Defendant Gilbert Matson has appealed from his convictions on
three drug-related charges.
The evidence is not disputed that Matson was employed by
"Gene's Machines," a California car dealership. It was Matson's
job to buy used cars in Hutchinson, Kansas, send them to David
White, Gene's mechanic in Hutchinson, for repair, and then take
the cars to California to be sold for profit.
The Reno County police department had information that Matson
was bringing methamphetamine from California for use in an
illicit drug operation with David White and others in Hutchinson.
On May 10, 1988, based on information that Matson was arriving
from California by plane, law enforcement officers met the plane
in Wichita. They observed Matson place a bag in the trunk of a
car driven by a friend and drive toward Hutchinson. As the car
entered Reno County, it was stopped by law enforcement officers,
who found in the trunk a large quantity of pure methamphetamine.
After a jury trial, Matson was convicted on three drug related
charges, conspiracy to sell methamphetamine, K.S.A. 21-3302,
K.S.A. 65-4127b(b), possession of methamphetamine with intent to
sell, K.S.A. 65-4127b(b), and possession of methamphetamine
without a tax stamp, K.S.A. 79-5201 et seq.
Because Matson was a third-time felon, the court declared him
to be a habitual criminal, enhanced the sentences, and ordered
them to run consecutively with a resulting controlling term of 23
to 75 years. Matson timely appeals.
Matson first contends that the charge of possession of
methamphetamine with intent to sell was necessarily proved when
he was convicted on the conspiracy charge and, therefore, his
conviction on the possession charge must be vacated as being an
The jury was instructed that in order to find Matson guilty of
the conspiracy charge, the State must prove the following:
"1. That the defendant agreed with others to commit
or assist in the commission of the crime of sale of
"2. That the defendant did so agree with the intent
that the crime of sale of methamphetamine be
"3. That the defendant or any party to the
agreement acted in furtherance of the agreement by
possessing a quantity of methamphetamine with intent
to sell; and
"4. That this act occurred on or about the 10th day
of May, 1988, in Reno County, Kansas."
Matson maintains that the information as clarified by the
instruction necessarily required the State to prove that he
committed the requisite overt act of possessing methamphetamine
with the intent to sell, and that this was the same act of
for which he was separately charged in count II of the
information. Thus, he argues, the possession charge was the
"included crime" under K.S.A. 21-3107(2)(d), and his conviction
thereon must be vacated.
The State argues that the instructions required only possession
of methamphetamine with intent to sell by any member of the
conspiracy and not necessarily the defendant, that David White, a
codefendant, was also convicted of possessing the drug with
intent to sell, and that the two charges are separate and
K.S.A. 21-3107(2) provides:
"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
. . . .
"(d) a crime necessarily proved if the crime
charged were proved."
Cases considering the applicability of this statute have
consistently interpreted it to prohibit prosecutions for "lesser
included crimes." In State v. Fike, 243 Kan. 365
, 367, 757 P.2d 724
(1988), the court, after considering the question at length,
concluded that the "included crime" to which the proscription of
the statute applies is a lesser crime or offense, i.e., "a
crime" which carries a lesser penalty than the penalty for the
Possession of methamphetamine with intent to sell is a class C
felony. Conspiracy to sell methamphetamine is a class E felony.
The possession charge is not a lesser included crime. Therefore,
section 21-3107(2) does not prohibit conviction on both offenses.
Matson also contends that the convictions are
unconstitutionally multiplicitous. He did not raise this issue at
trial, but he correctly notes that multiplicity may be raised on
appeal if necessary to serve the ends of justice or to prevent
denial of fundamental rights. State v. Dubish, 234 Kan. 708,
718, 675 P.2d 877 (1984). Since defendant was sentenced to
consecutive sentences, the controlling term of his sentences will
be significantly reduced if any one conviction is set aside. We
will, therefore, consider this issue.
Matson, in effect, argues that the possession charge merged
into the "broader crime" of conspiracy, and that the possession
charge must, therefore, be vacated.