Haynes v. State , 230 Ga. App. 107 ( 1998 )

495 S.E.2d 591 (1998) 230 Ga. App. 107

HAYNES
v.
The STATE.

No. A97A1820.

Court of Appeals of Georgia.

January 8, 1998.

Joel N. Shiver, Athens, for appellant.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

George Haynes was convicted of sale of cocaine and possession of cocaine with intent to distribute. He enumerates two errors, challenging the sufficiency of the evidence and the trial court's refusal to instruct the jury on entrapment.

This case arose just prior to the execution of a search warrant on Haynes' residence. Price v. State, 222 Ga.App. 655, 657(2), 475 S.E.2d 692 (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). An undercover officer drove up to Haynes' residence, waved, and said, "Hey George, remember me?" Haynes responded in the affirmative, walked over to the officer's unmarked car, and asked what he needed. When the officer requested two rocks, Haynes responded, "Okay" and went back in his house. On his return seconds later, Haynes handed the officer two rocks of crack cocaine in exchange for $40. The undercover officer then radioed his colleagues who were waiting nearby to execute the warrant. During the search, the officers discovered $380 on Haynes, and 18 rocks of crack cocaine on or in his refrigerator with a total weight of 2.2 grams. Held:

1. Notwithstanding Haynes' argument to the contrary, the evidence of intent to distribute, viewed in the light most favorable to the verdict, is sufficient to sustain the conviction under Jackson v. Virginia, 443 U.S. 307, 319-320, 99 S. Ct. 2781, 2789-2790, 61 L. Ed. 2d 560 (1979). The undercover officer's testimony that Haynes exchanged cocaine for cash just prior to the arrest undermines the defense's contention that the State proved no more than mere possession. Williams v. State, 199 Ga.App. 544(1), 405 S.E.2d 539 (1991). Further, at the time of his arrest, Haynes had over $300 on his person, did not appear to be under the influence of drugs, and possessed no smoking implements or other drug paraphernalia demonstrating his personal use. See Palmer v. State, 210 Ga.App. 717, 718, 437 S.E.2d 490 (1993). This evidence, coupled with the number of rocks, provides proof of intent to distribute sufficient to allow a rational jury to find Haynes guilty beyond a reasonable doubt. Id.; see Lester v. State, 226 Ga.App. 373, 376-377(2), 487 S.E.2d 25 (1997).

2. The evidence did not support a charge on entrapment. Entrapment requires proof that (1) the idea of the crime originated with the state agent; (2) the agent's undue persuasion, incitement or deceit induced the crime; and (3) the defendant was not predisposed to commit the crime. Byrd v. State, 211 Ga.App. 881(1), 440 S.E.2d 764 (1994). Haynes presented no evidence of the second element. Brooks v. State, 224 Ga.App. 829, 830(1), 482 S.E.2d 725 (1997) (defendant bears the burden of establishing a prima facie case of entrapment). Even repeated requests for contraband knowingly possessed by an individual who at first demurs do not constitute entrapment. Lawrence v. State, 227 Ga.App. 70, 73(6), 487 S.E.2d 608 (1997). Here, the undercover officer garnered the desired action after only one request. Compare Wagner v. State, 220 Ga.App. 71, 467 S.E.2d 385 (1996). The facts that the agent did not announce his status as such and pretended that he and Haynes were previously acquainted do not require a different result, notwithstanding Haynes' unsupported assertions to the contrary. Adams v. State, 207 Ga.App. 119, 120(1), 427 S.E.2d 90 (1993); see Lawrence, 227 Ga.App. at 73(6), 487 S.E.2d 608.

Judgment affirmed.

BEASLEY and SMITH, JJ., concur.