State v. McDaniel

• Citation: 251 Or.App. 345,283 P.3d 414
• Decision Date: 25 July 2012
• Docket Number: C090962CR; A143812.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jesse Wiliam McDANIEL, III, Defendant–Appellant.
• Court: Court of Appeals of Oregon

251 Or.App. 345
283 P.3d 414

STATE of Oregon, Plaintiff–Respondent,
v.
Jesse Wiliam McDANIEL, III, Defendant–Appellant.

C090962CR; A143812.

Court of Appeals of Oregon.

Submitted Nov. 15, 2011.
Decided July 25, 2012.

[283 P.3d 415]

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.

BREWER, J.

[251 Or.App. 346]Defendant appeals from his conviction for one count of unlawful possession of a Schedule I controlled substance, formerORS 475.840(3)(a) (2009), renumbered asORS 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 P.2d 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 P.2d 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 P.2d 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 P.3d 914 (2009) (citing State v. Gardner, 231 Or. 193, 195, 372 P.2d 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:

“I have tried this before but could not find the right man to come thru. Im looking for some green or X for my kitty. [251 Or.App. 347]Im a horny thing looking for a hookup. Are you that guy that can step up? Lets make this happen 2nite. Kisses.” ²

[283 P.3d 416]

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:

“Well you sound good so far but I didnt see that have some bud ⁴ or X for me? Do you have either an enuf to get with me 2nite?”

Approximately three hours later, defendant replied:

“I have the bud couldn't find the X. Let me know if you are still interested. Please send a pic.”

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, “Im still lookin sweety. You wanna hook upstill? Im up alnight.” At 11:20 p.m., defendant replied, “[H]ell yeah you got a pic?” Two minutes later, Hahn wrote back, “So wut r u lookin 4? Name ur game. The pic, im the one in the middle with the hat.” ⁵

[251 Or.App. 348]Over the next four hours, the following exchange occurred:

Defendant: “damn your hot i'm down for whatever smoke a little bud and see what happens. I also have xanax, valium ⁶

Defendant: “hey sexy i am up and would love to kick it. you still down?

Hahn: “Hey, u still there or wut

Defendant: “that sounds cool all i have is a dime. Im going to call my twin to pick up a 20 sack is that enough? I would love to smoke and have some bomb sex. Text me[.]”

Defendant: “Hello sex for bud sonds good to me how much do you need? waiting ti hear back from you[.]

Defendant: “Well damn did I just get all this weed for nothing?

Defendant: “Well let me know if you want to do this another time. Waited but never heard back. I bought a shit load of weed.”

On April 23, Hahn wrote:

“Im up early and off to work but Im still down for when i get off 2nite. If you want to make it an alnighter or multiple sex then it will be an ounce. U got a shit load so make it worth it? Deal?”

That evening, the following exchange occurred over a six-hour period.

Defendant: “sounds like a deal. What time and where? I may be able to get some e as well. You are not a cop?

Hahn: “Oh yeah, we can chill at my place since Ive had a couple shots already and my sis is out of town. Hit me back[.]

Defendant: “Yeah i wanna come over. 1 is a little late but sounds ok. Anyway to meet earlier? What is your addy? You are not a cop? Do you have another pic?

Hahn: “You wanna come over say 11p then, I will head home now then, let me know wut ur driving so i can watch 4 [251 Or.App. 349]ya, house is easy to miss. Not a cop by the

[283 P.3d 417]

way, u bring the condoms then. Here is a couple good ones I havent shared with others. U will like”

Defendant: “Lets say 11:45 send me your addy. I am driving a white Honda Accord.

Hahn: “u get the E to?

Defendant: “about to try and get it. might be a little late.

Defendant: “just got the e u still want to do this?”

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, “[f]rom the record here, there's no record that [defendant] was predisposed at all to possessing this ecstasy. In fact, all the evidence points to the contrary of 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 [251 Or.App. 350]to Hahn “is like the same generic reply that I sent 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 “and looked for people that played the part, like the baggy clothes, and—just kind of asked. * * * I was specifically looking for marijuana at that time. I did ask about the X, but it was—it's not really completely what I was looking for.” 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 Craigslist 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:

Prosecutor: “So when the officer in this case said that he wanted drugs and controlled substances in exchange for sex you didn't say, ‘Oh, no. That's not for me,’ you continue with the correspondence, correct?

Defendant: “Yes.”

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, “[T]hink about it this way. I'm not going to go get something if I know that I'm not meeting someone. * * * I'm not going to go and spent $20, and—that I don't have, or something like that, if I know I'm not meeting someone.”

The prosecutor then asked defendant about his final e-mails with the officer.

[283 P.3d 418]

Prosecutor: “April 23rd, 6:24pm on Thursday. Do you see that?

Defendant: “Mm-hmm.

[251 Or.App. 351]Prosecutor: “You say, ‘it sounds like a deal. What time? May be able to get some E, as well.’

Defendant: “Yeah.

Prosecutor: “Now, at that point, that's not a response to the officer asking you yet again, is it? If you refer to page 12, at the very top, that's what the officer said. Does it, again, ask you there if you have any E, or anything like that?

Defendant: “At the top of page 12?

Prosecutor: “Yeah.

Defendant: “No.

Prosecutor:...