State v. Goodroad, 16372

• Citation: 442 N.W.2d 246
• Decision Date: 27 April 1989
• Docket Number: No. 16372,16372
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Alvin H. GOODROAD, Defendant and Appellant. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 246

442 N.W.2d 246

STATE of South Dakota, Plaintiff and Appellee, v. Alvin H. GOODROAD, Defendant and Appellant.

No. 16372

Supreme Court of South Dakota.

Considered on Briefs April 27, 1989.

Decided June 21, 1989.

Frank E. Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

Sidney B. Strange of Strange & Palmer, P.C., Sioux Falls, for defendant and appellant.

WUEST, Chief Justice.

Defendant, Alvin H. Goodroad, was found guilty of possessing one-half pound or more of marijuana, in violation of SDCL 22-42-6. He was sentenced to two years imprisonment in the South Dakota State Penitentiary. We affirm defendant's conviction.

In February, 1988, a South Dakota Division of Criminal Investigation (DCI) agent was notified that James Feeney (Feeney) had purchased a quantity of marijuana from an individual in the Black Hills area. A warrant to search Feeney's house was obtained and a subsequent search uncovered the marijuana. Thereafter, Feeney entered a plea bargain, agreeing to plead guilty to felonious possession of marijuana and to cooperate with law enforcement officers in naming persons who previously had trafficked narcotics.

Pursuant to this agreement, Feeney identified defendant as his major supplier of marijuana in Sioux Falls, South Dakota. Feeney indicated he had an ongoing relationship with defendant regarding narcotics transactions. Under this relationship, defendant typically sold Feeney one-half pound of marijuana approximately every six to eight weeks. The transactions were frequently conducted on a credit basis. On March 11, 1988, Feeney, acting under the supervision of the DCI, telephoned defendant and inquired as to whether he had any marijuana for sale. Defendant indicated he had none, but he expressed an interest in purchasing from Feeney marijuana that he previously sold to him. Feeney agreed to sell defendant one-half pound of marijuana for $600. Arrangements were made for a friend of Feeney to contact defendant and deliver the marijuana at a later date.

Phil Niedringhaus (Niedringhaus), a DCI agent, contacted defendant on March 18, 1988. Niedringhaus, posing as Feeney's friend, told defendant he had a "package" to deliver. Defendant indicated he would pay Feeney at a later date and arrangements were made to meet at a local restaurant parking lot to complete the transaction.

On March 19, 1988, defendant met Niedringhaus as previously arranged. Niedringhaus brought with him two packages of marijuana which he previously had offered to defendant. Each package weighed slightly more than one-half pound. Defendant selected only one package. After taking the marijuana into his possession, defendant left Niedringhaus' automobile and started to walk across the parking lot to his vehicle. It was at that point that he was called back to the undercover vehicle and placed under arrest.

Defendant waived a jury trial and was found guilty after a court trial. He now appeals his conviction, raising three issues. He first contends that the conduct of the law enforcement officers resulted in his entrapment as a matter of law. He next claims that the trial court erred in allowing the state to introduce evidence of his previous marijuana dealings with Feeney. Finally, defendant argues that the evidence introduced at trial was insufficient to warrant a finding that he was guilty of possessing one-half pound or more of marijuana, in violation of SDCL 22-42-6.

In his first contention, defendant asserts that he was induced to engage in the unlawful possession of marijuana by the conduct of law enforcement officers. The law on entrapment is well-settled in South Dakota. This court previously has defined entrapment as "the inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal proceedings against him." State v. Moeller (Moeller I), 388 N.W.2d 872, 874 (S.D.1986), aff'd on rehearing, 396 N.W.2d 320 (S.D.1986), (quoting State v. Williams, 84 S.D. 547, 551, 173 N.W.2d 889, 891 (1970)). To determine the validity of an entrapment defense, South Dakota applies the subjective, origin of the intent test. This test seeks to establish whether the intent to commit the crime originated with the accused or with the state. Under the test, entrapment exists if the evidence reveals that the accused was not predisposed to commit the crime, but instead was "an innocent person lured into committing a crime." Moeller I, 388 N.W.2d at 874 (quoting State v. Nelsen, 89 S.D. 1, 8, 228 N.W.2d 143, 147 (1975)). Entrapment, as a matter of law, is not established when there is substantial evidence from which it may be inferred that the criminal intent originated in the defendant's mind. Moeller I, 388 N.W.2d at 874; Williams, 84 S.D. at 553, 173 N.W.2d at 892. See also State v. Moeller (Moeller II), 396 N.W.2d 320 (S.D.1986). "On appeal, we consider the evidence bearing on the entrapment issue in the light most favorable to upholding the conviction." Id. at 321.

There are two components to successfully establishing entrapment as a defense. "The defendant must show police inducement to commit the crime and that he was not predisposed to commit the specific criminal act." Moeller I, 388 N.W.2d at 874-75 (quoting State v. Iverson, 364 N.W.2d 518, 528 (S.D.1985)). In addition, it is said that there are four principal inducements which may locate the intent in the government rather than the accused. These inducements are friendship, sympathy, offers of excessive amounts of money, and appeals to a narcotic's habit. Moeller I, 388 N.W.2d at 875; State v. Nagel, 279 N.W.2d 911, 916 (S.D.1979). We previously have stated that the defendant, in addition to showing such inducement, must also show that " 'undue, prolonged or persistent pressures were exerted against him, ... that this inducement was dangled in front of him'[,] ... or that he was 'played upon'...." Moeller I, 388 N.W.2d at 875 ( quoting Nelsen, 89 S.D. at 10-11, 228 N.W.2d at 148). In determining whether a defendant was predisposed to commit the specific criminal act, the facts surrounding the transaction are relevant. Moeller I, 388 N.W.2d at 875. Also relevant are several definite criteria such as whether the defendant suggested the crime and his readiness to commit the crime and familiarity with the criminal activity. Id.

Applying the foregoing rules to the present case, we hold that the defense of entrapment was not established as a matter of law. An examination of the facts surrounding the marijuana transaction shows that defendant was not an innocent person lured into committing a crime. None of the principal inducements which indicate that the criminal intent originated in the law enforcement officers can be found. There were no appeals to friendship, sympathy, or a narcotic's need. No big sacks of money were offered to defendant. In addition, defendant was not relentlessly pressured into entering or completing the transaction. He merely was presented with an opportunity to disobey the law.

Furthermore, defendant has failed to prove he was not predisposed to commit the offense with which he was charged. His ready response to Feeney's offer to sell, coupled with his obvious familiarity with dealing in marijuana, is indicative of his preexisting intent. The people working on behalf of the DCI, namely, Feeney and Niedringhaus, did nothing more than present an opportunity for defendant to carry his intent through to fruition.

In his second contention, defendant argues that the trial court abused its discretion in admitting evidence of his prior dealings with Feeney. During the trial Feeney was allowed to testify that a continuing sales relationship existed between him and defendant. This relationship extended as far back as 1984 and included at least twenty separate occasions on which Feeney purchased marijuana from defendant. The marijuana typically was purchased in quantities of approximately one-half pound. Defendant contends that this evidence was highly prejudicial and should not have been admitted.

We recognize that a defendant's previously committing similar crimes, reputation of being engaged in the commission of such crimes, or being suspected by the police of criminal activities is not admissible on the issue of entrapment. Nelsen, 89 S.D. at 9, 228 N.W.2d at 148. The entrapment defense, however, may not be used as a shield to prevent the admission of such evidence if it is admissible upon independent grounds. Id., 228 N.W.2d at 148.

In State v. Lowther, 434 N.W.2d 747, 752 (S.D.1989), we stated that "evidence of other crimes, wrongs or acts is inadmissible in a criminal prosecution to establish the impermissible inference that since the defendant committed a similar offense on another occasion, he has a propensity to commit the crime charged." SDCL 19-12-5, however, allows the admission of such evidence if it is relevant to a material issue, such as "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Before "other acts" evidence can be admitted, the trial court must determine that the evidence is relevant and that its probative value substantially outweighs its prejudicial effect. Lowther, 434 N.W.2d at 752; State v. Kerkhove, 423 N.W.2d 160, 162 (S.D.1988).

With regard to the relevancy determination, this court has repeatedly stated that "[a]ny fact that tends to connect an accused with the commission of a crime is relevant and has probative value." State v. Sieler, 397 N.W.2d 89, 92 (S.D.1986); State v. Iron Shell, 336 N.W.2d 372, 374 (S.D.1983). Other acts evidence has a prejudicial effect if it has the capacity to persuade by illegitimate means which result in the state's having an unfair advantage. Such evidence is not prejudicial merely because its legitimate probative force damages the defendant's case. Lowther, 434 N.W.2d at 753; Kerkhove, 423 N.W.2d at 163. The process of...