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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

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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

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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

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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

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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.

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Kansas Law