Baker v. State, CR

• Court: Arkansas Supreme Court
• Writing for the Court: CORBIN
• Citation: Baker v. State, 837 S.W.2d 471, 310 Ark. 485 (Ark. 1992)
• Decision Date: 28 September 1992
• Docket Number: No. CR,CR
• Parties: Timothy BAKER, Appellant, v. STATE of Arkansas, Appellee. 92-375.

Page 471

837 S.W.2d 471

310 Ark. 485

Timothy BAKER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 92-375.

Supreme Court of Arkansas.

Sept. 28, 1992.

Jeff H. Watson, Springdale, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant, Timothy Baker, was convicted of four counts of Delivery of a Controlled Substance in violation of Ark.Code Ann. § 5-64-401 (Supp.1991) of the Uniform Controlled Substances Act. Appellant was sentenced to a fine of $2,500.00 on count one, a fine of $2,500.00 on count two, a fine of $5,000.00 on count three, and a fine of $5,000.00 and ten years in prison on count four. On appeal, appellant contends that the trial court erred in two respects. For his first point of error, appellant contends that the trial court erred in refusing to give appellant's requested instruction on the defense of entrapment. For his second and final point of error, appellant contends that the trial court erred by refusing to consider probation or some form of suspended imposition of sentence of his prison term under Act 346 of 1975, which is codified at Ark.Code Ann. §§ 16-93-301 to -303 (1987). Appellant's second point of error requires our construction of Act 346 of 1975; our jurisdiction is therefore proper pursuant to Ark.Sup.Ct.R. 29(1)(c).

I. ENTRAPMENT

Appellant does not deny that he delivered one ounce of marijuana to the confidential informant, Glen Luster, on January 31, 1991 (count one) or that he delivered one ounce of marijuana (count two), one quarter ounce of mushrooms (Psilocybin, Psilocyn) (count three), and one eighth of an ounce of cocaine (count four) to Glen Luster on February 6, 1991. Appellant contends that he was so induced by Glen Luster to sell him the cocaine that he should have been entitled to raise the defense of entrapment at least as to count four, the delivery of cocaine.

Entrapment is an affirmative defense that must be proven by a preponderance of the evidence. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). Entrapment is defined at Ark.Code Ann. § 5-2-209(b) (1987), as follows:

Entrapment occurs when a law enforcement officer or any person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

When deciding whether a person was entrapped as a matter of law, we have said that:

[M]ore importance [is attributed] to the conduct of the law enforcement officers [and any people acting in cooperation with them] than to any predisposition of the defendant and the question is directed to the effect of that conduct on "normally law-abiding persons." (Emphasis theirs)

Spears v. State, 264 Ark. 83, 96, 568 S.W.2d 492, 501 (1978). But we have also said that:

defendant's conduct and predisposition, both prior to and concurrent with, the transactions forming the basis of the charges are still material and relevant, on the question whether the government agents only afforded the opportunity to commit the offenses with which he is charged. [cite omitted]

Id. at 97, 568 S.W.2d at 501.

The only evidence that appellant points to as behavior by the government informant that induced him to sell cocaine were several phone calls by the informant to appellant and the informant's in-person requests for cocaine at the January 31st drug sale. According to appellant's testimony, at the first drug buy of January 31, 1991, the informant asked appellant about getting some cocaine and appellant initially told the informant that he never got any cocaine and did not know of anybody that had any to sell. However, it was also appellant's testimony that after further inquiries from the informant during the same transaction on January 31st, which lasted approximately five to ten minutes, appellant stated he thought he could get some cocaine. Appellant also testified he had sold cocaine to the informant in the past and had bought cocaine from the informant in the past.

When there is no evidence to support the giving of an instruction, it is not error to refuse it. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). The informant's behavior in asking appellant if he could get some cocaine and calling him several times about getting cocaine, without more, is not enough to raise a fact question as to entrapment, especially coupled with appellant's testimony that he had sold cocaine to the informant in the past and that he was willing to sell marijuana and mushrooms to the informant. Appellant, having the burden of proof, failed to present any evidence to indicate that he was induced by governmental conduct of a character likely to cause a normally law-abiding person to commit the offense. Therefore, it was not error for the trial court to refuse to give appellant's proposed instruction on entrapment.

II. PROBATION

Appellant's argument that he was eligible for and should have been considered for probation and sentencing under Act 346 of 1975 is without merit. At the time of sentencing, appellant asked the court to consider probation under Act 346 of 1975 as an alternative. The trial judge responded that he did not feel he had the discretion to grant probation under the law.

Since the crime for which appellant was sentenced to ten years in prison was committed on February 6, 1991, before the amendments contained in Act 608 of 1991 went into effect, appellant was sentenced under the versions of the statutes this court interpreted in Pennington v. State, 305 Ark. 507, 808 S.W.2d 780 (1991). In Pennington we held that a trial court was allowed to consider alternative sentencing under Ark.Code Ann. §§ 5-4-301 to -311 (1987 & Supp.1989) for an appellant who was found guilty of possession of cocaine with intent to deliver and sentenced to five years...