State v. Mishmash

290 P.3d 243, 295 Kan. 1140, 2012 Kan. LEXIS 515
CourtSupreme Court of Kansas
DecidedDecember 7, 2012
DocketNo. 103,158
StatusPublished
Cited by8 cases

This text of 290 P.3d 243 (State v. Mishmash) is published on Counsel Stack Legal Research, covering Supreme Court 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. Mishmash, 290 P.3d 243, 295 Kan. 1140, 2012 Kan. LEXIS 515 (kan 2012).

Opinion

The opinion of the court was delivered by

Rosen, J.:

This appeal asks this court to construe the plain language of a portion of the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Because KORA exempted the appellant from registration, we vacate that portion of his sentence.

On March 14, 2008, tire State filed a complaint/information charging Terry G. Mishmash with six counts of violating controlled substance laws. He entered a plea of no contest to one count of manufacturing methamphetamine and one count of possession of methamphetamine.

[1141]*1141At sentencing, the State recommended the sentence agreed upon as part of the guilty plea: 84 months’ imprisonment for manufacturing a controlled substance and a concurrent sentence of 11 months’ imprisonment for possession of methamphetamine. As part of the sentencing hearing, the State called a witness solely to show that Mishmash manufactured methamphetamine for the purpose of selling it as well as for his own consumption. A friend of Mishmash testified that she obtained methamphetamine from him in return for pseudoephedrine pills that she provided. She informed the court that Mishmash was manufacturing methamphetamine both for his own individual use and for sale to others.

The sentencing judge granted the agreed downward departure and sentenced Mishmash as recommended by the State. The judge then made a specific finding that Mishmash was not manufacturing solely for personal use:

“[T]he Court would find that you were not manufacturing methamphetamine solely for your personal use. You were giving some of it to Miss Camerlynclc. . . . Rather than solely for your personal use, you were still giving some to her for her use. You were trading metliamphetamine for pills. And so, because of that, I think, as a matter of law, you were not using this solely for your personal use. There is also a suggestion that you were selling methamphetamine. In fact, you sold it to Mr. Tommy Green.
“So the Court does find, because you were not using it solely for your personal use, that you will be required to register pursuant to the Kansas Offender Registration Act.”

The Court of Appeals affirmed the registration requirement. State v. Mishmash, No. 103, 158, 2011 WL 426664, at s4-5 (Kan. App. 2011) (unpublished opinion). This court granted Mishmash’s petition for review.

Mishmash challenges tire interpretation of a statute by the district court and the Court of Appeals. The interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 (2012).

K.S.A. 2009 Supp. 22-4902(a)(ll)(A), in effect when Mishmash was convicted, defined an offender for registration purposes:

“As used in this act, unless the context otherwise requires:
“(a) ‘Offender’ means:
[1142]*1142“(11) any person who has been convicted of:
(A) Unlawful manufacture or attempting such of any controlled substance or controlled substance analog as defined by K.S.A. 65-4159, prior to its repeal or K.S.A. 2009 Supp. 21-36a03, and amendments thereto, unless the court makes a finding on the record that the manufacturing or attempting to manufacture such controlled substance was for such person’s personal use. . . .” (Emphasis added.)

K.S.A. 22-4904 required registration of “offenders,” as defined in K.S.A. 2009 Supp. 22-4902(a).

There is no question from the evidentiaiy record developed by the district court that Mishmash manufactured methamphetamine for his personal use. The record shows that he also manufactured the drug to exchange it with one other person in order to obtain constituent ingredients and sold some of the manufactured product to one more person. The district court decided that it should read the word “solely” into the personal use exemption provision, and concluded that because Mishmash did not manufacture the drug exclusively for his own use, he was subject to the registration requirement.

The basic rule for understanding statutory language is that the intent of the legislature governs when that intent can be ascertained. Courts merely interpret the language as it appears when that language is plain and unambiguous, and the courts are not free to speculate about legislative intent and may not read into the statute language not found there. Hopkins, 295 Kan. 579, Syl. ¶ 1.

Because the courts are not at liberty to add words to clear language that the legislature has adopted, we must determine whether the word “person” contains within it an implicit restriction to one person.

The Court of Appeals turned to Webster’s Third New International Dictionary 1686 (1986), which defined “personal” to mean “of or relating to a particular person.” This definition does not support the State’s position. Even assuming that “personal use” means use by a particular person, i.e., the manufacturer, the statute still lacks any language stating that the manufacture must be solely for the use by the particular person. Black’s Law Dictionary pro[1143]*1143vides a more inclusive definition of “personal”: “Of or affecting a person.” Black’s Law Dictionary 1179 (8th ed. 2004). In fact, replacing the phrase “personal use” with the State’s proposed construction, use by a particular person, would expand the scope of persons subject to the exemption.

Under the State’s reading of the phrase “personal use,” a business that provides computers to its employees and informs them that they may use the computers for personal use would be denying the employees the opportunity to utilize the computers in a professional capacity. A company that provides a car to a traveling salesperson with the explanation that the car may be put to personal use would deny the salesperson the use of the car for sales purposes. Farmers who have marketing agreements to sell part of their crop and retain part of that crop for personal use would not be permitted to feed their families with the retained portion. These situational absurdities illustrate that the words “solely” or “exclusively” are not implicit in the phrase “personal use.”

The legislature chose the words of die registration statute. The legislature is presumed to have expressed its intent through language that it adopted. Haddock v. State, 295 Kan. 738, 754, 286 P.3d 837 (2012).

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Cite This Page — Counsel Stack

Bluebook (online)
290 P.3d 243, 295 Kan. 1140, 2012 Kan. LEXIS 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mishmash-kan-2012.