THC Testing Not Required to Prove “Marijuana”; Attempted Sale Counts as “Distribution,” and Felony-Murder Res Gestae Encompasses a Continuous Drug-Deal Transaction — Commentary on State v. Brown (Kan. 2025)

THC Testing Not Required to Prove “Marijuana”; Attempted Sale Counts as “Distribution,” and Felony-Murder Res Gestae Encompasses a Continuous Drug-Deal Transaction — Commentary on State v. Brown (Kan. 2025)

Introduction

In State v. Brown, No. 126,279 (Kan. Aug. 1, 2025), the Kansas Supreme Court affirmed convictions for first-degree felony murder and attempted second-degree murder arising from a drug deal that erupted into violence in a library parking lot. The opinion, authored by Justice Standridge, addresses a suite of issues that often recur in narcotics prosecutions and homicide cases stemming from drug transactions: what the State must prove to establish “marijuana” and “distribution,” how broadly the res gestae of felony murder extends around the temporal edges of an underlying felony, how to treat a trial court’s brief oral misstatement of a burden-of-proof instruction later corrected, and the admissibility of ballistics and DNA evidence that does not actually implicate a prior crime under K.S.A. 60-455.

The Court’s key holdings are consequential for Kansas criminal practice:

  • Proof of THC content is not required to establish that a substance is “marijuana” under K.S.A. 2019 Supp. 21-5701(j) and K.S.A. 65-4101(aa); lay and circumstantial proof can suffice, and the State need not negate statutory exceptions (e.g., hemp) in its case-in-chief.
  • “Distribution” under K.S.A. 2019 Supp. 21-5701(d) includes attempted transfer and offers for sale; no completed handoff is required.
  • For felony murder, the killing may precede, coincide with, or follow the underlying felony, so long as it is part of one continuous transaction closely connected in time, place, and continuity of action—even if the felony is not literally ongoing at the moment of death.
  • A brief oral misstatement of the burden-of-proof instruction, promptly acknowledged and corrected, is not instructional error and certainly not structural error where the jury receives the correct standard orally and in writing.
  • K.S.A. 60-455 does not apply absent evidence of a prior crime or civil wrong on a specified occasion; relevant, non-unduly prejudicial evidence may be admitted under the general rules even if damaging, particularly with an appropriate limiting instruction.

Case Background

Two brothers, Michael (the decedent) and Richard (a minor at the time), planned a “drug rip” to obtain marijuana by theft. Richard contacted a seller—later identified as Dvonte Jamal Brown—who agreed to sell a quarter pound of marijuana for $400–$500 and directed a meeting at a Johnson County library in Overland Park. Richard brought a steak knife for “protection.”

At the library, Richard entered Brown’s car, inspected what he believed to be marijuana based on appearance and smell, and displayed cash with the intent to grab the product and flee. Brown seized the money, ordered Richard out, and threatened to shoot if he did not comply. Michael then entered Brown’s passenger seat and began hitting Brown; Richard heard multiple “pops,” saw Michael had been shot, and stabbed Brown through the open driver’s window. Brown fled, circled back, and fired additional shots. Michael died at the scene from nine gunshot wounds.

The State charged Brown with first-degree felony murder (predicated on distribution of marijuana and/or robbery) and attempted first-degree murder. The first trial yielded a conviction for the lesser-included attempted second-degree murder but a hung jury on felony murder. After retrial, Brown was convicted of felony murder predicated on distribution of marijuana. He received life with parole eligibility after 25 years and a concurrent 59-month term on the attempted second-degree count.

Summary of the Opinion

The Court affirmed across the board. It held:

  • Sufficient evidence supported felony murder predicated on distribution of marijuana. The State was not required to prove THC content to establish “marijuana,” and “distribution” includes attempted transfer or an offer for sale. The killing occurred within the res gestae of the drug distribution as part of a continuous transaction.
  • Sufficient evidence supported attempted second-degree murder (of Richard). The Court rejected reliance on the credibility-outlier case State v. Matlock, finding corroboration and no basis to reweigh credibility on appeal.
  • No instructional error occurred: the trial court correctly refused a non-PIK “THC” definition of marijuana (legally inaccurate), and a brief oral misstatement of the burden-of-proof instruction was promptly corrected and did not undermine the ultimate instructions.
  • Admission of a March 26 shell casing bearing Brown’s DNA, matched ballistically to a casing at the homicide scene, was proper. K.S.A. 60-455 did not apply because the evidence did not show a prior crime or wrong; it was admissible as relevant identity evidence and not unduly prejudicial, especially with a limiting instruction.
  • With no error, cumulative error analysis did not apply.

Analysis

Precedents Cited and Their Role

  • Sufficiency standard: State v. Aguirre, 313 Kan. 189 (2021) (view evidence in the light most favorable to the State; no reweighing or credibility reassessment on appeal) frames the review.
  • Distribution requires possession proof: State v. Crosby, 312 Kan. 630 (2021) confirms that to prove distribution, the State must present sufficient evidence of possession of the controlled substance.
  • THC not required to prove marijuana:
    • State v. Luginbill, 223 Kan. 15 (1977) recognized THC presence as relevant but not exclusive proof.
    • State v. Brichat, 2005 WL 124169 (Kan. App. 2005) and State v. Baldwin, 2023 WL 5163292 (Kan. App. 2023) held statutory definitions do not require THC content; Brown elevates this to Kansas Supreme Court authority.
    • State v. Holder, 314 Kan. 799 (2022) (aff’g COA) accepted lay identification of marijuana without chemical proof.
    • State v. Brazzle, 311 Kan. 754 (2020) clarified the State need not negate every statutory exception (analogous reasoning applied here to marijuana’s hemp/cannabidiol exceptions).
    • State v. Colson, 312 Kan. 739 (2021) and State v. Pattillo, 311 Kan. 995 (2020) underscore the sufficiency of circumstantial evidence—even exclusively—to prove the gravest offenses.
  • Res gestae in felony murder—continuous transaction:
    • State v. Trass, 319 Kan. 525 (2024) and State v. Nesbitt, 308 Kan. 45 (2018) confirm that the killing may precede, coincide with, or follow the felony as part of one continuous transaction.
    • State v. Carter, 316 Kan. 427 (2022) articulates res gestae as acts so closely connected in time, place, and continuity as to form part of the occurrence.
    • State v. Dupree, 304 Kan. 377 (2016) and State v. Jacques, 270 Kan. 173 (2000) illustrate close temporal-spatial ties sufficing for res gestae.
    • State v. Beach, 275 Kan. 603 (2003) notes abandonment/completion of underlying felony is usually a jury question.
  • Witness credibility and Matlock’s limited reach:
    • State v. Matlock, 233 Kan. 1 (1983) is an “aberrant” outlier allowing reversal based on incredible testimony; limited by State v. Brinklow, 288 Kan. 39 (2009) and State v. Kemmerly, 319 Kan. 91 (2024), reaffirming appellate courts don’t reweigh credibility.
  • Instructional error framework and PIK use:
    • State v. Holley, 313 Kan. 249 (2021) sets the preservation/legal-factual appropriateness/harmlessness sequence.
    • State v. Roberts, 314 Kan. 835 (2022) and State v. Broxton, 311 Kan. 357 (2020) emphasize legal appropriateness as threshold.
    • State v. Zeiner, 316 Kan. 346 (2022) and State v. Hilyard, 316 Kan. 326 (2022) strongly recommend PIK instructions absent case-specific need to deviate.
  • Structural error and burden of proof:
    • State v. Cantu, 318 Kan. 759 (2024) and State v. McDaniel, 306 Kan. 595 (2017) define the narrow class of structural errors.
    • Sullivan v. Louisiana, 508 U.S. 275 (1993) treats a constitutionally diluted reasonable-doubt instruction as structural error.
    • Miller v. State, 298 Kan. 921 (2014) (aff’g COA) found structural error where the written instruction wrongly required reasonable doubt as to all elements to acquit; contrasted here because the court corrected its single oral misstatement and the written instruction was correct. State v. Peppers, 294 Kan. 377 (2012) presumes jurors follow written instructions.
  • Propensity evidence and identity:
    • State v. Gunby, 282 Kan. 39 (2006) governs K.S.A. 60-455 usage and limiting instructions. Brown clarifies that 60-455 is inapplicable unless there is evidence of a prior crime or civil wrong on a specified occasion.
  • Relevance and prejudice balancing:
    • State v. Miller, 308 Kan. 1119 (2018), State v. Levy, 313 Kan. 232 (2021), State v. Alfaro-Valleda, 314 Kan. 526 (2022), State v. McCormick, 305 Kan. 43 (2016), and State v. Bilbrey, 317 Kan. 57 (2023) frame relevance (materiality/probativeness) and standard of review.
    • K.S.A. 60-445 allows exclusion where probative value is substantially outweighed by undue prejudice; State v. Thurber, 308 Kan. 140 (2018) and State v. Clark, 261 Kan. 460 (1997) explain that prejudice must be undue; most State evidence is prejudicial by nature.
    • State v. Meggerson, 312 Kan. 238 (2020) and State v. Lee, 266 Kan. 804 (1999) approve cumulative/“story of the case” evidence.
    • Harmlessness standards: State v. Thornton, 312 Kan. 829 (2021) (constitutional harmless error) and State v. Lowery, 308 Kan. 1183 (2018) (statutory harmless error); no prejudice shown here. State v. Garcia, 285 Kan. 1 (2007) presumes jurors follow limiting instructions. State v. Lowry, 317 Kan. 89 (2023) confirms cumulative-error doctrine requires at least one error.

Legal Reasoning

1) Felony Murder Predicated on “Distribution of Marijuana”

The Court reaffirmed that “distribution” includes “actual, constructive, or attempted transfer,” encompassing an “offer for sale.” K.S.A. 2019 Supp. 21-5701(d). On these facts, Brown agreed to sell a quarter pound, arranged the meeting, arrived with two bags of marijuana, and began a transaction that only fell apart when he took Richard’s cash and ordered him out. Even without a completed handoff, the agreed sale and the presence of bagged product constituted an attempted transfer and an offer for sale—a legally sufficient “distribution.”

As to the identity of the substance, the Court announced a now-binding principle: the State need not chemically prove the presence of THC to meet the statutory definition of “marijuana.” The definitions at K.S.A. 2019 Supp. 21-5701(j) and K.S.A. 65-4101(aa) and their listed exceptions do not require proof of THC. While THC content may be relevant, circumstantial and lay testimony (e.g., appearance and odor) can establish “marijuana.” Richard’s testimony—he smelled and recognized a skunky odor and visually inspected the product—was sufficient, even though he admitted uncertainty and acknowledged the possibility of CBD/hemp. The jury resolves such conflicts; appellate courts do not reweigh.

On causation, the Court focused on res gestae. It held the shooting occurred within the continuous transaction of the drug deal—moments before, during, and after the exchange—all part of a single occurrence for felony-murder purposes. Crucially, the Court emphasized that the felony need not be literally “in progress” at the moment of death; it suffices that the killing is part of a continuous episode closely tied to the underlying felony in time, place, and continuity of action.

2) Attempted Second-Degree Murder

The conviction rested primarily on Richard’s account that Brown fired at him as Brown fled and then circled back firing additional shots. The Court rejected the defense’s reliance on Matlock (the rare case overturning a conviction due to “incredible” uncorroborated testimony), noting corroborating evidence: independent witnesses observed shots fired from a car into a truck, a vehicle left and returned, additional gunfire ensued, and physical evidence (casings, bullet holes, bullet fragments) aligned with Richard’s narrative. Given the substantial corroboration and the general rule against appellate credibility reassessment, the evidence sufficed.

3) Jury Instructions

The Court upheld the refusal to give a defense-proposed definitional instruction stating “marijuana is a plant that contains delta-9 THC,” finding it legally inaccurate because Kansas law does not require proof of THC content. PIK instructions remained the appropriate template; no case-specific deviation was warranted.

On the burden-of-proof instruction, the trial judge misspoke once orally (“if you have any reasonable doubt … you should find the defendant guilty”), immediately acknowledged the error when alerted, and reread the correct sentence; the jurors also received the correct written PIK instruction. Because the panel corrected the slip promptly and the jury ultimately had both correct oral and written statements of the law, there was no instructional error, much less structural error. Sullivan and the Kansas Miller case were inapposite because they involved uncorrected instructions that diluted the State’s burden.

4) Admissibility of the March 26 Shell Casing with Brown’s DNA

The State introduced a .45 caliber casing recovered on March 26 (from a vehicle, with no mention at trial of the vehicle’s stolen status); a forensic scientist found Brown’s DNA on that casing, and a ballistics examiner matched those March 26 casings to a .45 casing found at the April 8 homicide scene. This linked Brown to the firearm used in the homicide/attempted homicide.

The Supreme Court clarified that K.S.A. 60-455 did not apply at all because the evidence—carefully sanitized at trial—did not depict Brown’s commission of a prior crime or civil wrong on a specified occasion. It simply showed his contact with a cartridge casing at an earlier time. Admissibility therefore turned on ordinary relevance and undue-prejudice balancing. The evidence was:

  • Material (identity of the shooter was a disputed, consequential fact),
  • Probative (ballistics match plus DNA tied Brown to the murder weapon), and
  • Not unduly prejudicial (sanitized to omit any suggestion of prior wrongdoing; a limiting instruction confined its use to identity).

The Court also noted that the State may present cumulative evidence to corroborate a key witness (here, Richard) and to tell the story of the case. No abuse of discretion occurred in admitting the evidence.

Impact and Practical Consequences

  • Proof of “Marijuana” without THC Testing: Prosecutors can rely on circumstantial and lay testimony to establish “marijuana” for offenses predating or paralleling hemp-related statutory schemes. Lab testing for THC is not a legal prerequisite. This may streamline prosecutions where seized substances are unavailable or testing is impracticable.
  • Defense Strategy on Exceptions: Because the State need not negate the statutory exceptions (e.g., industrial hemp), defendants who wish to leverage those exceptions should be prepared to adduce evidence and argue the reasonable possibility that the substance falls within an exception.
  • “Distribution” Encompasses Attempted Transfer and Offers: Drug prosecutions should not falter for lack of a completed exchange. Arranging a sale, appearing with product, and commencing negotiations can suffice.
  • Felony-Murder Res Gestae in Drug-Deal Homicides: Kansas reaffirms a capacious continuous-transaction view. Even if the underlying felony appears “interrupted” (e.g., by a fight, by abandonment), the killing may still lie within the res gestae if the events are closely connected in time, place, and continuity of action. Expect this to feature prominently in “drug-deal-gone-bad” felony-murder theories.
  • Instructional Precision and Corrections: Trial courts that promptly acknowledge and correct a misstatement of the law—especially where jurors receive correct written instructions—can avoid reversible error. Defense objections should be timely to preserve ordinary error review, but where corrections occur, structural-error claims will be difficult to sustain.
  • Clarifying the Scope of K.S.A. 60-455: The Court’s reminder that 60-455 evidence requires a prior “crime or civil wrong on a specified occasion” helps litigants and trial judges avoid mislabeling neutral forensic links as propensity evidence. Where the State keeps the record free of any underlying wrongdoing (e.g., omitting the “stolen” nature of a vehicle), such evidence should be analyzed under general relevance and K.S.A. 60-445 balancing, with limiting instructions as appropriate.

Complex Concepts Simplified

  • “Marijuana” vs. THC: Kansas defines marijuana by reference to parts and derivatives of the cannabis plant. The law does not require proof of THC content to prove a substance is marijuana. THC presence can be relevant evidence but is not an element the State must prove.
  • Industrial Hemp Exception: Hemp is cannabis with ≤0.3% delta-9 THC (dry weight). It is a statutory exception, but the State is not required to disprove all exceptions in its case-in-chief. The defense can raise the exception as part of reasonable-doubt strategy.
  • “Distribution” Defined: Distribution includes attempted transfers and offers for sale. You can be guilty of “distribution” without completing a handoff or accepting payment if you meaningfully attempt a transfer or offer drugs for sale.
  • Felony-Murder Res Gestae (Continuous Transaction): The killing and the felony need not be simultaneous. If they are part of one continuous sequence closely connected in time, place, and action, the killing falls within the felony’s res gestae—even if the felony has just succeeded, failed, or been interrupted.
  • Structural Error vs. Corrected Misstatement: Structural errors destroy the trial’s framework (e.g., a fundamentally wrong reasonable-doubt instruction). A brief misstatement promptly corrected, with accurate written instructions, is not structural error and is generally not error at all.
  • K.S.A. 60-455 (Other Wrongs): This rule applies only to evidence that the defendant committed a prior crime or civil wrong on a particular occasion. If the evidence merely links the defendant to a weapon or casing without suggesting a prior wrong, 60-455 does not apply; use the ordinary relevance and prejudice test.

Conclusion

State v. Brown clarifies several doctrinal points that will resonate throughout Kansas criminal practice. Most prominently, it cements that the State need not present THC testing to prove a substance is marijuana and that “distribution” encompasses attempted transfers and offers for sale. The Court’s robust, continuous-transaction view of felony-murder res gestae confirms that homicides arising from drug transactions are within the rule even when the exchange is aborted or interrupted, provided the events are closely linked in time, place, and continuity of action.

The opinion also provides pragmatic guidance for trial management: deviations from PIK should rest on case-specific legal necessity, a slip of the tongue can be cured by prompt correction and accurate written instructions, and 60-455 does not extend to neutral forensic linkages that do not implicate prior wrongdoing. Together, these holdings reinforce evidentiary and instructional rigor while enabling fact-finders to consider the full, coherent narrative of criminal episodes. Brown’s convictions were properly affirmed; the decision will shape how Kansas prosecutions and defenses approach proof of marijuana offenses, drug-distribution predicates to felony murder, and the evidentiary architecture supporting identity and intent in violent crime cases arising from drug deals.

Case Details

Year: 2025
Court: Supreme Court of Kansas

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