Opinion
Record No. 2397-92-2
March 29, 1994
FROM THE CIRCUIT COURT OF HENRICO COUNTY LEE A. HARRIS, JR., JUDGE.
Richard R. Ryder for appellant.
Margaret Ann B. Walker, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The appellant, Tracy Allison Bell, was indicted for distribution of cocaine in violation of Code § 18.2-148. Following a bench trial, she was convicted of distributing 0.76 grams of cocaine as an accommodation to another individual. On appeal, the sole issue is whether she should have been found not guilty by reason of entrapment.
The appellant had been friendly with Melissa Noel for a couple of months; they had frequently gone out together socially. Because of criminal charges against her, Noel had agreed to work as an informant for the police. Prior to April 16, 1992, Noel had asked the appellant "about five or six times" to procure cocaine for her. The appellant declined each time. On April 16, 1992, Noel called the appellant and told her that she [Noel] wanted fifty dollars worth of cocaine. The appellant responded that she wasn't sure, but as a favor to Noel, she would call her boyfriend's cousin to see if she could procure the requested cocaine. Within thirty minutes, the appellant called Noel and told her that she had found some cocaine. Noel went to the appellant's residence that evening accompanied by an undercover investigator, Robert Seay. Seay gave the appellant one hundred dollars, and the appellant left Noel and Seay at the residence while she went to obtain the cocaine. According to Seay, when the appellant returned, she handed him a plastic bag containing a white powdery substance. She also pulled out a smaller plastic bag containing a white powdery substance and set it down in front of her. Noel and Seay then left the residence.
Appellant asserts that Noel, working for the police, implanted in her mind the idea to obtain cocaine for Noel, causing her to commit a crime when she had no predisposition to do so. She contends that once the issue of entrapment is raised, the Commonwealth has the burden to prove beyond a reasonable doubt a predisposition to commit the offense and that it failed to do so.
When a defendant waives a jury trial the trial judge assumes the role of the jury in deciding whether entrapment has occurred. Accordingly, his factual findings are entitled to the same weight as that accorded a jury verdict and will not be disturbed on appeal unless plainly wrong or without evidence to support them. This is so because the credibility of witnesses and the weight accorded their testimony are matters solely for the fact finder who has the opportunity of seeing and hearing the witnesses.
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).
"'Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.'" McCoy v. Commonwealth, 9 Va. App. 227, 231, 385 S.E.2d 628, 630 (1989) (quoting Stamper v. Commonwealth, 228 Va. 707, 715, 324 S.E.2d 682, 687 (1985)).
Entrapment occurs when the defendant's criminal conduct was the product of "'creative activity' [by the police] that implants in the mind of an otherwise innocent person the disposition to commit an offense and induce its commission in order to prosecute." If the criminal design originated in the mind of the defendant and the police did no more than "afford an opportunity for the commission of a crime" by a willing participant, then no entrapment occurred.
McCoy, 9 Va. App. at 231, 385 S.E.2d at 630 (citations omitted).
"There is nothing improper in the use, by the police, of decoys, undercover agents, and informers to invite the exposure of willing criminals and to present an opportunity to one willing to commit a crime." Stamper, 228 Va. at 715, 324 S.E.2d at 687. Moreover, "[r]eluctance to engage in crime is not transformed into entrapment whenever a person hesitantly, but willingly, acquiesces in the request of a close ally to commit a crime." McCoy, 9 Va. App. at 232, 385 S.E.2d at 630.
Neighbors v. Commonwealth, 214 Va. 18, 197 S.E.2d 207 (1973), relied upon by the Commonwealth, involved a police informant who repeatedly begged Neighbors to get him some drugs despite Neighbors' protestations that he was trying to get away from drugs and did not have any. Later that day, Neighbors met the informant at a pool hall, and the informant again "asked for drugs, stating that he was 'about to die.'" Id. at 19, 197 S.E.2d at 208. Neighbors told the informant he'd see what he could do, and, eventually, Neighbors procured two morphine sulfate tablets for the informant. Neighbors admitted he had previously sold or given drugs to the informant. The Supreme Court affirmed the trial court's denial of an entrapment instruction. Id. at 19, 197 S.E.2d at 208-09.
In McCoy, the defendant was convicted of "possession of cocaine with the intent to distribute, but as an accommodation to another individual." 9 Va. App. at 229, 385 S.E.2d at 628. McCoy attempted to distinguish his situation from that of the defendant in Neighbors, arguing that he purchased cocaine merely for personal use and never for resale or profit (as the defendant in Neighbors had admitted doing). The Court explained:
It is not necessary, however, that the evidence prove that an accused has previously committed the same offense with which he is charged in order to establish that he was predisposed to commit an offense. "Otherwise, a first offender, disposed to commit the crime for which he is charged, would find sanctuary in the entrapment defense merely because the government would be unable to prove prior nonexistent activities. The entrapment defense does not require such a result." United States v. Rodriguez, 433 F.2d 760, 762 (1st Cir. 1970). Instead, the evidence need only show that the defendant's state of mind was such that once his attention was drawn to the criminal activity he readily accepted it.
The presence or absence of a predisposition to commit a crime is merely one circumstance to be considered in determining whether the intent to commit a crime is solely the product of police activity. Where one is predisposed to commit a criminal act and involvement by a police informant influences the nature or degree of the crime, it cannot be said that the state provided an innocent person with the intent to commit a crime. . . . A person ready and willing to engage in certain criminal activity cannot avail himself of an entrapment defense by claiming he was only willing to commit one type of [possession]. . . .
[Appellant's] prior drug purchases, together with [his] personal planning, arranging, and completing the [instant] drug purchase without [the informant's] assistance, established as a matter of law that [appellant] was predisposed and willing to commit the offense.
McCoy, 9 Va. App. at 233-34, 385 S.E.2d at 631 (citation omitted).
Based on applicable standards of appellate review and language contained in McCoy, Stamper, Schneider and Neighbors, we find credible evidence in the record to support the conviction beyond a reasonable doubt. Despite her initial hesitance, appellant willingly sought out the cocaine, took money from a stranger (Agent Seay), left her friend and an agent at her residence while she went out to buy it, returned, and handed the cocaine to the agent. Appellant retained a smaller bag containing a substance similar in appearance to the item given to Agent Seay. The trial court considered an entrapment defense, but rejected it after hearing testimony from the agent and from appellant. As fact finder, the trial judge determined that appellant willingly committed the crime and was not improperly induced; this finding is based on credible evidence.
Accordingly, we affirm the judgment of the trial court.
Affirmed.