The Verdict: State Affirms its Precedent for Possession

State v. Cantu, No. 128,032, 2025 WL 3043344 (Kan. Ct. App., Oct. 31, 2025). 

Staff Editor Lauren Fallis

November 15, 2025

Issue:  To convict a defendant of methamphetamine possession, must the State prove both that the defendant possessed the methamphetamine, and that the methamphetamine has the potential for abuse associated with a stimulant effect on the central nervous system?

Answer:  No.  To convict a defendant of possession of methamphetamine under Kan. Stat. Ann. § 21-5706(a), the State must only prove the defendant possessed methamphetamine, which inherently has the potential for abuse associated with a stimulant effect on the central nervous system.

Facts:  During an arrest on an outstanding warrant, officers recovered methamphetamine from Cantu’s pocket.  The State charged Cantu with unlawfully and feloniously possessing methamphetamine in violation of Kan. Stat. Ann. §§ 21-5706(a) and (c)(1).  Cantu was found guilty and then appealed. 

Discussion:  Kan. Stat. Ann. § 21-5706(a) criminalizes possession of any stimulant listed in Kan. Stat. Ann. § 65-4107(d)(3).  However, the preamble to the list of these controlled substances also states: “(d) . . . any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system: . . . .” See Kan. Stat. Ann. § 65-4107(d)(3) (emphasis added). Based on this preamble, Cantu argued the State must also prove that methamphetamine was a stimulant with potential for abuse, rather than just possession. 

Relying on past precedent, the court rejected this argument because the plain language of the statute suggests the phrase “having a potential for abuse” operates as a general description of the “following substances” listed in Kan. Stat. Ann. § 65-4107––including methamphetamine––not as an additional element the State must prove. Thus, by proving the substance in Cantu’s possession was methamphetamine, the State met all the statute’s elements. 

Key Authorities:  Kan. Stat. Ann. § 21-5706(a) (2013) (Explains requirements for unlawful possession of controlled substances); Kan. Stat. Ann. § 65-4107(d)(3) (2024) (Lists substances having a potential for abuse associated with a stimulant effect on the nervous system); State v. Caldwell, No. 124,476, 2022 WL 17174569, at *8 (Kan. App. 2022) (unpublished opinion) (rejecting argument that State was required to show substance had “potential for abuse associated with a stimulant effect on the central nervous system”); State v. Lynn, No. 98,346, 2008 WL 4291520, at *6 (Kan. App. 2008) (unpublished opinion) (same).