Appeal from Osage District Court; PHILLIP M. FROMME, judge.
1. Under K.S.A. 2006 Supp. 22-3201(e), a trial court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.
2. K.S.A. 2006 Supp. 21-3302(a) requires a charge of conspiracy to include an allegation of the overt act upon which such charge is based. Because an overt act is an essential element of the crime of conspiracy, an allegation of conspiracy is fatally defective unless an overt act is charged.
3. For a charge of conspiracy, it is not sufficient to allege merely that the defendant willfully agreed with another person to commit the crime or to assist in committing the crime.
4. Because an overt act is an essential element of a conspiracy, a conspirator has the right to be informed of the overt act.
5. In this case, by changing the complaint to charge specific overt acts sufficient for the crime of conspiracy to manufacture methamphetamine and by changing the name of the party who allegedly committed the overt acts, the State charged the defendant with a different crime than the crime alleged in the original complaint. Further, the State's amendment of the conspiracy charge at the close of its evidence at trial prejudiced the defendant's substantial rights. Therefore, the amendment should not have been allowed under K.S.A. 2006 Supp. 22-3201(e).
6. When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all of the evidence, viewed in the light most favorable to the prosecution, an appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
7. Aiding and abetting is not a separate crime in Kansas. Instead, it extends criminal liability to a person other than the principal actor.
8. To establish guilt under an aiding and abetting theory, the State must show that a defendant knowingly associated with an unlawful venture and participated in such a way as to indicate that he or she was facilitating the success of the venture.
9. Generally, issues not raised before a trial court cannot be raised on appeal. Nevertheless, K.S.A. 21-4721(e)(3) gives appellate courts the jurisdiction to review a claim that the sentencing court erred in ranking the severity level of a crime.
10. Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.
11. Under the facts in relation to the statutory elements of this case, the manufacture of methamphetamine under K.S.A. 2006 Supp. 65-4159(a) is identical to the use of drug paraphernalia with the intent to manufacture a controlled substance under K.S.A. 2006 Supp. 65-4152(a)(3).
The opinion of the court was delivered by: Green, J.
Convictions affirmed in part and reversed in part, sentence vacated in part, and case remanded with directions.
Before BUSER, P.J., GREEN and CAPLINGER, JJ.
Veronica Spangler appeals from her convictions and sentences after a jury trial of manufacture of methamphetamine in violation of K.S.A. 2006 Supp. 65-4159, conspiracy to manufacture methamphetamine in violation of K.S.A. 2006 Supp. 65-4159 and K.S.A. 2006 Supp. 21-3302, possession of methamphetamine in violation of K.S.A. 65-4107(d)(3), and possession of drug manufacturing paraphernalia in violation of K.S.A. 2006 Supp. 65-4152(a)(3). First, Spangler argues that the trial court erred in allowing the State to amend the conspiracy charge at the close of the State's evidence at trial. We agree. By changing the complaint to charge specific overt acts sufficient for the crime of conspiracy to manufacture methamphetamine and by changing the name of the party who allegedly committed the overt acts, the State was allowed to prosecute Spangler for a different crime from the crime alleged in the original complaint. Moreover, we determine that the amendment, which forced Spangler to change her defense to the conspiracy charge in the middle of trial, prejudiced her substantial rights. Therefore, the State should not have been allowed to amend the conspiracy charge under K.S.A. 2006 Supp. 22-3201(e).
Next, Spangler contends that her convictions for manufacture of methamphetamine and conspiracy to manufacture methamphetamine were not supported by sufficient evidence. We disagree. After reviewing the evidence in the light most favorable to the prosecution, we are convinced that a rational jury could have found Spangler guilty beyond a reasonable doubt. Finally, Spangler argues that she should be resentenced to drug severity level 4 felonies for her convictions of manufacture of methamphetamine and conspiracy to manufacture methamphetamine because manufacture of methamphetamine under K.S.A. 2006 Supp. 65-4159 is identical to use of drug paraphernalia under K.S.A. 2006 Supp. 65-4152(a)(3). Because we are reversing Spangler's conviction for conspiracy to manufacture methamphetamine, it is unnecessary to address Spangler's argument as it relates to her sentence on the conspiracy charge. After considering the underlying facts of this case in relation to the statutory elements of the crimes as required by State v. Fanning, 281 Kan. 1176, 135 P.3d 1067 (2006), we determine that manufacture of methamphetamine under K.S.A. 2006 Supp. 65-4159(a) is identical for sentencing purposes to use of drug paraphernalia under K.S.A. 2006 Supp. 65-4152(a)(3). Accordingly, we reverse Spangler's conviction for conspiracy to manufacture methamphetamine, we affirm her convictions for manufacture and possession of methamphetamine and possession of drug manufacturing paraphernalia, and we vacate her sentence for manufacture of methamphetamine and remand for resentencing as a drug severity level 4 felony.
In October 2004, law enforcement officers began investigating and surveilling a pasture owned by Charles "Tug" Atchison based on their suspicions of a methamphetamine lab at that location. Officers watched the pasture several times in 2004 until the weather became bad.
On March 15, 2005, officers were again watching Atchison's pasture when they saw someone exit a truck, drop an item in the feed bin on Atchison's land, and re-enter the truck. As the truck was leaving the pasture, officers stopped and arrested the truck's occupants, Raymond Roberts, Walter O'Handlen, and Karen O'Handlen. In the truck, officers found cold pills, lithium batteries, a cellophane wrapper containing what appeared to be methamphetamine, a coffee filter with finished methamphetamine, starter fluid with ether, and receipts listing items used in the manufacture of methamphetamine.
When interviewed at the police station, Walter and Karen admitted that they had been involved in manufacturing methamphetamine with Roberts that day. Walter and Karen said that Raymond had contacted them and asked them to bring some items out to Atchison's pasture. Walter and Karen admitted that they purchased ingredients to manufacture methamphetamine and had helped Roberts to manufacture methamphetamine. Karen testified at trial that she and Walter supplied the batteries, cold pills, and starter fluid but that the sludge (a mixture of pills and lithium) was already at Atchison's when they arrived. When asked about Spangler's involvement in the manufacture of methamphetamine, Walter and Karen told the interviewing officer that Spangler would buy ingredients, such as starter fluid, pills, batteries, and other items needed to manufacture methamphetamine.
During the early morning hours of March 16, 2005, a search warrant was executed at Roberts' home. Spangler lived with Roberts, and they had a child together. During the search, officers discovered the following items: a glass dish containing a powdery residue and a razor blade in a child's bedroom; a glass pipe; a brass pipe; a driver's license with a powdery residue; a mirror and knife containing residue; and scanner radios. In addition, officers removed from the ceiling a bag containing pieces of foil, a plastic pen tube, a glass smoking pipe, and a plastic baggie with residue. Later testing on the glass dish, the knife, the driver's license, one of the glass pipes, and the plastic baggie detected methamphetamine.
Spangler was not home during the search. She was later stopped in Overbrook and arrested. While in jail, Spangler requested to speak with Sheriff Laurie Dunn. After waiving her Miranda rights, Spangler told Dunn that she normally knew when the manufacture of methamphetamine or "cook" was going to occur. Spangler described to Dunn where they got the ingredients, what she had done in the past to purchase materials to make methamphetamine, and to whom they sold the drugs. Spangler said that she had purchased lithium batteries, starter fluid, pills, acid, and coffee filters in the past for the cooks. Spangler told Dunn that she and Roberts had a family plan. They had arranged it so that only one of them would be at the "cooks" at the same time. That way, if one of them was arrested, the other would be able to take care of the children. Spangler said that she had not been to any cook.
Spangler told Dunn that the cooks occurred at Atchison's and that Atchison would be paid in methamphetamine for the use of his land. Spangler told Dunn that after the cook, the methamphetamine was brought to her and Roberts' home where it would sometimes be cut. Spangler informed Dunn that the knife and driver's license found at her house were used to cut the methamphetamine. Spangler said that she usually delivered the methamphetamine to Atchison's property the following morning and would place it in a black plastic container located behind a shed.
Dunn and Spangler discussed the black bag that had been found in the ceiling of her home. Spangler told Dunn that the officers had missed some electric scales that she put in the ceiling the previous week. Spangler said that the glass dish in the children's room had been left there by Jeff Atchison.
Roberts was convicted of manufacture of methamphetamine and sentenced to 92 months in prison. Karen reached a plea agreement with the State and was sentenced to 50 months in prison. Walter also reached a plea agreement with the State and was sentenced to 50 months in prison. Spangler was charged with manufacture of methamphetamine, conspiracy to manufacture methamphetamine, possession of methamphetamine, and possession of drug manufacturing paraphernalia. At trial, Spangler testified that she knew Roberts manufactured methamphetamine on Atchison's land. Nevertheless, she had nothing to do with the manufacture of methamphetamine. Spangler admitted that in the past, she had purchased items used to manufacture methamphetamine. Since her son was born in July 2003, however, she had not purchased those items.
William Kraus, the operator of a hardware store in Burlingame, testified that he turned Spangler's name into law enforcement because she had repeatedly purchased muriatic acid from his store. According to Kraus, Spangler purchased muriatic acid from his store in the spring of 2005. Spangler testified that she purchased the muriatic acid for drain problems at her home.
Spangler admitted to using methamphetamine daily around the time of her arrest. In the last 5 years, she had not used methamphetamine for only a year and a half. According to Spangler, she did not measure out the methamphetamine that Roberts had manufactured. Spangler acknowledged that she sometimes delivered methamphetamine to Atchison for payment for the use of his property. Spangler testified that she would call Atchison and let him know that she had delivered the methamphetamine. Spangler admitted to calling Atchison and telling him to take some acid to Roberts for the manufacture.
Spangler testified that on the afternoon of March 15, 2005, she gave Roberts a ride to Burlingame so that he could move a shed to his brother's property. Spangler later stopped to speak with Walter and Karen who had run out of gas and were parked near the old schoolhouse in Burlingame. According to Spangler, she found Roberts and told him where Walter and Karen were. According to Karen, however, Spangler bought them gas and told them where Roberts was. Spangler testified that when Roberts did not come home that evening, Spangler called around to their friends and was told that Roberts was in jail. Spangler called the jail and confirmed that Roberts was there. Spangler drove to a friend's house in Harveyville that night and used methamphetamine.
Roberts testified that he was making methamphetamine with Karen and Walter on March 15, 2005, at Atchison's property. According to Roberts, Karen and Walter had called him that day and told him they had purchased all the items to make the methamphetamine. Roberts told Karen and Walter to meet him at Atchison's property in Burlingame. Roberts testified that he told Spangler he was going to move a shed but did not mention to her that he would be manufacturing methamphetamine that day. According to Roberts, Spangler had not purchased items to manufacture methamphetamine since their son was born in July 2003. Roberts testified that he never manufactured methamphetamine in his and Spangler's home. Roberts further testified that he might have weighed, cut, and separated it in their home, but he never involved Spangler in this process. According to Roberts, he usually dropped off Atchison's portion of the methamphetamine when he left Atchison's land. Nevertheless, Roberts admitted that Spangler delivered Atchison's portion of the methamphetamine a couple of times.
Karen testified that she, Walter, and Roberts had been manufacturing methamphetamine since at least October 2004. According to Karen, they manufactured methamphetamine approximately every 2 weeks. Walter testified that Spangler was not at Atchison's property on March 15, 2005, but that he had seen her out there once. Karen testified that she had never seen Spangler at Atchison's property while they manufactured methamphetamine nor had she seen her manufacture methamphetamine. According to Karen, Spangler would help buy the pills and batteries for the cooks. Karen testified about a shopping trip in Lawrence just before Christmas during which Spangler purchased pills and batteries.
The jury found Spangler guilty of all four counts. Spangler was sentenced to ...