Noetzelmann v. State

• Citation: 721 P.2d 579
• Decision Date: 08 July 1986
• Docket Number: No. 86-38,86-38
• Parties: Tyrone D. NOETZELMANN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 579

721 P.2d 579

Tyrone D. NOETZELMANN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-38.

Supreme Court of Wyoming.

July 8, 1986.

Leonard D. Munker, State Public Defender, and Martin J. McClain, Deputy State Public Defender, of the Public Defender Program for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Gerald P. Luckhaupt, Asst. Atty. Gen., for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

MACY, Justice.

Appellant Tyrone D. Noetzelmann was convicted by a jury of delivery of a controlled substance under § 35-7-1031(a)(ii), W.S.1977, and sentenced to a term of two to four years in the Wyoming State Penitentiary.

We affirm.

On June 29, 1984, two agents from the Wyoming division of criminal investigation (DCI) were conducting an undercover drug investigation in Riverton, Wyoming. The agents stopped by the Corner Pocket Billiard Lounge where an informant introduced them to appellant. At some point during their conversation, appellant indicated that he could obtain marijuana for the agents. He left the bar and returned approximately 30 minutes later. He and one of the agents then went outside to the agent's car where appellant gave the agent two plastic baggies of marijuana in exchange for $200. On the basis of these events, appellant was later arrested and charged with delivery of a controlled substance.

Appellant raises the following five issues on appeal:

1. "Whether the trial court's refusal to instruct the jury upon Appellant's entrapment defense deprived Appellant of his constitutional right to have all questions of fact resolved by the jury."

2. "Whether this Court erred in failing to [grant] a mistrial when evidence of prior unrelated bad acts of Appellant were presented [to] the jury."

3. "Whether the trial court erred in permitting the State's expert to testify that the substance in question was marijuana when the expert was a chemist, not a [botanist], and his testing procedure was designed to determine the presence of tetrahydrocannabinol, a different controlled substance under the statute than that with which Appellant was charged."

4. "Whether the prosecutor improperly used closing argument to testify to the jury that he believed the State's witnesses were telling the truth."

5. "Whether the competent evidence presented to the jury was insufficient to sustain the conviction of delivery of marijuana."

I

Appellant claims first that he was denied his constitutional right to have all questions of fact decided by a jury in that the trial court refused to instruct the jury on the defense theory of entrapment. That is, appellant complains that the reasons given by the trial court for refusing the entrapment instruction amounted to findings of fact properly left for a jury to decide.

The law in Wyoming is well settled with respect to instructing the jury on the defendant's theory of the case.

" * * * [T]he defendant in a criminal case has the right to have his defense affirmatively presented to the jury. [Citation.] The right to an instruction on the defendant's theory of the case rests on two conditions precedent, namely, the offered instruction must be sufficient to inform the court of the defendant's theory and there must be competent evidence in the record to support the theory. * * * " (Emphasis added.) Sanchez v. State, Wyo., 694 P.2d 726, 727 (1985).

"If these two elements are present and prejudice results from the failure to instruct, * * * the error requires reversal." (Emphasis added.) Stapleman v. State, Wyo., 680 P.2d 73, 77 (1984). In determining whether an instruction in favor of an accused should be given, the evidence must be viewed in a light as favorable to him as is justifiable. Stapleman v. State, 680 P.2d at 75.

In the present case, the evidence when viewed in a light favorable to appellant discloses that the agents went to the Corner Pocket for the express purpose of meeting and attempting to purchase drugs from appellant. A surveillance crew was already in position outside the bar. Upon being introduced to appellant by their informant, the agents asked appellant if he could get them some marijuana. Appellant left the bar and returned 30 minutes later with two baggies of marijuana.

Even when viewed in this light, the evidence is not sufficient to support the theory of entrapment. Entrapment occurs only when the criminal conduct was the product of the creative activity of law enforcement officials. Dycus v. State, Wyo., 529 P.2d 979 (1974). It does not arise if one is ready to commit the offense, given but the opportunity. Higby v. State, Wyo., 485 P.2d 380 (1971). The decisions in cases involving the illegal sale of drugs are practically unanimous in holding that the offense of entrapment is not available where the only solicitation is an offer to buy. Janski v. State, Wyo., 538 P.2d 271 (1975). Suspected persons can be tested by being offered an opportunity to transgress the law, although they may not be put under an extraordinary temptation or inducement. Higby v. State, supra.

We fail to see how the actions of the agents in the present case placed appellant under extraordinary temptation or inducement. As in Janski v. State, the facts in the present case show only that the agents attempted to buy a controlled substance from appellant and that appellant managed to obtain it for them directly. The evidence is simply insufficient to support the defense of entrapment. There being no competent evidence in the record to support the theory, the trial court's failure to instruct the jury on entrapment does not constitute reversible error.

II

Appellant's second contention is that the trial court erred in refusing to grant a mistrial when evidence was introduced that appellant had previously sold marijuana to children.

On appeal, great deference is given to a trial court's determination concerning the admissibility of evidence. Bishop v. State, Wyo., 687 P.2d 242 (1984), cert. denied 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985). The trial court is in a far better position to evaluate the impact of the evidence, because it has the opportunity to observe the mannerisms and reactions of the witnesses, the defendant, the jurors, and counsel. We are, therefore, reluctant to overturn the court's evidentiary rulings unless they are arbitrary or irrational. Bohack Corporation v. Iowa Beef Processors, Inc., 715 F.2d 703 (2d Cir.1983). As long as there is a legitimate basis for a court's decision, we cannot say that there was an abuse of discretion. Bishop v. State, supra.

At trial during the prosecutor's examination of one of the DCI agents, the following transpired:

"Q. * * * [D]id the [appellant] at any point make a representation to you as to what those bags contained?

"A. He did.

"Q. And what representation did he make to you?

"A. He indicated to me after he had handed the baggies to me that he normally [sells] the marijuana to--.

"[APPELLANT'S COUNSEL]: Objection, Your Honor. That's nonresponsive to the question again. The question was, 'What do the bags contain?'

"THE COURT: Well, the question was whether the [appellant] indicated what the bags contained to this witness. Please try to be responsive to this question, [witness]. Go ahead. You may answer.

"A. It's difficult to be--

"Q. * * * Did he make a specific representation as to what those bags contained?

"A. Yes, he did.

"Q. Okay. What specific representation did he make?

"A. He stated to me that he normally sells the marijuana--

"[APPELLANT'S COUNSEL]: Your Honor, I'd object once again, this is a real simple question that the State's trying to ask. 'Was there any reference to what it contained?' And the agent is insisting on throwing in as much as he can in his testimony. I'd object. He's being unresponsive to the question.

"THE COURT: The objection is overruled. I believe the witness is trying to be responsive. You may finish your answer.

"A. Thanks. Mr. Noetzelmann stated to me that the marijuana that he had given to me he normally sells to kids in the area for thirty dollars a quarter-ounce. However, he was selling it to me for a hundred dollars an entire ounce * * *." (Emphasis added.)

At this point, appellant moved for a mistrial on the grounds that the testimony was unresponsive, irrelevant, highly prejudicial, and inadmissible as evidence of prior bad acts under Rule 404(b), W.R.E. Rule 404(b), W.R.E., provides as follows:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

Pursuant to that rule, we have held that evidence of other crimes, wrongs, or acts is normally not admissible in the trial of a criminal case. Bishop v. State, 687 P.2d at 245-246. However, as indicated by the rule, evidence of prior acts may be admitted by a trial court for a variety of purposes; the establishment of intent or a particular course of conduct is among those purposes. Evans v. State, Wyo., 655 P.2d 1214 (1982); Vasquez v. State, Wyo., 623 P.2d 1205 (1981).

Under provisions identical to Rule 404(b), W.R.E., numerous courts have held that evidence of prior involvement in drug trafficking is admissible as proof of intent. In United States v. Rivera-Sola, 713 F.2d 866 (1st Cir.1983), for example, the defendant was charged with possession of drugs with intent to distribute. Over the defendant's objection that the government was seeking to prove criminal disposition in contravention of Rule 404(b), F.R.E., the court admitted evidence that the defendant had stated "that he had been smuggling drugs for years." 713 F.2d at 871. The court found that the evidence tended to show intent, which was particularly relevant...