State v. Bagemehl, 47072

• Decision Date: 03 November 1973
• Docket Number: No. 47072,47072
• Citation: 515 P.2d 1104,213 Kan. 210
• Parties: , 62 A.L.R.3d 103 STATE of Kansas, Appellee, v. Keith M. BAGEMEHL, Appellant.
• Court: Kansas Supreme Court

Page 1104

515 P.2d 1104

213 Kan. 210, 62 A.L.R.3d 103

STATE of Kansas, Appellee, v. Keith M. BAGEMEHL, Appellant.

No. 47072.

Supreme Court of Kansas.

Nov. 3, 1973.

Syllabus by the Court

1. The defense of entrapment presents to the trier of fact the question of defendant's intent and predisposition to commit the crime charged.

2. The purpose of K.S.A.1972 Supp. 21-3210 is not the punishment of improper law enforcement methods.

3. 'Criminal purpose' as used in K.S.A.1972 Supp. 21-3210(a) connotes only a general intent or purpose to commit the crime when an opportunity or facility is afforded for the commission thereof, rather than an intent to commit a specific crime.

4. The extent of government activity in soliciting the crime charged is weighed by the jury against defendant's willingness to comply, and other evidence of predisposition to determine whether defendant originated the criminal purpose or was entrapped.

5. An accused can rely on the defense of entrapment when he is induced to commit a crime which he has no previous disposition to commit; however, he cannot rely on the defense when he originated a criminal purpose and was merely afforded an opportunity by law enforcement officers to consummate the crime, (following State v. Houpt, 210 Kan. 778, 504 P.2d 570, Syl. 1).

6. The meaning of a statute is gleaned from the words of the statute itself and only if that language is ambiguous does the court look to extrinsic evidence for aid in construction.

7. The so-called 'best evidence' rule applies to evidence of the contents of writings only. (K.S.A. 60-467.)

8. Hearsay evidence, if admissible under an exception, is not incompetent even though direct evidence of the same fact is available.

9. In a prosecution for the unlawful sale of a narcotic drug the record is examined and it is held: The defense of entrapment was not established as a matter of law and defendant's motio for acquittal was properly overruled.

Charles S. Arthur, III, of Arthur, Green & Arthur, manhattan, argued the cause, and Richard H. Seaton of Everett & Seaton, Manhattan, was with him on the brief for appellant.

James W. Morrison, County Atty., argued the casue, and Vern Miller, Atty. Gen., and Harlan W. Graham, Asst. County Atty., were with him on the brief for appellee.

OWSLEY, Justice:

Defendant Keith Bagemehl appeals from conviction and sentence of two to ten years on one count of sale of cocaine inviolation of K.S.A.1971 Supp. 65-2502 (now K.S.A. 65-4124).

The essential facts are not in dispute. Defendant was approached by William Childers while playing pool at Canterbury Court Recreation Center in Manhattan and asked if he had any drugs for sale. Childers at that time was working as an undercover narcotic agent supervised by Officer Larry Woodyard of the Manhattan police. Defendant told Childers he did not have any drugs on him, but Pete (Thrower) had some cocaine for sale at another location. Childers left, ostensibly to get some gasoline for his car, and met with Woodyard for further instructions. He returned to Canterbury Court and suggested to defendant they go find Pete. Defendant, his female companion, and Childers drove to International House where defendant and Pete lived. Officer Woodyard followed in another car. At International House defendant went in and came out again accompanied by Pete Thrower, who produced foil-wrapped packets of a whitish powder for Childers' inspection. Pete declared to Childers they contained high grade cocaine. Childers purchased one packet, put it in his wallet, and paid Pete $10.00 for it in two five-dollar bills. Pete then handed one of the five-dollar bills to defendant in the back seat of the car, and said, 'Now we can go eat.' They asked Childers to take them to a restaurant, but he refused, going instead to meed Officer Woodyard and turning his purchased drugs over to him. Woodyard initialed the packet and placed it in a plastic wrapper which he labeled for identification. A K.B.I. chemist later identified the substance and testified it was cocaine.

Defendant pleaded entrapment as his sole defense and contends his motion for acquittal should have been sustained because the defense was not successfully rebutted by the state, and entrapment was proved as a matter of law.

The defense of entrapment was established at common law in Kansas in State v. Reichenberger, 209 Kan. 210, 495 P.2d 919, and codified in 1970. K.S.A.1972 Supp. 21-3210 provides:

'A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:

'(a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or

'(b) The crime was of a type which is likely to occur and recur in the course of such person's business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.'

Defendant contends if there is any police solicitation of the specific crime charged, then the criminal purpose did not originate with the defendant, and subsection (a) is not available to the state to overcome the defense of entrapment. Defendant argues police solicitation automatically proves lack of specific intent on the part of defendant to commit the crime with which he is charged. In that event, defendant argues, the state must prove general intent to commit crime by proving the defendant is in the business of selling drugs and the crime was of a type which is likely to occur and recur in the course of that business as provided in subsection (b). Not having proved defendant was in the business, defendant contends entrapment was established as a matter of law and his motion for acquittal should have been sustained. Defendant bases his interpretation of K.S.A.1972 Supp. 21-3210 on the Judicial Council comment following the text of the statute. It focuses the inquiry raised by the defense of entrapment on the police activity which instigated the crime with which defendant is charged. The theory of the comment is that improper law enforcement methods should be penalized, and depriving the government of ill-gotten fruit, as in cases of illegally obtained evidence, is a proper penalty.

A similar arguement was presented in State v. Houpt, 210 Kan. 778, 504 P.2d 570. We disposed of defendant's contentions in that case and the decision controls the issue raised here. We said:

'In Reichenberger the history of the defense of entrapment was chronicled, and for the first time, in this jurisdiction, entrapment was recognized as a legal defense in a factual situation involving the sale of contraband such as narcotics or illicit intoxicating liquor. In Reichenberger we said that uncensorable solicitation by a police officer met with ready and willing compliance by the actor is generally accepted as evidence of previous criminal intention. Instead of a showing of the existence of previous criminal...