IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 120,566
STATE OF KANSAS,
Appellee,
v.
JUSTIN BURKE ECKERT,
Appellant.
SYLLABUS BY THE COURT
1.
Multiplicity is the charging of a single offense in several counts of a complaint or
information. The principal danger of multiplicity is that it creates the potential for
multiple punishments for a single offense, which is prohibited by the Double Jeopardy
Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights.
2.
Questions involving multiplicity are questions of law subject to unlimited
appellate review.
3.
When analyzing claims of multiplicity, the overarching inquiry is whether the
convictions are for the same offense. There are two components to this inquiry, both of
which must be met for there to be a double jeopardy violation: (1) Do the convictions
arise from the same conduct? and (2) By statutory definition are there two offenses or
only one?
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4.
When analyzing whether sentences relating to two convictions that arise from
unitary conduct result in a double jeopardy violation, the test to be applied depends on
whether the convictions arose from the same statute or multiple statutes. If the double
jeopardy issue arises from convictions for multiple violations of a single statute, the unit
of prosecution test is applied. If the double jeopardy issue arises from multiple
convictions of different statutes, the strict-elements test is applied.
5.
The statutory definition of the crime determines what the Legislature intended as
the allowable unit of prosecution. There can be only one conviction for each allowable
unit of prosecution. The determination of the appropriate unit of prosecution is not
necessarily dependent on whether there is a single physical action or a single victim.
Rather, the key is the nature of the conduct proscribed.
6.
The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. In ascertaining this intent, a court
begins with the plain language of the statute, giving common words their ordinary
meaning. When a statute is plain and unambiguous, a court should not speculate about the
legislative intent behind that clear language, and it should refrain from reading something
into the statute that is not readily found in its words. But if a statute's language is
ambiguous, a court may consult canons of construction to resolve the ambiguity.
7.
K.S.A. 2016 Supp. 21-5709(b) is ambiguous regarding the unit of prosecution, so
application of traditional canons of statutory construction is necessary to discern its
meaning.
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8.
Courts must construe a statute to avoid unreasonable or absurd results.
9.
The rule of lenity is a canon of statutory construction applied when a criminal
statute is ambiguous to construe the uncertain language in the accused's favor.
10.
Applying traditional canons of statutory construction to K.S.A. 2016 Supp. 21-
5709(b), we hold the Legislature intended to tie a single unit of prosecution to multiple
items of paraphernalia in indeterminate numbers.
Review of the judgment of the Court of Appeals in an unpublished opinion filed March 4, 2022.
Appeal from Miami District Court; AMY L. HARTH, judge. Opinion filed January 20, 2023. Judgment of
the Court of Appeals affirming in part and reversing in part the district court is affirmed. Judgment of the
district court is affirmed in part and reversed in part.
Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause, and was on the briefs for
appellant.
Elizabeth Sweeney-Reeder, county attorney, argued the cause, and Rebecca S. Silvermintz,
assistant county attorney, Jason A. Vigil, assistant county attorney, and Derek Schmidt, attorney general,
were with her on the briefs for appellee.
The opinion of the court was delivered by
STANDRIDGE, J.: A jury convicted Justin Eckert of 8 counts of felony possession
of drug paraphernalia under K.S.A. 2016 Supp. 21-5709(b)(1) and 17 counts of
misdemeanor possession of drug paraphernalia under K.S.A. 2016 Supp. 21-5709(b)(2).
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Eckert appealed, arguing his convictions within each statutory subsection were
multiplicitous because they relied on multiple items of paraphernalia used for the same
purpose as part of a unitary course of conduct. A Court of Appeals panel agreed, finding,
at a minimum, K.S.A. 2020 Supp. 21-5709(b) is ambiguous because the term "drug
paraphernalia" can be either singular or plural and therefore must be construed in Eckert's
favor under the rule of lenity. Alternatively, the panel held the plain language of the
statute supports finding one unit of prosecution based on Eckert's intent for possessing
drug paraphernalia, not the quantity of paraphernalia possessed. As a result of its holding,
the panel reversed 7 of the felony possession convictions and 16 of the misdemeanor
possession convictions. State v. Eckert, No. 120,566, 2022 WL 628660, at *10, 13 (Kan.
App. 2022) (unpublished opinion).
On the State's petition for review, we affirm the Court of Appeals' conclusion that
the Legislature intended the term "drug paraphernalia" as used in K.S.A. 2016 Supp. 21-
5709(b) to be tied to a single unit of prosecution and that Eckert's drug paraphernalia
possession convictions within each statutory subsection of K.S.A. 2016 Supp. 21-5709(b)
were multiplicitous. As explained below, however, we reach this result through a
different path than the Court of Appeals.
RELEVANT FACTS
In December 2016, Amber Dial reported to the Miami County Sheriff's Office that
her boyfriend, Eckert, had beaten her. As a result of these beatings, Dial sustained a head
gash that required several staples, three broken ribs, a swollen black eye, multiple bruises
all over her body, and a busted lip. Dial testified that Eckert also threatened her at some
point with a knife by placing the knife up close to the front of her neck.
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The day after Dial spoke with law enforcement, officers executed a search warrant
at Eckert's home. During the search, officers found a tent, 9 grown marijuana plants, and
more than 25 drug paraphernalia objects, including a propane tank and a blower.
The State charged Eckert with aggravated kidnapping, attempted second degree
murder, aggravated battery, aggravated assault with a deadly weapon, criminal threat,
cultivating marijuana, and intending to use/possess drug paraphernalia. The State later
amended the information to include 28 other counts of possession of paraphernalia with
intent to manufacture/plant/cultivate controlled substances. Specifically, the State
charged Eckert with eight felony counts of possessing drug paraphernalia to manufacture,
cultivate, and plant marijuana based on possession of propane, a blower, water jugs,
lights, fans, a tent, a ventilation system, and a pump. K.S.A. 2016 Supp. 21-5709(b)(1)
(felony possession). The State also charged Eckert with 21 misdemeanor counts of
possessing drug paraphernalia to store marijuana and to introduce marijuana into the
human body based on possession of 2 bongs, rolling papers, 10 pipes, a roach clip and 3
storage containers. K.S.A. 2016 Supp. 21-5709(b)(2) (misdemeanor possession).
Before trial, the district court dismissed four of the misdemeanor drug
paraphernalia charges. A jury ultimately found Eckert guilty of all remaining charges,
except the attempted second-degree murder charge. The court sentenced Eckert to a
controlling prison sentence of 362 months and 36 months' postrelease supervision. For
each felony drug paraphernalia possession conviction, the court sentenced Eckert to 11
months' imprisonment to run concurrent to all other sentences.
On direct appeal, Eckert raised several trial and sentencing issues. Relevant here,
he claimed (1) his convictions for possessing drug paraphernalia were multiplicitous and
(2) there was insufficient evidence to support two of his drug paraphernalia convictions:
the blower and the propane. A Court of Appeals panel agreed with Eckert on the
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multiplicity issue, finding the evidence supported a single conviction for felony drug
paraphernalia possession under K.S.A. 2016 Supp. 21-5709(b)(1) and a single conviction
for misdemeanor drug paraphernalia possession under K.S.A. 2016 Supp. 21-5709(b)(2).
The panel reversed the remaining 23 drug paraphernalia possession convictions and
vacated the sentences for those convictions. As a result of its decision, the panel did not
reach the sufficiency issue. Eckert, 2022 WL 628660, at *10, 13.
Eckert and the State filed competing petitions for review. We denied Eckert's
petition but granted the State's cross-petition for review and Eckert's conditional cross-petition for review. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions
for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has
jurisdiction to review Court of Appeals decisions upon petition for review).
ANALYSIS
The State argues the panel erred when it found Eckert's possession of drug
paraphernalia convictions were multiplicitous. If we find the panel erred on the
multiplicity issue, Eckert argues in his cross-petition that the State presented insufficient
evidence to support the propane tank and blower as drug paraphernalia.
"[M]ultiplicity is the charging of a single offense in several counts of a complaint
or information." State v. Thompson, 287 Kan. 238, 244,
200 P.3d 22 (2009); State v.
Schoonover,
281 Kan. 453, 475,
133 P.3d 48 (2006). "The principal danger of
multiplicity is that it creates the potential for multiple punishments for a single offense,
which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution and § 10 of the Kansas Constitution Bill of Rights."
Thompson,
287 Kan. at 244. Questions involving multiplicity are questions of law subject
to unlimited appellate review. Schoonover,
281 Kan. at 462.
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When analyzing claims of multiplicity,
"the overarching inquiry is whether the convictions are for the same offense. There are
two components to this inquiry, both of which must be met for there to be a double
jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By
statutory definition are there two offenses or only one?" Schoonover, 281 Kan. at 496.
The State concedes all the drug paraphernalia possession convictions arose from
the same conduct, as each item was part of the marijuana farm. Thus, our focus is on the
second component of the inquiry: whether the conduct constituted one or more offenses
by statutory definition. In making this inquiry, the test to be applied depends on whether
the convictions arose from the same statute or multiple statutes. If the double jeopardy
issue arises from convictions for multiple violations of a single statute, the unit of
prosecution test is applied. If the double jeopardy issue arises from multiple convictions
of different statutes, the strict-elements test is applied. Schoonover, 281 Kan. at 497.
Because Eckert's 25 drug paraphernalia convictions are for multiple violations of a
single statute, we answer the second question by applying the unit of prosecution test. See
Schoonover, 281 Kan. at 497-98. Under the unit of prosecution test, "the statutory
definition of the crime determines what the Legislature intended as the allowable unit of
prosecution. There can be only one conviction for each allowable unit of prosecution."
281 Kan. at 497-98. "The determination of the appropriate unit of prosecution is not
necessarily dependent upon whether there is a single physical action or a single victim.
Rather, the key is the nature of the conduct proscribed."
281 Kan. at 472.
Our analysis necessarily begins with the language of K.S.A. 2016 Supp. 21-
5709(b):
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"(b) It shall be unlawful for any person to use or possess with intent to use any
drug paraphernalia to:
(1) Manufacture, cultivate, plant, propagate, harvest, test, analyze or distribute a
controlled substance; or
(2) store, contain, conceal, inject, ingest, inhale or otherwise introduce a
controlled substance into the human body." K.S.A. 2016 Supp. 21-5709(b)(1), (2).
The State argued, and the Court of Appeals held, that the Legislature intended
charges under subsection (b)(1) to be a separate unit of prosecution from charges under
subsection (b)(2). This conclusion tracks the express language in the statute, which
differentiates the nature of the conduct proscribed under subsection (b)(1) (felony
convictions for cultivating a controlled substance) from the nature of the conduct
proscribed under subsection (b)(2) (misdemeanor convictions for storing a controlled
substance). Eckert does not challenge this holding.
Relevant to the issue presented in the State's petition for review, however, the
panel found the statutory language within each subsection is ambiguous regarding the
nature of the conduct proscribed because the term "drug paraphernalia" can be construed
as either a singular or a plural noun. Finding the nature of the conduct, and thus the unit
of prosecution, to be ambiguous, the panel held it must be construed in Eckert's favor
under the rule of lenity. Alternatively, the panel held "the plain language of the statute
supports finding that the unit of prosecution is based on Eckert's intent for possessing the
drug paraphernalia, not the quantity of paraphernalia he possessed." Eckert, 2022 WL
628660, at *10.
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In its petition for review, the State argues the panel erred in finding the language
within each subsection of K.S.A. 2016 Supp. 21-5709(b) ambiguous regarding the nature
of the conduct proscribed. The State claims the plain language of the applicable statute
clearly and unambiguously reflects the Legislature's intent to consider each of the 25
individual drug paraphernalia items possessed by Eckert separate and independent units
of prosecution. In the State's view, the phrase "any drug paraphernalia" in the statute
shows that the Legislature clearly intended multiple units of prosecution for each
individual item of drug paraphernalia possessed.
The State's claim requires us to interpret K.S.A. 2016 Supp. 21-5709(b). Statutory
interpretation is a question of law subject to de novo review. See Johnson v. U.S. Food
Serv., 312 Kan. 597, 600-01,
478 P.3d 776 (2021).
"The most fundamental rule of statutory construction is that the intent of the Legislature
governs if that intent can be ascertained. In ascertaining this intent, we begin with the
plain language of the statute, giving common words their ordinary meaning. When a
statute is plain and unambiguous, an appellate court should not speculate about the
legislative intent behind that clear language, and it should refrain from reading something
into the statute that is not readily found in its words. But if a statute's language is
ambiguous, we will consult our canons of construction to resolve the ambiguity.
[Citations omitted.]" 312 Kan. at 600-01.
The State relies on State v. Booton, No. 113,612, 2016 WL 4161344, at *10 (Kan.
App. 2016) (unpublished opinion), to support its claim that the plain language of the
statute reflects the Legislature's intent to consider each of the 25 individual drug
paraphernalia items possessed by Eckert separate and independent units of prosecution.
There, a jury convicted a defendant of three separate counts of drug paraphernalia
possession based on possessing a glass pipe, baggies, and a digital scale. The panel
analyzed several prior cases and concluded the term "any" allowed for multiple
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prosecutions when there were multiple paraphernalia items. 2016 WL 4161344, at *8-10;
see State v. Hulsey, No. 109,095,
2014 WL 4627486, at *11-12 (Kan. App. 2014)
(unpublished opinion) (holding that using "any" in statute criminalizing child
pornography supported separate convictions for multiple images), rev. denied
302 Kan.
1015 (2015); State v. Odegbaro, No. 108,493,
2014 WL 2589707, at *9 (Kan. App. 2014)
(unpublished opinion) (the same was true for a statute criminalizing making a false
information), rev. denied
302 Kan. 1018 (2015); State v. Odell, No. 105,311,
2013 WL
310335, at *8 (Kan. App. 2013) (unpublished opinion) (holding that a statute
criminalizing traffic in contraband at a correctional institution supported separate
convictions for multiple charges).
Although not stated explicitly, the Booton holding—and the State's reliance on
it—is grounded in an implicit finding that the plain and unambiguous language in K.S.A.
2016 Supp. 21-5709(b) reflects the Legislature intended the term "paraphernalia" to be a
singular noun. According to the State, deciding whether the term "paraphernalia" is
singular or plural is critical to the outcome here. If we construe the term "paraphernalia"
as singular, as the State argues, we reasonably could conclude the Legislature intended to
tie a single unit of prosecution to possession of any single paraphernalia item. If,
however, we construe the term "paraphernalia" as plural, we then could reasonably
conclude the Legislature intended to tie a single unit of prosecution to either possession
of any single paraphernalia item or possession of any number of paraphernalia items.
In construing K.S.A. 2016 Supp. 21-5709(b), we begin with its plain language,
giving common words their ordinary meaning. But in construing the plain language of the
statute of conviction, we also must construe the definitional statute applicable to all
crimes involving controlled substances, including the drug paraphernalia possession
crimes here. See Bruce v. Kelly, 316 Kan. 218, 224,
514 P.3d 1007 (2022) ("[E]ven when
the language of the statute is clear, we must still consider various provisions of an act in
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pari materia to reconcile and bring those provisions into workable harmony, if
possible.").
The definitional statute defines "drug paraphernalia" to mean "all equipment and
materials of any kind that are used . . . in . . . cultivating, growing . . . producing,
processing, preparing . . . or otherwise introducing into the human body a controlled
substance and in violation of this act." (Emphasis added.) K.S.A. 2021 Supp. 21-5701(f).
In terms of grammar and ordinary usage, the word paraphernalia is designated as a
noncount or mass noun. See Collins Dictionary,
https://www.collinsdictionary.com/us/dictionary/english/paraphernalia (paraphernalia is
an uncountable noun); Oxford Learners Dictionaries,
https://www.oxfordlearnersdictionaries.com/us/definition/english/paraphernalia?q=parap
hernalia (same); Macmillan Dictionary,
https://www.macmillandictionary.com/us/dictionary/american/paraphernalia (same);
Britannica Dictionary, https://www.britannica.com/dictionary/paraphernalia (same).
Like the word paraphernalia, the word equipment also is designated as a noncount
or mass noun in ordinary usage as well. See Collins Dictionary,
https://www.collinsdictionary.com/us/dictionary/english/equipment (equipment is an
uncountable noun); Oxford Learners Dictionaries,
https://www.oxfordlearnersdictionaries.com/us/definition/english/equipment?q=equipme
nt (same); https://www.macmillandictionary.com/us/dictionary/american/equipment
(same); Britannica Dictionary, https://www.britannica.com/dictionary/equipment (same);
Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/equipment
(same).
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So what is a noncount or mass noun? One well-known dictionary defines it as "a
noun that denotes a homogeneous substance or a concept without subdivisions and that in
English is preceded in indefinite singular constructions by some rather than a or an." The
definition gives examples of "sand" and "water" as mass nouns. Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/mass%20noun. Bryan Garner
describes it as a noun which, in some contexts, is neither singular nor plural, but instead
is an "aggregation" which is "taken as an indeterminate whole." Garner, The Chicago
Guide to Grammar, Usage, and Punctuation 22 (2016). The Writing Center at George
Mason University puts it this way: "Noncount nouns are the nouns that cannot be
counted, and they do not make a distinction between singular and plural forms. Although
these nouns may refer to large quantities of things, they act like singular nouns
grammatically." https://writingcenter.gmu.edu/writing-resources/grammar-style/count-vsnoncount-nouns.
Adding more ambiguity to the mix, the Merriam-Webster Online Dictionary
designates the word "paraphernalia" as a noun "plural in form but singular or plural in
construction." Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/paraphernalia. This designation refers to a circumstance when a
noun that is plural in form takes a singular verb in sentence construction. An example of
this is the word "news." Although plural, when used in a sentence we say, "the news is
good today" and not "the news are good today." See also American Heritage Online
Dictionary, https://ahdictionary.com/word/search.html?q=paraphernalia (designating
"paraphernalia" as a plural noun used with a singular or a plural verb); Collins Online
Dictionary, https://www.collinsdictionary.com/us/dictionary/english/paraphernalia
(noting that paraphernalia is sometimes used with a singular verb and sometimes used
with a plural verb).
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Based on the plain language of the substantive and definitional statute, and giving
common words their ordinary meaning, we conclude the term drug paraphernalia as used
in K.S.A. 2016 Supp. 21-5709(b) is an uncounted, mass noun that does not make a
distinction between singular and plural forms. For this reason, we cannot discern from the
plain language of the statute whether the Legislature intended one unit of prosecution for
each separate single item of paraphernalia or one unit of prosecution for multiple items of
paraphernalia in indeterminate numbers. Because we find the language of the statute
ambiguous as to the unit of prosecution, we employ rules of statutory construction. See
State v. Arnett, 307 Kan. 648, 653,
413 P.3d 787 (2018) ("If the language of the statute is
unclear or ambiguous," the court may turn "to canons of statutory construction, consult
legislative history, or consider other background information to ascertain the statute's
meaning."). We find two statutory construction tools helpful here: (1) construing statutes
to avoid unreasonable or absurd results and (2) construing ambiguous criminal statutes in
favor of the accused (rule of lenity).
Unreasonable or absurd results
A court "must construe a statute to avoid unreasonable or absurd results." Arnett,
307 Kan. at 654. We presume the Legislature "does not intend to enact useless or
meaningless legislation. . . . Equally fundamental is the rule of statutory interpretation
that courts are to avoid absurd or unreasonable results." State v. Frierson,
298 Kan. 1005,
1013,
319 P.3d 515 (2014).
Under the State's unit of prosecution argument, a defendant could be charged
separately for each item of paraphernalia possessed. When asked at oral argument
whether a defendant could be charged with 1,000 separate counts of drug paraphernalia
possession based on the use or possession with intent to use 1,000 separate plastic
baggies to store a controlled substance, the State decisively answered in the affirmative
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but noted it likely would use prosecutorial discretion to decide whether to charge all
1,000 counts.
Although the question at oral argument was a hypothetical one, the facts here
present a good illustration of unreasonable and absurd results if we adopt the State's
argument. Two of Eckert's felony convictions result from possession of a propane tank
and a blower. When found by law enforcement, the propane tank was connected to the
blower to make a heater. The State charged two felony counts—one based on possession
of the propane tank and one based on possession of the blower—when it just as
reasonably could have charged one felony count based on possession of a heater. In
contrast, consider Eckert's felony conviction resulting from possession of fans. A
photograph introduced at trial showed law enforcement discovered multiple fans in the
grow room. Although the State alleged Eckert to be in possession of more than one fan,
the State charged only one felony count based on possession of "fans."
The same goes for the misdemeanor charges. Three of Eckert's misdemeanor
convictions result from three separate empty storage containers. The State charged three
misdemeanor counts based on possession of the three individual empty containers when it
just as reasonably could have charged one misdemeanor count based on possession of
empty storage containers. On the other hand, one of Eckert's misdemeanor convictions
resulted from possession of rolling papers. Given it was charged in the plural, we
reasonably assume Eckert possessed more than one rolling paper. Although the State
alleged Eckert to be in possession of more than one rolling paper, the State charged only
one misdemeanor count based on possession of rolling papers.
The State's interpretation of K.S.A. 2016 Supp. 21-5709(b) means it has the
unfettered discretion to file as many or as few drug paraphernalia possession charges as it
wants based on how it arbitrarily groups or separates items. As seen from the examples
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above, construing the statute in this way produces unreasonable, absurd, and arbitrary
results.
Rule of lenity
When faced with ambiguity about whether the Legislature intended one unit of
prosecution for each separate single item of paraphernalia or one unit of prosecution for
multiple items of paraphernalia in indeterminate numbers, this court applies the rule of
lenity. The rule of lenity provides that "'[a]ny reasonable doubt about the meaning [of a
criminal statute] is decided in favor of anyone subjected to the criminal statute.'" State v.
Williams, 303 Kan 750, 760, 368 P.3d 1065 (2016). Here, the rule of lenity overcomes
the ambiguity of the statute and supports Eckert's contention that the Legislature intended
to tie a single unit of prosecution to multiple items of paraphernalia in indeterminate
numbers. See State v. Coman,
294 Kan. 84, 97,
273 P.3d 701 (2012) ("If . . . there are two
reasonable and sensible interpretations of a criminal statute, the rule of lenity requires the
court to interpret its meaning in favor of the accused.").
CONCLUSION
The term "drug paraphernalia" in K.S.A. 2016 Supp. 21-5709(b)(1) and (b)(2) is
ambiguous regarding the unit of prosecution within each subsection. Applying canons of
traditional statutory construction, we conclude the Legislature intended to tie a single unit
of prosecution to multiple items of paraphernalia in indeterminate numbers. We therefore
affirm the panel's finding of multiplicity and its decision to reverse all but one felony
possession conviction and all but one misdemeanor possession conviction. Given this
disposition, we need not address Eckert's claim of insufficient evidence supporting his
felony convictions of possession of the propane tank and blower.
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The judgment of the Court of Appeals affirming in part and reversing in part the
district court is affirmed. The judgment of the district court is affirmed in part and
reversed in part.
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