State v. Smith

No. 04-463
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 145_______________________________________
STATE OF MONTANA,
Plaintiff and Respondent,
v.
NANCY LYNN SMITH,
Defendant and Appellant.
______________________________________
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Blaine, Cause No. DC 2003-03
The Honorable John C. McKeon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carl S. White, Attorney at Law, Havre, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Joslyn M. Hunt, Assistant
Attorney General, Helena, Montana
Yvonne Laird, Blaine County Attorney; Chinook, Montana
____________________________________
Submitted on Briefs: September 13, 2005
Decided: June 27, 2006
Filed:
______________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Nancy Lynn Smith (Smith) appeals her conviction of criminal distribution of
dangerous drugs in the Seventeenth Judicial District Court, Blaine County. We affirm.
¶2 The issue presented is whether the District Court erred in denying Smith’s motions
for a directed verdict at the close of the State’s case and for a new trial, because she was
entrapped as a matter of law.
¶3 On December 14, 2002, informant Levi Morin (Morin), under the direction of law
enforcement, went to Smith’s house to make a controlled drug purchase. Smith sold him
two marijuana cigarettes for $10.
¶4 The State also alleged that on December 16, 2002, Smith sold to Morin, again
acting at the direction of law enforcement, three codeine pills for $5.
¶5 At trial, following the presentation of the State’s evidence, Smith moved for a
directed verdict arguing that she was induced into making the charged dangerous drug
sales; that is, she was entrapped as a matter of law. The District Court found that the
cross-examination of the State’s witnesses presented evidence that Smith was induced to
make the sales, and thus concluded that the State would be required to prove that she was
not so induced, beyond a reasonable doubt. The District Court also concluded that the
evidence could support a verdict that Smith was predisposed to make the sales, and thus
denied her motion for a directed verdict.
¶6 The jury found Smith guilty of selling the two marijuana cigarettes and not guilty
of selling the codeine pills. Smith filed a motion for new trial based on her entrapment
arguments, which the District Court denied. This appeal followed Smith’s sentencing.
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¶7 We review a district court’s denial of motions for both a directed verdict of
acquittal and a new trial for abuse of discretion. State v. Ray, 2003 MT 171, & 34, 316
Mont. 354, & 34, 71 P.3d 1247, & 34; State v. Aakre, 2002 MT 101, & 8, 309 Mont. 403,
& 8, 46 P.3d 648, & 8. “A directed verdict is appropriate when there is no evidence upon
which a jury could base a guilty verdict. No abuse of discretion occurs if, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Ray, & 34.
We review a district court’s conclusions of law de novo for correctness. Ray, & 34.
¶8 The entire transaction in question took between three and four minutes.
Understandably, pursuant to Rule 404(b), M.R.Evid., there was no evidence that Smith
was in the marijuana business. Morin and Smith both testified at trial as to what
happened during the transaction. Morin testified as follows:
Q: What did you do when you entered the residence?
A: Asked Nancy if I could buy some marijuana or pills from her.
Q: Did she respond to that?
A: Yes, ma’am.
Q: What was her response?
A: I bought two joints from her.
....
Q: And who retrieved the joints from her purse?
A: Nancy did, ma’am.
Q: What did she do with them after she retrieved them from her purse?
A: Gave them to me, and I exchanged the money with her.
Q: And how much money did you give her?
A: $10.00.
Q: What did you do at that point?
A: Not to—I don’t really remember that much. I just remember buying
them and telling her that I’d come back later on, and I left the residence.
¶9 Smith testified as follows:
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Q: Okay. Tell the jury, if you would, what transpired from the time Levi
came to the door?
A: Well, when Levi came to the door I was in bed, which is in the living
room. I was in front of the TV, and Kenny answered the door. I was half
asleep. I wanted to see who he was talking to. I sat up. Levi was looking
for marijuana, and he wanted joints, specifically, and I did not know what
to tell him about where to go to get it, who to call, and Kenny said that he
had some and he needed money. He had on a quilted flannel shirt, and he
had a chew can, or whatsoever that stuff guys put in their lip, but it was
empty, and there was a bag with marijuana in it, and that’s where Levi got
his marijuana from.
....
Q: Okay. So did you have anything to do with what—did you have any
involvement with the sale of the marijuana?
A: No, I did not. I did not receive money. I don’t even know if Kenny
received money for what he gave Levi.
Q: Did you touch the drugs?
A: Yes, I touched the drugs. I am the one who rolled the two joints out of
Kenny’s bag, and I did hand them to Levi, but I never took any money, and
I didn’t see any money either.
Smith did not testify that Morin pleaded, begged, or coerced her into selling drugs to him.
¶10 Section 45-2-213, MCA, provides:
A person is not guilty of an offense if his conduct is incited or induced by a
public servant or his agent for the purpose of obtaining evidence for the
prosecution of such person. However, this section is inapplicable if a public
servant or his agent merely affords to such person the opportunity or
facility for committing an offense in furtherance of criminal purpose which
such person has originated.
¶11 Smith claims that because Morin came to her house for the purpose of purchasing
marijuana, and there is no evidence that she was predisposed to make the sale, there can
be no doubt that the illegal sale originated with law enforcement. Thus, entrapment as a
matter of law is established.
¶12 We have previously explained the difference between providing the opportunity to
commit an offense, and being induced into committing a crime:
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Entrapment occurs only when the criminal intent of design originates in the
mind of the police officer or informer and not with the accused, and the
accused is lured or induced into committing a crime he had no intention of
committing. Only when the criminal design originates, not with the
accused, but in the mind of government officers and the accused is by
persuasion, deceitful representations, or inducement, lured into the
commission of a criminal act, can a case of entrapment be made out. In
short, there is a controlling distinction between inducing a person to do an
unlawful act and setting a trap to catch him in the execution of a criminal
design of his own conception. The fact that the Yellowstone County
sheriff's office afforded the opportunity or facility for the commission of
the offense, does not come within the entrapment rule. In this class of
offenses, usually committed secretly, it is difficult if not almost impossible
to secure the evidence necessary to convict by any other means than by the
use of decoys. Certainly, there can be no objection to their use if the
officers do not by persuasion, deceitful representations or inducement, lure
a person who otherwise would not be likely to break the law, into a
criminal act.
State v. Karathanos (1972), 158 Mont. 461, 470, 493 P.2d 326, 331.
¶13 In State v. Harney (1972), 160 Mont. 55, 499 P.2d 802, the defendant agreed to
sell drugs to an informant. Law enforcement officials set up surveillance of the sale and
arrested the defendant after the sale. Harney, 160 Mont. at 57, 499 P.2d at 803. We
rejected the defendant’s allegation of entrapment because, rather than “plead, beg, or
coerce the [defendant] into selling,” the informant “merely asked [the defendant] if he
could furnish him with some drugs.” Harney, 160 Mont. at 60, 499 P.2d at 805. We
explained that a “casual offer to buy is not sufficient to avail the appellant with the
defense of entrapment.” Harney, 160 Mont. at 60, 499 P.2d at 805.
¶14 Similarly, in State v. Sweet, 1998 MT 30, 287 Mont. 336, 954 P.2d 1133, law
enforcement officers used an informant to conduct two separate controlled drug
purchases. Sweet, &¶ 5, 8-9. We rejected the defendant’s allegation of entrapment,
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because:
[The informant] approached Sweet and inquired whether Sweet would sell
him marijuana. Sweet then provided [the informant] with marijuana in
exchange for money. Sweet was merely presented with the opportunity to
commit the crime of criminal sale of dangerous drugs. There is no
evidence on the tapes derived from the body wire to suggest that Sweet
lacked criminal intent and was lured into committing a crime which he had
no intention of committing.
Sweet, & 23.
¶15 The present case is analogous to both Harney and Sweet. We conclude that the
record of the sale could be interpreted by a jury to show that Morin merely presented
Smith with the opportunity to sell him marijuana, by inquiring if she was willing to do so,
and it was Smith who took that opportunity.
¶16 In this instance, after hearing the adroit arguments of her counsel, the District
Court determined that a jury might find from the evidence that Smith was induced into
the criminal transaction. The District Court made this determination even though the
short conversation neither shows efforts by Morin to persuade her to make the sale, nor
reflects deceitful representations or other inducement to lure her into committing the
criminal act. Thus, the District Court, in accord with State v. Brandon (1994), 264 Mont.
231, 242, 870 P.2d 734, 740, instructed the jury that it was the State’s burden to prove
beyond a reasonable doubt that Smith was predisposed to violate the law before the State
intervened. The District Court’s determination that the circumstances of the sale could be
interpreted to mean that Smith was induced into making the sale, and therefore imposing
an additional burden of proof on the prosecution, does not translate into a requirement
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that Smith was entrapped as a matter of law. We conclude that the District Court did not
err in sending the case to the jury.
¶17 Smith also argues that this Court must, as a matter of law, determine that the
police cannot send an informant into someone’s home to purchase a small amount of
marijuana, and by that sale transform the misdemeanor offense of possession of
marijuana, § 45-9-102(2), MCA, into the felony offense of distribution of dangerous
drugs, § 45-9-101, MCA. It is within the province of the legislature to distinguish
between criminal offenses and to establish punishments. State v. Webb, 2005 MT 5, ¶ 37,
325 Mont. 317, ¶ 37, 106 P.3d 521, ¶ 37.
¶18 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE
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