State v. Griffin, 48220
| Decision Date | 11 December 1976 |
| Docket Number | No. 48220,48220 |
| Citation | 221 Kan. 83,558 P.2d 90 |
| Parties | STATE of Kansas, Appellee, v. Janice GRIFFIN, a/k/a Janice Thompson, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an appeal from a conviction for the unlawful sale of marijuana is examined, and as more fully set forth in the opinion, it is held the district court did not commit reversible error in its instructions to the jury in (1) refusing to define the term 'sale' (2) refusing to instruct on delivery of marijuana as a lesser included offense, and (3) failing to include the word 'intentionally' in its instruction on aiding and abetting.
Barry K. Gunderson, of Mangan, Dalton, Trenkle & Gunderson, Dodge City, argued the cause and was on the brief for appellant.
Terry J. Malone, Ford County Atty., Dodge City, argued the cause, and L. W. Behnke, Legal Intern, Ford County Attorney's Office, and Curt T. Schneider, Atty. Gen., were with him on the brief of appellee.
This is an appeal by defendant Janice Griffin a/k/a Janice Thompson from a conviction by jury trial of the crime of selling marijuana in violation of K.S.A. 65-4127b(b)(3).
The offense occurred on November 27, 1974, in Dodge City, Kansas. On that date, according to evidence presented by the state, the defendant and her companion Mike Tabor sold marijuana to K.B.I. Narcotics Division special agent Dale Finger. Following this transaction, both were charged with selling marijuana. Tabor pled guilty and was awaiting sentencing at the time of the defendant's trial.
At trial, the state's sole witness was special agent Finger. His account of the sale differed from the testimony of Tabor and the defendant, who testified in her own behalf. The jury apparently believed Finger.
According to Fingers testimony, the defendant was very much involved with the sale. Finger testified that she had the marijuana in her possession for part of the evening and handed it to him when he offered the money; that both she and Tabor used the pronoun 'we' in the conversation relating to the marijuana; and that she apologized for the small quantity of marijuana in the bags, telling Finger,
The testimony of the defendant and Tabor was to the effect that she had no involvement with the sale. According to their testimony, Tabor set the price, kept the money and passed it on to the owner of the marijuana. The defendant did not discuss a sale or sale price, did not handle the money and did not have the marijuana in her possession. No shipment was coming in, and none was discussed.
After the state and defense had rested their case, the court and counsel retired to chambers to take up matters relating to the instructions. Defense counsel objected to some instructions and requested additional instructions. The appellant's three specifications of error relate to the district court's overruling these objections and requests for additional instructions.
The appellant's first contention is that the district court's refusal to instruct on the definition of 'sale' substantially prejudiced her right to a fair trial.
The district court need not define every word or phrase in an instruction. Only where it appears that the instructions as a whole would mislead the jury or leave them to speculate should additional terms be defined. See State v. Sparks, 217 Kan. 204, 535 P.2d 901. A term which is widely used and which is readily comprehensible to the average person without further definition or refinement need not have a defining instruction. State v. Schoenberger, 216 Kan. 464, 532 P.2d 1085.
A 'sale' of drugs is given a much wider meaning than a 'sale' in the context of commercial law. Questions of the possession and passing of legal title, the existence of consideration, and who possessed the drugs sold are not regarded. A drug 'sale' encompasses such transactions as barter, exchange or gift, or offer therefore. State v. Nix, 215 Kan. 880, 529 P.2d 147; State v. Woods, 214 Kan. 739, 522 P.2d 967.
Instructing on the definition of a marijuana 'sale' would have been desirable since the term's meaning in this context varies somewhat from the commonly understood meaning of a commercial 'sale.' However, failure to so instruct was not prejudicial to the appellant. The commonly understood meaning of 'sale' as it is widely used encompasses a narrower range of transactions than a 'sale' of drugs. The absence of a defining instruction, therefore, was to the appellant's advantage. Failure to so instruct did not substantially prejudice the right of the appellant to a fair trial.
The appellant next contends the district court erred in not instructing on the offense of delivery of marijuana. K.S.A. 65-4127b(a)(3). The appellant argues delivery of marijuana is a lesser included offense of sale of marijuana; as such, under the evidence of this case, the district court had an affirmative duty to instruct on delivery.
The judge's duty to instruct on lesser included offenses is set out in K.S.A. 21-3107(3):
'In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.'
In Kansas, a crime may be a lesser included offense of the crime charged if it is: (1) a lesser degree of the same crime, (2) an attempt to commit the crime charged, (3) an attempt to commit a lesser degree of the crime charged, or (4) a crime necessarily proved if the crime charged were proved. K.S.A. 21-3107(2). Only the latter possibility appears applicable in the instant case. Delivery of marijuana would be a lesser included offense of sale of marijuana if it were necessarily proved upon proof of sale. If delivery of marijuana requires proof of an element not necessary to proof of sale of marijuana, it is not a lesser included offense of sale. See State v. Woods,214 Kan. 739, 522 P.2d 967; Note, The Doctrine of Lesser Included Offenses in Kansas, 15 Washburn L.J. 40 (1976).
'Delivery' is defined in K.S.A. 65-4101(g) as '. . . the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.' In State v. Nix, supra, we stated we were not constrained to restrict the...
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