"Ease of access" not relevant when considering prescription drugs

I won in State v. Arb, No. 111,009 (Kan. App. Sept. 11, 2015)(unpublished), obtaining a new trial in a Lyon County distribution of oxycodone prosecution. The main issue on appeal involved problems with jury instructions and Ms. Arb's defense of entrapment. The district court gave an entrapment instruction, including the limitations--found in the pattern entrapment instruction--that entrapment is not available for persons with a previous disposition to commit the offense, which can 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 COA agreed with Ms. Arb's claim that "ease of access" is not a factually appropriate when dealing with a prescription drug, as it did in this case.

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 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.

In addition, the district court failed to give a pattern instruction regarding the burden of proof with regard to affirmative defenses.  In combination, the COA held that the instructional deficiencies constituted clear error and required reversal.

[Update: the state did not file a PR and the mandate issued on October 29, 2015.]