earnings. In both cases, it was argued that, because gambling was illegal, the tax was merely a penalty. The Court stated:
‘It is conceded that a federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed. Nor is the tax invalid because the revenue obtained is negligible. Appellee, however, argues that the sole purpose of the statute is to penalize only illegal gambling in the states through the guise of a tax measure. As with the above excise taxes which we have held to be valid, the instant tax has a regulatory effect. But regardless of its regulatory effect, the wagering tax produces revenue. As such it surpasses both the narcotics and firearms taxes which we have found valid.’ United States v. Kahriger,345 U.S. 22 , 28,97 L. Ed. 754 ,73 S. Ct. 510 , reh. denied345 U.S. 931 (1953).
See Lewis v. United States,348 U.S. 419 ,99 L. Ed. 475 ,75 S. Ct. 415 , reh. denied349 U.S. 917 (1955).
“Again, in Pittsburgh v. Alco Parking Corp.,417 U.S. 369 ,41 L. Ed. 2d 132 ,94 S. Ct. 2291 (1974), the court held, that a 20 percent tax on privately operated parking lots is not a penalty even though it was designed to discourage operation of such lots.
“Although the tax on marijuana considered by the Court in Sanchez was later repealed after it was found to be violative of the prohibition on self-incrimination (Leary v. United States,395 U.S. 6 ,23 L. Ed. 2d 57 ,89 S. Ct. 1532 [1969]), the reasoning of the Court in Sanchez is persuasive here.
“Although the minutes of the Kansas House and Senate Committees show that the primary purpose of the act was to combat drug usage, raising revenue was a motive that was definitely considered. The committee minutes reflect the following statement by Rep. Robert Miller: ‘The taxes would provide a way to tax part of the flourishing underground economy that is normally operating on a tax-free basis.’ Hearings on HB-2140 before the House Taxation Committee, 1987 Session. Other testimony before the committee reflects similar goals, including suggestions that the revenue collected be used not only to combat illegal drug usage but also for a program for the prevention, education, and rehabilitation of those adversely affected by the drug trade.
“Because revenue collection is one of the objectives of the statute and because imposition of the tax does not expressly depend on the illegal nature of the sale or possession of marijuana, we hold that the statute is constitutionally valid under the United States Constitution.
“Defendant also argues that the drug tax violates Article 11, § 5 of the Kansas Constitution, which provides: ‘No tax shall be levied except in pur suance of a law, which shall distinctly state the object of the same; to which object only such tax shall be applied.’ However, Article 11, § 5 applies only to property taxes and not to excise taxes or licenses. Farmers Union C.C.E. v. Director of Revenue,163 Kan. 266 , 268,181 P.2d 541 (1947). The drug tax does not violate this section of the Kansas Constitution.”14 Kan. App. 2d at 638-40 .
In
United States v. Sanchez,
We note that other states have found similar drug tax statutes constitutional. The Minnesota Supreme Court found its drug tax statute did not violate the right against self-incrimination or procedural and substantive due process rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution.
Sisson v. Triplett,
In
Harris v. State, Dept. of Revenue,
Berberich relies on a South Dakota Supreme Court decision,
State v. Roberts,
The Utah Court of Appeals in
State v. Davis,
The Kansas Drug Tax Act,
Affirmed.