Quantity v. The Right Quantity: A Greater Quantity of Contraband Than a Lesser Charge Demands Can Support the Lesser Charge

Alex Speakar, Staff Editor

State v. Scheuerman, No. 122,253 (Kan. Jan. 14, 2022).

Issue: Under K.S.A. § 21-5705(a)(1) and (d)(3)(B), different amounts of methamphetamine are required for different levels of felony charges.  When the statute’s plain language requires that an individual must be guilty of the crime within the corresponding parameters, and no other, and the individual possesses a quantity greater than those lesser parameters, must they be found not guilty of the crime charged?

Answer: No.

Facts: Scheuerman was charged with a level three drug felony, reduced from level two, after stipulating to possessing at least 3.5 grams but less than 100 grams of methamphetamine.  Scheuerman was found guilty by the trial court of possession of methamphetamine with intent to distribute under K.S.A. § 21-5705(a)(1) and (d)(3)(B).  Scheuerman appealed the decision, and the conviction was reversed for insufficient evidence concluding that Scheuerman’s possession of at least 3.5 grams of methamphetamine could not support a conviction for possession of less than 3.5 grams of methamphetamine.  The State then filed a petition for review and Scheuerman filed a conditional cross-petition.

Discussion: K.S.A. § 21-5705 is ambiguous as to whether the felony level amounts are mutually exclusive or cumulative.  Scheuerman argued that he could not be guilty of this lesser crime (felony level 3) because he possessed more methamphetamine than the range specified (placing him in felony level 2).  The Court of Appeals agreed with Scheuerman.  The Kansas Supreme Court reversed, finding that this conclusion produces an absurd result.  The Court reasoned that, for example, if one possesses 3.5 grams of methamphetamine, they necessarily also possessed 2 grams.  The amounts – and therefore the charges – should be considered cumulatively.

K.S.A. § 21-5705(a) provides that possession of any methamphetamine with intent to distribute is a felony at some level.  Thus, treating the amounts as cumulative is supported by legislative intent.  The court’s rationale allows a prosecutor the discretion to charge a crime less than the maximum allowed by the quantity possessed, if the prosecutor thinks the circumstances warrant the lesser charge.  The court concluded that the evidence was sufficient to establish the possession of the amount mandated by the lesser charged crime because the undisputed evidence established the possession of a greater quantity of contraband than the charged crime encompasses.

Key Authorities:

Kan. Stat. Ann. § 21-5705 (Supp. 2020) http://www.kslegislature.org/li_2016/b2015_16/statute/021_000_0000_chapter/021_057_0000_article/021_057_0005_section/021_057_0005_k/

State v. Walker, 124 P.3d 39 (Kan. 2005) (explaining that while a statute may appear clear from its plain language its application to the facts can reveal ambiguity requiring interpretation).

State v. Gensler, 423 P.3d 488 (Kan. 2018) (explaining that even when a statute is ambiguous the court is not required to give effect to an absurd interpretation of the statute).

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