dissenting: I respectfully dissent because I disagree with the majority’s holding that tire State presented sufficient evidence to sustain Rudy Delarosa’s conviction of possession of marijuana and/or its active ingredient, tetrahydrocannabinol (THC).
Delarosa concedes that there was sufficient evidence to show that he possessed THC. Yet, he contends that the evidence was insufficient to convict him of possession of marijuana. The State charged Delarosa with possession of marijuana and/or THC based on a blue metallic pipe discovered by police in a grassy area where Delarosa, along with a group of other people, had gathered around a car.
As the majority notes, the State’s chemist testified that the residue recovered from the pipe tested positive for THC. Nevertheless, he did not testify that the substance recovered from the pipe was marijuana. The majority, however, contends that the testimony of the chemist, along with Delarosa’s admission that he threw away a “roach,” which is commonly referred to as the last bit of a marijuana cigarette, proves that Delarosa possessed marijuana. Yet, the State never introduced any evidence of a discarded marijuana cigarette. Moreover, none of the seven or eight people who had gathered around the car claimed ownership of the pipe.
The majority asserts that because Delarosa was standing in close proximity to a car in which a plastic baggy of marijuana was found, this shows Delarosa’s possession of marijuana. The State, however, did not charge Delarosa with possession of the marijuana recovered from the car. The State probably did not charge Delarosa with the marijuana found in the car because he was not the car’s owner. The majority also points to the fact that Delarosa had admitted to smoking marijuana earlier as evidence of Delarosa’s possession of marijuana. Yet, a person could smoke marijuana and not later be in possession of marijuana or possession of drug paraphernalia. Thus, it would be a logical non sequitur to conclude that because a person previously smoked marijuana, the person would later possess either marijuana or drug paraphernalia. See State v. Flinchpaugh, 232 Kan. 831, 834, 659 P.2d 208 (1983) (“Once a controlled substance is within a person’s system, the power of tire person to *260control, possess, use, dispose of, or cause harm is at an end. The drug is assimilated by the body.”). Similarly, once Delarosa ingested (by smoking) the marijuana into his system, his power to possess the illegal substance was at an end.
The evidence at trial proved possession of only THC, not marijuana; thus, the evidence was insufficient to sustain Delarosa’s conviction of possession of marijuana.
My dissent also relates to matters concerning the complaint/information and the juiy verdict form. Although neither party addresses the problem with the complaint/information and juiy verdict form, it involves a question of duplicitous charges. Duplicitous charging is the joining of two or more distinct and separate offenses in a single count. State v. Anthony, 242 Kan. 493, 497, 749 P.2d 37 (1988). The risk behind a duplicitous charge is that a juiy may convict the defendant without unanimous agreement on a particular offense.
When Delarosa was convicted, the crime of possession of a hallucinogenic drug was set out under K.S.A. 2008 Supp. 65-4162(a)(3). K.S.A. 2008 Supp. 65-4162(a)(3), in part, read as follows; “(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to possess or have under such person’s control: ... (3) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105 and amendments thereto or designated in subsection (g) of K.S.A. 65-4109 and amendments thereto.” K.S.A. 2008 Supp. 65-4105(d)(16) designates marijuana as a hallucinogenic drug. K.S.A. 2008 Supp. 65-4105(d)(24) designates THC as a hallucinogenic drug.
Count 1 of the State’s complaint/information charged Delarosa with possession of marijuana and THC;
“That on or about the 4th day of June 2009 in Finney County, Kansas, Rudy Delarosa . . . did unlawfully and intentionally possess, or have under the defendant’s control a hallucinogenic drug, to-wit: Marijuana and/or its active ingredient, Tetrahydrocannabinol, a Schedule I drug as listed in K.S.A. 65-4105(d)(16) and (24), in violation of K.S.A. 65-4162(a)(3), Possession of Marijuana, a severity level 4 drug felony.”
The juiy instructions, which were read into the record by the trial court, differed from the complaint/information because they *261referred to only possession of marijuana. The jury instruction for Delarosa’s possession charge stated the following:
“The defendant is charged with the crime of unlawfully possessing marijuana. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant possessed marijuana;
2. That the defendant did so intentionally; and
3. That is act occurred on or about the 4th day of June, 2009, in Finney County, Kansas.”
But the jury verdict form, which was read into the record by the trial court, followed the language of the complaintdnformation: “We, the jury, find the defendant guilty of intentionally possessing marijuana and/or its active ingredient, tetrahydrocannabinol, as charged in count I.”
Because possession of marijuana and THC are distinct offenses, count one of the State’s complaint obviously is duplicitous, i.e., count one charges two separate and distinct offenses in a single count. Therefore, the question here is whether the duplicitous charge was harmless error.
In answering this question, we draw guidance from Anthony. In Anthony, the defendant appealed from his conviction of possession of cocaine. On appeal, Anthony argued that the State’s complaint was duplicitous and therefore defective. The State’s complaint charged Anthony as follows:
“ ‘That on or about tire 3rd day of January, 1986, the said BILLY JOE ANTHONY, within the above and within County and State, then and there being, did then and there contrary to die statutes of the State of Kansas unlawfully, willfully, intentionally and feloniously possess or, in the alternative, possess with intent to sell, cocaine, a narcotic drug, after being previously convicted of possession of cocaine on September 9, 1985, in Barton County, Kansas, in violation of K.S.A. 65-4127a.’ ” 242 Kan. at 497.
Our Supreme Court held that the charging of two offenses in the alternative in one count of the complaint was error, but in that case the error was harmless. 242 Kan. at 497-98. The Anthony court determined the error was harmless because the duplicitous charge did not confuse the defendant or the jury. 242 Kan. at 497-98. The Anthony court reasoned:
*262“[I]t is clear Mr. Anthony was apprised of the offenses against which he would have to be prepared to defend. The jury could not have been confused by the complaint because it did not see it. It only saw the instructions, and it was specifically instructed it could not find the defendant guilty of both possession and possession with intent to sell.” 242 Kan. at 497.
The duplicitous charge in this case is not harmless error because the facts of this case are distinguishable from Anthony. Unlike Anthony where the jury did not see the duplicitous charge, the jury here saw the duplicitous charge because it was contained in the jury verdict form. Moreover, unlike Anthony where the court specifically instructed the juiy that it could not find the defendant guilty of both possession and intent to sell, the trial court in this case did not instruct the jury that it could not find Delarosa guilty of both possession of marijuana and possession of THC.
In fact, the jury instructions do not clarify this confusion. Instead, the instructions cause more confusion. As mentioned earlier, the jury instructions, which were read into the record, do not mention THC. But count one of the State’s complaint/information and the jury verdict form contained the duplicitous charge—that De-larosa possessed THC and/or marijuana. The jury instructions, coupled with the jury verdict form, were ambiguous because after the jury was instructed that it had to find whether Delarosa possessed marijuana, the jury verdict form required the jury to determine whether Delarosa possessed marijuana and/or THC. Moreover, this jury verdict form was later signed by the presiding juror, stating the jury’s finding of guilt.
The State’s decision to use the conjunction “and/or” in its complaint/information adds a great deal of uncertainty to this case. For example, the “and” component in the jury verdict form states that Delarosa was convicted of both possession of marijuana and possession of THC. The “or” component, on the other hand, states that Delarosa was convicted of either possession of marijuana or possession of THC. This sort of vague language is strongly disfavored:
“It is manifest that we are confronted with the task of first construing ‘and/or,’ that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of some one [sic] too lazy or too dull to express *263his precise meaning, or too dull to know what he did mean, now commonly used by lawyers ... through carelessness or ignorance or as a cunning device to conceal rather than express meaning . . . Employers Mut. L. Ins. Co. v. Tollefsen, 219 Wis. 434, 437, 263 N.W. 376 (1935).
Moreover, the Tenth Circuit Court of Appeals had this to say about the conjunction “and/or”:
“The government’s decision to use the conjunction ‘and/or’ in the indictment adds a great deal of uncertainty to this case. Such vague language is strongly disfavored. . . . [Cjourts have repeatedly stated when the government uses such ambiguous language in the indictment, the only way to prevent confusion at sentencing and on appeal is to instruct the jury to render a special verdict which reveals on its face which of the criminal objectives it found the government proved at trial. [Citations omitted.]” United States v. Bush, 70 F.3d 557, 562 (10th Cir. 1995).
Here, the trial court did not instruct the jury to render a verdict indicating which criminal offense the State had proved. Thus, the use of “and/or” in the complaint/information and jury verdict form is confusing when considered with the jury instructions, particularly the trial court’s failure to give an instruction for THC.
In summary, the complaint/information, jury instructions, and jury verdict form should read harmoniously. But they did not. Thus, it is impossible in this case to determine specifically of what offense Delarosa was convicted. As a result, I would reverse De-larosa’s conviction and remand the matter for a new trial on the issue of whether he was guilty of possession of marijuana or possession of THC.