Posted on February 17, 2023
Para, Para, Para, Para, Paraphernalia: Single or Plural under Kansas Law?
State v. Eckert, No 120,566 (Kan. Jan. 20, 2023).
Brooke Flucke, Staff Editor
Issue: Is “drug paraphernalia” in Kan. Stat. Ann. § 21-5709(b) plural?
Answer: Yes, “drug paraphernalia” in Kan. Stat. Ann. § 21-5709(b) is plural and there can only be a single unit of prosecution based on a defendant’s intent for possession.
Facts: Law enforcement lawfully searched Justin Eckert’s home and found nine marijuana plants and over 25 other items used to grow marijuana. Among other charges, the State charged Eckert with eight counts of felony possession of drug paraphernalia under Kan. Stat. Ann. § 21-5709(b)(1) and 17 counts of misdemeanor possession of “drug paraphernalia” under § 21-5709(b)(2). A jury convicted Eckert of every drug paraphernalia charges. Eckert appealed and argued his convictions were multiplicitous because “drug paraphernalia” is plural and can only be used as a single unit of prosecution. The Kansas Court of Appeals agreed, concluding either that the term is ambiguous such that the rule of lenity or applied or that the § 21-5709(b)’s plain language supports finding only a single unit of prosecution based on a defendant’s intent to possess. The Kansas Supreme Court granted review.
Discussion: Using the unit of prosecution test, The Kansas Supreme Court affirmed the interpretation that “drug paraphernalia” in § 21-5709(b) is plural. As such, “drug paraphernalia” can only be used as a single unit of prosecution. The Kansas Supreme Court first acknowledged the danger of multiplicitous charges. Charges are multiplicitous if they charge a single offense in several counts[1] and necessarily implicate the double jeopardy clauses in both the U.S. Constitution and the Kansas Constitution Bill of Rights. To determine whether charges are multiplicitous, Kansas courts use a “unit of prosecution” test: “(1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?”[2] Because the State conceded that the charges arose from the same conduct, only whether the statutory definition indicated one or two charges was at issue. First, the Kansas Supreme Court looked at the term’s plain meaning. Because the Kansas Supreme Court could read the plain language as being either plural or singular, the Kansas Supreme Court turned to both the absurdity doctrine and the rule of lenity. Because, in some instances, it would be absurd to charge the defendant with multiple counts of possession for multiple pieces of “paraphernalia,” the State would have “unfettered discretion” to file as many or as few possession of drug paraphernalia possession charges as it desired. As such, it would be absurd for these decisions to be made arbitrarily. Applying the rule of lenity, to decide in favor of the defendant when the statutory language is ambiguous, the Kansas Supreme Court concluded that “drug paraphernalia” ties “a single unit of prosecution to multiple items of paraphernalia in indeterminate numbers.” The Kansas Supreme Court reversed all but one felony possession convictions and all but one misdemeanor possession convictions.
Key Authorities: Kan. Stat. Ann. § 21-5709(b)(1), (2) (Supp. 2016); State v. Schoonover, 133 P.3d 48, 66 (Kan. 2006) (explaining the standard for multiplicity); State v. Arnett, 413 P.3d 787, 791 (Kan. 2018) (explaining the absurd result canon of construction); State v. Williams, 368 P.3d 1065, 1072 (Kan. 2016) (explaining the rule of lenity).
[1] Kansas v. Schoonover, 133 P.3d 48, 66 (Kan. 2006).
[2] Schoonover, 133 P.3d at 55.
