1

NOT DESIGNATED FOR PUBLICATION

No. 125,324

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JOSEPH M. FRANKLIN,

Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Submitted without oral 

argument. Opinion filed July 5, 2024. Reversed in part, dismissed in part, and remanded with directions.

Grace E. Tran, of Kansas Appellate Defender Office, for appellant.

Andrew R. Davidson, deputy district attorney, Thomas R. Stanton, district attorney, and Kris W. 

Kobach, attorney general, for appellee.

Before COBLE, P.J., SCHROEDER and CLINE, JJ.

PER CURIAM: Joseph M. Franklin was convicted at a jury trial of one count of 

robbery and one count of possession of marijuana. On appeal, Franklin challenges only 

the marijuana conviction, arguing: (1) The district court erred by constructively 

amending the charge; (2) the State failed to present sufficient evidence to support his 

conviction of possession of marijuana; and (3) the district court violated his rights under 

the Equal Protection Clause by erroneously scoring his criminal history. Because the trial 

court's jury instruction for possession of tetrahydrocannabinol (THC) coupled with the 

State's evidence impermissibly supported a charge different from that contained in the 
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complaint, we find that the possession of marijuana charge was impermissibly 

constructively amended. Although the State presented sufficient evidence for his 

conviction of marijuana, the jury was nonetheless instructed only on possession of THC. 

We reverse Franklin's conviction for possession of marijuana and remand the case for 

further proceedings, and dismiss his Equal Protection claim as moot, as we have 

previously addressed the same claim in another appeal.

FACTUAL AND PROCEDURAL BACKGROUND

After a break-in which was observed on security video led to a 911 call, Franklin 

was charged with one count of burglary of a non-dwelling structure under K.S.A. 2019 

Supp. 21-5807(a)(2) (Count 1), and one count of possession of marijuana under K.S.A. 

2019 Supp. 21-5706(b)(3) (Count 2).

The incidents leading to Franklin's arrest were outlined through witness testimony 

at trial. On the night of February 1, 2020, after being alerted by his video security system, 

Tracy L. Metzger saw a man and woman he did not recognize inside his rental shop in 

Hutchinson, Kansas, without his permission. After confirming his business partner was 

unaware of anyone that should be inside the facility at that time, Metzger called 911 and 

headed to the shop. When he arrived, officers from the Hutchinson Police Department 

had already detained the two individuals Metzger saw in the security video. At trial, 

Metzger identified the man in the security video as Franklin.

Officer Levi Harris was dispatched to the burglary in progress 911 call. Based on 

the description of the suspects, a male and female with bicycles, Officer Harris identified 

and contacted Franklin and a female, Sandra Thompson, about a block away from 

Metzger's rental shop. Franklin agreed to talk after Officer Harris read Franklin his 

Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966). Franklin told the officer that he was at the soup kitchen nearby and was going to a 
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friend's house. During the interaction, Metzger arrived and identified Franklin and 

Thompson as the individuals he saw on the surveillance camera. Franklin then told 

Officer Harris that he saw an open garage door and went inside to secure it and planned 

to try finding the owner of the building, though he did not know the owner. Franklin 

admitted he was broke and had a hard time coming up with money, so when he noticed 

some things inside the building worth money, he thought about stealing them but changed 

his mind. Franklin's interaction with Officer Harris was memorialized on the officer's 

body camera video, which was presented at trial.

Officer Harris arrested Franklin and searched his belongings for other stolen items. 

Officer Harris discovered a "one hitter style pipe," a common type of pipe that people use 

to pack small amounts of marijuana in and smoke it, in one of Franklin's backpack 

pockets. Officer Harris noticed the pipe smelled like burnt marijuana but was unable to 

field test the substance in the pipe because of the insufficient amount left on the tip of the 

pipe. The pipe was sent to the Kansas Bureau of Investigation (KBI) lab for further 

testing.

Alyssa Weeks, a forensic scientist with the KBI, received the sealed evidence 

envelope containing the pipe for testing. Weeks testified she performed both gas 

chromatography-mass spectrometry and thin layer chromatography testing on the pipe. 

Both tests resulted in a positive finding of tetrahydrocannabinol (THC), the main 

psychoactive ingredient found in marijuana. Although THC is present in marijuana, 

Weeks testified she could not give a clear answer on whether the presence of marijuana is 

required for a finding of THC, and she was not sure whether the THC residue came from 

marijuana or something else.

At the conclusion of the State's evidence at trial, Franklin moved the court to 

dismiss both counts. As to Count 2, the possession of marijuana charge, he argued it

should be dismissed because the State failed to make its case since only THC and not 
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marijuana was found in the pipe. The district court denied Franklin's motion finding the 

State sufficiently established there was marijuana in the pipe found in Franklin's bag.

Without any objection, the district court provided jury instruction No. 9:

"In Count Two, Joseph Franklin is charged with unlawfully possessing 

tetrahydrocannabinol. Joseph Franklin pleads not guilty. To establish this charge, each of 

the following claims must be proved:

"1. Joseph Franklin possessed tetrahydrocannabinol.

"2. This act occurred on or between the 1st day of February 2020, in

Reno County, Kansas.

"'Possession' means having joint or exclusive control over [an] item 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.

"The State must prove that Joseph Franklin possessed tetrahydrocannabinol 

knowingly. A defendant acts knowingly when the defendant is aware of the nature of his 

conduct that the state complains about.

"Proof of possession of any amount of a controlled substance suffices to sustain a 

conviction even if the amount is not measurable or useable."

The jury found Franklin guilty of both charges.

Franklin moved the court for a downward durational and/or dispositional departure 

sentence. The district court found Franklin had a criminal history score of A, including a

juvenile felony in 1977. The district court denied Franklin's departure motion, finding no 

substantial and compelling reasons to depart from the sentencing guidelines and 

sentenced him to 32 months in prison for Count 1, with a 1-year prison sentence for 

Count 2 to run concurrent to Count 1.
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Franklin timely appeals.

THE DISTRICT COURT ERRED BY CONSTRUCTIVELY

AMENDING THE DRUG CHARGE

Franklin now argues that the district court constructively amended Count 2 

through its jury instruction, resulting in his conviction for a crime broader than what was 

charged.

Preservation

Preservation is a threshold concern, and Franklin concedes he did not make this 

argument to the district court. Generally, appellate courts will not consider issues raised 

for the first time on appeal, even constitutional ones. See State v. Green, 315 Kan. 178, 

182, 505 P.3d 377 (2022); State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). 

But as Franklin points out, and the State concedes, this court has reviewed issues raised 

for the first time on appeal under certain exceptions to this general rule. Specifically, we 

have reviewed other constructive amendment claims under recognized exceptions, where 

the newly asserted theory involves only a question of law arising on proved or admitted 

facts and is determinative of the case or when consideration of the theory is necessary to 

serve the ends of justice or to prevent the denial of fundamental rights. State v. Allen, 314 

Kan. 280, 283, 497 P.3d 566 (2021). Because Franklin's claim involves only a question of 

law on proved or admitted facts, we likewise choose to consider the merits of his claim.

Applicable Legal Standards

Kansas courts have addressed constructive amendment claims by following 

federal caselaw from the Tenth Circuit Court of Appeals. State v. Dickerson, No. 

125,529, 2024 WL 62834, at *2 (Kan. App. 2024) (unpublished opinion); see also State 

v. Holmes, No. 116,338, 2017 WL 5617102, at *3 (Kan. App. 2017) (unpublished 
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opinion) (citing United States v. Farr, 536 F.3d 1174, 1179 [10th Cir. 2008]). Whether a 

criminal complaint has been impermissibly constructively amended is subject to de novo

review. State v. Hunt, 61 Kan. App. 2d 435, 438-39, 503 P.3d 1067 (2021), rev. denied

315 Kan. 970 (2022); see also State v. Nesbitt, No. 121,647, 2021 WL 3124049, at *3 

(Kan. App. 2021) (unpublished opinion) (applying Farr's constructive amendment rules 

for indictments to an information).

As explained by another panel of this court:

"Differences in the charged conduct and the evidence proven at trial present 

variances which may warrant reversal. A variance may occur in two different ways: (1) 

where the charging terms do not change, but the evidence at trial proves facts materially 

different from the facts alleged in the complaint; and (2) where the evidence presented at 

trial, coupled with the jury instructions, so alters the complaint as to charge a different 

crime. See United States v. Koerber, 10 F.4th 1083, 1115-16 (10th Cir. 2021), cert. 

denied 143 S. Ct. 326 (2022). The first scenario presents a simple variance which triggers 

harmless error review; the latter presents an impermissible constructive amendment 

which is reversible per se." Dickerson, 2024 WL 62834, at *2 (citing United States v. 

Sells, 477 F.3d 1226, 1237 [10th Cir. 2007]).

To determine whether a constructive amendment has occurred, we must examine 

whether the crime for which the defendant was convicted at trial was charged in the 

charging document. Farr, 536 F.3d at 1180; Hunt, 61 Kan. App. 2d at 438. To make this 

determination, we compare the charging document "with the district court proceedings to 

discern if those proceedings broadened the possible bases for conviction . . . ." Farr, 536 

F.3d at 1180; Hunt, 61 Kan. App. 2d at 438. As noted above, an impermissible 

constructive amendment is reversible per se. Sells, 477 F.3d at 1237; see State v. Vaughn, 

No. 111,430, 2016 WL 367917, at *17 (Kan. App. 2016) (unpublished opinion).
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Franklin's possession of marijuana charge was constructively amended.

Here, in the amended complaint, the State charged Franklin in Count 2 with

possession of marijuana under K.S.A. 2019 Supp. 21-5706(b)(3), with the crime severity 

level determined under (c)(3)(B) (including a prior conviction which is irrelevant to our 

analysis here):

"That on or about the 1st day of February, 2020, in Reno County, Kansas, Joseph M 

Franklin, then and there being present did unlawfully and intentionally, knowingly or 

recklessly possess marijuana, a Schedule I drug as listed in K.S.A. 65-4105(d) and 

amendments thereto." (Emphasis added.)

But jury instruction No. 9, pertaining to Count 2, contained an element that was 

different from the crime charged:

"In Count Two, Joseph Franklin is charged with unlawfully possessing

tetrahydrocannabinol. Joseph Franklin pleads not guilty. To establish this charge, each of 

the following claims must be proved:

"1. Joseph Franklin possessed tetrahydrocannabinol.

. . . .

"The State must prove that Joseph Franklin possessed tetrahydrocannabinol

knowingly. . . ." (Emphases added.)

The evidence produced at trial by the expert, Weeks, only demonstrated there was 

THC in the pipe. No direct evidence was presented of the presence of marijuana, 

specifically, although circumstantial evidence was presented of the presence of

marijuana, as discussed later.
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The record clearly shows the discrepancy between the language of the complaint 

and the jury instruction. So, the question we are left with is: did the jury instruction,

coupled with the direct evidence, so alter the complaint as to charge a different crime?

See United States v. Koerber, 10 F.4th 1083, 1115-16 (10th Cir. 2021), cert. denied 143 

S. Ct. 326 (2022).

Franklin argues he was charged with possession of marijuana, but the district court 

instructed the jury to find him guilty of the possession of THC. Because the two 

substances are listed as separate controlled substances under K.S.A. 65-4105 and

separately criminalized under the statute, they are not interchangeable. Franklin maintains

the jury was ultimately instructed to find him guilty of a different crime than that which 

he was charged, which impermissibly broadened the basis of his conviction.

The State insists that marijuana and THC are interrelated substances and 

possession of either substance is functionally the same under Kansas criminal statutes

because they have identical punishments. Relying on Weeks' testimony that THC is an 

ingredient in marijuana, the State claims THC is a derivative of marijuana, as defined 

under K.S.A. 2019 Supp. 21-5701(j), and the nature of the substances makes marijuana 

and THC synonymous with each other. The State asserts since Franklin was charged 

under K.S.A. 2019 Supp. 21-5706, which criminalizes "unlawful possession of a 

controlled substance," the jury instruction was not erroneous because Franklin clearly 

was in possession of a controlled substance, whether it was marijuana or THC.

The State's argument is unconvincing on multiple grounds. First, the State's claim 

that marijuana and THC are functionally the same contradicts clear legislative intent. The 

most fundamental rule of statutory construction is that the intent of the Legislature 

governs if that intent can be ascertained. State v. Keys, 315 Kan. 690, 698, 510 P.3d 706 

(2022). An appellate court must first attempt to ascertain legislative intent through the 

statutory language enacted, giving common words their ordinary meanings. State v. Betts, 
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316 Kan. 191, 198, 514 P.3d 341 (2022). "When a statute is plain and unambiguous, an 

appellate court should not speculate about the legislative intent behind that clear 

language, and it should refrain from reading something into the statute that is not readily 

found in its words." Keys, 315 Kan. at 698.

Our Legislature identified marijuana and THC as separate substances in Schedule I 

of the Uniform Controlled Substances Act under K.S.A. 65-4105. Marijuana is identified 

under K.S.A. 2019 Supp. 65-4105(d)(17), while THC is listed under a different

subsection, K.S.A. 2019 Supp. 65-4105(h)(1). Accordingly, in the Kansas Criminal Code, 

the unlawful possession of marijuana and THC are also separately categorized under 

K.S.A. 2019 Supp. 21-5706(b)(3) and (b)(7), respectively. And under K.S.A. 2019 Supp. 

21-5706(c)(3)—the portion of the statute setting out the severity level of each crime—

marijuana and THC are clearly delineated as separate categories under subsection (b) of 

the statute. ("If the substance involved is marijuana . . . or tetrahydrocannabinols . . . ."). 

We must construe statutes to avoid unreasonable or absurd results and we presume the 

Legislature does not intend to enact meaningless legislation. State v. Smith, 311 Kan. 109, 

114, 456 P.3d 1004 (2020). To interpret the two substances as interchangeable despite 

them being distinguished in the statute would run afoul of Legislative intent.

The State tries to reinforce its argument by claiming that marijuana and THC are

synonymous because THC is a derivative of marijuana, relying on the statutory definition 

of marijuana under K.S.A. 2019 Supp. 21-5701. In pertinent part, K.S.A. 2019 Supp. 21-

5701(j) defines marijuana as "all parts of all varieties of the plant Cannabis whether 

growing or not, the seeds thereof, the resin extracted from any part of the plant and every 

compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or 

resin." Although this definition does wrap derivatives from the plant Cannabis into the

legal definition of marijuana, it does not specify that a chemical component or an active 

ingredient, such as THC, can alone be legally considered marijuana. The State provides 

no supporting authority to support its interpretation.
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Second, to read K.S.A. 2019 Supp. 21-5701 in this manner creates a legal 

loophole. So long as an individual is charged with possession of a controlled substance 

under K.S.A. 2019 Supp. 21-5706(b)(3) or (b)(7), the State could later substitute the 

substance it charged in the jury instruction to whichever substance is easier to prove at 

trial. Such a "bait and switch" tactic is prohibited. Dickerson, 2024 WL 62834, at *2.

"To permit convictions premised on charges not contained in the State's charging 

instrument offends the notions of fundamental fairness and due process. It 'is axiomatic in 

our legal system that "a court cannot permit a defendant to be tried on charges that are not 

made in the indictment against him."' United States v. Farr, 536 F.3d 1174, 1179 (10th 

Cir. 2008) (quoting Stirone v. United States, 361 U.S. 212, 217, 80 S. Ct. 270, 4 L. Ed. 2d 

252 [1960]). Because the language employed by the State in complaints 'becomes an 

essential and delimiting part of the charge itself . . . "the jury instructions and evidence 

introduced at trial must comport with"' the complaint. Farr, 536 F.3d at 1181 (quoting

United States v. Bishop, 469 F.3d 896, 902 [10th Cir. 2006])." Dickerson, 2024 WL 

62834, at *2.

Finally, relying on this court's holding in State v. Evans, No. 116,149, 2018 WL 

1545683 (Kan. App. 2018) (unpublished opinion), the State argues that transposition of 

the substance from marijuana to THC was harmless because it did not affect the jury's 

deliberation. But Evans is clearly distinguishable because there, the State charged the 

defendant for possessing marijuana and/or THC. A panel of this court found that, 

although the State's drafting of its complaint using "and/or" was "not good practice," 

there was ample evidence for the jury to find Evans in possession of marijuana or THC. 

2018 WL 1545683, at *4. The same cannot be said here, because the jury instruction 

required a finding of THC alone, while the charging document included only marijuana. 

Unlike in Evans, the State here cannot show that interchanging the substance from 

marijuana to THC would be harmless.
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Having established the State cannot support its argument that there is no 

substantial difference between possession of marijuana and THC, we must determine 

whether the substitution of the controlled substance in the jury instruction constituted an 

impermissible constructive amendment.

Several panels of this court have examined what constitutes an unconstitutional 

constructive amendment. For instance, in State v. Montes, No. 104,563, 2012 WL 

307532, at *5 (Kan. App. 2012) (unpublished opinion), Montes was convicted of 

conspiracy to manufacture methamphetamine, but the complaint alleged that Montes 

acted in furtherance of the conspiracy when he obtained ingredients or provided a 

coconspirator with items to manufacture methamphetamine. But the jury instruction 

provided the State had to prove Montes acted in furtherance of the conspiracy by 

manufacturing methamphetamine. The Montes panel held the trial court's instruction 

broadened the basis for Montes' conviction and that it amounted to an impermissible 

constructive amendment. 2012 WL 307532, at *5.

Similarly, in Holmes, 2017 WL 5617102, at *2, Holmes was charged with 

aggravated battery, inflicting great bodily harm, disfigurement, or death. But the district 

court's instruction to the jury provided that the State needed to prove the defendant 

caused physical contact in a "'rude, insulting or angry manner in any manner whereby 

great bodily harm, disfigurement or death can be inflicted.'" 2017 WL 5617102, at *2.

The panel found that Holmes was convicted of a different crime than what was charged 

because the jury instruction given by the district court broadened the charge against him. 

2017 WL 5617102, at *5.

And in Dickerson, another panel arrived at a similar conclusion, finding the 

district court instructed the jury on broader terms of interference with law enforcement

than the charge permitted, and the State argued to the jury that Dickerson interfered with 

an official duty different from what was charged. Finding "to constitute a constructive 
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amendment that requires reversal, the incongruity must concern essential elements of the 

charged conduct under the statutory offense," the Dickerson panel reversed the district 

court due to an unconstitutional constructive amendment. 2024 WL 62834, at *5.

Other panels have found no constructive amendment when the variance in the 

charging document and the jury instructions combined with the evidence during trial do 

not alter the essential elements of the statutory offense. In Hunt, a panel determined when 

jury instructions mirror the charging document, it does not broaden the basis for the 

charge and does not amount to a constructive amendment. 61 Kan. App. 2d at 442.

Likewise, in Nesbitt, this court found when the information charged the defendant with 

aggravated robbery based on the infliction of bodily harm to a named victim while the 

instruction merely stated the jury had to find bodily harm was inflicted on any person, the 

difference did not amount to an unconstitutional constructive amendment. Nesbitt, 2021 

WL 3124049, at *4. The panel explained that "the essential elements of the crime involve 

the statutory elements, not the specific actions or specific persons listed in the charging 

document" and the instruction still contained the essential elements of aggravated robbery 

as it was charged. 2021 WL 3124049, at *4.

Considering this court's prior rulings, we find a constructive amendment has 

occurred here. Like in Dickerson, Holmes, and Montes, the State broadened the basis for 

Franklin's conviction through a "bait and switch" tactic. Although the State initially 

charged Franklin with possession of marijuana, the State later switched the essential 

element of the crime it needed to prove to match the expert's testimony at trial.

Because the trial court's jury instruction coupled with the State's direct evidence 

impermissibly supported a conviction based on a charge different from that contained in 

the complaint, a constructive amendment occurred. Constructive amendments are 

reversible per se, so the State's argument that any error was harmless because marijuana 
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and THC are interchangeable is unconvincing. On this basis, we must reverse Franklin's 

conviction on Count 2, possession of marijuana.

EVIDENCE WAS SUFFICIENT TO CONVICT FRANKLIN OF POSSESSION

OF MARIJUANA—BUT THAT WAS NOT HOW THE JURY WAS INSTRUCTED

Because we reverse Franklin's conviction for possession of marijuana, we must 

also examine his challenge to the sufficiency of the evidence for the same charge. See 

State v. Jefferson, 297 Kan. 1151, 1166, 310 P.3d 331 (2013). If the evidence offered by 

the State in the first trial was insufficient to support his conviction, a second trial on the 

same charge would violate Franklin's right to be free from double jeopardy. 297 Kan. at 

1166 (citing State v. Hernandez, 294 Kan. 200, 209, 273 P.3d 774 [2012] [noting that 

when reversal is appropriate on at least one ground, the court must address challenge to 

sufficiency of evidence for double jeopardy purposes]).

Applicable Legal Standards

"'When the sufficiency of the evidence is challenged in a criminal case, we review 

the evidence in a light most favorable to the State to determine whether a rational 

factfinder could have found the defendant guilty beyond a reasonable doubt." State v. 

Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021). "This is a high burden, and only when 

the testimony is so incredible that no reasonable fact-finder could find guilt beyond a 

reasonable doubt should we reverse a guilty verdict." State v. Meggerson, 312 Kan. 238, 

247, 474 P.3d 761 (2020).

The State presented sufficient evidence to support a conviction for possession of 

marijuana.

Franklin argues the State, at best, presented evidence to prove that the pipe found 

in his backpack contained THC. We do not entirely agree.
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The State has the ultimate duty to present evidence proving each element of the 

crime beyond a reasonable doubt. State v. Buchanan, 317 Kan. 443, 454, 531 P.3d 1198 

(2023). As noted above, Franklin was convicted of possession of marijuana under K.S.A. 

2019 Supp. 21-5706(b)(3), which prohibits, in pertinent part, the possession of "any 

hallucinogenic drug designated in K.S.A. 65-4105(d), 65-4107(g) or 65-4109(g), and 

amendments thereto." Marijuana is listed as a Schedule I drug, K.S.A. 65-4105(d)(17), 

and the drugs contained in Schedule II (65-4107[g]) and Schedule III (65-4109[g]) are 

inapplicable here. The State was required to prove that Franklin possessed a substance 

meeting the legal definition of marijuana, and as discussed above, marijuana and THC 

are clearly distinguished in the Uniform Controlled Substances Act, under K.S.A. 2019 

Supp. 65-4105(d)(17) and K.S.A. 2019 Supp. 65-4105(h)(1), respectively; and 

criminalized separately under K.S.A. 2019 Supp. 21-5706(b)(3) and (b)(7), respectively.

In support of the conviction, the State relies on this court's unpublished opinion in 

State v. Baldwin, No. 124,442, 2023 WL 5163292 (Kan. App. 2023) (unpublished 

opinion). In Baldwin, the defendant was charged and convicted of possession of 

marijuana and drug paraphernalia. 2023 WL 5163292, at *3. Baldwin argued the State 

failed to establish whether the substance alleged to be in his possession was indeed 

marijuana and that it did not fall under any exempt substances under K.S.A. 21-5107. 

2023 WL 5163292, at *3. This court found that

"while THC is one indicator that a substance is marijuana, it is not the only indicator. 

Circumstantial, as well as direct, evidence can assist a jury in determining whether the 

substance at issue is marijuana. In fact, a conviction can be based entirely on 

circumstantial evidence so long as the evidence supporting the verdict permits the factfinder to draw reasonable inferences regarding the facts at issue. Circumstantial evidence 

need not exclude every other reasonable conclusion to be sufficient to support a 

conviction. State v. Banks, 306 Kan. 854, 858-59, 397 P.3d 1195 (2017)." 2023 WL 

5163292, at *4.
15

The Baldwin panel determined the law enforcement officer's testimony, 

defendant's testimony during trial, and the State's expert testimony, although all 

circumstantial, was enough evidence to support a finding that the substance found in 

Baldwin's possession was marijuana. 2023 WL 5163292, at *5-6.

Here, the circumstantial evidence paints a similar narrative. The State presented 

evidence to show Franklin physically possessed marijuana through Officer Harris' 

interactions with him during the arrest. Officer Harris testified that he smelled burnt 

marijuana on the pipe based on his professional experience. Officer Harris also confirmed 

with Franklin that he last smoked marijuana two days prior to the incident and that the 

one-hitter pipe could be his. Weeks' testimony that THC is an active ingredient in 

marijuana, in combination with the other circumstantial evidence, could support the jury's 

belief that Franklin possessed marijuana.

This court does not reweigh evidence, resolve conflicts in the evidence, or pass on 

the credibility of witnesses. Aguirre, 313 Kan. at 209. And viewed in a light most 

favorable to the State, a reasonable fact-finder could conclude there was enough evidence 

to find that the substance in the pipe found in Franklin's bag was marijuana. Accordingly, 

if this were the sole question in this appeal, we would be compelled to find there was 

sufficient evidence to support Franklin's conviction and affirm the same.

But here we are faced with a situation where the jury was simply not instructed to 

consider whether Franklin was guilty of possessing marijuana. Instead, the jury was 

solely instructed that the State was required to prove that Franklin possessed THC, not 

marijuana, to find Franklin guilty of Count 2. Although there was enough evidence to 

find Franklin was in possession of marijuana, circumstantial as it may be, the jury could 

not have reached a determination of possession of marijuana because it was not instructed 

to do so. The jury was deprived of the option to consider that element.
16

Double jeopardy may be implicated when we reverse and remand a case for a 

second trial on the same charges under specific circumstances. If the evidence presented 

during the first trial was insufficient to support his conviction for possession of 

marijuana, a second trial on the same charge would violate Franklin's rights. See 

Jefferson, 297 Kan. at 1166. However, double jeopardy does not act as a bar to a retrial 

where the defendant appeals and obtains a reversal of the conviction based upon an error 

in the proceeding. See Hernandez, 294 Kan. at 209 (citing Ball v. United States, 163 U.S. 

662, 671-72, 16 S. Ct. 1192, 41 L. Ed. 300 [1896]). Because we find the evidence would 

have been sufficient, but the instruction error requires per se reversal, remand for a new 

trial does not implicate double jeopardy, and we hold fast to our reversal of the 

conviction for possession of marijuana and remand for a new trial.

FRANKLIN'S EQUAL PROTECTION ARGUMENT IS MOOT

Franklin's final contention on appeal is that the district court violated his rights 

under the Equal Protection Clause of the Fourteenth Amendment to the United States 

Constitution by erroneously scoring his criminal history as A. We need not reach this 

argument for two reasons. First, we reverse his conviction for possession of marijuana 

and the district court must proceed accordingly.

More importantly, this issue has already been decided in another appeal by 

Franklin. In case No. 125,323, after Franklin's appeal of his sentence and motion for 

summary disposition, this court vacated Franklin's sentence and remanded for 

resentencing using the correct criminal history score. State v. Franklin, No. 125,323 

(order filed August 24, 2023).

Franklin fails to address this court's finding in case No. 125,323 or provide any 

reason why this court should readdress the issue. The burden is on Franklin to designate a 

record sufficient to present his points and establish his claims, but he does not do so. 
17

Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013);

see Supreme Court Rule 6.02(a)(4) (2024 Kan. S. Ct. R. at 36). We dismiss Franklin's 

Equal Protection argument as moot.

Reversed in part, dismissed in part, and remanded with directions.