Leech v. State

OPINION

LILE, Vice Presiding Judge:

11 Jerald C. Leech, Jr., was convicted at jury trial of Trafficking in a Controlled Dangerous Substance (Methamphetamine) in violation of 63 O.S. Supp.1999, § 2-415 in Case No. CF-2000-304 in the District Court of Garfield County. The Honorable Ronald G. Franklin, District Judge, sentenced Leech to Twenty (20) years imprisonment and a Fine of $100,000 in accordance with the jury verdict. Appellant has perfected his appeal to this Court.

T2 The uncontradicted evidence established that Leech and the State's informant, Peterman, had an ongoing relationship. Leech would supply Peterman with cash to purchase supplies for manufacturing methamphetamine and receive drugs in payment. Leech would also sell methamphetamine for Peterman. On June 14, 2000, Peterman gave Leech approximately an ounce of methamphetamine, half as repayment for the most recent cash advance and half for sale on consignment. An immediate arrest was made and the drugs were recovered from Leech's car, An additional small amount of methamphetamine was recovered from Leech's pocket.

T8 Leech first claims that the evidence was insufficient to support the trafficking conviction because there was no proof that he knowingly possessed twenty or more grams of methamphetamine. The well established standard for analyzing insufficiency of evidence claims is set forth in Spuehler v. State, 1985 OK CR 132, 709 P.2d 202. We review the evidence in the light most favorable to the State and ask whether a rational trier of fact could have found the essential elements of the erime beyond a reasonable doubt. The State's evidence was that Peter-man and Leech discussed the amount and purpose of the methamphetamine delivered to Leech immediately prior to Leech taking possession. This evidence was accepted by the jury and is sufficient under Spuchler. We will not disturb a jury verdiet without legal justification. Torres v. State, 1998 OK CR 40, ¶38, 962 P.2d 3, 16, cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999).

%4 Leech further claims that the trial judge should have given a lesser included offense instruction covering possession of methamphetamine. The record is silent as to any objections to the court's instructions and as to any defense requested instructions. Appellant has a duty to provide a sufficient record for review. Hill v. State, 1995 OK CR 28, ¶10, 898 P.2d 155, 160. We must assume that the lack of a lesser included instruction is raised for the first time on appeal. Under these circumstances, we review for plain error only. Simpson v. State, 1994 OK CR 40, ¶23, 876 P.2d 690, 698-99. We find none. An underlying requirement of Shrum v. State, 1999 OK CR 41, ¶10, 991 P.2d 1032, 1036, is that a lesser offense instruction should not be given unless the evidence would support a conviction for the lesser offense. The uncontradicted evidence in this case is that Appellant knowingly possessed a trafficking quantity and not a quantity for personal use. Even if requested at trial, the lesser offense instruction would properly have been refused. Hill v. State, 1988 OK CR 251, ¶11, 764 P.2d 210, 213.

15 The more interesting issue, that was not raised at trial but which is presented on appeal, is also an issue of first impression for this Court. As above, we review for plain error only. Simpson, 876 P.2d at 698-99. Leech claims that he was entrapped into possessing a trafficking quantity of methamphetamine and asserts that he could only be convicted of possession of methamphetamine, a lesser offense.

T6 It is undisputed, in this reverse sting operation, that law enforcement agents determined the quantity of methamphetamine to be offered to Leech.

T7 Sentencing entrapment is said to occur when the State causes a defendant initially predisposed to commit a lesser crime to commit a more serious offense. This differs from traditional entrapment situations where an otherwise innocent person is caused to commit a erime. Traditional entrapment situations may occur when an unwary innocent person is trapped into committing a crime. See Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848. The concept of sentence entrapment applies to those situations where one admittedly predisposed to criminal activity is enticed into committing a greater crime of the same general character. If an innocent person is entrapped into committing an illegal possession of any amount of illegal drugs, the traditional entrapment principals and our traditional entrapment instruction found at OUJI-CR 2d 8-25 would apply.

18 That instruction makes it clear that an entrapped person is one who had "no previous intent or purpose to violate the law;" that was not "willing to commit a crime such as that charged" and that had "no previous intent or purpose to commit any offense of the character here charged."

T9 This language would not apply in the case of asserted sentencing entrapment. The defendant may have intended to "violate the law." The defendant may have intended to commit a crime "such as that charged" if that language means a drug related crime. The defendant may have intended to commit an "offense of the character here charged" if that language means a drug related crime.

{10 In a case where sufficient evidence is presented to raise the issue of sentence entrapment, this language must be modified to make it clear to the jury that the issue is whether or not the defendant, although intending to commit a lesser offense, has been entrapped into committing a greater offense. If the defendant had no previous intent to commit the greater erime or did not become ready and willing to commit a greater crime during the course of the transaction, even though predisposed to commit the lesser crime, then a finding that law enforcement agents committed sentencing entrapment would require that the defendant be found not guilty of the greater crime, and guilty of the lesser offense.

{11 In Robinson v. State, 1973 OK CR 152, ¶ 11, 507 P.2d 1296, 1299, overruled on other grounds in McInturff v. State, 1976 OK CR 226, 554 P.2d 837, this Court said:

"[Olne who is instigated, induced, or lured by officer of law or other person, for purpose of prosecution, into commission of crime which he had otherwise no intention of committing may avail himself of defense of entrapment".

We further said that an officer "acting in good faith with view to detecting crime" may make use of deception, trickery or artifice. Id.

112 Those same principals apply where one claims sentencing entrapment. A defendant who intended to possess small amounts of an illegal drug could be entrapped by officers into possessing a trafficking quantity or even a quantity sufficient to support a charge of intent to distribute. In that event, the defendant would be entitled to an instruction on sentencing entrapment to allow the jury to determine whether the defendant was guilty of the greater or lesser charge.

{13 We then turn to the facts of Leech's case to apply these principals. Leech never claimed entrapment, whether in a traditional sense or in the nature of sentencing entrapment. There is no evidence of entrapment in the record. The trial court did not err in failing to instruct on entrapment in the absence of a request. Further, if requested, the instruction would have properly been refused as not being supported by any evidence.

{14 Leech claims that his sentence of twenty (20) years imprisonment is excessive. - Leech was fifty-eight years old at the time of sentencing and will be denied access to most good time credits. In a reverse sting operation such as this, it is not unusual to encounter informants who are more blameworthy than the defendant. We find, under all the facts of this case, that the sentence should be modified to ten (10) years imprisonment. Rea v. State, 2001 OK CR 28, ¶5, 34 P.3d 148, 149. The case is remanded to the trial court for re-sentencing in accordance with this opinion.

DECISION

{15 The judgment of the trial court is AFFIRMED and the sentence is MODIFIED to ten (10) years imprisonment. The case is REMANDED to the trial court for re-sentencing in accordance with this opinion.

L UMPKIN, J., concurs. JOHNSON, P.J., specially concurs. LANNING, J., concurs in results. CHAPEL, J., dissents.