State v. Schultz

CROCKETT, Justice:

Defendant Byron Schultz was convicted by a jury of the crime of selling narcotics, committed in the Ogden Municipal Park the afternoon of May 17, 1971.¹ He contends that he was a victim of entrapment and that the trial court erred in refusing to so rule as a matter of law and dismiss the charge.

Ogden City Police Officer Phillip Roche along with an undercover informant, Gary Spangler, went to the park on the afternoon mentioned purportedly to contact another man, known to be a drug dealer. Spangler approached the defendant and asked him for help in locating someone who would sell him some heroin. Defendant agreed to do so and shortly thereafter located one Terry Ebaugh who had some of the drug. Defendant returned to Span-gler and Roche, obtained $20 from the latter, then went and obtained the substance from Ebaugh and in turn delivered it to Roche. On the basis of the State Chemist’s analysis, showing that it was 100 milligrams of whitish material, 16.S per cent morphine and .5 per cent codeine, defendant was arrested and charged.

After the presentation of the State’s case, the defendant moved for dismissal on the ground of entrapment. The State moved and was allowed to reopen and present further testimony from Officer Roche that about two weeks before the incident above referred to, the defendant had sold him four white tablets for $8. It is significant that on cross-examination concerning his asserted willingness to help people who appear to be heroin addicts, defendant stated that he did so “occasionally.’’

Touching upon the defendant’s contention of entrapment he testified:

Q. What happened when you were approached ? What was said ?

A. This Gary Spangler wanted to know where he could purchase some heroin and he looked to me as if he were a heroin addict. So I checked around. I was going to do him a favor. I checked around and found Terry Ebaugh and asked him if Mr. Gary Spangler could purchase some heroin from him. Then I made the transaction with the money, because Ebaugh was kind of afraid.

He described the conversation with Officer Roche:

Q. Now, what was said when you arrived there?

A. Well, Spangler told him that I could get some heroin for him and then Roche gave me the money.

Q. How much did he give you ?

A. Twenty Dollars.

Q. What did you tell him, if anything?

A. That this Terry Ebaugh had some. He asked me if I could go get it. Then I went and got it for him and brought the heroin back.

The defense of entrapment is valid and will preclude conviction of a crime if one who is not intending to commit a crime is persuaded or induced by a police officer to commit an offense which he would not otherwise have committed.² Whether there was such entrapment depends upon what the evidence shows as to the facts; and it is to be determined as are other issues of fact. If it is so clear that all reasonable minds must find one way, then the trial court 'should rule as a matter of law and take the issue from the jury.³ Conversely, if there is a basis in the evidence upon which reasonable minds could differ, then the determination should be made by the jury.⁴

On the basis of the evidence as summarized above, it is our opinion that the trial court correctly viewed the situation disclosed by the evidence as presenting a jury question. Accordingly, in submitting the case to them he properly instructed them that the defendant would not be guilty if the idea to commit the crime did not originate in his own mind but was suggested for the purpose of entrapping him and causing his arrest, but only if he “originally and independently of the officers” intended to commit the offense.⁵

There having been shown no basis for reversal,⁶ the jury verdict and judgment is affirmed. No costs awarded.

CALLISTER, C. J., and TUCKETT and ELLETT, JJT., concur.

1 . In violation of Sec. 58-13a 14 (8), U.C.A. 1953.

2 . Salt Lake City v. Robinson, 40 Utah 448, 125 P. 657; In Re Wright, 68 Nev. 324, 232 P.2d 398.

3 . Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, but see also Grossman v. State (Alaska), 457 P.2d 226.

4 . People v. Alamillo, 113 Cal.App.2d 617, 248 P.2d 421; United States v. Markham, 7 Cir., 191 F.2d 936.

5 . State v. Pacheco, 13 Utah 2d 148, 369 P. 2d 494.

6 . Our statute Sec. 77-42-1, U.S.C.A.1953, provides that errors which do not affect the essential rights of the parties shall be disregarded; that when defendant has been afforded his entitlement of jury trial, represented by competent counsel, and given the protections the law affords, all presumptions favor the validity of the judgment. See statement in State v. Seymour, 18 Utah 2d 153, 417 P.2d 655.