State v. Lafleur

122 P.3d 831, 34 Kan. App. 2d 652, 2005 Kan. App. LEXIS 1150
CourtCourt of Appeals of Kansas
DecidedNovember 18, 2005
DocketNo. 92,886
StatusPublished

This text of 122 P.3d 831 (State v. Lafleur) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lafleur, 122 P.3d 831, 34 Kan. App. 2d 652, 2005 Kan. App. LEXIS 1150 (kanctapp 2005).

Opinion

PlERRON, J.:

Scott G. Lafleur appeals his jury trial convictions for the sale of methamphetamine and the unlawful use of a communication facility. We affirm.

On December 4, 2003, Lafleur was charged with the sale of methamphetamine, in violation of K.S.A. 65-4161; possession of methamphetamine without drug tax stamps affixed, in violation of K.S.A. 79-5204; possession of drug paraphernalia, in violation of K.S.A. 65-4152(a)(2); and unlawful use of a communication facility, in violation of K.S.A. 65-4141.

[653]*653These charges stemmed from events which occurred on July 31, 2003.

Kamisha Hill testified that her home was the subject of a search warrant on July 17, 2003. She was arrested and questioned about drug activity. Subsequently, Hill entered into an agreement with the police department’s drug task force (DTF) to provide information and complete controlled drug buys related to further investigations. The DTF did not provide her with a name or targeted individual; however, she was able to provide them with the name of Scott Lafleur, “a longtime friend.” On the night in question, she contacted Lafleur on his cell phone. They briefly discussed her buying an “8-ball” of illegal drugs from him for $300.

Hill contacted Investigator Watkins of the DTF and told him about her conversation with Lafleur. She met with DTF members to be searched and wired. The DTF also provided her with $300 for the controlled buy. Hill called Lafleur’s cell phone a second time, but his girlfriend, Amber Gray, answered. Lafleur then got on the phone and suggested a place and time for them to meet.

Approximately 10 minutes later, Hill drove to the Petro 2 station and met Lafleur and Gray. Hill approached the driver’s side of Lafleur’s vehicle and spoke to Lafleur. Lafleur asked Hill about the hat she was wearing and suggested that Hill was a “narc.” Hill told him if he did not trust her to “forget it.” At that time, Gray got out of Lafleur’s car and into Hill’s vehicle, saying she needed barbecue sauce from a fast food restaurant’s drive-through. Hill did as Gray requested and, between the drive-through’s windows, Gray handed Hill a ziploc bag in exchange for the $300. Gray then had Hill “drive around a bit.” Lafleur had remained in his vehicle throughout this time. Gray got out of Hill’s car and Hill went directly to meet DTF officers.

Lafleur had a contrary version of the events of July 31, 2003. Lafleur claimed he was driving around with Gray, who was just a friend he gave rides to when needed, when Hill called his cell phone. Lafleur did not know what Hill wanted because she was acting “in a strange way.” Gray suggested they “go see what [Hill] wants,” so Lafleur drove to the Petro 2 station. He claims it was not his idea to meet Hill.

[654]*654Lafleur and Gray went through the fast food restaurant’s drive-through to get food. Gray got out of Lafleur’s car to complete her food order, which lacked barbecue sauce. Hill had parked next to them. Gray got into Hill’s car, leaving Lafleur to sit in his car to wait until she came back. Lafleur drove around until Hill pulled next to his vehicle again, Gray got out of Hill’s car, and Gray got back into Lafleur’s car. Lafleur testified, “[Hill] drove off and we drove off.” Lafleur contended he did not know Gray was going to sell drugs to Hill and claimed innocence.

The contents of the' ziploc bag purchased that night were determined to be 2.56 grams of methamphetamine. Lafleur’s trial was held on March 10, 2004, at which time Hill and Lafleur testified as stated above. The events were also described by Investigator Watkins, such as the second phone call Hill made to Lafleur on the evening in question and what occurred at the Petro 2 station.

In addition to Lafleur’s testimony for the defense, Hill’s brother testified that he talked with Hill after Lafleur’s arrest and Hill stated she did not know why Lafleur was in jail. He claimed Hill said the “deal was done with [Gray].” This testimony was rebutted by Hill.

At the close of testimony, prior to the jury instructions conference, die trial court dismissed the possession of methamphetamine without a drug tax stamp and tire possession of drug paraphernalia charges. There was no request for an entrapment instruction. Lafleur’s closing argument set forth his theory of defense to be Hill’s lack of reliability and credibility and tire lack of any other evidence of Lafleur’s knowing involvement in the drug sale. In other words, he did not do it. The jury received instructions regarding informant testimony and an instruction regarding Lafleur’s guilt if they believed he had assisted or promoted Gray’s crime in selling Hill the drugs. The jury convicted Lafleur of the sale of methamphetamine and the unlawful use of a communication facility.

On March 11, 2004, Lafleur filed a motion to arrest judgment based upon the following charging document:

“Comes Now Ellen Mitchell, Saline County Attorney, for and on behalf of the State of Kansas, and gives the Court to understand and be informed that in Saline County, Kansas, on or about July 31, 2003, one SCOTT GENE LAFLEUR and [655]*655AMBER NICOLE GRAY did then and there unlawfully, willfully, and feloniously sell a stimulant drug, to wit: methamphetamine.
K.S.A. 65-4161 (Sale of Methamphetamine)
Level 3D Felony (Sentence Range 14-51 months)”

Lafleur argued that the element of intent to sell methamphetamine was missing in the complaint, making the complaint fatally defective.

A hearing was held on the motion prior to Lafleur s sentencing. After argument, the trial court, citing K.S.A. 21-3201, concluded the State’s use of the word “willfully” was sufficient for the general intent crime of the sale of methamphetamine. All of Lafleur’s post-trial motions were denied. Based on his criminal history score of C, Lafleur was sentenced to 40 months for the primary crime of the sale of methamphetamine. Additionally, pursuant to K.S.A. 65-4141(c), he was sentenced to 8 months for a nondrug severity level 8, nonperson felony. The sentences were ordered to run concurrently.

On appeal, Lafleur argues there was a functional equivalent of a request for an entrapment instruction. Alternatively, he concedes the standard of review is whether the omission was clearly erroneous based on no request being made for the instruction.

“ Tt is well established that [an appellate] court reviews a trial court’s failure to give an instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission.’ [Citation omitted.]” State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert.

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Bluebook (online)
122 P.3d 831, 34 Kan. App. 2d 652, 2005 Kan. App. LEXIS 1150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lafleur-kanctapp-2005.