by Douglas Ankney

The Supreme Court of Kansas held that the Legislature intended to tie a single unit of prosecution to multiple items of drug paraphernalia in K.S.A. 2016 Supp. 21-5709(b)(1) (“§ 21-5709(b)(1)”) and K.S.A. 2016 Supp. § 21-5709(b)(2) (“§ 21-5709(b)(2)”).

After Amber Dial reported to the Miami County Sheriff’s Office that Justin Burke Eckert had beaten her, officers executed a search warrant at his home and found a tent, nine grown marijuana plants, and more than 25 drug paraphernalia objects – including propane, a blower, rolling papers, two bongs, and three fans. Ultimately, Eckert was charged with eight felony counts of possession of paraphernalia with intent to manufacture, cultivate, and plant marijuana under § 21-5709(b)(1). He was also charged with 21 misdemeanor counts of possessing drug paraphernalia to store and to introduce marijuana into the human body under § 21-5709(b)(2).

The trial court dismissed four of the misdemeanor counts. A jury found Eckert guilty of numerous offenses related to the assault of Dial as well as guilty of all the drug paraphernalia counts. The trial court sentenced Eckert to 362 months’ imprisonment. For each felony paraphernalia possession conviction, Eckert was sentenced to 11 months’ imprisonment to run concurrent to all other sentences.

On appeal, Eckert raised several issues, including that his convictions for possessing drug paraphernalia were multiplicitous. The Court of Appeals concluded that the evidence supported a single felony drug paraphernalia conviction under § 21-5709(b)(1) and a single conviction for misdemeanor drug paraphernalia possession under § 21-5709(b)(2). The Court of Appeals reversed seven felony drug paraphernalia convictions and 16 misdemeanor drug paraphernalia convictions. The Kansas Supreme Court granted the State’s cross-petition for review.

The Court observed “multiplicity is the charging of a single offense in several counts of a complaint or information.” State v. Thompson, 200 P.3d 22 (Kan. 2009). “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.” Id. 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?” State v. Schoonover, 133 P.3d 48 (Kan. 2006).

Because all of Ekert’s drug paraphernalia convictions arose from the same conduct, the Court’s focus was on the second inquiry: whether the conduct constituted one or more offenses by statutory definition. When, as here, the double jeopardy issue arises from multiple violations of a single statute, the unit of prosecution test is applied to answer the inquiry. “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 unit of prosecution.’” Schoonover.

K.S.A. 2016 Supp. § 21-5709 provides: “(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.” If the Legislature used the word “paraphernalia” as a singular noun, then each item would be a unit of prosecution, according to the Court. But if paraphernalia was used as a plural noun encompassing more than one item, then only one unit of prosecution is allowed regardless of the number of items.

The Court stated: “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 crimes here.” Bruce v. Kelly, 514 P.3d 1007 (Kan. 2022). “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 in violation of this act.’” K.S.A. 2021 Supp. 21-5701(f).

Both the word “paraphernalia” and “equipment” are “designated as a noncount or mass noun in ordinary usage.” Collins Dictionary. A “mass noun” is “a noun that denotes a homogeneous substance or concept without subdivisions and that in English is preceded in indefinite singular constructions by ‘some’ rather than ‘a’ or ‘an.’” Merriam-Webster Dictionary. “[I]t is a noun which, in some contexts, is neither singular nor plural, but instead is an ‘aggregation’ which is ‘taken as an indeterminate whole.’” Bryan Garner, The Chicago Guide to Grammar, Usage, and Punctuation (2016).

The Court concluded that “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.” Consequently, the Court could “not 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.”

Since the statute is ambiguous, the Court employed the rules of statutory construction. State v. Arnett, 413 P.3d 787 (Kan. 2018). A court “must construe a statute to avoid unreasonable or absurd results.” Id. If “drug paraphernalia” meant a defendant could be prosecuted separately for each item of paraphernalia, then he could be charged with 1,000 counts based on possession of 1,000 plastic baggies in a roll of baggies.

In the present case, the State charged two of the felony counts based on possession of a propane tank and one based on possession of the blower. But the State could have just as reasonably charged one count for possession of a heater. After all, Eckert had possessed multiple fans but was charged with only one felony based on possession of fans. And the same was true for the misdemeanor counts. Three counts were based on three empty storage containers, but the State could reasonably have charged one count based on empty storage containers. Conversely, even though Eckert was in possession of multiple rolling papers, the State charged only one count based on rolling papers. Interpreting drug paraphernalia singularly would permit the State “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.” That is an unreasonable, absurd, and arbitrary result, concluded the Court. 

Additionally, 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, 368 P.3d 1065 (Kan. 2016). “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.” State v. Coman, 273 P.3d 701 (Kan. 2012).

The Court stated that 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.”

Accordingly, the Court affirmed the Court of Appeals’ finding of multiplicity and its decision to reverse all but one felony and one misdemeanor possession
conviction. See: State v. Eckert, 522 P.3d 796 (Kan. 2023).