State v. Brown , 8 Kan. App. 2d 715 ( 1983 )

Swinehart, J.:

This is an appeal by defendant Norman L. Brown from his jury conviction for sale of marijuana in violation of K.S.A. 65-4105 and 65-4127b(fc)(3). The facts in this case are relatively simple and are undisputed. A key prosecution witness at trial was Gary Wurm, a federal agent who allegedly bought marijuana from defendant while undercover. In his testimony, Wurm described the drug buy as follows:

“During the conversation with Mr. Brown I asked Mr. Brown if he had access to any marihuana. Mr. Brown stated yes, he had access to it, but he would have to have the money up front, and that once he had the money up front, he could obtain some marihuana for me.

“I asked Mr. Brown how much the marihuana would be. He said $40 an ounce. “I gave Mr. Brown $40 US currency, at which time Mr. Brown told me he would have to leave the immediate area of Shamrock Reconditioners and go to — he indicated the shop which was just adjacent to the Shamrock Reconditioning and to the south of it, which was a bicycle shop, and that he would have to give another individual the money and that that individual would in turn obtain the marihuana and bring it back.

“At that point Mr. Brown left the area of Shamrock, proceeded to the bicycle shop just adjacent. Approximately two minutes later Mr. Brown came back to Shamrock, at that point stated to me Sherri has gone to get the marihuana, I gave her the money, and something to that effect that Sherri would be returning with the marihuana because he had to give her the money and that she would return with it.”

Wurm then testified that codefendant Sherri Doss later appeared and handed him a bag, which undisputedly contained marijuana.

Defendant testified on his own behalf. He denied being involved in the drug sale and also testified that on the date of the offense, he had never met with Gary Wurm or codefendant Sherri Doss. He specifically testified that he did not take money from Wurm and he did not tell Wurm that Sherri would be back with the marijuana. Defendant testified that Wurm was either mistaken or lying to the court.

The trial court denied defendant’s requested instruction on the procuring agent defense as denoted in PIK Crim. 2d 54.14-A. The jury found defendant guilty and he now appeals.

Defendant contends that the trial court erred in denying his requested instruction. He relies primarily upon State v. Osburn, 211 Kan. 248, Syl. ¶¶ 1,2, 3, 505 P.2d 742 (1973), where.the court stated:

“Where possession of a substance, such as a narcotic, is unlawful a procuring agent for a purchaser may be convicted of unlawful possession thereof; but if he is an agent for a purchaser, and not for the seller, he is not guilty of an unlawful sale in procuring the unlawful substance.”

“In prosecution for the unlawful sale of a narcotic when the defense of ‘procuring agent’ is properly raised the decision as to whether the accused merely acted as a procuring agent of the buyer or was a seller of the narcotic to the buyer is a question of fact for the jury to determine from the evidence.”

“When the procuring agent theory has been properly raised by the evidence and a request for an instruction has been made by the accused a jury should be instructed that should the jury find the defendant merely acted as a procuring agent for the purchaser and not for or as the seller of the drugs the jury should find the defendant not guilty of selling the drugs.”

PIK Crim. 2d 54.14-A provides:

“The defendant is not guilty of a sale of_if the defendant acted only as a procuring agent for the purchaser. A procuring agent for the purchaser is a person who, by agreement with the purchaser, buys or procures an article or a substance from a third party at the request of and for the purchaser. The agreement may be written, oral or implied by the behavior of the parties.

“The defendant is not a procuring agent if the defendant acted as a seller or as an agent for a seller.”

Generally, in a criminal action it is the duty of the trial court to instruct the jury on the law applicable to the theories of both the prosecution and the accused so far as they are supported by any competent evidence. State v. Haynes, 5 Kan. App. 2d 144, 148, 612 P.2d 1268, rev. denied 228 Kan. 807 (1980).

The State maintains, however, that defendant is not entitled to the requested procuring agent instruction because he completely denied involvement in the crime. The State relies on the decision in State v. Einhorn, 213 Kan. 271, 515 P.2d 1036 (1973), which involved an entrapment instruction. In Einhorn, the defendant claimed he delivered marijuana which belonged to a friend to a narcotics agent, but denied that it was his or that he received money for the transaction. The State’s evidence showed he did accept money for the sale. In holding the trial court erred in refusing to give an entrapment instruction, the court stated:

“A defendant who refuses to admit any involvement in an incident out of which a criminal charge arises cannot use entrapment as a defense. A defendant who admits the acts charged by the state, but claims the acts fail to support a criminal charge, may raise entrapment as an additional defense. In situations where the defendant admits some involvement, but fails to admit all the facts alleged by the state, he may or may not be entitled to claim entrapment, depending on the degree of involvement he admits. Admission of substantial involvement would tend to permit the defense, while slight and limited admission would tend to deny the defense.” p. 273.

Since Einhorn admitted possession and transfer of the marijuana, it was held he was entitled to the instruction, notwithstanding his claim that he did not participate in a sale. The reason for the rule advanced in Einhorn is simply that a defendant must necessarily admit that he did the acts if he is going to contend that he was entrapped into doing them. State v. Farmer, 212 Kan. 163, 167, 510 P.2d 180 (1973). See also State v. Amodei, 222 Kan. 140, 563 P.2d 440 (1977).

We find that the reasoning behind the ruling in Einhorn is equally applicable to the present case and find Einhorn controlling. The procuring agent theory, like entrapment, is an affirmative defense. The invocation of it necessarily assumes that the act was committed. See generally 22 C.J.S., Criminal Law § 45(1). A defendant advancing that theory must admit to some involvement, since one cannot claim total lack of involvement and also maintain an agency relationship existed. At trial defendant presented a defense which specifically denied all involvement with the alleged activities. We find that he therefore is not entitled to an instruction which necessarily assumes that he was integrally involved in the subject activities. We hold that the trial court did not err in denying the requested instruction.

Affirmed.