State v. Ralston

1


No. 101,440


IN THE COURT OF APPEALS OF THE STATE OF KANSAS


STATE OF KANSAS,
Appellee,

v.

DAVID LEE RALSTON, JR.,
Appellant.


SYLLABUS BY THE COURT

1.
A district court's ruling on a defendant's motion to dismiss criminal charges with
prejudice is reviewed under an abuse of discretion standard.

2.
When the evidence pertaining to the existence of a contract or the content of its
terms is conflicting or permits more than one inference, a question of fact is presented.

3.
In order for parties to form a binding contract, there must be a meeting of the
minds as to all essential terms thereof. To constitute a meeting of the minds there must
be a fair understanding between the parties which normally accompanies mutual consent
2

and the evidence must show with reasonable definiteness that the minds of the parties met
upon the same matter and agreed upon the terms of the contract.

4.
If a promise is conditional, the person seeking to enforce the promise may not
avail himself or herself of the benefit of it without complying with the conditions.

5.
Crimes are committed against the State of Kansas, and all prosecutions for
violations of the criminal laws of this state shall be in the name of the State of Kansas.
County and district attorneys represent the State in criminal proceedings and may, on
behalf of the State, grant in writing immunity to witnesses.

6.
Absent the prior knowledge and approval of a county or district attorney, law
enforcement officers do not have the authority to enter into immunity agreements that
bind the State of Kansas.

7.
When a defendant, in reliance on the unauthorized promise of immunity by a law
enforcement officer, makes incriminating statements, the remedy which accords
substantial justice to the defendant is that which returns him or her to the position the
3

defendant was in prior to making the incriminating statements. Because suppression of
the incriminating statements cures the defendant's detrimental reliance, specific
performance of the unauthorized immunity agreement against the State is unwarranted.

8.
In the analysis of entrapment cases, the extent of government activity in soliciting
the crime charged is weighed against the defendant's willingness to comply and other
evidence of predisposition to determine whether defendant originated the criminal
purpose or was entrapped. Evidence of criminal activity or previous suspicious conduct
is only one of the accepted methods of establishing predisposition. Ready compliance by
the defendant is also accepted as evidence of predisposition.

9.
The following test is used to determine whether convictions are multiplicitous:
First, a court must consider whether the convictions are based upon the same conduct. If
not, the multiplicity analysis ends. If based on the same conduct, the court must then
consider whether the convictions are based upon a single statute or multiple statutes. If
the convictions are based upon different statutes, the convictions are multiplicitous only
when the statutes upon which the convictions are based contain an identity of elements.



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10.
Because possession of marijuana and possession of drug paraphernalia require
proof of an element not required to prove the other crime, the crimes are not
multiplicitous.

Appeal from Franklin District Court; THOMAS H. SACHSE, judge. Opinion
filed February 26, 2010. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Heather R. Jones, county attorney, and Steve Six, attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON and BUSER, JJ.

BUSER, J.: David Lee Ralston, Jr., appeals from his felony conviction for
possessing marijuana without having affixed an appropriate stamp or label, in violation of
K.S.A 79-5208, and misdemeanor convictions for possession of marijuana, in violation of
K.S.A. 65-4105(d)(16) and K.S.A. 65-4162(a), and possession of drug paraphernalia, in
violation of K.S.A. 65-4152(a)(2). Ralston contends the district court erred by denying
his motion to dismiss the charges because he had a contract or agreement with Ottawa
police officers that provided him with immunity from prosecution if he was honest and
provided them with the names and addresses of drug dealers. In addition, Ralston argues
5

entrapment and claims his convictions for possession of marijuana and possession of drug
paraphernalia were multiplicitous. We affirm.

Factual and Procedural Background

On October 1, 2007, officers with the Ottawa Police Department Drug
Enforcement Unit conducted a "buy-bust operation" at the Days Inn hotel. As part of the
operation, an informant contacted Ralston and asked him to bring 2 ounces of marijuana
to room 164 where, unbeknownst to Ralston, several undercover police officers waited
for him. Ralston arrived at the room within 30 minutes of the informant's call and was
immediately pulled into the room, arrested, handcuffed, and searched.

The search of Ralston resulted in the seizure of two bags of marijuana weighing
about 2 ounces, and a wooden "hitter box," which was described as a box used to conceal
and smoke marijuana. The hitter box contained a burnt marijuana cigarette and a pipe
which was described as "a metal cylindrical tube . . . painted to look like a cigarette."
Subsequent laboratory examination revealed that both the box and the pipe contained
marijuana residue.

The police officers had a conversation with Ralston after his arrest. The details of
this conversation were controverted. During a pretrial evidentiary hearing, Detective
Procaccini testified that immediately after he advised Ralston of his rights under Miranda
6

v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), he told Ralston "that
he needed to be honest with me and then I'd be able to help him." According to Detective
Procaccini, Ralston told him "he would do anything to help."

Ralston then admitted that he came to the hotel room to sell marijuana and
provided the officers with names of some drug dealers. Detective Procaccini testified
that at some point during the conversation he told Ralston that "if he had someone deliver
more drugs to this hotel room than he brought he could go home." The detective testified
that when he told Ralston "he could go home" he meant that Ralston would never be
arrested for his drug crimes. Sergeant Mike Hatheway, Detective Procaccini's supervisor,
also testified to the conversation with Ralston and generally corroborated the detective's
account.

At the pretrial hearing, Ralston testified that Detective Procaccini told him that if
he was honest the detective would be able help him out. Ralston also admitted telling
Detective Procaccini, "I'll do anything to help." Ralston testified that when Detective
Procaccini said he would be willing to "help" him if Ralston was honest, Ralston
understood that to mean the detective "would let me go." Ralston conceded, however,
that at that time Detective Procaccini never specified what he meant by the phrase, "he
would help me." In the end, Ralston was unable to arrange for a dealer to bring a larger
quantity of drugs to the hotel room than the 2 ounces Ralston had brought with him. The
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police then transported Ralston from the scene. Drug charges were later filed by the
Franklin County Attorney's office.

Prior to trial, Ralston moved to suppress his incriminating statements. After
hearing evidence, the district court granted Ralston's motion to suppress, concluding that
his "incriminating statements were induced by a promise of a specific benefit that no
charges would be filed against him, that he could go home." The State does not appeal
this adverse ruling.

Ralston also filed a motion to dismiss the charges. In his motion, Ralston
contended that he "and law enforcement made a binding contract" to let "[Ralston] go
free." The district court denied the motion to dismiss, however, finding there was no
contract or agreement between Ralston and the police. The district court also ruled the
officers' conduct was not outrageous and did not violate due process.

The case proceeded to a bench trial where, during closing argument, Ralston first
raised the defense of entrapment with regard to the possession of marijuana charges. The
district court rejected the defense, finding Ralston's possession of the hitter box showed a
predisposition to possess marijuana. At the trial's conclusion, the district court found
Ralston guilty of possessing marijuana without having affixed an appropriate stamp or
label, possession of marijuana, and possession of drug paraphernalia. Ralston was
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sentenced to a controlling 11-month prison sentence but granted a downward
dispositional departure and placed on a 12-month probation. He filed a timely appeal.

Denial of Ralston's Motion to Dismiss

A district court's ruling on a defendant's motion to dismiss criminal charges with
prejudice is reviewed under an abuse of discretion standard. State v. Bolen, 270 Kan.
337, Syl. ¶ 2, 13 P.3d 1270 (2000). "Judicial discretion is abused when judicial action is
arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety
of the action taken by the trial court, then it cannot be said that the trial court abused its
discretion." State v. Gant, 288 Kan. 76, 81-82, 201 P.3d 673 (2009). Under the abuse of
discretion standard, an appellate court also reviews whether the district court's discretion
was guided by erroneous legal conclusions. State v. Moore, 287 Kan. 121, 135, 194 P.3d
18 (2008).

On appeal, Ralston contends the district court committed reversible error by not
dismissing the charges against him. In particular, Ralston argues that an enforceable
contract was created between him and the police officers. This contract provided that if
Ralston truthfully provided the names and addresses of drug dealers, the officers would
"help" him. According to Ralston, he understood "help" to mean "release and no
prosecution, in return for truthful information." Ralston further contends that his
"informant agreement should be treated as if it were a plea agreement." Applying
9

contract principles, Ralston argues that he complied with his part of the bargain and the
district court should have ordered specific performance of the State's part of the bargain
"and let Ralston go."

The State presents a two-part argument in response. First, the State submits "[a]s
stated by the district court, there was never an enforceable contract between law
enforcement and the defendant – there was no meeting of the minds or mutual
manifestation of assent between the defendant and law enforcement." Second, "[i]f a
contract had, in fact, been solidified between law enforcement and the defendant, there is
no binding Kansas authority that holds that the prosecution would be bound by such a
contract."

After considering the evidence, the district court found there was no enforceable
contract made between Ralston and the police. In particular, the district judge held:

"[t]he only thing close that the court could think of with regards to contract
law or the situations where there's a broken promise . . . by the State, in a
plea bargaining situation, but I don't think that's really applicable to this
situation based on the facts even in the light most favorable to the
defendant. In this case I don't believe that there was a [sic] enforceable
contract entered into by the defendant and the police officers. There was no
meeting of the minds or mutual manifestation of assent between defendant
and the officers, and as I've hinted earlier, I don't believe contract law
applies to this situation."
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An appellate court reviews the district court's findings of fact to determine if the
findings are supported by substantial competent evidence and are sufficient to support the
district court's conclusions of law. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251
(2009); State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993).

"Substantial evidence is evidence which possesses both relevance
and substance and which furnishes a substantial basis of fact from which
the issues can reasonably be resolved. In other words, substantial evidence
is such legal and relevant evidence as a reasonable person might accept as
being sufficient to support a conclusion." Drach v. Bruce, 281 Kan. 1058,
Syl. ¶ 2, 136 P.3d 390 (2006).

Whether any contract or agreement existed between Ralston and the officers was
highly controverted. On appeal, Ralston argues the contract provided that if Ralston
truthfully supplied the names and addresses of drug dealers, the police would "help" him
by releasing him from custody and never prosecuting him for his drug crimes. Ralston
testified, however, that Detective Procaccini never specifically told him that he would be
freed by simply being honest and providing information regarding drug dealers. Ralston
clarified that no specific promise was made, and the detective "just told me that if I'd help
him out he'd help me out." Regardless of the detective's vague language, Ralston
believed that if he did cooperate he would be released and not charged with any drug
crimes.

11

Consistent with Ralston's testimony, Detective Procaccini testified he did not
specify what he meant when he initially told Ralston that if he was honest the detective
would help him. According to Detective Procaccini, at a later time in his conversation,
however, he proposed that if Ralston was able to bring another drug dealer to the hotel
room with a larger quantity of drugs than Ralston brought, "he could go home." Ralston
admitted he was unable to procure any other dealers to deliver drugs to the hotel room.
Detective Procaccini testified that Ralston "did nothing to get me drugs delivered to that
hotel room."

Detective Procaccini's supervisor, Sergeant Mike Hatheway, testified that he was
the officer who pulled Ralston into the hotel room, and immediately arrested and
handcuffed him. According to Sergeant Hatheway, prior to any questions being asked of
Ralston, "he blurted out if you guys need help with anything I'll help you." During the
evidentiary hearing, the following colloquy occurred between the prosecutor and
Sergeant Hatheway about the conversation that occurred shortly after Ralston's arrest:

"Q. Okay. Now, Sergeant Hatheway, once you were done with Mr.
Ralston's case so to speak how exactly did you transition into talking about
future operations?
"A. We began to talk to Mr. Ralston about him helping himself out
on this case and that if he could provide us with information and get
someone else to come to the room to deliver a quantity of drugs that was
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significantly larger than what he had then we could help him with his case
that he had been arrested for.
"Q. Okay. Was it ever presented to him that if he just provided
names that the case that he had just been arrested on would go away?
"A. Absolutely not.
"Q. In your experience as supervisor and your experience as a law
enforcement officer have you ever been in a situation where you made the
offer if you just provide names all that goes away?
"A. No. I know hundreds of names of people who are using,
selling, dealing drugs, but that doesn't give me the means or capability to go
arrest them or charge them. I know the names of people. I need somebody
to take action to provide us with that ability.
"Q. And on this particular evening with Mr. Ralston did you
indicate what action you wanted him to take?
"A. Yes.
"Q. And what specifically was that?
"A. We wanted him to contact somebody and have them deliver
drugs to that same motel room.
"Q. And did he indicate whether or not he was willing to do that?
"A. He indicated that he could not do that at that time."

To the extent contract law applies here, the district court's determination that no
enforceable contract existed was a finding of fact. "'When the evidence pertaining to the
existence of a contract or the content of its terms is conflicting or permits more than one
inference, a question of fact is presented.'" Nungesser v. Bryant, 283 Kan. 550, 566, 153
P.3d 1277 (2007), as quoted in State v. Sharp, 289 Kan. 72, 92, 210 P.3d 590 (2009). It
is well known that "the appellate court must accept as true the evidence and all inferences
13

drawn from the evidence which tend to support the findings of the trial judge." Drach,
281 Kan. at 1067.

"In order for parties to form a binding contract, there must be a meeting of the
minds as to all essential terms thereof." Dougan v. Rossville Drainage Dist., 270 Kan.
468, 488, 15 P.3d 338 (2000). "To constitute a meeting of the minds there must be a fair
understanding between the parties which normally accompanies mutual consent and the
evidence must show with reasonable definiteness that the minds of the parties met upon
the same matter and agreed upon the terms of the contract." Steele v. Harrison, 220 Kan.
422, Syl. ¶ 3, 552 P.2d 957 (1976). "Any expression of assent that changes the terms of
the offer in any material respect may be operative as a counteroffer, but it is not an
acceptance and constitutes no contract." 220 Kan. 422, Syl. ¶ 4.

There was substantial competent evidence to support the district court's finding
that there was not an "enforceable contract" because "[t]here was no meeting of the minds
or mutual manifestation of assent between [Ralston] and the officers."

Ralston understood the contract or agreement provided him immunity from
prosecution based on Detective Procaccini's vague promise of help if Ralston was honest.
In Ralston's view, he was only required to truthfully provide names and addresses of drug
dealers in order to avoid being prosecuted for drug charges. Both Detective Procaccini
14

and Sergeant Hatheway, however, denied promising Ralston immunity in return for
truthful information about the names and addresses of drug dealers.

For his part, Detective Procaccini's understanding was that any promise of
immunity from prosecution was specifically conditioned upon Ralston procuring a drug
dealer to deliver to the hotel room a quantity of drugs greater than the 2 ounces Ralston
had brought to the hotel room. It was uncontroverted that Ralston did not comply with
this condition. If a promise is conditional, the person seeking to enforce the promise
"'cannot avail himself of the benefit of it without complying with the conditions.'" Green
v. Goble, 7 Kan. 297, 302 (1871), as quoted in State v. Sharp, 289 Kan. at 92.

Given the highly disputed evidence regarding whether a contract was agreed upon
and, if so, what the terms of the agreement were and whether those terms were complied
with, we are persuaded the district court did not abuse its discretion by finding there was
no enforceable contract or agreement.

Moreover, as argued by the State, there is another basis upon which to uphold the
district court's denial of Ralston's motion to dismiss. Assuming there was an immunity
contract or agreement between Ralston and the officers, that agreement was
unenforceable because it was made without the authority of the county or district attorney
responsible for the State's prosecution. Moreover, to the extent an unauthorized promise
15

by the police improperly procured Ralston's incriminating statements, the district court
ordered the appropriate remedy—suppression of Ralston's incriminating statements.

Ralston's insistence on specific performance of the agreement is predicated on his
belief that "when Ralston truthfully provided the names of potential drug sting targets to
the police, due process mandated the State perform as it promised and let Ralston go."
(Emphasis added.)

To the extent this question involves statutory interpretation, our review is de novo.
See State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). Our task is to "'ascertain
the legislative intent through the statutory language it employs, giving ordinary words
their ordinary meaning.' [Citation omitted.]" State v. Gracey, 288 Kan. 252, 257, 200
P.3d 1275 (2009).

Crimes are committed "against the state of Kansas," K.S.A. 21-3102, and "[a]ll
prosecutions for violations of the criminal laws of this state shall be in the name of the
state of Kansas." K.S.A. 22-2104. Prosecutors, not law enforcement officers, represent
the State in criminal proceedings. See K.S.A. 19-702 (county attorneys); K.S.A. 22-
2202(17) (prosecuting attorneys generally). And prosecutors, not law enforcement
officers, "may at any time, on behalf of the state, grant in writing" immunity to witnesses.
K.S.A. 22-3415(b). Law enforcement officers, however, do not have that authority. See
K.S.A. 22-2202(13) (outlining duties).
16

This statutorily expressed public policy, to keep the "prosecution of the case . . . at
all times in the hands of the public prosecutor," is "consistent with that traditionally
adopted throughout this country." State ex rel. Rome v. Fountain, 234 Kan. 943, 949,
678 P.2d 146 (1984). Thus, the general rule is not to enforce a defendant's immunity
agreement made solely with law enforcement officers. See Green v. State, 857 P.2d
1197, 1199-1201 (Alaska App. 1993) (discussing cases); 21 Am. Jur. 2d, Criminal Law §
247, p. 361.

In State v. Spradlin, 12 S.W.3d 432, 433 (Tenn. 2000), for example, the Supreme
Court of Tennessee considered "whether an agreement not to prosecute made between
[defendant] . . . and two officers is enforceable without the district attorney general's
knowledge or approval." (Emphasis added.) The court noted the "well-settled law and
custom that a district attorney general has the sole duty, authority, and discretion to
prosecute criminal matters. [Citations omitted.]" 12 S.W.3d at 436. The court
emphasized the contrasting "clear rule" concerning law enforcement officers, that they
"do not possess the authority to bind prosecutors to unauthorized immunity or
nonprosecution agreements." (Emphasis added.) 12 S.W.3d at 436. Among other
considerations, the court was "concerned that enforcement of unauthorized promises
between officers and defendants would raise serious questions about the officers' power
to manipulate the criminal justice system." 12 S.W.3d at 436. As a result, the court
concluded the officers were "without authority to bind the district attorney general to an
agreement not to prosecute." 12 S.W.3d at 434.
17

We conclude that law enforcement officers, absent the prior knowledge and
approval of county and district attorneys, are without authority to enter into immunity
agreements. This approach is consistent with the legislature's purpose to empower
county and district attorneys—not law enforcement officers—with the discretion to file,
reduce, or dismiss criminal charges and grant immunity to individuals on behalf of the
State of Kansas.

Ralston contends "[c]oncerning the state's objection to perform on its part of the
bargain, Ralston's informant agreement should be treated as if it were a plea agreement."
Generally, courts apply fundamental contract principles in both the interpretation and
enforcement of plea bargains. See State v. Boley, 279 Kan. 989, 993, 113 P.3d 248
(2005). There are important differences, however, which distinguish Ralston's claimed
immunity agreement and a typical plea agreement.

First, any agreement in Ralston's case was made prior to any review or filing of
formal charges by the prosecutor, whereas a plea agreement is typically formulated after
the prosecutor has filed charges. Second, any agreement in this case was transacted
between Ralston and the officers without the knowledge or approval of the prosecutor,
while a plea agreement is executed between a defendant and the prosecutor, as the legal
representative of the State. See K.S.A. 21- 4713 (actions which prosecutors may take
under agreements with defendants for plea). Third, the ambiguous and disputed terms of
Ralston's claimed immunity agreement were not subject to court review before the
18

agreement was executed, whereas plea agreements are subject to court review, and the
district court "is not bound by its terms and can reach an independent decision on whether
to approve a negotiated charge or sentence concessions." Boley, 279 Kan. 989, Syl. ¶ 2.
In short, we find important dissimilarities between Ralston's claimed immunity
agreement in this case and a typical plea agreement.

Ralston next equates the claimed immunity agreement with the so-called charge
agreement at issue in Ratley, 253 Kan. at 395. In Ratley, agents with the Kansas Bureau
of Investigation (KBI) seized growing marijuana plants and packages of marijuana from
Ratley's farm. Ratley was arrested. Craig Cole, Anderson County Attorney, authorized
KBI Special Agent Tom Williams to enter into an agreement with the defendant on
behalf of the State. The agreement was prepared and signed by Williams and the
defendant before a notary public. The document provided that if Ratley told the truth
regarding his involvement in illegal activities the State agreed to charge him with one
count of possession of marijuana with intent to sell and to waive additional charges for
felonies of the level C or below. If Ratley did not tell the truth or assist in the
investigation, the agreement was void and provided: "'the County Attorney or his
designate is free to charge me with any and all counts they deem necessary.'" 253 Kan. at
395.

Ratley complied with his part of the bargain, but the State did not, charging him
with possession of marijuana with intent to sell and alternatively with cultivation of
19

marijuana (a class C felony). Ratley filed a motion to enforce the agreement, and the
district court sustained the motion, striking the cultivation of marijuana count. 253 Kan.
at 395.

Noting the agreement had been made with the "'knowledge and authority of the
Anderson County Attorney,'" 253 Kan. at 395, the district court equated this "'charge
agreement,'" 253 Kan. at 396, with a plea agreement noting "'the interests of justice and
appropriate recognition of the duties of the prosecution, in relation to promises made, will
best be served by specifically enforcing the charge agreement.'" 253 Kan. at 397.

The State appealed the district court's decision, but the Supreme Court affirmed
and observed: "The district court, based on substantial competent evidence, found the
agreement as entered into was with the 'full knowledge and authority of the Anderson
County Attorney, Craig Cole.'" 253 Kan. at 399. Consistent with this finding, our
Supreme Court also stated: "The county or district attorney is the representative of the
State in criminal proceedings. He or she has the authority to dismiss any charge or
reduce any charge." 253 Kan. 394, Syl. ¶ 4.

Similarly, in another case Ralston cites, State v. Wacker, 268 Neb. 787, 788, 688
N.W.2d 357 (2004), an "officer . . . entered into a cooperation agreement" only "after
speaking with the county attorney." (Emphasis added.)

20

The charge agreement in Ratley, and the cooperation agreement in Wacker (similar
to plea agreements in general) are noteworthy because each agreement was made with the
prior knowledge and approval of the county attorney who had the legal authority to bind
the State. Accordingly, the State's breach of the agreement, which it entered into,
resulted in specific performance of the State's broken promise. In the present case,
however, Ralston does not allege and there is no evidence of record to suggest, that the
county attorney knew of or approved of any immunity agreement. Under these
circumstances, enforcement of the unauthorized agreement against the State, which was
not even a party to the agreement, is unwarranted.

We acknowledge "distinctions between the authority of the police and that of the
prosecutor mean little to a defendant negotiating with a government officer." State v.
Sturgill, 121 N.C. App. 629, 643, 469 S.E.2d 557 (1996). We also recognize that "a
police officer is just as capable of implicating defendant's constitutional rights as the
district attorney who refused to honor the police promise to defendant. [Citation
omitted.]" 121 N.C. App. at 643. Yet, as in the present case, where a defendant relies
upon the unauthorized promise of a law enforcement officer, "the remedy which accords
substantial justice to defendant is that which returns him to his position prior to the
confession. Thus, since suppression or exclusion of the confession cures defendant's
detrimental reliance, specific performance is unwarranted." 121 N.C. App. at 647.

21

In this case, Ralston responded to an informant's request to bring 2 ounces of
marijuana to the hotel room in order to effect a drug sale. Ralston was pulled into the
hotel room by police officers, immediately arrested, handcuffed, and searched.
Marijuana and drug paraphernalia were found on Ralston which resulted in the prosecutor
exercising his statutory authority and discretion by filing drug charges. The
incriminating evidence was procured prior to and apart from any later discussions or
purported immunity agreements with Ralston. To the extent the officers' unauthorized
promise of immunity improperly induced Ralston's subsequent incriminating statements,
the district court properly remedied the violation of Ralston's Fifth Amendment rights by
imposition of the exclusionary rule and suppression of the evidence. See State v.
Swanigan, 279 Kan. 18, 39-40, 106 P.3d 39 (2005), and State v. Baston, 261 Kan. 100,
107-08, 928 P.2d 79 (1996) (discussing the voluntariness of confessions obtained after
promises or threats by law enforcement officers).

We hold the district court did not err in its denial of Ralston's motion to dismiss
the charges.
Entrapment

Ralston also contends his marijuana convictions should be reversed because he
was entrapped by the police. In particular, Ralston claims "the police used [the
informant], the subject of a prior police sting, to contact Mr. Ralston and ask Mr. Ralston
to bring marijuana to the motel room to sell [and] . . . [t]here is absolutely no indication
22

in the record that Mr. Ralston had any intention of possessing marijuana absent [the
informant's] request that he do so."

The State responds that Ralston's possession of "drug paraphernalia used to both
store marijuana and to introduce it into the human body . . . was evidence that the
informant merely afforded him the opportunity to possess the marijuana . . .
and . . . [Ralston] had the intent to engage in the criminal conduct of possessing
marijuana before the informant requested the sale."

To the extent we interpret the entrapment statute, K.S.A. 21-3210, our review is de
novo. See Jefferson, 287 Kan. at 33. The question of whether Ralston's entrapment
defense to the possession of marijuana charges was rebutted by evidence of an intent and
predisposition to possess marijuana is a question of fact. See State v. Van Winkle, 254
Kan. 214, 224, 864 P.2d 729 (1993); State v. Rogers, 234 Kan. 629, 632, 675 P.2d 71
(1984); PIK Crim. 3d 54.14. In this regard, our review is for the sufficiency of the
evidence. Van Winkle, 254 Kan. at 224.

"When the sufficiency of the evidence is challenged, the standard of
review on appeal is whether, after review of all the evidence, viewed in the
light most favorable to the prosecution, the appellate court is convinced that
a rational factfinder could have found the defendant guilty beyond a
reasonable doubt. [Citation omitted.]" 254 Kan. at 224.

23

The entrapment defense was codified in 1969. See L. 1969, ch. 180, sec. 21-3210;
State v. Houpt, 210 Kan. 778, 780, 504 P.2d 570 (1972); State v. Reichenberger, 209
Kan. 210, 215, 495 P.2d 919 (1972). The statute reads in relevant part:

"A person is not guilty of a crime if his criminal conduct was
induced or solicited by a public officer or his agent for the purposes of
obtaining evidence to prosecute such person, unless:
"(a) The public officer or his agent merely afforded an opportunity
or facility for committing the crime in furtherance of a criminal purpose
originated by such person or a co-conspirator." K.S.A. 21-3210.

In Reichenberger, a case decided on precodification law, our Supreme Court held
that once inducement by the government has been proven, "previous intention or
predisposition [to commit the crime] must be shown to rebut entrapment." 209 Kan. at
217. In Houpt, which applied the new statute, K.S.A. 21-3210, our Supreme Court found
"no difference in the import of the codified language and the parallel expression in
Reichenberger." 210 Kan. at 782. As a result, although K.S.A. 21-3210 does not include
the word "predisposition," that is typically how the issue is framed in entrapment cases.
See, e.g., State v. Gasser, 223 Kan. 24, Syl. ¶ 2, 574 P.2d 146 (1977); State v. Carr, 23
Kan. App. 2d 384, 384-85, 931 P.2d 34 (1997).

In the analysis of entrapment cases, "'[t]he extent of government activity in
soliciting the crime charged is weighed . . . against defendant's willingness to comply,
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and other evidence of predisposition to determine whether defendant originated the
criminal purpose or was entrapped.'" State v. Rogers, 234 Kan. 629, 632, 675 P.2d 71
(1984) (quoting State v. Bagemehl, 213 Kan. 210, Syl. ¶ 4, 515 P.2d 1104 [1973]).

We believe a rational factfinder could have concluded beyond a reasonable doubt
that Ralston was predisposed to possess marijuana. In addition to the bags of marijuana,
the possession of which was apparently induced by the informant acting as a government
agent, Ralston possessed the hitter box and its contents. Law enforcement officers
testified the hitter box was used to conceal and smoke marijuana. This paraphernalia also
contained marijuana residue indicative of personal use. As the district court correctly
noted, Ralston "was not induced by the officers or [confidential informant] to purchase a
hitter box, use it, leave the butt of a marijuana joint in the hitter box, etc."

Moreover, evidence of "criminal activity or . . . previous suspicious conduct" is
only "one of the accepted methods of establishing predisposition." Reichenberger, 209
Kan. at 218. "[R]eady compliance by the defendant" is also "accepted as evidence of
predisposition." State v. Fitzgibbon, 211 Kan. 553, 555, 507 P.2d 313 (1973).

Evidence at trial showed that Ralston arrived at the hotel room within 30 minutes
of the informant's phone call requesting 2 ounces of marijuana. Viewed in the light most
favorable to the State, Ralston's ready compliance when asked to bring marijuana to the
25

hotel room showed his predisposition to possess it. Accordingly, the trial court did not
err in rejecting Ralston's entrapment defense.

Multiplicity

Ralston was charged with possession of marijuana and possession of drug
paraphernalia after the search incident to his arrest revealed two bags of marijuana, the
hitter box, and pipe. For the first time on appeal, Ralston contends that, under the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution which
generally prohibits multiple charges for a single offense, these two items could not be
considered drug paraphernalia because they also contained marijuana residue and Ralston
was charged in a separate count with possession of marijuana.

"Whether convictions are multiplicitous is a question of law subject to unlimited
review." State v. Fisher, 283 Kan. 272, Syl. ¶ 16, 154 P.3d 455 (2007).

Ralston did not raise the multiplicity issue in the district court. Generally, issues
not raised before the district court may not be raised on appeal. State v. Warledo, 286
Kan. 927, 938, 190 P.3d 937 (2008). An appellate court may consider multiplicity for the
first time on appeal, however, to serve the ends of justice or prevent a denial of
fundamental rights. See State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984). On
26

appeal, Ralston does not assert or show how our review would facilitate those purposes.
As a result, this issue was not preserved for appellate review.

If this court were to consider the merits of this issue, however, we would conclude
that Ralston's argument has no merit.

Ralston relies on State v. Castillo, 34 Kan. App. 2d 169, 115 P.3d 787, rev. denied
280 Kan. 985 (2005), contending that when "drug paraphernalia is used for its intended
purpose, the crime of possession of drug paraphernalia will be merged into the primary
offense," i.e., possession of marijuana.

In Castillo, a panel of this court held, under the facts of that case, that the crime of
possession of marijuana with intent to sell within 1,000 feet of a school merged with the
crime of possession of drug paraphernalia, the latter being a plastic bag which contained
the marijuana. The critical fact appeared to be that the same marijuana provided the
factual basis for both charges: "Castillo possessed one bag of marijuana. Splitting that
single offense into two counts was constitutionally impermissible." 34 Kan. App. 2d at
177.

Here, of course, Ralston possessed two bags of marijuana in addition to the
marijuana residue in the hitter box and pipe. In any event, our Supreme Court
disapproved merger analysis after the Castillo opinion was filed. See State v.
27

Schoonover, 281 Kan. 453, 493, 133 P.3d 48 (2006). The "same-elements test" is now
"the only test to determine multiplicity arising from convictions of separate statutes."
State v. Malm, 37 Kan. App. 2d 532, Syl. ¶ 12, 154 P.3d 1154, rev. denied 284 Kan. 949
(2007).

The following test is used to determine whether convictions are multiplicitous:

"First, a court must consider whether the convictions are based upon the
same conduct. If not, the multiplicity analysis ends. If based on the same
conduct, the court must then consider whether the convictions are based on
a single statute or multiple statutes. If the convictions are based upon
different statutes, the convictions are multiplicitous only when the statutes
upon which the convictions are based contain an identity of elements." 37
Kan. App. 2d 532, Syl. ¶ 12.

Assuming without deciding that Ralston's convictions are based on the same
conduct, the two statutes upon which the convictions are based do not contain an identity
of elements. Marijuana is a hallucinogenic controlled substance under K.S.A. 65-
4105(d)(16). K.S.A. 65-4162(a) makes it "unlawful for any person to possess" such a
substance, and K.S.A. 65-4152(a)(2) states "[n]o person shall use or possess with intent
to use . . . any drug paraphernalia to use, store, contain, conceal, inject, ingest, inhale or
otherwise introduce into the human body" such a substance.

28

Simply put, possession of marijuana requires possession of marijuana, while
possession of drug paraphernalia does not; and possession of drug paraphernalia requires
possession of drug paraphernalia, while possession of marijuana does not. See State v.
Patten, 280 Kan. 385, 391, 122 P.3d 350 (2005) (manufacturing methamphetamine and
possession of drug paraphernalia are not multiplicitous under same elements test).
Because possession of marijuana and possession of drug paraphernalia require proof of
an element not required to prove the other crime, the crimes are not multiplicitous.
Ralston's argument is without merit.

Affirmed.