Resolving Ambiguity: Kansas Supreme Court Says “Lesser Crime” in Kan. Stat. Ann. § 21-5109(b)(2) Means “a Crime with a Lesser Penalty”

State v. Martin, No. 124,607, 2024 WL 1122666 (Kan. Mar. 15, 2024).

Author: Jack Atherton, Staff Editor

Issue:  Is possession of methamphetamine a “lesser included crime” of no drug-tax stamp under Kan. Stat. Ann. § 21-5109(b)(2)?

Answer:  No.  Possession of methamphetamine is not a “lesser included crime” of no drug-tax stamp because possession of methamphetamine has a greater penalty. 

Facts:  An officer found 17.51 grams of methamphetamine in a pill bottle that Martin handed her during a traffic stop.  Martin was found guilty of possession of methamphetamine and possession of methamphetamine with no drug-tax stamp.  Martin appealed, arguing the convictions were “multiplicitous,” and therefore violated Kan. Stat. Ann. § 21-5109(b)(2).

Discussion:  Kan. Stat. Ann. § 21-5109(b) “prohibits convictions for both a charged crime and a lesser included crime.”  The Kansas Supreme Court found that the term “lesser crime” was ambiguous because “lesser crime” could be interpreted to mean “a crime with fewer elements,” or “a crime with a lesser penalty.”  The court looked to the legislative history of the statute and existing judicial decisions interpreting “lesser crime.”

Prior to 1998 amendments, Kan. Stat. Ann. § 21-5109 (previously Kan. Stat. Ann. § 21-3107) “prohibited convictions for both the crime charged and an included crime,” where “included” meant “a crime necessarily proved if the crime charged were proved.”[1]  The statute was then amended, prohibiting conviction for a “lesser included” crime, which replaced “included” crime in the prior version of the statute. 

The court noted that pre-1998 caselaw interpreted “lesser included” crime to mean a crime that has a lesser penalty and that shares “all its elements” with some elements of the other crime.  The court presumed that the Legislature knew about this prior caselaw when it drafted the 1998 amendment.  Therefore, to be a “lesser included crime” under Kans. Stat. Ann. § 21-5109(b)(2), “a crime must have a lesser penalty than the charged crime and all elements of the crime must be the same as some elements of the charged crime.”

Applying this interpretation, the court held that possession of methamphetamine is not a “lesser included crime” of no drug-tax stamp because possession of methamphetamine has a greater penalty.  Further, no drug-tax stamp is not a “lesser included crime” of possession of methamphetamine because “not all elements of [no drug-tax stamp] are identical to some elements of” possession of methamphetamine.  Therefore, Martin’s convictions did not violate Kan. Stat. Ann. § 21-5109(b)(2).

Key Authorities:  Kan. Stat. Ann. § 21-5109(b)(2) (Supp. 2019) (defining “lesser included crime”); State v. Fike, 757 P.2d 724, 726 (Kan. 1988) (discussing included crimes, lesser crimes, and lesser included crimes), superseded by statute as recognized in State v. Patten, 122 P.3d 350 (Kan. 2005).

[1]  State v. Martin, No. 124,607, 2024 WL 1122666, at *8 (Kan. Mar. 15, 2024) (quoting Kan. Stat. Ann. § 21-3107(2)(d) (1995) (amended 1998)) (internal quotation marks omitted).

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.