State v. Teter (Updated May 17, 2012)

1

No. 105,495

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KEVIN TETER,
Appellant.


SYLLABUS BY THE COURT

1.
The interpretation of a statute and the determination of its constitutionality are
questions of law over which an appellate court has unlimited review.

2.
A claim that a statute is void for vagueness necessarily requires a court to interpret
the language of the statute in question to determine whether it gives adequate warning as
to the proscribed conduct. A statute that either requires or forbids the doing of an act in
language that is so vague that persons of common intelligence must guess at its meaning
and will differ as to its application violates the Fourteenth Amendment to the United
States Constitution and is thus void for vagueness.

3.
While a vague statute leaves persons of common intelligence to guess at its
meaning, an overbroad statute makes conduct punishable which under some
circumstances is constitutionally protected. Almost every law is potentially applicable to
constitutionally protected acts. A successful overbreadth challenge can be made only
when (1) the protected activity is a significant part of the law's target, and (2) there exists
2

no satisfactory method of severing the law's constitutional from its unconstitutional
applications.

4.
Under the rational basis test, a statute will survive a due process challenge if it
furthers a legitimate goal and the means chosen by the legislature are rationally related to
that goal.

5.
K.S.A. 2007 Supp. 65-7006(d) (now codified at K.S.A. 2011 Supp. 21-5709[d]) is
not unconstitutionally vague and overbroad, and the statute is rationally related to the
legitimate interest of preventing the manufacture of methamphetamine in Kansas.

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed May 11,
2012. Affirmed.

Sam S. Kepfield, of Hutchinson, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, P.J., PIERRON and BRUNS, JJ.

MALONE, J.: Kevin Teter appeals his conviction of one count of unlawful
acquisition of pseudoephedrine in violation of K.S.A. 2007 Supp. 65-7006(d) (now
codified at K.S.A. 2011 Supp. 21-5709[d]). This statute makes it unlawful for any person
to purchase more than 3.6 grams of pseudoephedrine base or ephedrine base in any
transaction or to purchase more than 9 grams of pseudoephedrine base or ephedrine base
within a 30-day period. Teter argues that the statute is unconstitutionally vague and
overbroad. For the reasons set forth herein, we reject Teter's constitutional challenges and
3

conclude that the statute is rationally related to the legitimate interest of preventing the
manufacture of methamphetamine in Kansas.

In early 2008, Reno County Sheriff's Deputy Rick Newton was assigned the task
of visiting pharmacies in Reno County and examining the purchase logs they are required
to keep by law. Newton's investigation uncovered the fact that Teter had purchased 322
tablets of pseudoephedrine-based medication during a 24-day period in January 2008.
Specifically, the purchase logs disclosed that on January 4, 2008, Teter purchased one
package of Genaphed from the Medicine Shoppe containing twenty-four 30-milligram
tablets. On January 12, 2008, Teter purchased two packages of Equate Suphedrine from
Wal-Mart, each containing forty-eight 30-milligram tablets. On January 21, 2008, Teter
purchased one package of Sudafed from Dillon's #25 containing ten 240-milligram
tablets. On January 28, 2008, Teter purchased two packages of Kroger Suphedrine from
Dillon's #10, each containing forty-eight 30-milligram tablets. On the same day, Teter
purchased two additional packages of Equate Suphedrine from Wal-Mart, each
containing forty-eight 30-milligram tablets.

On June 11, 2008, Teter was charged with unlawful acquisition of
pseudoephedrine, a Class A misdemeanor, by purchasing more than 9 grams of
pseudoephedrine base within a 30-day period. Teter was found guilty following a bench
trial before a district magistrate judge, and he appealed to the district court. On
September 29, 2010, Teter filed a motion to dismiss before the district court, arguing that
K.S.A. 2007 Supp. 65-7006(d) is unconstitutionally vague because the average citizen
would not know how much pseudoephedrine base or ephedrine base was contained in
cold or allergy medication sold in conventional blister packaging. Teter also argued that
the statute is unconstitutionally overbroad because it criminalizes potentially legitimate
activity. No hearing on the motion was requested.

4

A bench trial was held on November 19 and December 6, 2010. Newton testified
for the State about his investigation into Teter's purchases of pseudoephedrine-based
medication. Newton explained that he calculated the total amount of pseudoephedrine
base Teter purchased by multiplying the number of tablets by the milligrams of active
ingredient (here, pseudoephedrine hydrochloride) in each tablet and then converting the
resulting number from milligrams to grams. To reduce this number to the pure anhydrous
pseudoephedrine base—that is, to discount the weight of the hydrochloride salt—Newton
then applied a conversion factor of .82, which is the conversion factor promulgated by the
International Narcotics Control Board to be applied when pseudoephedrine is bound with
a hydrochloride salt. Using this methodology, Newton determined that Teter had
purchased 9.6432 grams of pure pseudoephedrine base during the time period in question.

The State also presented the testimony of several witnesses from the stores where
Teter had allegedly purchased the pseudoephedrine-based medications. The store
representatives verified that they followed the protocol for selling such medications,
which included recording the name, address, and signature of the purchaser as well as
checking photo identification. Although some of the store representatives were familiar
with Teter, none had independent recollections of the alleged purchases. Teter did not
present any evidence at the trial.

During closing argument, Teter asked that the case be dismissed. He reiterated the
overbreadth argument made in his motion to dismiss and noted that the statute could also
reach people who purchased pseudoephedrine-based medications for legitimate use by
their family or friends. In the alternative, he argued that the State had failed to prove the
charge beyond a reasonable doubt, challenging the adequacy of the foundation laid for
the conversion factor used by Newton and the accuracy of the purchase records. The
district court overruled the motion to dismiss and stated:

5

"[W]ith respect [to] the constitutionality of the statute I reviewed that motion. The
argument as I understand it is [the statute] really doesn't give people fair notice. Well, it
does because . . . it proscribes [the] possession of more than nine grams. If there's any
confusion, it's—you can buy a lot more than nine grams of the active ingredient without
violating the statute because there's a conversion factor. So any [confusion] about that
works in favor of the defendant. But it's pretty clear."

The district court then found that an adequate foundation had been laid for the
conversion factor and that the purchase records were reliable evidence that Teter had
made the purchases. The district court found Teter guilty as charged and sentenced him to
12 months in the county jail with probation. Teter timely appealed his conviction.

On appeal, Teter argues that K.S.A. 2007 Supp. 65-7006(d) is unconstitutionally
vague because an ordinary person would not be expected to know the conversion factor
that is used to determine how much pseudoephedrine base or ephedrine base is contained
in cold or allergy medication sold in conventional blister packaging and thus there is no
fair warning as to the amount of medication that would trigger the statute. He also argues
that the statute is unconstitutionally overbroad because it does not distinguish between
the acquisition of pseudoephedrine base or ephedrine base for legal but potentially off-
label purposes, such as weight loss or bodybuilding, and illegal purposes, namely the
manufacture of methamphetamine. Although Teter objected to some of the evidence
presented by the State at his bench trial based on lack of foundation, he has not raised this
issue on appeal. An issue not briefed by the appellant is deemed waived and abandoned.
State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).

The State contends that K.S.A. 2007 Supp. 65-7006(d) is not unconstitutionally
vague because the 9-gram limitation in the statute is unambiguous and, even if an
ordinary person were unaware of the conversion factor, the application of that conversion
factor weighs in favor of the defendant. The State further contends that the statute is not
unconstitutionally overbroad because the acquisition of more than 9 grams of
6

pseudoephedrine base or ephedrine base within a 30-day period is not a constitutionally
protected activity and because there is a rational relationship between the limitation and
the legitimate goal of preventing the manufacture of methamphetamine.

K.S.A. 2007 Supp. 65-7006(d) provides as follows:

"It shall be unlawful for any person to purchase, receive or otherwise acquire at retail any
compound, mixture or preparation containing more than 3.6 grams of pseudoephedrine
base or ephedrine base in any single transaction or any compound, mixture or preparation
containing more than nine grams of pseudoephedrine base or ephedrine base within any
30-day period."

The interpretation of a statute and the determination of its constitutionality are
questions of law over which an appellate court has unlimited review. Whenever a court
considers the constitutionality of a statute, the separation of powers doctrine requires the
court to presume the statute is constitutional. Consistent with this principle, all doubts
must be resolved in favor of the statute's validity, and a court must interpret the statute in
a manner that makes it constitutional if there is any reasonable way to do so within the
apparent intent of the legislature in passing the statute. State v. Laturner, 289 Kan. 727,
735, 218 P.3d 23 (2009).

As a preliminary matter, the State asserts that Teter's constitutional claims have
not been preserved for appellate review because the State was given no notice that Teter's
motion to dismiss would be considered at the close of evidence at trial and the State was
deprived of the opportunity to present evidence on the constitutional issues. But the
motion to dismiss was filed in advance of the bench trial and provided to the State.
Furthermore, the State does not indicate on appeal what additional evidence it would
have presented at trial in order to address the motion. Teter clearly raised the
constitutionality of the statute before the district court, both with respect to vagueness and
overbreadth, and we conclude the constitutional issues have been preserved for appeal.
7

Turning to the merits of the parties' arguments, Teter first contends that K.S.A.
2007 Supp. 65-7006(d) is unconstitutionally vague. A claim that a statute is void for
vagueness necessarily requires a court to interpret the language of the statute in question
to determine whether it gives adequate warning as to the proscribed conduct. A statute
that either requires or forbids the doing of an act in language that is so vague that persons
of common intelligence must guess at its meaning and will differ as to its application
violates the Fourteenth Amendment to the United States Constitution and is thus void for
vagueness. State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009). In determining
whether a statute is void for vagueness, two inquiries are appropriate: (1) whether the
statute gives fair warning to those persons potentially subject to it and (2) whether the
statute adequately guards against arbitrary and discriminatory enforcement. City of
Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 (1990).

Teter's vagueness argument is centered on his contention that an ordinary person
would not be expected to know the conversion factor that is used to determine how much
pseudoephedrine base or ephedrine base is contained in cold or allergy medication
because the method of applying the conversion factor is not listed on the packaging. The
State responds that there is nothing about the language of the statute itself that is vague
and, even if an ordinary person were unaware of the conversion factor, the application of
the conversion factor weighs in favor of the defendant. Neither party cites any caselaw,
and the question raised—whether a statute prohibiting the acquisition of a certain weight
of a nonprescription drug is unconstitutionally vague where the drug is sold in a form that
contains other, nonregulated ingredients—appears to be an issue of first impression not
only in Kansas but across the country as well.

K.S.A. 2007 Supp. 65-7006(d) was first enacted by the Kansas Legislature in May
2007. L. 2007, ch. 139, § 13. It appears to be based upon a similar provision enacted by
the United States Congress in 2006 as part of the Combat Methamphetamine Epidemic
Act of 2005 (CMEA). 21 U.S.C. § 844(a) (2006) ("It shall be unlawful for any person to
8

knowingly or intentionally purchase at retail during a 30 day period more than 9 grams of
ephedrine base, pseudoephedrine base, or phenylpropanolamine base in a scheduled listed
chemical product . . . ."). For an overview of the CMEA and of various state statutes
regulating the sale of methamphetamine precursor drugs such as pseudoephedrine, see
Comment, The Combat Methamphetamine Epidemic Act: New Protection or New
Intrusion?, 39 Tex. Tech L. Rev. 379 (2007). For an overview of the problem in Kansas,
see Peterson & Jennings, Methamphetamine-A Recipe for Disaster, 73 J.K.B.A. No. 9, 7
(2004).

The State's argument that K.S.A. 2007 Supp. 65-7006(d) is not unconstitutionally
vague is persuasive. There is nothing in the language of the statute, which clearly
prohibits the acquisition of more than 3.6 grams of pseudoephedrine base or ephedrine
base in any one transaction or more than 9 grams in any 30-day period, that would leave
persons of common intelligence guessing as to what is prohibited or that would be open
to arbitrary and discriminatory enforcement. To the extent that there is any ambiguity
because a person of common intelligence may not know how the weights are calculated,
that ambiguity is external to the statute and may likewise be clarified by outside
information. The milligrams of active ingredient (e.g., pseudoephedrine hydrochloride)
are available on the medication packaging. While the amount of pure anhydrous
pseudoephedrine base or ephedrine base may not be specifically listed on the medication
packaging itself, detailed information concerning acquisition limitations is available to
the general public. See Drug Enforcement Administration, General Information
Regarding the Combat Methamphetamine Epidemic Act of 2005 (Title VII of Public Law
109-177) (May 2006),
http://www.deadiversion.usdoj.gov/meth/cma2005_general_info.pdf. Furthermore, the
conversion factors promulgated by the International Narcotics Control Board, referred to
by Newton in his trial testimony, are made available to the public at
http://www.incb.org/pdf/e/list/red.pdf. A review of this information confirms that the
conversion factor for pseudoephedrine hydrochloride is indeed .82, as Newton testified.
9

Moreover, as the State notes, any ambiguity regarding how the weights are
calculated favors the criminal defendant. A person of common intelligence, following
common understanding and practice, would most likely count the entire weight of the
active ingredient as listed on the medication packaging when determining whether he or
she was exceeding the acquisition limitations. If such person acquired 9 grams of
pseudoephedrine hydrochloride as listed on the medication packaging, he or she still
would be within the permissible statutory limitation due to the application of the
conversion factor to exclude the weight of the hydrochloride salt. In Teter's case, he
actually purchased 11.76 grams of pseudoephedrine hydrochloride within a 30-day
period, but this amounted to only 9.6432 grams of pure pseudoephedrine base during the
time period in question. By simply keeping track of the weight of the active ingredient
listed on the medication packaging, a consumer cannot accidentally exceed the
limitations set forth in the statute. Because K.S.A. 2007 Supp. 65-7006(d) gives adequate
warning as to the proscribed conduct, we conclude the statute is not unconstitutionally
vague.

Teter also contends that the statute is unconstitutionally overbroad because it fails
to distinguish between the acquisition of pseudoephedrine base or ephedrine base for
legal purposes and for illegal purposes and therefore criminalizes potentially legitimate
activity. While a vague statute leaves persons of common intelligence to guess at its
meaning, an overbroad statute makes conduct punishable which under some
circumstances is constitutionally protected. Almost every law is potentially applicable to
constitutionally protected acts. A successful overbreadth challenge can be made only
when (1) the protected activity is a significant part of the law's target, and (2) there exists
no satisfactory method of severing the law's constitutional from its unconstitutional
applications. State v. Whitesell, 270 Kan. 259, 270, 13 P.3d 887 (2000). The overbreadth
doctrine should be employed sparingly and only as a last resort. Smith v. Martens, 279
Kan. 242, 253, 106 P.3d 28 (2005).

10

The Kansas Supreme Court recently visited the overbreadth doctrine in Dissmeyer
v. State, 292 Kan. 37, 249 P.3d 444 (2011). In 2007, the Kansas Legislature passed the
Kansas Expanded Lottery Act (Act). K.S.A. 2007 Supp. 74-8733 et seq. The Act
authorized the operation of certain gaming facilities, electronic gaming machines, and
other lottery games, but the Act specifically outlawed ownership of and public access to
"gray machines." K.S.A. 2007 Supp. 74-8761. "Gray machine" was defined to mean

"any mechanical, electro-mechanical or electronic device, capable of being used for
gambling, that is: (1) Not authorized by the Kansas lottery, (2) not linked to a lottery
central computer system, (3) available to the public for play or (4) capable of simulating a
game played on an electronic gaming machine or any similar gambling game authorized
pursuant to the Kansas expanded lottery act." (Emphasis added.) K.S.A. 2007 Supp. 74-
8702(g).

In Dissmeyer, the Supreme Court found that the phrase "capable of being used for
gambling" in the provision defining gray machines potentially criminalized the use of
such equipment as computers, telephones, radios, televisions, and even the classic
children's game of Chutes and Ladders. 292 Kan. at 42. The Supreme Court determined
that the statute defining gray machines, in combination with its enforcement provisions,
made it unlawful to own or operate a broad spectrum of property that does not relate to a
legitimate government interest in controlling gambling. 292 Kan. at 42-44. Thus, the
Supreme Court held those statutory provisions, as they relate to gray machines, were
unconstitutionally overbroad. 292 Kan. at 44.

Dissmeyer is clearly distinguishable from the facts herein. In Dissmeyer, the
expansive definition of gray machines made it unlawful to own or operate a broad
spectrum of property that under some circumstances is constitutionally protected. Here,
K.S.A. 2007 Supp. 65-7006(d) is narrowly tailored to criminalize the purchase of more
than 3.6 grams of pseudoephedrine base or ephedrine base in any single transaction or the
purchase of 9 grams of pseudoephedrine base or ephedrine base within any 30-day
11

period. Recognizing that the Constitutions of the United States and Kansas protect the
right of citizens to engage in commerce, K.S.A. 2007 Supp. 65-7006(d) still allows any
person to purchase a sufficient quantity of pseudoephedrine for legitimate personal use
during a 30-day period. In Teter's case, he purchased 322 tablets of pseudoephedrine-
based medication during a 24-day period, and even this large quantity amounted to only
9.6432 grams of pure pseudoephedrine base—barely over the legal limit.

As courts have recognized, almost every law is potentially applicable to
constitutionally protected acts, and the overbreadth argument should be applied sparingly
and only as a last resort. See, e.g., Martens, 279 Kan. at 253. Here, there is no substantial
intrusion upon an individual's liberty by limiting the amount of pseudoephedrine which
can be purchased to 3.6 grams in any transaction or 9 grams within a 30-day period. We
conclude that K.S.A. 2007 Supp. 65-7006(d) is not unconstitutionally overbroad.

As the State implicitly recognizes, Teter's overbreadth argument is better
characterized as a due process challenge to the validity of the statute. Because Teter does
not allege that the statute infringes upon a fundamental right or involves a suspect
classification, the rational basis test—the lowest level of judicial scrutiny—applies to
determine whether K.S.A. 2007 Supp. 65-7006(d) violates due process. Under the
rational basis test, a statute will survive a due process challenge if it furthers a legitimate
goal and the means chosen by the legislature are rationally related to that goal. See State
v. Voyles, 284 Kan. 239, 258, 160 P.3d 794 (2007).

When read as a whole, it is clear that the legislative intent of K.S.A. 2007 Supp.
65-7006 is to prevent the manufacture of controlled substances, particularly
methamphetamine, which is clearly a legitimate goal. To advance that goal, the Kansas
Legislature chose to limit the availability of pseudoephedrine and ephedrine, which are
precursor drugs essential to the manufacture of methamphetamine. The Kentucky Court
of Appeals, in evaluating the constitutionality of a similar Kentucky statute, found that an
12

acquisition limitation of 9 grams of pseudoephedrine in a 30-day period was neither
constitutionally unreasonable nor arbitrary. The court noted that to exceed the statutory
limit, an individual would have to purchase over three-hundred 30-milligram tablets.
Pitcock v. Commonwealth, 295 S.W.3d 130, 134 (Ky. App. 2009), rev. denied October
21, 2009. The Appellate Court of Illinois found that an Illinois statute criminalizing the
purchase of more than 7,500 milligrams (7.5 grams) of pseudoephedrine in a 30-day
period was not "unreasonable merely because some purchasers without the intent to
manufacture methamphetamine might violate its terms or suffer inconvenience." People
v. Willner, 392 Ill. App. 3d 121, 126, 924 N.E.2d 1029 (2009), rev. denied September 30,
2009.

Likewise, the acquisition limitations put in place by the Kansas Legislature in
K.S.A. 2007 Supp. 65-7006(d) promote the legitimate goal of preventing the manufacture
of methamphetamine in Kansas. Teter makes no attempt to challenge this contention. The
acquisition limits set forth in the statute are rationally related to this goal and do not
substantially intrude upon an individual's right to purchase pseudoephedrine-based
medication for legitimate personal use. Therefore, we conclude the statute does not
unconstitutionally violate due process.

Affirmed.