Davis v. State

• Decision Date: 28 June 2002
• Citation: 840 So.2d 945
• Parties: John Wayne DAVIS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

840 So.2d 945

John Wayne DAVIS v. STATE of Alabama.

CR-00-1678.

Court of Criminal Appeals of Alabama.

June 28, 2002.

Mark Anthony Dutton, Moulton, for appellant.

Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.

PER CURIAM.

John Wayne Davis was convicted of distribution of a controlled substance (marijuana), a violation of § 13A-12-211, Ala. Code 1975. He was sentenced to five years in prison; the sentence was enhanced by five years, pursuant to § 13A-12-250, Ala.Code 1975, and by an additional five years, pursuant to § 13A-12-270, Ala.Code 1975. In addition to court costs, the trial court ordered Davis to pay $50 to the Crime Victims' Compensation Fund, a $1,000 fine, and a $1,000 penalty under the Demand Reduction Assessment Act.

An extensive recitation of the facts is unnecessary in this case. Davis's conviction arose out of a controlled buy conducted by law-enforcement authorities in Lawrence County. The evidence at trial indicated that Davis was arrested in the parking lot of a Burger King restaurant in Moulton after he had sold marijuana to an undercover agent.

Davis makes four arguments on appeal: (1) that the trial court erred in enhancing his sentence pursuant to §§ 13A-12-250 and 13A-12-270 because, he says, he was "entrapped" by police into participating in a drug transaction within the geographical boundaries specified in these Code sections; (2) that there was no evidence of a "sale" of a controlled substance and that, therefore, the trial court erred in enhancing his sentence pursuant to § 13A-12-250; (3) that no "maps or other documents" were introduced into evidence to corroborate the testimony of Officer Jim McAbee, one of the officers present during the controlled buy, that the parking lot of the Burger King restaurant was 2.1 miles from the Moulton Middle School and, therefore, that the trial court erred in enhancing his sentence pursuant to § 13A-12-250; and (4) that the evidence did not establish that the Burger King restaurant was within three miles of a "public housing project owned by a housing authority" and, therefore, that the trial court erred in enhancing his sentence pursuant to § 13A-12-270.

After carefully reviewing the record and the briefs, we find no basis in Davis's first three arguments for reversing his sentence. Davis raised entrapment as a defense only to the application of the statutory sentence enhancements. The transcript of the sentencing hearing reveals the following:

"THE COURT: As to the question of entrapment before that this Court charged the jury in the case and as the evidence will reflect, there was no basis to submit that to the jury. As a matter of fact, there was an affirmative defense raised.

"[DAVIS'S ATTORNEY]: Yes, sir, Judge.

"THE COURT: And my understanding, correct me if I'm wrong, withdrawn, and the defendant did not proceed on that basis.

"[DAVIS'S ATTORNEY]: Your Honor, that is correct. And let me—and if I'm not making myself clear, if the Court would bear with me just a second. Judge, our objection during the sentencing phase in regards to the enhancement provisions, one of our objections is based on entrapment for this reason: Not entrapment that the offense happened, the jury has found that, but, Judge, and we'll get into this in a few minutes, but the Lawrence County Drug Task Force actually set up the place where this alleged transaction took place, and it's our position that Mr. Davis was entrapped in the place that he was at which has resulted in these enhancement provisions coming into play. This is—I think my understanding this has never been brought up or there is no cases on this, but our position would be that Mr. Davis was—whereas we didn't bring it up as any kind of—present any testimony during the trial, but our position would be that the Lawrence County Drug Task Force actually set up the place where this alleged transaction took place, and because of that they entrapped him into getting these sentencing [enhancement] provisions to come into play."

(R. 264-66.)

One may avail himself of the entrapment defense where he is instigated, induced, or lured by a law-enforcement officer, for the purpose of prosecution, into committing a crime that he otherwise had no intention of committing. Where the defense of entrapment is raised, two separate issues of fact are presented: (1) whether there was a governmental inducement, and (2) whether the defendant was ready and willing to commit the act without persuasion. The defense of entrapment is not applicable where law-enforcement officers merely afford an opportunity to one intending to violate the law. It is only when the government's deception actually implants the criminal design in the defendant's mind that the defense of entrapment comes into play. The primary focus is on the predisposition of the accused rather than the agent's actions. See Adams v. State, 585 So.2d 161 (Ala.1991).

The record in the present case indicates (and Davis does not argue otherwise) that there was no basis in the evidence presented to the jury to warrant a charge on the entrapment defense. As noted above, the defense of entrapment is not applicable where law-enforcement officers merely afford an opportunity to one intending to violate the law. The defense of entrapment was not an issue for the jury. The jury's verdict is conclusive with respect to the issue of Davis's criminal intent. The trial court did not err in rejecting Davis's challenge to the application of §§ 13A-12-250 and 13A-12-270 based on an entrapment defense.

Davis's second and third arguments were not presented to the trial court; therefore, the issue whether the evidence was sufficient to establish that the sale of a controlled substance took place in the Burger King restaurant parking lot and the issue whether maps or other documents were necessary to corroborate the testimony of Officer McAbee are not properly before this Court. See Cole v. State, 721 So.2d 255, 259 (Ala.Crim.App. 1998) ("This argument, however, was not preserved for appellate review because it was never presented to the trial court to allow that court to make a ruling on this issue."). We note, however, that even if those issues had been properly preserved, we would find no merit in them. The trial transcript clearly indicates that a complete drug transaction between Davis and an undercover agent took place in the Burger King parking lot. Furthermore, this Court has held that the testimony of a police officer, even without corroborating maps and other documents, is sufficient to establish the three-mile requirement of § 13A-12-250. See Grider v. State, 600 So.2d 401, 404 (Ala.Crim.App.1992) ("Officer Greg Ward of the Geneva Sheriff's Department testified that the sale occurred at a housing project which was three blocks from a school and less than one mile. There was sufficient evidence to prove that the sale occurred within three miles of a school.").

However, with respect to issue four, the record indicates that the trial court did err in enhancing Davis's sentence pursuant to § 13A-12-270. That section is applicable only...