State v. Arb

1

NOT DESIGNATED FOR PUBLICATION

No. 111,009

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KRISTINA M. ARB,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed September 11, 2015.
Reversed and remanded with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before LEBEN, P.J., HILL and ATCHESON, JJ.

Per Curiam: A jury sitting in Lyon County District Court convicted Defendant
Kristina Arb of distribution of oxycodone for selling some of her prescription medication
to a law enforcement operative. She has appealed based on multiple problems with the
instructions to the jury related to her defense of entrapment. We find that the combined
impact of two of the asserted deficiencies deprived her of a fair trial. We, therefore,
reverse the conviction and remand for a new trial.

2

In May 2011, a confidential informant working with a Lyon County Sheriff's
Department detective suggested he could buy prescription pain pills from Arb. The
informant had known Arb for years. Until then, the detective had not been investigating
Arb and had no particular reason to suspect her of drug trafficking. The detective had the
informant set up what they intended to be a controlled purchase of Percocet from Arb.
Percocet is a prescription painkiller combining oxycodone, a controlled narcotic, with
acetaminophen. The undisputed evidence at trial indicated Arb had legitimate
prescriptions for Percocet and other medications.

Law enforcement officers outfitted the informant with a body microphone,
searched him to make sure he had no drugs or other contraband, and gave him money to
buy Percocet from Arb. They watched as the informant entered a home where he and Arb
agreed to meet, and they listened as the transaction unfolded. The officers then tracked
the informant as he left the home and returned to their location. The informant turned
over 20 pills and some unused buy money. The pills contained oxycodone.

About 6 months later, the Lyon County Attorney's Office charged Arb with one
count of unlawfully distributing oxycodone, then a severity level 3 drug felony violating
K.S.A. 2010 Supp. 21-36a05(a)(1). The jury heard the case in a 2-day trial in mid-
February 2012. The detective, another law enforcement officer, the informant, Arb, and
several other witnesses testified.

Arb told the jurors the informant had contacted her a number of times about
buying her Percocet, and she had repeatedly refused until the preceding May, when she
needed the money to settle a payday loan she had taken out. On the recording of the
controlled purchase, Arb can be heard telling the informant, "I don't sell my pills." But
the informant testified he bought prescription painkillers from Arb in 2010. Arb and the
informant offered conflicting testimony as to which of them set the price for the Percocet
at the start of the controlled purchase. The recording isn't entirely clear on that point.
3


The district court instructed the jury on entrapment as an affirmative defense to the
charge. We discuss the instructions in analyzing Arb's points on appeal. The jury
convicted Arb as charged. The district court later sentenced her to 30 months in prison, a
downward departure from the presumptive guidelines range, and imposed postrelease
supervision for 24 months. Arb has appealed.

Arb raises three issues on appeal, all dealing with the jury instructions and her
entrapment defense. Entrapment is an affirmative defense to a criminal charge. State v.
Rogers, 234 Kan. 629, 630-31, 675 P.2d 71 (1984); see State v. Chavez, No. 108,955,
2014 WL 1795760, at *2 (Kan. App. 2014) (unpublished opinion) (noting entrapment to
be affirmative defense), rev. denied ___ Kan. ___ (April 28, 2015). If the evidence
bearing on an affirmative defense causes a jury to have a reasonable doubt about the
defendant's guilt, the defendant should be acquitted. See State v. Johnson, 258 Kan. 61,
66, 899 P.2d 1050 (1995) (self-defense); Chavez, 2014 WL 1795760, at *2 (entrapment).

At the time of Arb's offense, K.S.A. 21-3210 codified entrapment as a defense
when the defendant's "criminal conduct was induced or solicited by a public officer or his
agent for purposes of obtaining evidence to prosecute" the defendant. The defense has
since been recodified without material change in K.S.A. 2014 Supp. 21-5208. The district
court gave the following jury instruction on entrapment:

"Entrapment is a defense if the defendant is persuaded to commit a crime which
the defendant had no previous disposition to commit. It is not a defense if the defendant
conceived the plan to commit the crime or when she had shown a predisposition for
committing the crime and was merely afforded the opportunity to carry out her intention
to complete the crime and was assisted by law enforcement officers. The defendant
cannot rely on the defense of entrapment if you find that in the course of the defendant's
usual activities, the sale of Oxycodone was likely to occur and that law enforcement
officer or his agent did not mislead the defendant into believing her conduct to be lawful.
4


"The person's previous disposition or intention to commit a crime may be shown
by evidence of the circumstances at the time of the sale . . . setting of the price of the
Oxycodone by the defendant, solicitation by the defendant to make her sale, prior sales of
the defendant, or ease of access of the Oxycodone by the defendant."

The instruction parallels PIK Crim. 3d 54.14. The district court, however, did not give an
instruction comparable to PIK Crim. 3d 52.08 or PIK Crim. 4th 51.050 informing the jury
how to integrate evidence on an affirmative defense into its consideration of guilt in light
of the State's burden of proof. Either of those identical pattern instructions would have
educated the jury this way:

"The defendant raises [entrapment] as a defense. Evidence in support of this defense
should be considered by you in determining whether the State has met its burden of
proving that the defendant is guilty. The State's burden of proof does not shift to the
defendant." PIK Crim. 3d 52.08; PIK Crim. 4th 51.050.

On appeal, Arb first says the entrapment instruction given the jury was prejudicial
because it used the word "persuaded" in the first sentence in place of "solicited," the
actual statutory term. She next faults the instruction for including "ease of access" as a
factor the jury should consider in weighing whether a defendant has a disposition to
commit a drug crime when the offense involves medication for which he or she has a
valid prescription. Finally, she argues the district court's failure to include either PIK
Crim. 3d 52.08 or PIK Crim. 4th 51.050 in the instruction left the jury adrift in assessing
the evidence of entrapment against the State's obligation to prove her guilty beyond a
reasonable doubt. We take those points in order and consider Arb's additional argument
for reversal based on cumulative error.

In State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012), the Kansas
Supreme Court outlined the analytical steps an appellate court should take in assessing a
5

challenge to jury instructions in a criminal case: (1) reviewability considering
preservation of the issue at trial and jurisdiction; (2) legal appropriateness of the
instruction; (3) factual support in the evidence for the instruction; and (4) harmlessness of
any actual error. See State v. Brown, 300 Kan. 542, 554-55, 331 P.3d 781 (2014). The
lawyer representing Arb at trial made no objections to the instructions raising any of the
points she now asserts. In the absence of a trial objection, we consider whether the
omission of an otherwise legally and factually appropriate instruction or the giving of an
otherwise inappropriate instruction prompted a "clearly erroneous" verdict. 300 Kan. at
555; State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012). To reverse, we must
be "firmly convinced that the jury would have reached a different verdict" had the
instructions been free of the error. Williams, 295 Kan. 506, Syl. ¶ 5; see Brown, 300 Kan.
at 555.

As to Arb's first point, we fail to see a substantive problem with the entrapment
instruction because it substituted "persuade" for "solicit," thus deviating from the literal
language of the entrapment statute. The common definition of "solicit" includes several
related meanings: to "entreat"; "to approach with a request or plea"; "to urge . . .
strongly"; and "to try to obtain by usu[ally] urgent requests or pleas." Merriam-Webster's
Collegiate Dictionary 1187 (11th ed. 2003). As Arb points out, "solicit" is defined in the
Kansas Criminal Code as meaning to "command, authorize, urge, incite, request or advise
another to commit a crime." K.S.A. 2014 Supp. 21-5111(cc). In both the statutory and
dictionary definitions, the word "solicit" carries a sense of something more than a passing
or casual expression and suggests urgency coupled with a direct or forceful appeal. That
connotation extends to the statutory grounds for entrapment to the extent the defense fails
when a government agent "merely afford[s] an opportunity or facility for committing the
crime." K.S.A. 2014 Supp. 21-5208(a).

The criminal code does not define "persuade." By common definition, "persuade"
means "to move by argument, entreaty, or expostulation to a belief, position, or course of
6

action" or "to plead with." Merriam-Webster's Collegiate Dictionary 925 (11th ed. 2003);
see also The American Heritage Dictionary of the English Language 1318 (5th ed. 2011)
(definition of "persuade" includes "[t]o cause . . . to undertake a course of action by
means of argument, reasoning, or entreaty"). A linguist might find a subtle shade of
meaning distinguishing "solicit" from "persuade." But from our vantage point, any
distinction would be, at best, nominal. The words look to be functionally synonymous, so
we find no instructional error on that score.

For her next point, Arb argues the district court erroneously included ease of
access in the jury instruction as a factor weighing against entrapment and in favor of a
criminal predisposition. We take a step back to gain some perspective. Entrapment, as a
defense to a criminal charge, rests on the policy notion that government entities and their
agents should not foment unlawful conduct. See Jacobson v. United States, 503 U.S. 540,
553-54, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992). So if a government agent induces a
person not otherwise disposed toward criminal behavior to break the law, the ostensible
lawbreaker should not be held to answer for the wrongful act. The defense, however,
does not apply when the agent merely affords an opportunity to someone already inclined
to criminality. See K.S.A. 2014 Supp. 21-5208(a); State v. Jones, 271 Kan. 201, 204, 21
P.3d 569 (2001) (discussing circumstances supporting entrapment defense); State v.
Jordan, 220 Kan. 110, 116, 551 P.2d 773 (1976) (same).

The last paragraph of PIK Crim. 3d 54.14 outlines factors the jury may consider in
separating the impermissibly entrapped defendant from the criminally minded
opportunist. In this case, the district court included Arb's "ease of access" to the
oxycodone. But the factor is legally and factually inapposite in a drug trafficking case
when the defendant has a lawful prescription for the drug.

The problem may be better illustrated in considering when ease of access does cut
against an entrapment defense. Consider the government agent attempting to make a
7

controlled buy of cocaine or some other illegal drug. If the targeted individual already has
the cocaine, that demonstrates unlawful conduct in possessing the drug at all and suggests
a predisposition to traffic. After all, the target had to acquire the cocaine in the first place.
Similarly, if the target disclaims present possession of cocaine but touts knowledge of
how to readily get some, that suggests past conduct indicative of a disposition to trade in
the drug. So those circumstances would tend to cloud a defense of entrapment.

But the same inferences cannot be logically or legally drawn from a target's
possession of oxycodone obtained with a valid prescription. There is nothing unlawful
about filling a valid prescription at a pharmacy. So ease of access in that circumstance is
not indicative of a predisposition to engage in illegal drug trafficking. The district court,
therefore, erred by instructing the jury otherwise. In this case, the pattern jury instruction
should have been tailored to remove that factor. Although district courts should avoid
gratuitous rewrites of pattern jury instructions, those instructions can and should be
edited to reflect legal principles appropriate to the evidence in a given case. See State v.
Burton, 35 Kan. App. 2d 876, 879-80, 136 P.3d 945, rev. denied 282 Kan. 792 (2006).

Because Arb's trial lawyer did not object to the entrapment instruction, we must
consider whether the deficiency caused clear error. We defer the analysis of prejudice
until we take up Arb's third point and consider her assertion of cumulative error.

For that point, Arb contends the district court's failure to give an appropriate
instruction on consideration of an affirmative defense in light of the State's burden of
proof amounts to error. We agree. The Kansas Supreme Court has held that the omission
of PIK Crim. 3d 52.08 or its equivalent creates error when a criminal defendant presents
a colorable affirmative defense. State v. Cooperwood, 282 Kan. 572, 582, 147 P.3d 125
(2006). But the court has recognized the instruction's omission is not clearly erroneous.
282 Kan. at 580-82; State v. Crabtree, 248 Kan. 33, 40-41, 805 P.2d 1 (1991). As we
have mentioned, Arb's trial lawyer neither requested PIK Crim. 3d 52.08 nor objected to
8

its absence. Standing alone, then, this error could not amount to clear error requiring
reversal of Arb's conviction.

Arb has also argued the cumulative effect of the instructional errors deprived her
of a fair trial. Appellate courts will weigh the collective impact of trial errors and may
grant relief if the overall result deprives the defendant of a fair hearing even though the
errors considered individually might be considered harmless. State v. Smith-Parker, 301
Kan. 132, 167-68, 340 P.3d 485 (2014). Here, we consider the two defects in the jury
instructions regarding Arb's entrapment defense and ask whether they have, in
combination, created clear error.

We outline the measure for clear error. In 2012, the Kansas Supreme Court recast
the language for assessing whether jury instructions to which no objection has been
lodged are sufficiently prejudicial to require reversal of convictions. State v. Williams,
295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012). In Williams, the court explained that the test
had been stated as requiring the appellate court to "'reach[] a firm conviction''' that had a
proper instruction been given "'there was a real possibility the jury would have returned a
different verdict.'" 295 Kan. at 514 (quoting State v. Stafford, 223 Kan. 62, 65, 573 P.2d
970 [1977]). The Williams court then rephrased the test as "whether [the appellate court]
is firmly convinced that the jury would have reached a different verdict had the
instruction error not occurred." Williams, 295 Kan. 506, Syl. ¶ 5. The court submitted that
the rephrased test did not substantively differ from what had been applied for more than
30 years following Stafford. See Williams, 295 Kan. at 516. The court has since reiterated
that view. In State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013), the court stated it
failed to see "a practical difference" between the pre-Williams statement of the test and
the Williams language, so the rephrasing simply crystallized the long-standing meaning.
See State v. Mireles, 297 Kan. 339, 363, 301 P.3d 677 (2013) (citing and applying
Williams); State v. Rochelle, 297 Kan. 32, 43-44, 298 P.3d 293 (2013) (citing and
applying Trujillo).
9


For purposes of deciding this case, we embrace the Kansas Supreme Court's
characterization of the changed phrasing of the test as cosmetic rather than substantive,
although the revised language could be read otherwise. See State v. Berney, ___ Kan.
App. 2d ___, 353 P.3d 1165, 1173-74 (2015) (Leben, J., concurring) (rephrased test of
Williams might suggest heightened burden on defendant but relying on court's
representation that no substantive change intended); State v. Adams, No. 106,935, 2013
WL 4046396, at *13 (Kan. App. 2013) (unpublished opinion) (Atcheson, J., dissenting)
(restatement of test in Williams "seems to ratchet up the defendant's burden in showing a
jury instruction to be clearly erroneous"), rev. denied 299 Kan. 1270 (2014).

To grant Arb relief, we must be firmly convinced the jurors would have reached a
different verdict had they been properly instructed on entrapment, meaning there was a
real possibility of another outcome.

We comfortably conclude Arb has cleared that bar. There was considerable
evidence supporting the entrapment defense. Arb testified she hadn't sold her medication
before—an assertion confirmed in a comment she made during the controlled buy and
presented to the jury through the audio recording of the transaction. The informant
testified otherwise, but his credibility was less than sterling. Moreover, the law
enforcement officers had no independent evidence leading them to suspect Arb of drug
trafficking until the informant targeted her.

The evidence of entrapment had only to generate a reasonable doubt as to Arb's
guilt to warrant an acquittal. But the instructional errors together thwarted the jurors'
understanding of that relative slight standard. First, the omission of PIK Crim. 3d 52.08
functionally left the jurors with no guidance as to how the defense and the evidence
supporting it ought to be assessed as against the State's evidence for conviction. So the
10

jurors likely did not appreciate that the State had to negate any reasonable doubt Arb had
been entrapped.

The jurors' task was further confounded because the entrapment instruction
erroneously explained that Arb's ready—and lawful—access to the Percocet could be
taken as disproving entrapment. As a result, whatever weight the jurors would have been
disposed to accord the entrapment defense was, in all probability, measurably lessened by
the flawed instruction the district court did give. See Miller v. State, 298 Kan. 921, 937,
318 P.3d 155 (2014) (juries are presumed to follow instructions given by district court);
State v. Race, 293 Kan. 69, 77, 259 P.3d 707 (2011).

The errors here were not isolated from each other. Rather, each compounded the
other, increasing their prejudicial impact. As a result, the jury could not have afforded the
entrapment defense appropriate consideration, and Arb would have fared far better with a
proper set of instructions. See Smith-Parker, 301 Kan. at 168 (multiple evidentiary errors
combined with instructional errors on pertinent legal principles resulted in prejudicial
cumulative error). The cumulative effect created clear error requiring a new trial.

We, therefore, reverse Arb's conviction and remand to the district court with
directions to grant her a new trial.