State v. Lapan

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 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
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                                 No. 91-230

 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 Frederick S. Lapan, III                      Unit No. 3, Washington Circuit

                                              December Term, 1991

 Linda Levitt, J.

 Thomas M. Kelly, Drug Prosecutor, State's Attorneys and Sheriffs Department,
   Montpelier, for plaintiff-appellee

 David J. Mullett of Cheney, Brock & Saudek, P.C., Montpelier, for defendant-

 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

      GIBSON, J.   Defendant was convicted of unlawfully dispensing a
 regulated drug in violation of 18 V.S.A. { 4224(g).  He challenges both the
 jury instructions and the sentence on appeal.  We affirm.
      In pursuit of an undercover drug investigation, police officer Paul
 Duquette and Carol Trombley, an informant posing as his girlfriend, went to
 defendant's residence in Barre in an effort to acquire cocaine from him.
 According to trial testimony, Officer Duquette waited in his vehicle while
 Trombley entered defendant's house and told him that she and her boyfriend
 were interested in obtaining cocaine that evening.  Trombley and defendant
 went to Officer Duquette's car, where Trombley introduced the officer as her
 friend "Paul from Canada."  After some discussion concerning quantity and
 price, they went to a pay phone, where defendant made some calls, then
 travelled to Northfield, where defendant made another call.  They waited
 until another car arrived, and defendant spoke to the driver.  The second
 car left, and before its return, Officer Duquette gave defendant $1,425 in
 cash to purchase the cocaine.  When the second car returned, defendant went
 into it with the money for a few minutes, then returned and handed Officer
 Duquette a brown paper bag containing cocaine.  The second car departed, and
 the three drove back to Barre, where Officer Duquette dropped defendant off
 at his house.  The officer and Trombley then drove to the police barracks in
      Defendant was later arrested and charged with dispensing a regulated
 drug.  Prior to trial, defendant submitted a proposed "agency defense" jury
 charge in accordance with 18 V.S.A. { 4203, under which no violation would
 have occurred from the "temporary incidental possession by employees or
 agents of persons lawfully entitled to possession" of such drugs. (FN1) The
 court refused the requested charge, and defendant was found guilty,
 receiving a sentence of five to ten years.  The present appeal
      Defendant argues that the court erred in failing to instruct the jury
 that in order to convict him it had to find that defendant was not acting as
 an agent of Officer Duquette.  The trial court did not err.
      First, the State was not burdened with disproving the asserted agency
 relationship, as suggested by defendant's proffered instruction.  Defendant
 himself had to demonstrate affirmatively that he was an agent of Officer
 Duquette.  The State had only the initial burden of proving the
 "affirmative allegation" that the criminal violation occurred.  State v. St.
 Francis, 151 Vt. 384, 388, 563 A.2d 249, 251-52 (1989).  Nothing in 18
 V.S.A. { 4224(g), the section under which defendant was prosecuted, or {
 4201(7), defining the word "dispense," suggests that disproof of defendant's
 agency is an element of the crime.  To the contrary, the burden of
 establishing a prima facie case on the affirmative defense of agency was
 defendant's alone.  State v. Baker, 154 Vt. 411, 414, 579 A.2d 479, 480
      There was no evidence, however, to suggest that defendant was an agent
 of Officer Duquette or that defendant's purpose was to aid him in the
 performance of his official duties.  All of the evidence suggested the
 opposite -- that defendant intended to obtain cocaine for "Paul from
 Canada," not to aid a police officer.  In order to have intended to aid
 Officer Duquette, defendant would have needed some prior knowledge of the
 officer's status and purpose.  No evidence supported that theory.
      Defendant's reply brief states that his services "were aggressively and
 persistently sought out by Officer Duquette . . . and all actions by the
 defendant were taken on behalf of Officer Duquette."  But the officer's
 appearance or demeanor as an undercover investigator were consistent with
 his role and did not make defendant his agent.  Officer Duquette sought to
 establish that defendant was a source of illegal drugs, and the evidence is
 strong and consistent that his purpose went no further.  There was no error
 in the refusal of the court to give defendant's requested instruction.
      Defendant next contends that the court erred in imposing a sentence in
 excess of five years and a $10,000 fine, because both the statutory section
 providing penalties for the dispensing of a regulated drug (18 V.S.A. {
 4224(g)) and the penalty-enhancement section (18 V.S.A. { 4224(i)) were
 repealed prior to sentencing (FN2) and replaced by provisions that did not 
 allow for enhancement of the sentence.  Specifically, defendant relies on 
 1 V.S.A. { 214(c), which states:
                   If the penalty or punishment for any offense is reduced
                   by the amendment of an act or statutory provision, the
                   same shall be imposed in accordance with the act or
                   provision as amended unless imposed prior to the date of
                   the amendment.

      Defendant treats the 1989 statutory changes in Vermont's drug laws,
 repealing 18 V.S.A. { 4224 and substituting new provisions relating to the
 dispensing of regulated drugs, as an "amendment" reducing the penalty for a
 { 4224 offense and therefore subject to 1 V.S.A. { 214(c).  The comprehen-
 sive 1989 revision in Vermont's drug laws did not "amend" { 4224, however,
 but repealed it, replacing { 4224(g), as it applied to the sale of cocaine,
 with 18 V.S.A. { 4231(b).  As we have previously held, the repeal of a
 criminal statute is not the amendment of that statute for purposes of
 applying 1 V.S.A. { 214(c), and in the absence of an amendment to a
 criminal statute, "the legislative intent of the saving statute, { 214, [is]
 to preserve the right of prosecution and sentence . . . and not to exculpate
 [a defendant]  by reason of the repeal of the criminal statute . . . ."
 State v. Matthews, 131 Vt. 521, 525, 310 A.2d 17, 20 (1973).
      Moreover, the new enhancement provision in the 1989 statutory revision,
 18 V.S.A. { 4238, provides, inter alia, that a person convicted of a second
 or subsequent cocaine offense "shall be subject to a term of imprisonment or
 fined up to twice that authorized by [the 1989 statute, including { 4231(b),
 relating to cocaine], or both."  Therefore, even if the 1989 revision of
 Vermont's drug laws were to be considered an amendment of { 4224, the new
 enhancement provision, as applied to { 4224(g), would not diminish the
 sentence imposed in this case.

                                         FOR THE COURT:

                                         Associate Justice

FN1.        18 V.S.A. { 4203 provides, in pertinent part:
  The provisions of this chapter, restricting the possession and
 control of regulated drugs, shall not apply to . . . public
 officers or their employees in the performance of their official
 duties requiring possession or control of regulated drugs, nor to
 temporary incidental possession by employees or agents of persons
 lawfully entitled to possession . . . nor by authorized persons
 whose possession is for the purpose of aiding public officers in
 performing their official duties.

FN2.       See 1989, No. 100, { 17.