State v. Moore

782 P.2d 497, 120 Utah Adv. Rep. 10, 1989 Utah LEXIS 135, 1989 WL 128038
Utah Supreme Court·Decided October 25, 1989·No. 870470·Published·Cited by 22 cases

Opinions

HOWE, Associate Chief Justice:

Defendant Lonnie L. Moore appeals from a first degree felony conviction by a jury for distribution of a controlled substance for value within 1,000 feet of a public school in violation of Utah Code Ann. § 58 — 37—8(l)(a)(ii) (Supp.1986) and was given an enhanced sentence pursuant to Utah [499] Code Ann. § 58-37-8(5)(a)-(d) (Supp.1986) of not less than five years and which may be for life.1

On September 16, 1986, defendant met narcotics and liquor law enforcement agent Don A. Kelley (“agent”) in defendant’s home in Moab, Utah. Daniel J. Ward (“confidential informant”) introduced them and was present. The confidential informant offered to buy narcotics from defendant, and defendant stated that it would cost $275. The agent and the confidential informant paid that amount to him. Three of defendant’s friends witnessed the payment. That evening, defendant attempted to purchase from third persons “an eighth of crystal” of methamphetamine for his buyers. Unable to do so, he returned to his home. He next endeavored to purchase cocaine but was unsuccessful. He then suggested and it was agreed that he hold the money overnight and try to purchase methamphetamine the next morning.

Defendant met with the agent and the confidential informant the next day at approximately 2 p.m. at his home, which is in central Moab and is located within 1,000 feet of the Grand County Middle School. His home is 482 feet 7 inches from the middle school on one approach and 568 feet 7 inches on another. Defendant gave the confidential informant a “bindle” (a piece of paper folded in the shape of an envelope) of methamphetamine and requested a “line” (one usage) from the bindle. The confidential informant provided the line. Defendant told them that they could return later and purchase more controlled substances. Subsequently, defendant was charged, tried, and convicted.

On appeal, defendant complains: (1) the trial court committed reversible error in refusing to give his proposed instructions embodying his contention that he distributed drugs without receiving value, a lesser included offense; (2) the court should have found, as a matter of law, that he was entrapped; (3) Utah Code Ann. § 58-37-8(5) violates his due process rights guaranteed in the fifth and fourteenth amendments of the United States Constitution and article I, section 7 of the Utah Constitution by imposing an enhanced penalty for violations that take place within 1,000 feet of a school and violates the equal protection clauses of the fourteenth amendment to the United States Constitution and article I, section 24 of the Utah Constitution because of its unequal effect on residents of small towns; and (4) Utah Code Ann. § 58-37-8(5)(d) violates the due process clauses of the United States and Utah Constitutions by precluding the defense of lack of knowledge and by eliminating the mens rea requirement as to the proximity of the school and his distribution of narcotics. We shall consider these points seri-atim.

I

At trial, defendant requested that the following instructions be given defining what is not “distribution for value” within the statute under which he was convicted, section 58-37-8(l)(a)(ii):

Instruction No. 1
You are instructed that the voluntary sharing of an unlawful substance obtained from a third party by a narcotics officer or agent with a person who has obtained the substance for the officer or agent from the third party does not constitute “distribution for value” within the meaning of the statute.
Instruction No. 2
You are instructed that before you may find beyond a reasonable doubt that the defendant distributed methamphetamine for value, you must find that the defendant did more than simply make an accommodation call to obtain the methamphetamine on behalf of the narcotics officer or agent.

[500] These instructions were refused by the trial court.

Defendant also requested that his instruction No. 3 be given which stated, “[I]t is a lesser included offense to the crime included in the information for a person to commit the crime of distribution of a controlled substance without value.” This instruction was given in its entirety as the court’s instruction No. 6.

The court also instructed the jury as to the definition of “distribute” and “distribute for value.” Instruction No. 5 read:

In construing and interpreting these instructions, the following definitions shall apply:
A. “To distribute” means the actual, constructive or attempted transfer of a controlled substance to another person.
B. The meaning of the term “distribute for value” means to deliver a controlled substance in exchange for compensation, consideration, or item of value, or a promise therefor.

While a defendant is entitled to an instruction on his or her theory of the case, State v. McCumber, 622 P.2d 353, 359 (Utah 1980), he is not entitled to multiple instructions setting forth the same theory. State v. Miller, 727 P.2d 203, 206 (Utah 1986). The court adequately defined distribution for value in instruction No. 5. The court then did not need to define what is not value for purposes of the statute since any distribution which did not come within the definition of “for value” would be “without value.”

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State v. Moore, 782 P.2d 497, 120 Utah Adv. Rep. 10, 1989 Utah LEXIS 135, 1989 WL 128038 (Utah 1989).

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