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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,915

STATE OF KANSAS,

Appellee,

v.

JEFFREY L. PRIBBLE,

Appellant.

SYLLABUS BY THE COURT

1.

Multiplicity is the charging of a single offense in several counts of a complaint or 

information which creates the potential for multiple punishments for a single offense in 

violation of the Double Jeopardy Clauses of the Fifth Amendment to the United States 

Constitution and § 10 of the Kansas Constitution Bill of Rights.

2.

The test for determining whether convictions are multiplicitous has two 

components: (1) Whether the convictions arose from the same conduct; and (2) whether 

the applicable statutory provisions define two offenses or only one.

3.

In determining whether convictions arose from the same conduct, a court 

considers the following factors: (1) whether the acts occur at or near the same time; (2) 

whether the acts occur at the same location; (3) whether there is a causal relationship 

between the acts, in particular whether there was an intervening event; and (4) whether 

there is a fresh impulse motivating some of the conduct.
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4.

Where two convictions are based on violations of the same statute, a court must 

determine what the legislature intended as the allowable unit of prosecution because

multiplicity only allows one conviction for each identified unit of prosecution.

5.

K.S.A. 79-5208 makes it a crime for a drug dealer, as defined in K.S.A. 2010

Supp. 79-5201(c), to distribute or possess marijuana or controlled substances without 

affixing the appropriate drug tax stamps, labels, or other indicia of payment of the drug 

tax imposed by K.S.A. 79-5202. A drug dealer's possession of both marijuana and a 

controlled substance, such as methamphetamine, at the same time and at the same 

location, without the appropriate drug tax stamps affixed, constitutes one unit of 

prosecution absent any proof that the drugs were acquired, and the duty to affix the drug 

tax stamps arose, at different times. 

6.

A prosecutor is given wide latitude in closing arguments, but such arguments must 

remain consistent with the evidence. A prosecutor may not misstate the law applicable to 

the evidence presented, may not offer a personal opinion about witness credibility, and 

may not shift the burden of proof to the defendant.

7.

If a prosecutor commits error during closing argument, the State bears the burden 

of establishing that there is no reasonable possibility that the error affected the verdict.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 21, 2014.

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed July 15, 2016.

Judgment of the Court of Appeals affirming the district court is affirmed in part, reversed in part, and 
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remanded with directions. Judgment of the district court is affirmed in part, reversed in part, and 

remanded with directions.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of the 

same office, was on the brief for appellant. 

Julie A. Koon, assistant district attorney, argued the cause, and Marc Bennett, district attorney, 

and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Jeffrey L. Pribble seeks review of the Court of Appeals decision to 

affirm his convictions on numerous drug offenses and his 42 months' imprisonment 

sentence. The Court of Appeals affirmed Pribble's convictions after rejecting Pribble's 

claims that (1) the charges for possession of marijuana with no drug tax stamp and 

possession of methamphetamine with no drug tax stamp constituted only one crime, 

rendering the two convictions multiplicitous; (2) the prosecutor committed reversible 

misconduct during his closing argument; and (3) the district court violated Apprendi v. 

New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by using his prior 

convictions to enhance his sentence under the sentencing guidelines without requiring the 

State to prove the existence of those prior convictions to a jury beyond a reasonable 

doubt. This court granted Pribble's petition for review. Finding that the drug tax stamp 

statute contemplates only one unit of prosecution under these facts, we reverse one of 

those convictions and remand for resentencing.

FACTUAL AND PROCEDURAL OVERVIEW

While executing a search warrant at Pribble's house, law enforcement officers 

discovered and seized drug-buy money, over 800 grams of marijuana, more than 14 
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grams of methamphetamine, and various items of drug paraphernalia. None of the drugs 

bore the requisite drug tax stamps. As a result, Pribble was charged with possessing 

marijuana, methamphetamine, paraphernalia, and drug-sale proceeds. Of particular 

interest here, the State also charged Pribble with two taxation offenses under K.S.A. 79-

5208, to-wit: one count of possession of marijuana with no drug tax stamp and one count 

of possession of methamphetamine with no drug tax stamp.

Pribble testified that none of the seized drugs or paraphernalia belonged to him 

and offered explanations for the incriminating circumstances. Nevertheless, the jury 

convicted Pribble as charged. This appeal ensued.

MULTIPLICITY

Pribble first challenges the Court of Appeals determinations that "Pribble's 

convictions of possession of marijuana with no drug tax stamp and possession of 

methamphetamine with no drug tax stamp do not arise from the same conduct and, by 

statutory definition, constitute two separate offenses." State v. Pribble, No. 108,915, 2014 

WL 1193337, at *4 (Kan. App. 2014) (unpublished opinion). Those determinations led 

the panel to "conclude that the convictions are not multiplicitous in violation of the 

Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and 

§ 10 of the Kansas Constitution Bill of Rights." 2014 WL 1193337, at *4.

Pribble's challenge to the panel's holding is founded on our definition of 

multiplicity as being "the charging of a single offense in several counts of a complaint or 

information." State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2008); State v. 

Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006). We have noted that "[t]he 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 
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the United States Constitution and § 10 of the Kansas Constitution Bill of Rights." 

Thompson, 287 Kan. at 244.

Standard of Review 

A K.S.A. 79-5208 violation occurs when a drug dealer distributes or possesses 

marijuana or controlled substances without having affixed the appropriate stamps, labels, 

or other indicia of having paid the tax imposed on the dealer's drugs. Whether the State 

charged a single drug tax stamp offense in two counts of the complaint or information 

presents a question of law subject to unlimited review. See Schoonover, 281 Kan. at 462.

Analysis 

The Court of Appeals loosely applied Schoonover's two-component test for 

determining whether convictions are multiplicitous. Under that rubric, a court first looks 

at whether the convictions arose from the same conduct, considering such factors as: 

"(1) whether the acts occur at or near the same time; (2) whether the acts occur at the 

same location; (3) whether there is a causal relationship between the acts, in particular 

whether there was an intervening event; and (4) whether there is a fresh impulse 

motivating some of the conduct." 281 Kan. 453, Syl. ¶ 16.

If the same-conduct prong is met, the second component of the test focuses on whether 

the applicable statutory provisions define "two offenses or only one." 281 Kan. 453, Syl. 

¶ 15.

The panel first determined that Pribble's possession of two different drugs 

constituted two separate acts that would support two convictions, notwithstanding the 

acknowledged fact that "the charged acts occurred at the same time and location." 
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Pribble, 2014 WL 1193337, at *3. In addition to the conceded applicability of the first 

two Schoonover factors (same time and same location), the remaining two factors favor a 

determination that the convictions arose from the same conduct. The fact that all of the 

drugs found at Pribble's house—at the same time and in the same place—were devoid of 

any affixed drug tax stamp does not support the notion that there was any intervening 

event between the alleged criminal acts. Likewise, the reasonable inference to be drawn 

from these circumstances is that the same impulse—to avoid detection and evade taxes—

was the likely motivation for failing to pay the tax and affix the tax stamps to both drugs.

In short, both drug tax stamp convictions arose from the same conduct, i.e., a drug 

dealer's "distributing or possessing marijuana or controlled substances without affixing 

the appropriate stamps, labels or other indicia." K.S.A. 79-5208. 

Notwithstanding the Court of Appeals' determination that Pribble's convictions did 

not meet the first multiplicity requirement of separate conduct, it chose to proceed to the 

second step. Because Pribble's two convictions were based on violations of the same 

statute, K.S.A. 79-5208, the panel applied Schoonover's unit of prosecution test to 

determine whether the legislature intended two offenses or only one. Pribble, 2014 WL 

1193337, at *4. Under this test, a court looks at "the statutory definition of the crime" to 

determine "what the legislature intended as the allowable unit of prosecution," and then 

allows only one conviction for each identified unit of prosecution. Schoonover, 281 Kan. 

at 497-98.

The panel focused on portions of K.S.A. 2010 Supp. 79-5201(c), which is a 

subsection of the definitions provision of the act addressing the taxation of marijuana and

controlled substances, K.S.A. 79-5201 et seq. That particular definition states as follows:

"(c) 'dealer' means any person who, in violation of Kansas law, manufactures, 

produces, ships, transports or imports into Kansas or in any manner acquires or possesses 
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more than 28 grams of marijuana, or more than one gram of any controlled substance, or 

10 or more dosage units of any controlled substance which is not sold by weight." K.S.A. 

2010 Supp. 79-5201(c).

The panel opined that, because that definitional statute "requires the State to prove 

a defendant possessed different amounts of marijuana versus a controlled substance such 

as methamphetamine, . . . the legislature clearly intended that possession of each drug 

without the requisite tax stamp would constitute a separate violation of the statute." 

Pribble, 2014 WL 1193337, at *4. We discern that the panel read too much into the 

legislature's definition of a drug "dealer," especially when the act is viewed as a whole.

Globally, the statutory provisions in play here are part of an act dealing with 

taxation, rather than being part of this state's criminal code. The topic of Chapter 79 of 

the Kansas Statutes Annotated is designated as "Taxation," while Article 52 of this 

taxation chapter deals with "Marijuana and Controlled Substances." As noted, K.S.A. 

2010 Supp. 79-5201 contains definitions applicable to the taxation of marijuana and 

controlled substances, specifically defining "marijuana," "controlled substance," "dealer," 

and "domestic marijuana plant." 

The next statute, K.S.A. 79-5202, imposes the tax, sets the rates of taxation, and 

describes the measure to be used to calculate the tax. Significantly, the provision states 

that "[t]here is hereby imposed a tax upon marijuana, domestic marijuana plants and 

controlled substances . . . at the following rates," thereafter stating different rates of 

taxation for marijuana, wet domestic marijuana plants, dry domestic marijuana plants, 

controlled substances sold by weight, and controlled substances not sold by weight. 

(Emphasis added.) K.S.A. 79-5202(a)(1)-(5). That language suggests that the legislature 

was imposing but one tax on the drugs but calculating the amount of that tax by applying 

differing rates of taxation.
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Continuing in that same vein, K.S.A. 79-5204(a) provides: "No dealer may 

possess any marijuana, domestic marijuana plant or controlled substance upon which a 

tax is imposed pursuant to K.S.A. 79-5202, and amendments thereto, unless the tax has 

been paid as evidenced by an official stamp or other indicia." (Emphasis added.)

Subsection (c) also uses the singular form of tax, to-wit:

"When a dealer purchases, acquires, transports, or imports into this state 

marijuana, domestic marijuana plants or controlled substances on which a tax is imposed 

by K.S.A. 79-5202, and amendments thereto, and if the indicia evidencing the payment of 

the tax have not already been affixed, the dealer shall have them permanently affixed on 

the marijuana, domestic marijuana plant or controlled substance immediately after 

receiving the substance." (Emphasis added.) K.S.A. 79-5204(c).

Granted, in subsection (d) of that provision, the legislature used the plural form, 

stating that "[t]axes imposed upon marijuana, domestic marijuana plants or controlled 

substances by this act are due and payable immediately upon acquisition or possession in 

this state by a dealer." K.S.A. 79-5204(d). But in the very next statute, the legislature

again speaks as if there is but a single tax being assessed: 

"At such time as the director of taxation shall determine that a dealer has not paid 

the tax as provided by K.S.A. 79-5204, and amendments thereto, the director may 

immediately assess a tax based on personal knowledge or information available to the 

director of taxation; mail to the taxpayer at the taxpayer's last known address or serve in 

person, a written notice of the amount of tax, penalties and interest; and demand its 

immediate payment." (Emphasis added.) K.S.A. 2010 Supp. 79-5205(a).

Perhaps most importantly, the specific provision imposing a tax penalty and 

creating criminal liability does not indicate that a tax liability generated by possessing 
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more than one type of drug at the same time and same place creates multiple offenses for 

the same conduct of failing to affix the requisite drug tax stamps. That statute states: 

"Any dealer violating this act is subject to a penalty of 100% of the tax in 

addition to the tax imposed by K.S.A. 79-5202 and amendments thereto. In addition to 

the tax penalty imposed, a dealer distributing or possessing marijuana or controlled 

substances without affixing the appropriate stamps, labels or other indicia is guilty of a 

severity level 10 felony." (Emphasis added.) K.S.A. 79-5208.

The statute can reasonably be read to mean that K.S.A. 79-5202 imposes a single 

tax, notwithstanding the differing rates that might be applied to calculate the total tax on 

the various taxable drugs in the dealer's possession. Moreover, as Pribble argues, the 

statute provides that the failure to affix "the appropriate stamps" (plural) makes the dealer 

"guilty of a . . . felony" (singular), suggesting one unit of prosecution even where both 

marijuana stamps and controlled substances stamps are "appropriate." Of course, another 

explanation for referring to the plural, "stamps," might be the possibility that multiple 

stamps could be required on a single drug. See K.S.A. 79-5204(b) ("The director shall 

issue the stamps, labels or other indicia in denominations in multiples of $10."). But such 

an explanation does not parallel K.S.A. 79-5204(a), which proscribes the possession of 

drugs by a dealer "unless the tax has been paid as evidenced by an official stamp or other 

indicia." (Emphasis added.) In other words, the statute describing the prohibited 

possession of untaxed drugs does not contemplate more than one stamp being necessary 

to evidence the payment of the requisite tax.

Viewing all of the statutory provisions together suggests that the legislature 

intended to impose a tax on the marijuana or controlled substances possessed by drug 

dealers and to make it a crime for those drug dealers to fail to evidence the payment of 

that drug tax with the appropriate stamps. Consequently, the clear purpose of K.S.A. 

2010 Supp. 79-5201(c)'s definition of "dealer" is to differentiate between drug dealers 
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and personal-use possessors of drugs, and, thereby, clarify who is a taxpayer under the 

act that can be subject to the criminal sanction of K.S.A. 79-5208. In that regard, the 

legislature's designation of more grams to be considered a marijuana dealer than that 

required to be a methamphetamine dealer has a basis in fact unrelated to establishing a 

unit of prosecution. Accordingly, we reject the proposition that K.S.A. 2010 Supp. 79-

5201(c) clearly indicates a legislative intent to make the possession of two separate drugs 

two separate units of prosecution under K.S.A. 79-5208.

Therefore, under the facts presented in this record, we hold that Pribble's 

possession of both marijuana and methamphetamine, at the same time and the same 

location, without the appropriate drug tax stamps affixed, without any proof that the 

drugs were acquired at different times, constituted a single crime that should not have 

been charged in two counts. One count is reversed, and the matter is remanded for 

resentencing with one conviction for possessing drugs without a drug tax stamp.

PROSECUTORIAL MISCONDUCT

Next, Pribble contends that he was deprived of a fair trial by the prosecutor's 

closing argument. He claims the prosecutor misstated the law, impermissibly commented 

on witnesses' credibility, and shifted the burden of proof to the defense. Pribble's 

complaints are not devoid of merit.

Standard of Review/Analytical Framework

Pribble did not object at trial to the prosecutor's comments, but the same standard 

of review applies to a claim of prosecutorial error during closing argument regardless of 

whether the defendant raised a contemporaneous objection. See State v. Miller, 293 Kan. 

535, 550, 264 P.3d 461 (2011) (noting the special preservation rule). Appellate review of 

a prosecutor's closing argument requires a two-step analysis. First, an appellate court 
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decides whether the comments were outside the wide latitude that a prosecutor is allowed 

in discussing the evidence. Second, if misconduct or error is found, an appellate court 

must determine whether the improper comments prejudiced the jury against the defendant 

and denied the defendant a fair trial. State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 

(2012).

Prosecutors enjoy wide latitude in crafting closing arguments. See State v. Scott, 

271 Kan. 103, 114, 21 P.3d 516 (citing State v. Miller, 268 Kan. 517, Syl. ¶ 4, 997 P.2d 

90 [2000]), cert. denied 534 U.S. 1047 (2001). This latitude allows a prosecutor to argue

reasonable inferences that may be drawn from the admitted evidence, but it does not 

extend so far as to permit arguing facts that are not in evidence. State v. Tahah, 293 Kan. 

267, 277, 262 P.3d 1045 (2011). Likewise, "[p]rosecutors are not allowed to make 

statements that inflame the passions or prejudices of the jury or distract the jury from its 

duty to make decisions based on the evidence and the controlling law." State v. Baker, 

281 Kan. 997, 1016, 135 P.3d 1098 (2006). In short, a prosecutor's arguments must 

remain consistent with the evidence. 

Analysis

We will take each challenge in order, starting with the allegation that the 

prosecutor misstated the law applicable to possession of the illegal drugs. The prosecutor 

started on track, arguing as follows:

"So what is possession? As the Judge told you, it means having joint or exclusive 

control over an item with knowledge of and the intent to have that control or knowingly 

keeping an item in some place where you have access or some measure of control over 

it." 
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But the prosecutor stumbled in trying to fashion a scenario that adequately 

explained the legal principles involved. The prosecutor's exemplar was as follows:

"If I was to walk into your home and find a remote control on a couch, well, 

maybe Alex Martinez was over there and dropped off the remote control or maybe there 

was some big party, but it's still yours. And this marijuana is in his suitcase. There is a 

tag for it. It's in his bedroom. It's in his toilet. It is in his freezer. It is everywhere."

(Emphasis added.)

The district court's jury instruction, which was proper, told the jurors that the 

defendant's control over the item had to be "with knowledge of and the intent to have 

such control or knowingly keeping some item in a place where the person has some 

measure of access and right of control." To the contrary, the prosecutor's hypothetical 

implied that possession does not require intent when it stated that a third-person's deposit 

of an item in the defendant's house without the defendant's knowledge means that the 

defendant possessed the deposited item. But as a matter of law, Pribble would not 

"possess" an item that was dropped in his house without his knowledge. Therefore, the 

prosecutor's hypothetical about Martinez' remote control erroneously misstated the law 

for the jury. See State v. Bunyard, 281 Kan. 392, 406, 133 P.3d 14 (2006) ("Misstating 

the law is not within the wide latitude given to prosecutors in closing arguments.").

Our finding that the prosecutor exceeded the boundaries of fair argument sends us 

to the second step of determining whether the error requires reversal. In recent years, this 

court has looked at three factors in analyzing reversibility in prosecutorial misconduct 

cases, to-wit: (1) whether the misconduct was gross and flagrant; (2) whether the 

misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of 

such a direct and overwhelming nature that the misconduct would likely have had little 

weight in the minds of jurors. State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012). 
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In applying the factors, we often declare that none of them is individually 

controlling. See Marshall, 294 Kan. 850, Syl. ¶ 3. To aid in the determination of the first 

factor—whether the misconduct was gross and flagrant—we have considered whether the 

error was repeated, was emphasized, was in violation of a long-standing rule, was in 

violation of a clear and unequivocal rule, or was in violation of a rule designed to protect 

a constitutional right. 294 Kan. 850, Syl. ¶ 6. In analyzing whether a prosecutor's 

misconduct was motivated by ill will, we have considered whether the misconduct was 

deliberate, repeated, or in apparent indifference to a court's ruling. 294 Kan. 850, Syl. ¶ 7.

Perhaps most importantly, we must consider the prosecutor's challenged comments "in 

the context in which they were made, not in isolation." State v. Brown, 300 Kan. 542, 

560, 331 P.3d 781 (2014).

The prohibition against misstating the law is certainly a long-standing, clear, and 

unequivocal rule. Here, the prosecutor correctly stated the law for the jury but then 

inartfully tried to explain the law with an inaccurate hypothetical. In context, however, 

the prosecutor immediately followed the misstatement by pointing out that marijuana was 

everywhere in Pribble's house—in a suitcase with a tag on it, in his bedroom, in his toilet,

and in his freezer. The obvious implication of the prosecutor's observation was that the 

ubiquitous presence of marijuana in a person's house belies the notion that the 

homeowner was unaware of its presence, which would be a statement well within the 

boundaries of fair argument. In other words, the prosecutor's erroneous hypothetical had 

no possibility of changing the result and does not require reversal. See State v. Inkelaar, 

293 Kan. 414, 431, 264 P.3d 81 (2011) (State bears burden to establish no reasonable 

possibility the error affected the verdict).

Pribble's next challenge involves the conflicts between Pribble's testimony and the 

testimony of the law enforcement officers who searched the house. After telling the jurors 

that they had "to determine the weight and credibility to be given the testimony of each 
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witness"; that they should use their "common knowledge and experience" in reviewing 

"any matter about which a witness has testified"; and that numerous claims made by 

Pribble during his testimony were simply implausible, the prosecutor made the following 

statement: 

"Who is credible? Mr. Pribble says I don't want anything to do with marijuana, 

it's illegal. Well, that's why he's sitting in that chair, ladies and gentlemen. He says I don't 

approve of the culture. I don't like Bob Marley. I don't like Rastafarian. I don't like 

anything to do with that. I don't support marijuana. I don't believe that's credible. And I 

don't believe you, ladies and gentlemen, should believe that's credible either.

"I don't think those things add up, because we know that the officers didn't make 

him put that shirt on. We know the officers didn't tell him it had smallpox. They didn't 

say, hey, put this on, let's go out and get a picture." (Emphasis added.)

The significance of the referenced shirt was that it contained a message promoting 

marijuana use. Later, during the prosecutor's rebuttal argument, he stated: 

"Do not go down these rabbit holes, do not chase these red herrings. Ladies and 

gentlemen, the State has met its burden. It's beyond a reasonable doubt, a reasonable 

doubt. I can't disprove things that don't happen, and the defense can't either." (Emphasis 

added.) 

It is improper for a prosecutor to offer his or her personal opinion as to the 

credibility of a witness, including the defendant. See State v. Elnicki, 279 Kan. 47, 59-64, 

105 P.3d 1222 (2005); State v. Davis, 275 Kan. 107, 121-23, 61 P.3d 701 (2003); State v. 

Pabst, 268 Kan. 501, 506-07, 996 P.2d 321 (2000). The reason is because "'such 

comments are "unsworn, unchecked testimony, not commentary on the evidence of the 

case."'" State v. Peppers, 294 Kan. 377, 396, 276 P.3d 148 (2012) (quoting State v. 

Duong, 292 Kan. 824, 830, 257 P.3d 309 [2011]). A prosecutor, however, "may explain 

the legitimate factors which a jury may consider in assessing witness credibility and may 
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argue why the factors present in the current case should lead to a compelling inference of 

truthfulness." State v. Scaife, 286 Kan. 614, Syl. ¶ 5, 186 P.3d 755 (2008); see, e.g., State 

v. Huerta-Alvarez, 291 Kan. 247, 262, 243 P.3d 326 (2010) (finding that prosecutor's 

remarks in closing regarding victim's credibility "were generally in the nature of 

reviewing what [the victim] said, asking the jury to assess the credibility of her 

statements, and querying the jury why she would not have made up a more convenient 

story if in fact she had fabricated the story at all").

Often, the propriety of a prosecutor's point in closing argument will hinge upon 

how the statement is phrased. For instance, the statement, "The evidence contradicts the 

defendant's statement," is acceptable, whereas, "I don't believe the defendant's statement 

is credible," crosses the line. Here, the prosecutor stepped outside the wide latitude 

allowed when he gave the jury his personal opinion: "I don't believe that's credible. And 

I don't believe you, ladies and gentlemen, should believe that's credible either." Likewise, 

the prosecutor should not have offered his opinion that "I don't think those things add 

up." The other portions of the argument asked the jury to draw reasonable inferences 

from the evidence and fell within the wide latitude afforded to prosecutors 

notwithstanding the colorful language employed. See State v. Albright, 283 Kan. 418, 

429-30, 153 P.3d 497 (2007) (noting that court has approved a variety of colorful 

analogies—such as "smoke and mirrors"—used by prosecutors during closing arguments 

to describe the defendant's theory of the case).

Turning to the second step on the prosecutor's erroneous statements of personal 

belief, we note that the prosecutor sent a mixed message, rather than just the wrong 

message. Before proffering his personal opinion, the prosecutor specifically told the 

jurors that it was their duty to determine the weight and credibility to be given to the 

testimony of each witness. Moreover, one would not expect the jurors to have been 
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surprised to learn that the prosecutor did not believe the defendant's exculpatory 

statements, given that the prosecutor was continuing to seek defendant's conviction.

Under the third factor, the evidence of Pribble's guilt was circumstantial in nature 

but substantial in quantity. The jurors heard testimony from law enforcement officers 

regarding the marijuana, packaging materials, labels, bongs, blow torches, 

methamphetamine, and a possible grow room found in Pribble's home. They saw 

photographs meticulously documenting the search as well as the large quantity of 

evidence seized. Accordingly, when viewed as a whole, the prosecutor's use of "I 

believe" and "I think" did not affect the verdict.

Pribble's final challenge to the State's closing argument involves the prosecutor's 

remarks early in his rebuttal to defense counsel's arguments. The defense had pointed out

that law enforcement officers did not collect any fingerprint or DNA evidence during the 

search of Pribble's house and that the jury did not hear from numerous witnesses who 

could have corroborated Pribble's claim of being out of town for several weeks prior to 

the house search. The prosecutor responded with the following remarks:

"[Defense counsel] tells you that the officers cut corners. They didn't get 

fingerprints. They didn't get fingerprints. They didn't collect semen off the toilet. They 

didn't collect fingerprints out of the house. They didn't do black light tests. They didn't 

get the DNA off the cans. He's right.

"And he says that beyond a reasonable doubt is the highest burden in the land. 

Absolutely can't be any more. It's also the same thing that we've been doing since about 

1789 before we did DNA, black lights, fingerprints, et cetera, et cetera. And we've been 

getting convictions ever since.

"He says that it's hard to prove something that didn't happen. How do you 

disprove something? That's true. It's really hard. How do you prove a negative?

"He says the State didn't prove anything. Well, ladies and gentlemen, the defense 

has the exact same ability to subpoena witnesses. And if he was at Fall River, his sister 
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could have told us. His nephew could have told us there was a big party. Terry Moore 

could have come in and said none of this stuff was there when I left the house. Alex 

Martinez could have come in and said, yeah, I was at the house. And guess who we heard 

from. No one. Because how do I disprove something that didn't happen? How do I 

disprove that he wasn't in Fall River, he was at his house hours before the search warrant 

was executed, days before? Because Detective Olsen told you, yeah, I saw the pickup. I 

didn't have a camera with me that day. We did this multiple times. Olsen is not hiding 

anything. He told you exactly what he could remember, what he saw, what he 

documented.

"It is my burden to prove this case, and the State has done that." (Emphasis 

added.)

Pribble complains that the prosecutor's statements about the defense's ability to 

call witnesses shifted the burden of proof to the defense. "Kansas courts deem it 

'improper for the prosecutor to attempt to shift the burden of proof to the defendant or to 

misstate the legal standard of the burden of proof.' [Citations omitted.] But we grant 

prosecutors considerable latitude to address the weaknesses of the defense." Duong, 292 

Kan. at 832 (quoting State v. Stone, 291 Kan. 13, 18, 237 P.3d 1229 [2010]); see State v.

McKinney, 272 Kan. 331, 346, 33 P.3d 234 (2001) (where jury has been properly 

instructed that prosecution has burden of proof, a prosecutor may argue inferences based 

on the balance or lack of evidence), overruled on other grounds by State v. Davis, 283 

Kan. 569, 158 P.3d 317 (2007). In Peppers, this court stated:

"When a prosecutor's comment 'constitute[s] only a general question about the absence 

of evidence to rebut the State's witnesses . . . and not an impermissible remark about the 

defendant's failure to testify or an attempt to shift the burden of proof to the defense,' the 

comment is within the wide latitude afforded to the prosecution." 294 Kan. at 397-98. 

Particularly germane here is our precedent that a prosecutor does not shift the 

burden of proof by pointing out the absence of evidence to support the defense argument 
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that there are holes in the State's case. See, e.g., State v. Williams, 299 Kan. 911, 939, 329 

P.3d 400 (2014) ("[I]f a defendant asks the jury to draw an inference that the State's 

evidence is not credible because the State did not call a witness to corroborate other 

evidence, we have held that the State can refute the inference by informing the jury that 

the defense has the power to subpoena witnesses, including those who would be 

favorable to the defense."); Duong, 292 Kan. at 832-33 (holding prosecutor's arguments 

questioning defendant's failure to present evidence of misidentification did not 

improperly shift burden of proof because prosecutor did not call upon defense to disprove 

crime's occurrence but rather pointed out that evidence supporting defense theory was 

thin).

Accordingly, the prosecutor did not improperly shift the burden of proof when he 

commented about Pribble's failure to call alibi witnesses who could have corroborated his 

theory of the case, i.e., that he was out of town when the drugs came into his house.

Moreover, Pribble testified at trial, so there was nothing about the statement that 

infringed on his right to remain silent. Furthermore, the prosecutor's comment was a fair 

rebuttal to defense counsel's argument that the State failed to collect certain evidence 

inside Pribble's home or call Moore and Martinez as alibi witnesses. In short, we find no 

error in this portion of the prosecutor's closing argument.

JUDICIAL FINDING OF CRIMINAL HISTORY

For his final issue, Pribble makes the familiar, but futile, argument that the district 

court violated his rights under the Sixth and Fourteenth Amendments to the United States 

Constitution, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 

147 L. Ed. 2d 435 (2000), when it imposed an increased sentence based upon his prior 

convictions without requiring the State to prove the existence of the convictions to a jury 

beyond a reasonable doubt.
19

Pribble concedes that his argument was rejected in State v. Ivory, 273 Kan. 44, 46-

48, 41 P.3d 781 (2002). This court has repeatedly confirmed Ivory's holding. See, e.g., 

State v. Castleberry, 301 Kan. 170, 191, 339 P.3d 795 (2014). Pribble advances no reason 

for this court to revisit Ivory and, thus, we decline to do so. Pribble's sentence under the 

guidelines, determined in part by his prior convictions, was not unconstitutional.

Affirmed in part, reversed in part, and remanded with directions.

STEGALL, J., not participating.

MICHAEL J. MALONE, Senior Judge, assigned.1

* * *

ROSEN, J., concurring in part and dissenting in part: I agree with the majority's 

conclusion that the prosecutor's comments during closing argument did not constitute 

reversible error. I also agree with the majority that the district court's use of Pribble's 

prior convictions to determine his sentence under the sentencing guidelines did not 

violate his constitutional rights as described in Apprendi v. New Jersey, 530 U.S. 466, 

490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). But I disagree with my colleagues' 

conclusion that Pribble's convictions for possession of marijuana with no drug tax stamp 

and possession of methamphetamine with no drug tax stamp are multiplicitous. 

 

1REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 108,915 

vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616. 
20

The Kansas Drug Stamp Act is a means by which our legislature has attempted to 

hold accountable those who perpetuate and benefit financially from illegal drug 

trafficking. This accountability includes a distinction recognizing different levels of 

taxation based on a drug's detrimental societal impact, unwittingly capturing the essence 

of the "The Pusher," a song made famous years ago by the musical group Steppenwolf. 

A dealer of marijuana—"A man with the love grass in his hand" is taxed separately and at 

a significantly lower rate than a pusher—"a monster . . . he's not a natural man," who

"don't care if you live . . . or if you die," that being a person who deals in addictive 

controlled substances. That person is taxed at a rate over 5,000% greater for 

possessing/selling a controlled substance compared to a possessor/seller of a similar 

quantity of marijuana. Even comparing the minimum amounts allowable for prosecution, 

28 grams for possessing marijuana versus 1 gram for possessing a controlled substance, 

the tax on a controlled substance is more than double the taxed amount for marijuana.

While I have always questioned the constitutional limitations of such measures, 

drug stamp laws have withstood constitutional challenges, including the 5th 

Amendment's right against self-incrimination and its prohibition against double jeopardy. 

State v. Jenson, 259 Kan. 781, Syl. ¶ 2, 915 P.2d 109 (1996); see, e.g., State v. Gulledge, 

257 Kan. 915, Syl. ¶ 3, 896 P.2d 378 (1995); State v. Durrant, 244 Kan. 522, 523, Syl. ¶ 

13, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989). My reading of the Kansas Drug Tax 

Act indicates that the legislature clearly allowed for a person in Pribble's situation—a 

person possessing more than 28 grams of marijuana and more than 1 gram of 

methamphetamine without affixing appropriate drug tax stamps to either drug—to be 

convicted of two violations of K.S.A. 79-5208.

In State v. Schoonover, 281 Kan. 453, Syl. ¶ 15, 133 P.3d 48 (2006), we stated that 

two components must be met in order for convictions to be considered multiplicitous: 

"(1) Do the convictions arise from the same conduct? and (2) By statutory definition are 
21

there two offenses or only one?" I agree with my colleagues that Pribble's drug-tax-stamp 

convictions arise from the same conduct. But I disagree with their construction of K.S.A. 

79-5208. 

Because Pribble's convictions arose from a single statute, we apply the unit of 

prosecution test. Under this test, a court looks at "the statutory definition of the crime" to 

determine "what the legislature intended as the allowable unit of prosecution. There can 

be only one conviction for each allowable unit of prosecution." Schoonover, 281 Kan. at 

497-98.

K.S.A. 79-5208 states:

"Any dealer violating [the Kansas Drug Tax Act] is subject to a penalty of 100% 

of the tax in addition to the tax imposed by K.S.A. 79-5202 and amendments thereto. In 

addition to the tax penalty imposed, a dealer distributing or possessing marijuana or 

controlled substances without affixing the appropriate stamps, labels or other indicia is 

guilty of a severity level 10 felony." (Emphasis added.) 

The term "dealer" is defined as 

"any person who, in violation of Kansas law, manufactures, produces, ships, transports or 

imports into Kansas or in any manner acquires or possesses more than 28 grams of 

marijuana, or more than one gram of any controlled substance, or 10 or more dosage 

units of any controlled substance which is not sold by weight." (Emphasis added.) 

K.S.A. 2010 Supp. 79-5201(c).

"Controlled substance" is defined as

"any drug or substance, whether real or counterfeit, as defined by K.S.A. 2010 Supp. 

21-36a01, and amendments thereto, which is held, possessed, transported, transferred, 
22

sold or offered to be sold in violation of the laws of Kansas. Such term shall not include 

marijuana." (Emphasis added.) K.S.A. 2010 Supp. 79-5201(b).

Methamphetamine is considered a controlled substance under K.S.A. 2010 Supp. 

21-36a01(a). See K.S.A. 65-4107(d). 

As we noted in State v. Gulledge, 257 Kan. 915, 918, 896 P.2d 378 (1995),

"K.S.A. 79-5208 establishes criminal and civil penalties. A dealer violating the Act is 

subject to a civil penalty of 100 percent of the tax in addition to payment of the tax itself." 

(Emphasis added.) K.S.A. 79-5202(a)(1) imposes a tax of $3.50 for each gram of 

marijuana a dealer possesses. Subsection (a)(4) imposes a tax of $200 for each gram of 

methamphetamine a dealer possesses. K.S.A. 79-5202(a)(4). The taxes owed under the 

act "are due and payable immediately upon acquisition or possession [of the drug or 

drugs at issue] in this state by a dealer." K.S.A. 79-5204(d). Consistent with the civil 

nature of the taxes and penalties imposed under K.S.A. 79-5202 and K.S.A. 79-5208, the 

Department of Revenue, not a county or district attorney, is responsible for collecting any 

money owed under the Kansas Drug Tax Act. See K.S.A. 2010 Supp. 79-5205. 

If a dealer pays the taxes on the marijuana or controlled substances in his or her 

possession, the dealer receives "stamps, labels or other indicia" from the Department of 

Revenue, indicating that the dealer paid the taxes imposed under K.S.A. 79-5202. See 

K.S.A. 79-5204(a) and (b). K.S.A. 79-5204(b) states that "[t]he director [of taxation] 

shall issue the stamps, labels or other indicia in denominations in multiples of $10." Upon 

acquiring the stamps, a dealer is required to affix the appropriate number of stamps to the 

marijuana or controlled substances in his or her possession. See K.S.A. 79-5204(c).

Returning to the language of K.S.A. 79-5208, the criminal act that the statute 

proscribes is a dealer's failure to affix "the appropriate stamps, labels or other indicia" to 
23

marijuana or controlled substances, such as methamphetamine, in his or her possession. 

When the definition of a dealer is taken into consideration (i.e., a person possessing more 

than 28 grams of marijuana or more than 1 gram of any controlled substance) along with 

the definition of controlled substance (a term which includes methamphetamine but 

specifically excludes marijuana), it is clear that possession of more than 28 grams of 

marijuana without affixing the appropriate number of stamps constitutes one unit of 

prosecution and possession of more than 1 gram of controlled substances without affixing 

the appropriate number to stamps constitutes another unit of prosecution. In other words, 

possession of more than 28 grams of marijuana and possession of more than 1 gram of 

methamphetamine without affixing the appropriate number of stamps to either drug 

constitutes two violations of K.S.A. 79-5208. 

Pribble's only argument on appeal for concluding otherwise is that the legislature, 

by using the plural terms "stamps, labels or other indicia" rather than singular terms 

"stamp, label, and indicium" within K.S.A. 79-5208 "expressed its intent that the failure 

to obtain and affix any number of stamps, labels, or other indicia constitutes only one 

violation of the statute. That statute explicitly states as much; such an individual is guilty 

of 'a severity level 10 felony,' i.e., one severity level ten felony."

Pribble is partially correct. The language of K.S.A. 79-5208 does indicate that 

a dealer's failure to affix any number of "stamps, labels, or indicia" to a single drug, 

regardless of its quantity, results in only one violation of the statute. Therefore, regardless 

of whether a dealer possesses 29 or 290 grams of marijuana, if the dealer fails to affix the 

appropriate number of stamps to the marijuana in his or her possession, the dealer has 

committed only one violation of K.S.A. 79-5208. But as indicated above, if that same 

dealer also possesses more than 1 gram of a controlled substance (such as 

methamphetamine) without affixing the appropriate number of stamps to the substance, 

that dealer can be charged and convicted of two violations of K.S.A. 79-5208. 
24

In this case, while executing a search warrant, law enforcement officers found 

more than 800 grams of marijuana and more than 14 grams of methamphetamine inside 

Pribble's home—more than enough to qualify Pribble as a "dealer" of both drugs under 

K.S.A. 2010 Supp. 79-5201(c). Because he failed to affix tax stamps to either drug, the 

language of K.S.A. 79-5208 allows for him to be charged, convicted, and sentenced for 

two violations of the statute, a level 10 felony. Fortunately for Pribble, Steppenwolf's 

off-grid sentence of—"I'd cut him if he stands, and I'd shoot him if he'd run. Yes I'd kill 

him with my Bible and my razor and my gun"—was not embraced by our legislature 

when considering the appropriate sanction for violation of this law. Accordingly, I would 

affirm the Court of Appeals' determination that Pribble's tax stamp convictions are not 

multiplicitous and let stand his two convictions for violating K.S.A. 79-5208.