 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
STATE v. BERBERICH5/24/1991
The opinion of the court was delivered by
Thomas A. Berberich was convicted by a jury of: (1) possession of methamphetamine, K.S.A. 1988 Supp. 65-4127b(a)(2); (2) possession of drug paraphernalia, K.S.A. 65-4152; (3) possession of marijuana, K.S.A. 1988 Supp. 65-4127b(a)(3); and (4) possession of methamphetamine without affixing the official Kansas drug tax stamp, K.S.A. 79-5208. The trial court denied
Berberich's motion to dismiss the charge of possession of methamphetamine with intent to sell as an included offense of the violation of K.S.A. 79-5201 et seq., the Kansas Drug Tax Act. Subsequent to his conviction, Berberich filed a motion to set aside his conviction, claiming that the Kansas Drug Tax Act violates the due process clause of the Fourteenth Amendment to the United States Constitution on the grounds the act is an unconstitutional penalty and not a tax. The trial court found the Kansas Drug Tax Act did not violate the Fourteenth Amendment right to due process. Berberich also filed a motion asking that the trial court declare the penalties of the Kansas Drug Tax Act violate the separation of powers doctrine. This motion was also denied.
The relevant facts are as follows: When Officer Scott Holladay went to a house to execute a search warrant, he saw Berberich arrive at the house and carry a duffel bag to the door. Officer Holladay intercepted Berberich at the door of the house and searched him. Beside the doorway officers found a paper sack and a black duffel bag. Inside the duffel bag officers found Deering scales, which are commonly used to weigh drugs, with powder residue on the interior; a box that contained a bag with razor blades, a package of paper folds, and an empty package for an insulin syringe; a brass bowl which could screw into a pipe for smoking marijuana; a white cardboard box containing four plastic baggies of marijuana; and a pillbox with two separate compartments containing six grams of white powder and four and one-half grams of yellow-brown powder later proven to be methamphetamine. Neither of the prohibited substances had the required tax stamps.
At trial, Berberich admitted the drugs in the duffel bag were his. He stated he purchased and repackaged the drugs only for his own use due to job pressure and personal problems.
Prior to instructing the jury, the trial court denied Berberich's motion to dismiss the charge of possession of methamphetamine with intent to sell as being an included offense of the charge of possession of methamphetamine without a drug tax. The trial court determined even though possession is a common element of both crimes, there are other elements in each offense which distinguish them. On appeal, Berberich claims that the possession
of methamphetamine is an included crime of the failure to pay the Kansas drug tax and the Kansas tax is an unconstitutional criminal penalty disguised as a tax and therefore violates the due process clause of the Fourteenth Amendment. It should be noted that on appeal the defense and the State argue the issue of whether possession of methamphetamine is an included crime of failure to pay the Kansas drug tax. However, the defendant was charged with, the jury was instructed on, and the defendant was convicted of a violation of K.S.A. 79-5208, possession of methamphetamine without affixing a Kansas drug tax stamp. It is this crime which we will consider in our discussion, not any civil penalty which could be imposed in another proceeding for failure to pay taxes.
POSSESSION OF METHAMPHETAMINE AS AN INCLUDED CRIME OF POSSESSION OF METHAMPHETAMINE WITHOUT AFFIXING THE KANSAS DRUG TAX STAMP
The record ref
Page 1 2 3 4 5 6 7 8 9 10 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|