State v. Galisia
| Decision Date | 21 January 1992 |
| Docket Number | No. 24661-5-I,24661-5-I |
| Citation | 63 Wn.App. 833,822 P.2d 303 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Antonio A. GALISIA, Miguel A. Hernandez-Rodriquez, Antonio Sanchez Molina, Defendants, and Timothy George Norgard, Appellant. |
Washington Appellate Defender, Karen Chaney, Seattle, for appellant.
Norm Maleng, Pros. Atty., Brenda Pahmeier, Deputy Pros. Atty., Seattle, for respondent.
Timothy George Norgard appeals his conviction for possession with intent to deliver cocaine in violation of RCW 69.50.401(a) based on his role as an accomplice to a delivery of the drug. He argues that there was insufficient evidence to support his conviction, and that the trial court erred in failing to instruct the jury with regard to entrapment. We affirm.
The State's case was based largely on the testimony of David Palmer, a paid informant for the King County Police. Palmer first came into contact with Norgard in early March 1989 when Palmer picked up Norgard to give him a ride while Norgard was hitchhiking home from work. A conversation concerning drugs ensued. Palmer told Norgard that he was a drug buyer and asked Norgard if he knew where he, Palmer, could buy drugs. Norgard's initial response was "maybe." Palmer promised to pay Norgard $100 an ounce for any cocaine he was able to purchase with Norgard's help. When Palmer asked Norgard for his phone number, Norgard gave it to him. Palmer called Norgard three times during the following week in an effort to obtain drugs. Each time Norgard told Palmer that he couldn't help him.
Five days later, on March 14, 1989, Palmer ran into Norgard in downtown Seattle around 8:30 or 9 p.m. Norgard was with a friend identified only as "Paul" with whom he testified he frequently used drugs. There is some question as to who initiated contact on that occasion. Both sides agree, however, that when the question of whether Norgard could help Palmer buy any cocaine arose, Norgard told Palmer that he might be able to help him. Norgard introduced Palmer to Paul, who then left and returned with another individual, later identified as codefendant Antonio Molina. The four men then got into Palmer's car and, under Paul's direction, drove to 8th Avenue and East Madison. At 8th and Madison, Molina left the car and returned shortly thereafter saying he could get the cocaine for $650 an ounce. Palmer left to go get the money, after telling Norgard that if he waited he would give him half an ounce of cocaine and $100 for each ounce of cocaine he purchased.
Palmer returned with the money and undercover Detective Nelson at 10:15 p.m. Palmer then left with Molina to go to an apartment at 8th Avenue and Cherry Street to discuss price and quantity, while Norgard remained with Nelson in Nelson's car. While in the car, Norgard asked Nelson if he could buy some cocaine from Nelson after the deal was completed, to which Nelson replied that he could.
After Palmer returned to the car, Molina approached with two individuals with whom Palmer had met earlier to negotiate the terms of the drug deal. After the men showed Palmer a bag of white powdery substance, Palmer told Nelson that the deal was to take place by the side of a nearby building. Nelson activated the Agent Alert before joining Palmer, Norgard, Molina and the other two men at the side of the building. Before the drugs and money actually changed hands, additional officers arrived and Norgard was arrested along with the others. Norgard later stated to Detective Gordon that although he did not personally have any cocaine, he knew Palmer wanted cocaine and he knew some people who could sell cocaine, so he brought them together so they could make the deal.
At trial, the court denied defense counsel's request for a jury instruction concerning entrapment on the basis that, because entrapment is an affirmative defense, a defendant must admit the crime with which he is charged to allow the instruction to be given. Since Norgard did not admit he was guilty of possession with intent to deliver cocaine, the instruction was refused.
Entrapment is defined as follows:
In any prosecution for a crime, it is a defense that:
(a) The criminal design originated in the mind of law enforcement officials ... and
(b) The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit.
RCW 9A.16.070(1).
While a defendant need not present that quantity of evidence necessary to create a reasonable doubt in the minds of the jurors to be entitled to an entrapment instruction, some evidence must be adduced to support it. State v. McCullum, 98 Wash.2d 484, 488, 656 P.2d 1064 (1983); State v. Roberts, 88 Wash.2d 337, 345-346, 562 P.2d 1259 (1977). In determining whether the evidence supports giving the instruction, a court should consider the defendant's testimony and the inferences that can be drawn from it. State v. Morgan, 9 Wash.App. 757, 759-760, 515 P.2d 829, review denied, 83 Wash.2d 1004 (1973). Failure to give an instruction is reversible error if there was evidence to support the defense. State v. Ladiges, 66 Wash.2d 273, 276-277, 401 P.2d 977 (1965); State v. Kerr, 14 Wash.App. 584, 587, 544 P.2d 38 (1975), review denied, 87 Wash.2d 1001 (1976).
The State relies on State v. Matson, 22 Wash.App. 114, 121, 587 P.2d 540 (1978), for the proposition that "an instruction on entrapment is proper only where the defendant has admitted that the crime took place." In so stating, however, Matson failed to distinguish circumstances where a defendant admits that the activity on which a charge is based took place, from circumstances where a defendant actually admits to committing the crime as charged. In fact, earlier cases refer not to the "crime" charged but to the "act" charged. The distinction between denying that an event occurred and denying that the event resulted in criminal liability is critical in the context of this case. In Matson, the defendant claimed that he was unaware of the "sort of transaction" taking place. 22 Wash.App. at 121, 587 P.2d 540. Similarly, in State v. Draper, 10 Wash.App. 802, 806, 521 P.2d 53, review denied, 84 Wash.2d 1002 (1974), on which the Matson court relied, 1 the defendant consistently denied that the actions on which the charge was based even took place. Matson and Draper thus do not require a defendant to admit either the crime itself or all the elements of a crime before being entitled to an entrapment instruction. It is enough that a defendant admit acts which, if proved, would constitute the crime. Norgard met this threshold by admitting the acts which made him an accomplice to the drug deal.
However, under the facts of this case, we hold that Norgard was not entitled to an entrapment instruction. The evidence in the record before us would not permit a reasonable jury to conclude that on the day in question, Norgard was "lured or induced to commit a crime which ... [he] had not otherwise intended to commit." RCW 9A.16.070(1). Specifically, we note that Norgard clearly stated on cross examination that he initially gave Palmer his phone number after Palmer requested his assistance in buying drugs; that he later told Palmer on the street that he might be able to help him and introduced Palmer to Paul, who in turn put Palmer in touch with Molina; that he remained on the scene in order to obtain the cocaine and money he had been promised; and that he negotiated a second deal with Nelson while waiting in the car for the first deal to be completed. While there is no question that the criminal design originated in Palmer's mind, Norgard's continuing participation in the developing transaction leads us to conclude that he became a willing actor in the drug deal. The evidence is clear that, after Norgard introduced Palmer to Paul and realized that he could benefit by supporting and encouraging the completion of the deal, Norgard remained at the scene for that purpose and willingly associated himself with the transaction. This was not entrapment.
Norgard further contends that there was insufficient evidence to support his conviction for possession of cocaine with intent to deliver based on accomplice liability because no evidence was presented that Norgard was ever personally in possession of the cocaine. In reviewing the sufficiency of the evidence to support a guilty verdict in a criminal case, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Smith, 106 Wash.2d 772, 725 P.2d 951 (1986); State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A jury verdict will be overturned on review only when it is clear that there is no substantial evidence to support it. Lamborn v. Phillips Pac. Chem. Co., 89 Wash.2d 701, 709, 575 P.2d 215 (1978). To determine whether the necessary quantum of proof exists, we need not be convinced of the defendant's guilt beyond a reasonable doubt; we need only be satisfied that there was substantial evidence to support the State's case. State v. McKeown, 23 Wash.App. 582, 588, 596 P.2d 1100 (1979).
Norgard was convicted as an accomplice on one count of possession with intent to deliver cocaine in violation of RCW 69.50.401(a),...
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