State v. Martens

28 P.3d 408, 29 Kan. App. 2d 361, 2001 Kan. App. LEXIS 608
CourtCourt of Appeals of Kansas
DecidedJune 29, 2001
DocketNo. 84,635
StatusPublished
Cited by1 cases

This text of 28 P.3d 408 (State v. Martens) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Martens, 28 P.3d 408, 29 Kan. App. 2d 361, 2001 Kan. App. LEXIS 608 (kanctapp 2001).

Opinion

Green, J.:

Alroy Vern Martens appeals his convictions of three counts of sale of marijuana and single counts of possession of marijuana with the intent to sell, possession of marijuana, cultivation of marijuana, possession of marijuana without a tax stamp, possession of drug paraphernalia, possession of methamphetamine, and manufacture or attempt to manufacture methamphetamine. On appeal, Martens argues (1) that the complaint was fatally defective as to the charge of manufacturing or attempting to manufacture methamphetamine; (2) that the evidence was insufficient to support his conviction of manufacturing methamphetamine; and (3) [362]*362that the trial court erroneously allowed the late endorsement of State witnesses. We affirm.

In June and July of 1998, Martens sold marijuana to a confidential informant during a series of controlled buys. After conducting the controlled buys, officers obtained a search warrant for Martens’ residence. During the search, officers found various items relating to the cultivation of marijuana and the remnants of a methamphetamine lab.

Martens was charged with three counts of sale of marijuana and single counts of possession of marijuana with the intent to sell, possession of marijuana, cultivation of marijuana, possession of marijuana without a tax stamp, possession of drug paraphernalia, possession of methamphetamine, and manufacturing or attempting to manufacture methamphetamine. The case proceeded to a bench trial, and Martens was convicted of all 10 counts.

After the trial, Martens moved for an arrest of judgment alleging that the amended complaint was jurisdictionally defective in that it did not sufficiently charge the crime of attempted manufacture of methamphetamine. Martens argued that the amended complaint failed to state the required elements of an attempt. The trial court denied the motion to arrest judgment after finding that K.S.A. 1997 Supp. 65-4159 prohibits both manufacturing and attempting to manufacture a controlled substance and, therefore, found the amended complaint sufficient to support the charge and conviction.

The trial court sentenced Martens to a controlling term of 49 months’ incarceration for manufacturing or attempting to manufacture methamphetamine. In addition, Martens was sentenced to a term of 15 months for each conviction of sale of marijuana, to run consecutive to each other but concurrent to the base sentence. All of the other counts were concurrent to the base sentence.

Defective Complaint

Martens’ first argument on appeal is that the trial court erroneously denied his motion to arrest judgment as to the charge of manufacturing or attempting to manufacture a controlled substance. Martens insists that the amended complaint, relative to the [363]*363charge of manufacturing or attempting to manufacture a controlled substance, was fatally defective because it failed to include the essential elements of attempt. Martens insists that the State was required to allege the elements of attempt because K.S.A. 1997 Supp. 65-4159 creates the offense of manufacture of a controlled substance and, as a result, attempted manufacture of a controlled substance is a separate offense created under the attempt statute. According to Martens, because attempted manufacture of a controlled substance is a separate offense, the essential elements of that offense were required to be set out in the amended complaint.

The State admits that the amended complaint fails to allege the elements of attempt. However, the State contends that it was not required to list the elements of attempt because K.S.A. 1997 Supp. 65-4159 creates the single offense of manufacturing or attempting to manufacture a controlled substance. Specifically, the State argues that because the statute criminalizes the process of manufacturing a controlled substance, without requiring a finished product, the statute encompasses the attempt to manufacture by definition: Thus, according to the State, reference to “attempting to manufacture” in K.S.A. 1997 Supp. 65-4159 is superfluous.

Because Martens timely moved to arrest judgment, the rationale of pre-Hall cases is applicable. See State v. Hall, 246 Kan. 728, 764, 793 P.2d 737 (1990). In State v. Browning, 245 Kan. 26, 28, 774 P.2d 935 (1989), a pre-Hall case, the court held that “[a]n information which omits one or more of the essential elements of a crime is fatally defective and reversal of a conviction on that offense is required. [Citation omitted.]” Citation to the statute cannot substitute to supply a missing element of the charge. Incorporation by reference cannot be implied or inferred. It must be explicit. State v. Jackson, 239 Kan. 463, 466, 721 P.2d 232 (1986).

In State v. Sanford, 250 Kan. 592, 600, 830 P.2d 14 (1992), the court held that the trial court lacked jurisdiction over the charge of aggravated kidnapping because the amended information did not contain the elements of the crime. See State v. Crane, 260 Kan. 208, 918 P.2d 1256 (1996) (reversing defendant’s convictions of attempted aggravated sodomy and attempted rape because complaint merely alleged the elements of attempt and the name of the [364]*364offenses he was charged with attempting); Hall, 246 Kan. at 747 (reversing defendant’s conviction of theft because the complaint failed to allege that the defendant intended to permanently deprive the owner of his cattle); State v. Smith, 245 Kan. 381, 781 P.2d 666 (1989) (reversing defendant’s conviction of aggravated kidnapping because the complaint made no allegation that bodily harm had been inflicted).

The amended complaint charged Martens with violating K.S.A. 1997 Supp. 65-4159, manufacturing or attempting to manufacture a controlled substance. Specifically, count 5 of the amended complaint alleged that between March 1, 1998, and July 9,1998, Martens “did then and there unlawfully, wilfully, and feloniously manufacture or attempt to manufacture a controlled substance, to wit: methamphetamine.”

To determine whether the amended complaint was jurisdiction-ally defective, we must first determine whether K.S.A. 1997 Supp. 65-4159 creates a single offense of manufacturing or attempting to manufacture a controlled substance, or whether the statute merely creates the offense of manufacturing a controlled substance and attempted manufacturing of a controlled substance is created under the attempt statute, K.S.A.

Related

State v. Peterson
42 P.3d 137 (Supreme Court of Kansas, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
28 P.3d 408, 29 Kan. App. 2d 361, 2001 Kan. App. LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martens-kanctapp-2001.