State v. McDaniel, A143812
| Decision Date | 25 July 2012 |
| Docket Number | A143812 |
| Parties | STATE OF OREGON, Plaintiff-Respondent, v. JESSE WILIAM McDANIEL, III, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Washington County Circuit Court
C090962CR
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent.
Before Sercombe, Presiding Judge, and Brewer, Judge, and Egan, Judge pro tempore.
Affirmed.
Defendant appeals from his conviction for one count of unlawful possession of a Schedule I controlled substance, former ORS 475.840(3)(a) (2009), renumbered as ORS 475.752(3)(a) (2011). In his sole assignment of error, defendant asserts that the trial court erred in denying his motion for a judgment of acquittal because a police officer unlawfully induced him to engage in the charged conduct and, thus, the state did not disprove his defense of entrapment under ORS 161.275. We affirm.
Where a defendant raises the defense of entrapment, "the state has the burden of disproving the defense beyond a reasonable doubt." ORS 161.055(1); see also State v. Murphy, 21 Or App 630, 535 P2d 779 (1975). In reviewing the trial court's denial of defendant's motion for judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cervantes, 319 Or 121, 125, 873 P2d 316 (1994). Because of the allocation to the state of the burden of proof on defendant's entrapment defense, that inquiry includes the additional question of whether a rational trier of fact could have found that the state disproved the defense beyond a reasonable doubt. State v. McMullen, 34 Or App 749, 752, 579 P2d 879 (1978). "When * * * a defendant [moves for a judgment of acquittal] at the close of the state's case, 'the appellate court must consider all the evidence * * *'" adduced at trial. State v. Bilsborrow, 230 Or App 413, 418-19, 215 P3d 914 (2009) (citing State v. Gardner, 231 Or 193, 195, 372 P2d 783 (1962)).
In the early morning on April 18, 2009, defendant was perusing on his computer the "casual encounters" section of the website Craigslist.1 Defendant clicked on an advertisement entitled "Looking for the right hookup--w4m." That advertisement read:
2
What defendant did not know was that the advertisement had been posted by Officer Hahn as part of his regular police duties. Defendant responded by e-mail at 6:34 a.m., writing:
"My names Jesse, I'm 26 5' 10 D&D free. * * * Let me know if you are interested."3
Hahn, using the fictitious name "Cindy Newsom," responded to defendant at 6:36 a.m., writing:
Later that day Hahn answered, "I am still interested if you can come up with enuf bud to fuck me, can you make it happen[?]" The next day, April 19, defendant replied to Hahn: "Got the bud if you are still interested."
Because Hahn was off duty for three days, he did not resume his e-mail exchange with defendant until April 22, at 10:34 p.m., writing, At 11:20 p.m., defendant replied, "[H]ell yeah you got a pic?" Two minutes later, Hahn wrote back, 5
Over the next four hours, the following exchange occurred:
Later, on the evening of April 24, defendant drove to the address that Hahn had given him. When defendant arrived, Hahn, who had been waiting in his police cruiser, pulled defendant over, had him step out of the car, and gave him the Miranda warnings. Hahn asked defendant what he was doing, and defendant told him he was there to "meet a girl named Cindy that he had met on Craigslist." Hahn then asked defendant if he had any controlled substances with him, and defendant handed over a prescription pill bottle that contained less than an ounce of marijuana. Hahn asked defendant "where the ecstasy was, because he said he was bringing it." Defendant told him that it was at the bottom of the pill bottle; Hahn found one pill there, wrapped in plastic.7 Defendant was arrested and charged with, among other offenses, possession of a Schedule I controlled substance.
After the state concluded its case-in-chief at trial, defendant moved for a judgment of acquittal, arguing that, The trial court denied the motion.
In his own defense, defendant testified that he had used Craigslist to meet people because of his anxiety, for which he had been prescribed Valium and Xanax. Defendant testified that, on the morning of April 18, he had sent replies to "about eight different ads" and that the reply that he sent to Hahn "is like the same generic reply that Isent to every ad." He testified that he had never bought Ecstasy before and that he didn't have any marijuana when he replied to the ad, but "this being Portland * * * I knew that somehow I could find it." According to defendant, he went to downtown Portland on April 23 After Hahn gave him an address, defendant went to downtown Portland again and spent "like about 20 minutes, searching, like asking people, and then bought what--for $20, what I thought was [E]cstasy."
On cross-examination, defendant testified that, in the past, he had received replies to his e-mails in the "casual encounters" section of Craiglist from women who had asked, "[D]o you think you can afford me?" According to defendant, he had replied, "Oh, I don't do that, or stuff like that." The prosecutor then asked defendant:
Defendant admitted volunteering to provide the officer with Valium or Xanax. Defendant testified that he had not purchased any marijuana until April 23, when he bought a "20 sack," a quantity of marijuana that, according to defendant, cost $20. Defendant explained his e-mail asking the officer how much marijuana he needed by saying,
The prosecutor then asked defendant about his final e-mails with the officer.
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