Opinion
No. 105,396.
2012-09-21
STATE of Kansas, Appellee, v. Billy S. BUSS, Appellant.
Appeal from Reno District Court; Richard J. Rome, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Richard J. Rome, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P J., MALONE and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Billy S. Buss appeals his convictions of multiple crimes related to the manufacture of methamphetamine. Buss claims: (1) the district court erred in denying his motion to suppress because officers lacked reasonable suspicion to stop his vehicle; (2) conspiracy to manufacture methamphetamine is an alternative means crime for which the State failed to show substantial evidence of each alternative means; (3) there was insufficient evidence to support his conviction of manufacturing methamphetamine; (4) the admission of pharmacy logs as evidence violated his confrontation rights under the United States and Kansas Constitutions; and (5) the district court erred by allowing the State to amend the complaint mid-trial. We agree in part with Buss that the district court erred by allowing the State to amend the complaint mid-trial by adding multiple overt acts to support the charge of conspiracy to manufacture methamphetamine. Therefore, we reverse Buss' conviction of conspiracy to manufacture methamphetarnine and vacate the sentence for that count. On all other issues, we affirm.
On the evening of September 26, 2007, Investigator Gary Hanus of the Salina Police Department and the I–135/I–70 Drug Task Force received a phone call reporting a suspicious purchase of cold pills at the Salina Key Rexall pharmacy; the caller described two people and the vehicle in which they left. Hanus identified the people as Billy Buss and Melynda Edwards–Wilson. Hanus called the Key Rexall pharmacy, and a store employee confirmed that Buss and Edwards–Wilson had purchased pseudoephedrine pills that day. Hanus also called pharmacies at Dillons and K–Mart and discovered that Buss and Edwards–Wilson had purchased cold pills that day at Dillons and K–Mart as well. Based on his experience with methamphetamine cases, Hanus suspected that the two were preparing to manufacture methamphetamine.
Hanus obtained an address for Buss' apartment, and he and canine officer Lane Mangels went to the address and began to look for apartment 120, where Buss lived. As Hanus and Mangels were walking down a hallway, Hanus heard a door close and saw a man leaving the vicinity of apartment 120. When Hanus and Mangels attempted to talk with the man, he ran away. Hanus and Mangels chased the man but did not catch him. Hanus later determined that the man was Timothy Hurt, Edwards–Wilson's boyfriend, and that there was a warrant for Hurt's arrest. Hanus and Mangels returned to Buss' apartment, but no one answered the door. Hanus and Mangels went outside and looked into the dumpster, where they found and collected a pharmacy sack containing additional pharmacy bags. Hanus sat outside the building until 9:45 p.m. and then went home.
The next morning, Hanus went to the Salina Wal–Mart pharmacy and, by looking at the pseudoephedrine records, determined that Edwards–Wilson, Buss, and Jamie Engle, Buss' girlfriend, had all purchased cold pills there the night before. That evening, from 6:30 p.m. to 8:25 p.m., Hanus again conducted surveillance on the apartment but saw no activity. At approximately 8:45, after Hanus had left, Mangels called Hanus and said that Buss' vehicle was in the apartment building's parking lot, so Hanus returned to the building. Investigator Randy Jennings, another member of the Task Force, was also at the building and he spoke with Hanus on the phone while Hanus was driving. Jennings told Hanus that the apartment lights went off and two men and a woman came out of the building, got into Buss' car, and drove away. It was too dark for Jennings to identify the people in Buss' car. At that point, Hanus told Mangels to stop Buss' car.
Mangels stopped Buss' car and obtained his driver's license and insurance information. At approximately the same time as Mangels stopped the car, Hanus arrived at the scene and walked to the front passenger side of the car, where Engle was sitting. Buss was in the driver's seat, and Hanus noticed that there was a man sitting in the backseat, although that man was not Hurt. Hanus asked Engle to step out of the vehicle and asked if she would talk with him about the cold pills, at which point Engle said that “they” had made her buy cold pills. Hanus advised Engle of her Miranda rights, obtained consent to search her purse, and found a small packet of methamphetamine. At that point, Engle was arrested. Meanwhile, at Mangels' request, Buss stepped out of the car and Mangels searched around the car with his canine, who alerted on the car.
While Hanus was talking with Engle, Jennings, who was also at the scene of the stop, approached the backseat passenger and, after checking his identification, discovered that the man's name was Jarrod Whitteker. After Whitteker stepped out of the car, Jennings saw a plastic ziplock packet on the transmission hump and digital scales sticking out of a black pouch on the floorboard behind the driver's seat. Mangels and Jennings searched the car and seized the pouch, which contained digital scales and 16 empty ziplock bags; five packets of methamphetamine weighing between .4 and 1 gram, without tax stamps; tubes, razor blades, screens, and Q-tips; a box of rock salt; a can of Coleman fuel; a notebook; and a printout of radio frequencies and codes used by the Hutchinson Police Department in Reno County.
Later that night, Jennings interviewed Engle, who said that Buss had put the black pouch in the backseat while they were being stopped; prior to the stop, Engle was holding the pouch. Engle also told Jennings that the manufacture of methamphetamine began at Buss' apartment, where she and Hurt removed the pills from their packaging and Buss ground the pills using a blender. They extracted the pseudoephedrine from the pills, but, due to Hanus and Mangels' presence at the building, decided to finish manufacturing the methamphetamine in Hutchinson. Buss and Engle drove to a co-op between Salina and Hutchinson, where Buss got anhydrous ammonia. They continued the manufacturing process while driving to Hutchinson, where Buss rented a motel room at an Econolodge in which they completed the process. Once the methamphetamine was completed, Engle weighed the methamphetamine.
Hanus obtained a search warrant for the apartment, which was executed on September 28, 2007. During the search, officers seized a 2–cup plastic measuring cup, a glass Pyrex pie plate, a cut-down plastic straw, 10 red cold pills, mail addressed to Buss and Engle at the apartment, rolling papers, a notebook, a set of digital scales, a bong, a blender with powdered residue, marijuana-related magazines, a 1–quart can of acetone, and a 1–quart can of denatured alcohol. Subsequent testing showed that the cut-down straw had methamphetamine residue on it and the pills contained pseudoephedrine, but the residue on the blender pitcher did not show methamphetamine. Hurt and Edwards–Wilson were subsequently located and arrested at another apartment in Salina.
That same day, Officer Nic Smith of the Hutchinson Police Department, acting in concert with the Salina investigation, spoke with the manager of the Hutchinson Econolodge and the manager let Smith into Buss' room. Inside the motel room, Smith saw methamphetamine materials: coffee filters, drain cleaner, Mason jars, knives, razor blades, a lithium battery, plastic bottles made into a gassing generator, a glass plate with reside on it, tin foil, and digital scales. Subsequent testing showed that there was methamphetamine residue on the Mason jars and the coffee filters. Smith took fingerprints from several items in the room; the fingerprints were later determined to be Buss'.
On December 28, 2007, the State charged Buss with one count of manufacture of methamphetamine or, in the alternative, one count of attempted manufacture of methamphetamine and one count each of conspiracy to manufacture methamphetamine, possession of methamphetamine, and possession of drug paraphernalia with the intent to manufacture a controlled substance. The State filed multiple amended complaints. Ultimately, Buss was bound over on 12 charges: the 5 listed above and 1 count each of possession of lithium metal with the intent to manufacture a controlled substance; possession of ephedrine or pseudoephedrine with the intent to manufacture methamphetamine; possession of anhydrous or pressurized ammonia with the intent to manufacture methamphetamine; possession of methamphetamine with the intent to sell; conspiracy to distribute methamphetamine; possession of drug paraphernalia with the intent to use to package a controlled substance for sale; and possession of methamphetamine without tax stamps affixed.
On December 8, 2008, Buss filed a motion to suppress the evidence that stemmed from the traffic stop. The district court held a hearing on the motion and Hanus, Jennings, and Mangels testified for the State. After hearing the evidence and argument of counsel, the district court denied the motion.
On September 28, 2009, Buss filed a motion for a bill of particulars and a second motion to suppress, arguing that he did not believe his prior counsel sufficiently covered all the arguments at the previous hearing on the motion to suppress. Specifically, Buss complained that his prior counsel had failed to argue that a significant amount of time had passed between the alleged purchases of pseudoephedrine pills and the car stop. The district court held a hearing on the motions on January 8, 2010. After argument, the State agreed to compile and file a bill of particulars and the district court set a hearing to consider Buss' second motion to suppress. The State filed its bill of particulars and an amended bill of particulars on July 14, 2010. On July 16, 2010, the district court held a hearing on Buss' second motion to suppress, but the district court denied the motion without hearing additional evidence.
The jury trial occurred July 19–23, 2010. At the trial, Buss testified on his own behalf. Buss testified that in September 2007, he lived at the apartment in question with Engle and Whitteker but that Hurt and Edwards–Wilson were there quite a bit, too. Buss stated that he had purchased cold pills in order to trade them to Engle for methamphetamine but that he had no intent to manufacture methamphetamine. Buss further testified that the trip to Hutchinson was at Engle's insistence and that Buss did not know that Engle intended to manufacture methamphetamine in Hutchinson. Buss denied stopping for anhydrous ammonia or lithium batteries on the way to Hutchinson or peeling or stripping lithium batteries. Buss admitted checking into the Econolodge but stated that neither he nor Engle manufactured methamphetamine that night.
The jury found Buss guilty of manufacture of methamphetamine, attempted manufacture of methamphetamine, conspiracy to manufacture methamphetamine, possession of methamphetamine, possession of drug paraphernalia with intent to use to manufacture methamphetamine, possession of pseudoephedrine with intent to use to manufacture methamphetamine, possession of methamphetamine with intent to sell, conspiracy to distribute methamphetamine, possession of drug paraphernalia with intent to use to package a controlled substance for sale, and possession of methamphetamine without Kansas tax stamps affixed. The jury found Buss not guilty of possession of lithium metal with intent to use to manufacture methamphetamine and possession of anhydrous ammonia with intent to use to manufacture methamphetamine. The district court sentenced Buss to a controlling term of 219 months' imprisonment. Buss timely appealed his convictions.
Motion to Suppress
Buss first argues that the district court erred in denying his motion to suppress because the officers did not have reasonable suspicion to justify stopping his vehicle. The State responds that, based on the facts before the district court, there was reasonable suspicion to believe that the people in the car had committed or were committing criminal acts such as unlawful acquisition of pseudoephedrine, manufacture of methamphetamine, conspiracy to manufacture methamphetamine, and aiding and abetting a felon.
An appellate court reviews the district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
After a hearing on Buss' motion to suppress, the district judge denied the motion:
“I find that the officers did have a reasonable and articulable suspicion that the crime of at least conspiracy to manufacture methamphetamine ... was being committed, had been committed, was being committed. They had other reasons. They had the fugitive [Hurt].... They had the purchase of the, of the pills, the cold pills at several of the stores.”
On appeal, Buss argues only that the initial stop of his car was illegal. But at the hearing on the motion to suppress, Buss argued primarily that the duration of the stop was unlawfully extended and that the occupants of the car should have been released once the officers learned that Hurt was not in the vehicle. However, Buss' written motion challenged the validity of the initial car stop and the district court made findings on this issue in denying the motion. Thus, the issue is properly preserved for appellate review.
The State bears the burden of proof for a suppression motion; it must prove to the district court the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009). Under the Fourth Amendment to the United States Constitution, a traffic stop is considered a seizure. Seizures are generally permissible if an objective law enforcement officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime. State v. Johnson, 293 Kan. 1, 5, 259 P.3d 719 (2011); see K.S.A. 22–2402(1). “The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion’ or ‘hunch’ of possible criminal activity. [Citations omitted.]” State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011).
Here, it is clear that there was substantial competent evidence to support the reasonable suspicion that a crime had been, was being, or was about to be committed at the time of the car stop. The night prior to the stop, Hanus and Mangels had seen a man later identified as Hurt at Buss' apartment; when they attempted to speak to Hurt, he ran. Hanus and Mangels knew that Hurt had a warrant for his arrest and that he was the boyfriend of Edwards–Wilson. Moreover, the officers thought that Edwards–Wilson lived at the apartment with Buss. When two men and one woman exited Buss' apartment and got into Buss' car on the night in question, Hanus reasonably believed that Hurt was one of the men; accordingly, Hanus told Mangels to stop the vehicle. There was reasonable suspicion to believe Hurt was in the vehicle and therefore the occupants were committing the crime of obstruction by helping Hurt flee.
More importantly, Buss had been identified as being involved in a suspicious purchase of cold pills at the Salina Key Rexall pharmacy. Hanus also called pharmacies at Dillons and K–Mart and discovered that Buss had purchased cold pills at those stores as well. Hanus examined the pseudoephedrine records at the Salina Wal–Mart pharmacy and determined that Buss had purchased cold pills there the night before the car stop. Based on this evidence, we agree with the district court that the officers had reasonable suspicion that the crime of conspiracy to manufacture methamphetamine was being committed. Thus, we conclude the district court did not err in denying Buss' motion to suppress the evidence.
Manufacture of Methamphetamine
Next, Buss argues that there was insufficient evidence to support his conviction of manufacture of methamphetamine. Buss points to his acquittal of possession of lithium metal with the intent to use to manufacture methamphetamine and possession of anhydrous ammonia with the same intent and contends that these acquittals necessarily require reversal of the conviction of manufacture of methamphetamine because lithium metal and anhydrous ammonia are required to manufacture methamphetamine.
“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review 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.]’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
The district court instructed the jury on the charge of unlawfully manufacturing methamphetamine as follows:
“To establish this charge, each of the following claims must be proved:
“1. That Billy S. Buss manufactured a controlled substance known as methamphetamine;
“2. That Billy S. Buss did so intentionally; and
“3. That this act occurred between the 26th and 28th day of September, 2007, in Reno County, Kansas.”
The district court also instructed the jury:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
Although Buss was acquitted of possession of lithium metal with the intent to manufacture methamphetamine and possession of anhydrous ammonia with the intent to manufacture methamphetamine, the evidence was sufficient to support a conviction of manufacture of methamphetamine under an aiding and abetting theory. Buss' own testimony established that he purchased cold pills, he was present when Engle and Hurt were removing the pills from the blister packs, and he was present when the pills were crushed. Buss admitted that he assumed that the cold pills he purchased would eventually be used to manufacture methamphetamine. Buss testified that he drove himself and Engle to Hutchinson and that he paid for the motel room. In searching the motel room, law enforcement officers discovered manufacturing materials, including coffee filters, drain cleaner, Mason jars, a gassing generator, a glass plate with residue on it, tin foil, and digital scales. Even if the State did not prove that Buss possessed anhydrous ammonia or lithium batteries with the intent to use them to manufacture methamphetamine, a rational factfinder could have found Buss guilty beyond a reasonable doubt of manufacturing methamphetamine under an aiding and abetting theory.
Additionally, this court has previously rejected an argument similar to Buss'. In State v. Barnes, No. 91,784, 2006 WL 90076, *2 (Kan.App.2006) (unpublished opinion), the defendant was convicted of manufacturing methamphetamine and argued on appeal “that if the jury acquitted him of possession of anhydrous ammonia, there is no way he could have made methamphetamine because anhydrous ammonia is a necessary ingredient to successfully manufacture methamphetamine.” This court stated:
“We reject Barnes' argument and his interpretation of evidence in this case. This is not one of the cases in the long line of methamphetamine production cases where production is halted or discovered before completion of the process. Methamphetamine had successfully been manufactured. The State's forensic expert testified as to the multiple items discovered in Barnes' house that contained methamphetamine. Also, the lack of anhydrous ammonia does not negate the production of methamphetamine. Rather, Officer Brandau testified about the production method ... where the anhydrous ammonia actually evaporates during the process.” 2006 WL 90076, at *3.
Likewise, here, the manufacture was successfully completed. Jared Lieser, a forensic scientist, testified as to the methamphetamine residue left on multiple items from the motel room, and Engle testified that she and Buss completed the manufacture in the motel room. In addition, Lieser testified that manufacturing methamphetamine required “a type of reactive metal” and that the “[m]ost common one we see in the State of Kansas is lithium,” but he did not testify that lithium metal itself was critical to the manufacturing process. Regarding the anhydrous, Lieser testified that one step of the process requires evaporating the anhydrous ammonia to leave the methamphetamine. The evaporation process possibly explains why anhydrous ammonia was not discovered in the motel room. The conviction of manufacturing methamphetamine is not necessarily inconsistent with the acquittal of possession of anhydrous ammonia and lithium metal with intent to use to manufacture methamphetamine. According, we conclude there was sufficient evidence to support Buss' conviction of manufacture of methamphetamine.
Pharmacy Logs
Next, Buss argues that the district court violated his constitutional rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights by allowing the State to introduce pharmacy records from the Dillons store despite the fact that the pharmacist who prepared the records was not available for cross-examination. The State argues that the issue was not properly preserved for appeal. The only pharmacy record challenged in Buss' brief is the pharmacy log from the Salina Dillons store. At trial, when the State moved for admission of the pharmacy record, Buss objected: “Objection pursuant to pretrial motions, judge.” Prior to trial, Buss had argued for exclusion of certain pharmacy records, including those from Dillons, on the grounds that the State had only disclosed the records the week before trial. Buss' objection was based on the late disclosure of the records; there was no mention of confrontation rights.
A party must make a contemporaneous and specific objection to the admission of evidence in order to preserve the issue for appeal; moreover, a party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground. McCaslin, 291 Kan. at 707. Moreover, our Supreme Court has stated: “In order to preserve an issue for appeal, a defendant must make a specific and timely objection to the district court, even when raising issues involving fundamental rights such as a violation of the Confrontation Clause.” State v. Levy, 292 Kan. 379, Syl. ¶ 3, 253 P.3d 341 (2011). Here, Buss objected at trial based on the late disclosure; he may not now raise a Confrontation Clause challenge for the first time on appeal. Accordingly, we conclude that Buss has failed to properly preserve this issue for appeal.
Amended Charges
In his final issue, Buss argues that the district court erred by allowing certain amendments to the complaint throughout the trial process. Specifically, Buss contends that the district court erred by allowing amendments (1) adding overt acts to support the charge of conspiracy to manufacture methamphetamine and (2) changing the allegation of where the crimes occurred. Buss asks this court to find that the amendments prejudiced his substantial rights and, accordingly, reverse his convictions.
K.S.A. 22–3201(e) governs amendments to complaints and informations and allows: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” We review the district court's decision to permit a complaint or information to be amended for abuse of discretion. State v. Bischoff, 281 Kan. 195, 205, 131 P.3d 531 (2006).
Here, the State amended the complaint multiple times. A detailed explanation of the amendments is necessary. The original complaint filed contained five counts: manufacture of methamphetamine, attempted manufacture of methamphetamine, conspiracy to manufacture methamphetamine, possession of methamphetamine, and possession of drug paraphernalia with the intent to use it to manufacture a controlled substance. On April 11, 2008, the State filed an amended information, which added an additional count of possession of lithium metal with the intent to use it to manufacture methamphetamine. On June 2, 2008, prior to the preliminary hearing, the State filed a second amended information, adding charges of possession of ephedrine or pseudoephedrine with the intent to manufacture a controlled substance, possession of anhydrous or pressurized ammonia with the intent to manufacture a controlled substance, possession of methamphetamine with the intent to sell, conspiracy to distribute methamphetamine, and possession of drug paraphernalia with the intent to use to package a controlled substance for sale. At the preliminary hearing, the State moved to add an additional charge of possession of methamphetamine without tax stamps affixed. The district court allowed the additional charge and, after the hearing, the State filed a third amended information, reflecting the addition of the no-tax-stamp charge.
On September 28, 2009, Buss filed a motion for a bill of particulars, stating that he could not adequately prepare his defense without the State providing more specific details about the day and time of the alleged crimes; Buss also requested information on which items were the subjects of the crimes charged and on what evidence the State intended to rely. In January 2010, the district court heard argument on the motion and the State agreed to compile and file a bill of particulars. The State filed both an initial and an amended bill of particulars on July 14, 2010. Shortly thereafter, the district court allowed the State to amend the complaint yet again; the fourth amended complaint added the venue of Saline County to the already included Reno County on all counts except the charge of possession of anhydrous or pressurized ammonia with the intent to manufacture methamphetamine.
The jury trial occurred from July 19 to July 23, 2010. On July 22, 2010, with the district court's leave, the State filed a fifth amended complaint; this complaint amended the overt acts which the jury could consider when deciding the charges of conspiracy to manufacture methamphetamine. Previously, the overt act listed for conspiracy to manufacture was the renting of the motel room in Hutchinson in order to manufacture methamphetamine. In the fifth amended complaint, the overt acts listed were “obtaining pseudoephedrine, processing pseudoephedrine, obtaining lithium batteries, peelinglithium batteries, obtaining anhydrous ammonia, renting a room to manufacture methamphetamine or manufacturing methamphetamine or preparing a gassing generator.”
After Buss rested his case, the State moved again to amend the complaint; the State argued that the proper way to handle the fact that the crimes allegedly occurred in more than one county is to charge it in one county and deal with the multiple-county issue injury instructions. Therefore, the State asked to leave references to Saline and Reno Counties in the conspiracy charges but to only reference Reno County in the remaining charges. The district court allowed the amendment, and the State filed its sixth amended complaint on August 3, 2010. In addition to removing certain references to Saline County, the overt act listed for conspiracy to distribute methamphetamine was previously distributing methamphetamine; in the sixth amended complaint, the overt act of packaging methamphetamine for sale was added to the charge.
Essentially, Buss alleges that his substantial rights were prejudiced because the amendments involving venue and adding overt acts to the conspiracy to manufacture methamphetamine charge denied him an opportunity to prepare his defense. Regarding the changes in the counties in which the criminal acts were alleged to have occurred, Buss argues that this prejudiced him by wasting defense counsel's time spent preparing to defend against the allegation that the acts happened in Saline County. Buss contends that defense counsel could have spent the time focused on the actions only in Reno County. Regarding the overt acts changes to the conspiracy to manufacture charge, Buss argues that allowing such an expansive amendment during trial—from one alleged overt act to eight—prohibited him from preparing an effective defense to the added seven alleged overt acts. Removal of Saline County
Buss first complains that the district court erred by allowing the complaint to be amended to remove Saline County as a venue. Buss complains that the initial inclusion of Saline County caused him to “wast[e] valuable time examining witness[es] about manufacturing activities in Saline County that should have been focused on Reno County allegations.” But this amendment to the charges, while possibly rendering unnecessary some of defense counsel's efforts to rebut allegations of actions that occurred in Saline County, did not prejudice Buss' substantial rights. If anything, the amendment reduced the allegations against Buss. Therefore, the district court did not commit reversible error by allowing the amendments changing venue. Overt Acts
Buss also complains that the district court committed reversible error by adding overt acts to support the charge of conspiracy to manufacture methamphetamine. Buss cites State v. Spangler, 38 Kan.App.2d 817, 173 P.3d 656 (2007), for support. In Spangler, the State originally charged the defendant with conspiracy to manufacture methamphetamine on or about March 15, 2005; the State alleged that the defendant committed the overt act of “manufacture of methamphetamine.” 38 Kan.App.2d at 824. Just before the completion of the State's evidence at trial, the district court allowed the State to amend the complaint to encompass the time between October 2004 and March 15, 2005. In addition, the State alleged in the amended complaint that the defendant committed the overt acts of purchasing ephedrine pills, purchasing muriatic acid, purchasing lithium batteries, and delivering methamphetamine. The jury convicted the defendant of manufacture of methamphetamine, conspiracy to manufacture methamphetamine, possession of methamphetamine, and possession of drug paraphernalia.
On appeal, the defendant argued that her conspiracy conviction should be reversed because the State's amendment of the complaint during trial allowed the State to prosecute her for a different crime than was alleged in the original complaint and prejudiced her substantial rights. 38 Kan.App.2d at 818–19. This court found that the overt act cited in the original complaint—manufacture of methamphetamine—was insufficient to support a conspiracy charge because it “merely recited the crime that [the defendant] was alleged to have conspired to commit.” 38 Kan.App.2d at 826. This court found that by allowing the amendment of the complaint to allege additional specific overt acts, the district court allowed the State to prosecute the defendant for a different crime than was alleged in the original complaint. This court also noted that the expansion of the time period changed the crime charged. 38 Kan.App.2d at 827–28.
This court found that the timing of the amendment prejudiced the defendant. 38 Kan.App.2d at 828–29. Specifically, this court noted that because the State moved to amend the complaint just before the end of the presentation of its evidence, the defendant was stuck with her original defense strategy as it pertained to cross-examination of the State's witnesses. 38 Kan.App.2d at 828. The court went on to say:
“This prejudice was further compounded by the State's amendment of the complaint to charge specific overt acts by Spangler. In [State v. Marino, 34 Kan.App.2d 857, Syl. ¶ 2, 126 P.3d 427 (2006) ], this court stated: ‘Because an overt act is an essential element of a conspiracy, a conspirator has the right to be informed of the overt act.’ The State gave Spangler notice of specific overt acts on which it was alleging to prove the conspiracy charge for the first time at the end of its evidence at trial. Defense counsel had completed almost his entire cross-examination of the State's witnesses before he was made aware of the specific overt acts. At that point, he could not change his cross-examination to more adequately conform to the overt act element alleged in the amended complaint.” 38 Kan.App.2d at 828–29.
Likewise, Buss argues that the State's amendment of the complaint, near the end of its presentation of evidence, to allege additional overt acts substantially prejudiced his defense. Buss' counsel had cross-examined the State's witnesses based on the belief that the alleged overt act was renting a room to manufacture methamphetamine. Expanding the charge to include multiple additional overt acts required Buss to change his defense strategy. However, as in Spangler, Buss was locked into his original defense strategy in regards to the State's witnesses already cross-examined.
The State argues that Buss was aware of the additional over acts because they had been included in the bill of particulars. Although the acts ultimately listed as overt acts are referenced in the bill of particulars as a whole, they were not specifically noted as overt acts upon which the conspiracy charge would rely. We disagree with the State that Buss was not prejudiced by the late amendment to allege additional overt acts simply because the acts were referenced in the bill of particulars.
Following the guidance of Spangler, we conclude the amendment of the complaint near the end of the State's presentation of evidence at trial adding seven overt acts to support the charge of conspiracy to manufacture methamphetamine prejudiced Buss' substantial rights, in violation of K.S.A. 22–3201(e). Thus, the district court abused its discretion in allowing the amendment. Accordingly, we reverse Buss' conviction of conspiracy to manufacture methamphetamine and vacate that portion of his sentence. Buss' other convictions are affirmed. Because we are reversing the conspiracy to manufacture methamphetamine conviction, we will not address Buss' claim that the State failed to show substantial evidence of each alternative means of committing this offense.
Affirmed in part, reversed in part, and vacated in part.