McNorton v. State , 159 Ga. App. 604 ( 1981 )

Carley, Judge.

Appellant appeals from his conviction for violation of the Georgia Controlled Substances Act.

1. Citing Royal v. State, 155 Ga. App. 691 (272 SE2d 556) (1980), appellant urges that it was error to deny his motion for a directed verdict of acquittal based upon the defense of entrapment. Royal was reversed in State v. Royal, 247 Ga. 309 (275 SE2d 646) (1981). “A distinction must be made between evidence which raises a defense of entrapment and which would require that the jury be charged as to the law of entrapment and the burden of proof thereon, and evidence which, under the standards set out in Code Ann. § 27-1802 would demand a finding of entrapment and, therefore, a directed verdict of acquittal. Lack of conflict in the evidence is only one of the criteria in Code Ann. § 27-1802. Thus a defendant’s testimony as to entrapment, even if unrebutted by any other witness to the alleged misconduct, will not entitle him to a directed verdict of acquittal unless that unrebutted testimony, together with all reasonable deductions and inferences therefrom, demands a finding that entrapment occurred.” Royal, 247 Ga. at 310, supra.

Contrary to appellant’s contention, his testimony that he was, in effect, coerced into committing a crime was not uncontradicted. There was testimony by the undercover agents that appellant willingly cooperated. In fact, one of the officers testified that after the “buy” appellant voluntarily told him that “if I needed anything else to give him a call and he might be able to help us out.” Also, it is clear that appellant — not the police officers or informer — selected the source from which the drugs were purchased. Compare Griffin v. State, 154 Ga. App. 261, 265 (3) (267 SE2d 867) (1980).

Decided September 21, 1981. Scott Walters, Jr., for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, H. Allen Moye, Paul Howard, Assistant District Attorneys, for appellee.

As in State v. Royal, 247 Ga. 309, 311, supra, “[t]his is one of those cases in which a question of fact was presented as to entrapment for determination by the jury. The evidence did not, however, demand a finding that defendant [McNorton] was entrapped into the commission of a crime. [Cits.]” Appellant’s motion for a directed verdict of acquittal was not erroneously denied.

2. We find no error in the admission of evidence concerning appellant’s subsequent sale of drugs. “ ‘Once the identity of the accused as the perpetrator of the offense separate and distinct from the one for which he is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. [Cits.]’ [Cits.]” State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980). The evidence in the instant case “was properly allowed as tending to prove motive, intent, state of mind, and was directly pertinent to the question of entrapment.” Marshall v. State, 143 Ga. App. 249, 253 (3) (237 SE2d 709) (1977).

Judgment affirmed.

Banke, J., concurs. Deen, P. J., concurs specially.