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August 31, 1990.


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.

[14 Kan. App. 2d 633]


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 included crime.

  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 methamphetamine;
"2. That the defendant did so agree with the intent that the crime of sale of methamphetamine be committed;
"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 possession

[14 Kan. App. 2d 634]

      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 distinct offenses.

  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 the following:
. . . .
"(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 crime charged.

  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.

[14 Kan. App. 2d ...

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