State v. Evans

• Decision Date: 10 April 1976
• Docket Number: No. 48020,48020
• Citation: 219 Kan. 515,548 P.2d 772
• Parties: STATE of Kansas, Appellee, v. Larry W. EVANS, Appellant.
• Court: Kansas Supreme Court

Page 772

548 P.2d 772

219 Kan. 515

STATE of Kansas, Appellee, v. Larry W. EVANS, Appellant.

No. 48020.

Supreme Court of Kansas.

April 10, 1976.

Syllabus by the Court

1. If a lesser offense is to be considered a lesser included offense under the law, all elements necessary to prove the lesser crime must be present and be required to establish the elements of the greater crime charged.

2. The crime of delivery of a controlled substance as proscribed by K.S.A.1975 Supp. 65-4127b(a) is not a lesser included offense of possession of a controlled substance with intent to sell as proscribed by K.S.A.1975 Supp. 65-4127b(b)(1).

3. Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. It is only necessary that the evidence lead the officer to believe that guilt is more than a possibility.

4. In an appeal from a conviction of possession of a controlled substance with intent to sell (K.S.A.1975 Supp. 65-4127b(b)(1)), the record is examined and it is held: The trial court did not err (1) in its instructions to the jury; (2) in finding the state had presented a prima facie case of possession with intent to sell; and (3) in refusing to suppress evidence obtained as the result of a consensual search of defendant's automobile.

William L. Winkley, Salina, argued the cause, and Ben A. Sellers, Jr., Salina, was with him on the brief for appellant.

James L. Sweet, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

OWSLEY, Justice:

This is an appeal by defendant Larry W. Evans from a conviction of possession of a controlled substance with intent to sell, in violation of K.S.A.1975 Supp. 65-4127b(b)(1).

On September 5, 1974, Sam Fields, proprietor of the Walgreen Drug Store in Salina, Kansas, noticed two black males, one of whom was defendant, in the front of his store asking the clerks to demonstrate various items. At the same time Fields observed a third black male, later identified as Rance Beasley, in the rear of the store behind the prescription drug counter. When Beasley saw Fields looking at him he immediately ducked down behind the counter. Fields went to the back of the store and confronted Beasley near the rear door. When asked what he was doing, Beasley denied having been behind the counter and emptied his pockets for Fields to check. Fields then told Beasley he was going to call the police and as he did so Beasley left the store. When defendant and the other man saw what was happening they left the store by the front door. Fields reported a possible attempted drug theft to the police.

Shortly thereafter, Beasley was stopped by police officers at a nearby service station on the basis of the description given by Fields. Defendant and the other man arrived a few minutes later and all three men were questioned by the officers. They told the officers they all came to Salina in defendant's car which was parked inside the service station. According to the officers, the men gave conflicting stories as to their respective occupations and where they were going. The three men, together with defendant's automobile, were taken to the police station and turned over to the detective division for questioning. After having been advised of his constitutional rights defendant signed a consent to search form giving the police permission to search his car. Defendant told the police they would find drugs in the car and that they belonged to him. The search was conducted and in the spare tire cavity of the automobile the police found a paper bag and two bottles containing capsules of secobarbital and pentobarbital, both controlled substances under the Uniform Controlled Substances Act, K.S.A.1975 Supp. 65-4101, et seq. On the basis of this evidence defendant was charged by information with the offense of misdemeanor possession of pentobarbital and secobarbital (65-4127b(a)(1)) and the felonious possession with intent to sell pentobarbital and secobarbital (65-4227b(b)(1)). The misdemeanor count was later dismissed at the request of the state.

At trial, defendant testified that he received the drugs from his brother's friend in Denver and that he had agreed to take them to his brother in Arizona. Defendant claimed he received no compensation, but he was only delivering the drugs. He disclaimed any intent to sell the drugs. At the conclusion of the presentation of evidence the trial court instructed the jury on the elements of the charge of possession with intent to sell, as well as the lesser included offense of possession of a controlled substance. Defendant requested the court to instruct the jury on the offense of delivery of controlled substances. The trial court refused. Defendant assigns the court's refusal to so instruct as his first point of error.

The trial court has the duty to instruct the jury not only as to the crime charged in the information, but also as to such lesser offenses included therein as may be justified by the evidence. (State v. Clark, 214 Kan. 293, 521 P.2d 298; K.S.A. 21-3107(3).) Defendant contends if there was any evidence of a 'delivery' the trial court was obligated to instruct on the elements of that offense. We believe defendant has misconstrued the nature of a lesser included offense.

K.S.A. 21-3107(2) defines a lesser included crime in the following language:

'Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

'(a) A lesser degree of the same crime;

'(b) An attempt to commit the crime charged;

'(c) An attempt to commit a lesser degree of the crime charged; or

'(d) A crime necessarily proved if the crime charged were proved.'

If a lesser offense is to be considered a lesser included offense under the law, all elements necessary to prove the lesser crime must be present and be required to establish the elements of the greater crime charged. If each is a separate and distinct offense, requiring proof of an element not necessary in the other, then neither can be a lesser degree of the other offense. (State v. Woods, 214 Kan. 739, 522 P.2d 967.)

Defendant was charged with the unlawful possession of controlled substances with intent to sell. The elements of that offense, as instructed by the court, are: (1) That defendant had in his possession or under his control pentobarbital and secobarbital; (2) that he willfully and knowingly possessed said drugs; and (3) that he did so with intent to sell. Violation of the offense is a class D felony. The unlawful delivery of a controlled substance is prohibited by K.S.A.1975 Supp. 65-4127b(a). A violation of that offense is considered a class A misdemeanor. A 'delivery' is defined in 65-4101(g) as:

'Deliver' or 'delivery' means the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.'

It is evident from the statutory definition that the unlawful delivery of controlled substances has as one of its essential elements the actual, constructive or attempted 'transfer.' The element of transfer, however, is not a necessary element of the offense of possession with intent to sell. Neither is possession or intent to sell a necessary element of delivery. (See, State v. Grady, 215 N.W.2d 213 (Iowa 1974).) It follows that possession with intent to sell and delivery are separate and distinct offenses. Delivery is not a lesser included offense of possession with intent to sell. Accordingly, we hold the trial court did not err in refusing to give defendant's requested instruction on delivery. For cases from other jurisdictions consistent with this holding, see: United States v. Costello, 483 F.2d 1366 (5th Cir. 1973); State v. Ruiz, 127 N.J.Super. 350, 317 A.2d 403; and State v. Nelsen, 228 N.W.2d 143 (S.Dak.1975).

In view of the foregoing conclusion it is not necessary for us to discuss defendant's complaint as to the trial court's failure to give an instruction on the definition of 'delivery.' In addition, defendant now concedes the trial court did not err in refusing to give his requested instruction on the definition of a 'sale.' Defendant sought to have the court instruct the jury in accordance with the accepted commercial definition of 'sale', which is defined in Black's Law Dictionary, Rev. Fourth Ed., p. 1503, as 'a contract whereby property is transferred from one person to another for a consideration of value.'

In State v. Woods, supra, we disapproved of the use of the definition of 'sale' normally given it in the context of commercial law. That case arose under the now repealed Uniform Narcotic Drug Act (formerly K.S.A. 65-2501, et seq. (Corrick)), which defined 'sale' as follows:

'Sale' includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.' (K.S.A. 65-2501 (10) (Corrick).)

The Uniform Narcotic Drug Act has since been replaced with the Uniform Controlled Substances Act (K.S.A.1975 Supp. 65-4101, et seq.), which does not include a definition of 'sale.' However, in the recent case of State v. Nix, 215 Kan. 880, 529 P.2d 147, we discussed the meaning of "sale' as used in the new act and indicated our approval of the former statutory definition. We said:

'. . . The appellant in the case at bar was prosecuted under the new act entitled 'Uniform Controlled Substances Act' (K.S.A. 65-4101 et seq.), which does not define 'sale'. However, we are not constrained to restrict the definition discussed in State v. Woods, supra. Assuming the appellant's version of the facts, the transaction between Eckhart and the appellant nevertheless constituted a 'sale'. Whether or not the appellant possessed legal title to the marijuana, or received any consideration in return for the transfer is immaterial.' (p....