State v. Moeller, 15072

• Decision Date: 13 February 1986
• Docket Number: No. 15072,15072
• Citation: 388 N.W.2d 872
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Kyle Chris MOELLER, Defendant and Appellant. . Considered on Briefs,
• Court: South Dakota Supreme Court

Page 872

388 N.W.2d 872

STATE of South Dakota, Plaintiff and Appellee, v. Kyle Chris MOELLER, Defendant and Appellant.

No. 15072.

Supreme Court of South Dakota.

Considered on Briefs, Feb. 13, 1986.

Decided June 4, 1986.

Clair B. Ledbetter, Asst.Atty.Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty.Gen., Pierre, on brief.

J.M. Grossenburg of Day, Grossenburg & Whiting, Winner, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY

On June 27, 1985, a Tripp County jury returned two verdicts which found appellant-defendant Kyle Chris Moeller (Moeller), guilty of Distribution of a Controlled Substance, to wit: Cocaine, a violation of SDCL 22-42-2 and SDCL ch. 34-20B; and guilty of Possession of a Controlled Substance, to wit: Cocaine, a violation of SDCL 22-42-5 and SDCL ch. 34-20B. The trial court, by an Order Suspending Imposition of Sentence, did not enter a judgment of conviction on the above offenses. Instead, as the title of the order denotes, the trial court suspended the imposition of Moeller's sentence, placed him on five years' probation, imposed a $1,000 fine, and ordered Moeller to serve 30 days in the South Dakota State Penitentiary. Moeller contends he was entrapped. We affirm.

FACTS

In April 1984, South Dakota DCI Special Agent Dennis Boots (Boots), a/k/a Dennis Baker, began an undercover investigation of illegal drug distribution in Tripp County and the surrounding area. Upon his arrival, local law enforcement officials showed Boots a picture of Moeller. Law enforcement intelligence reports indicated that Moeller was involved with drugs. Moeller, who at the time of trial was 27 years old, worked on his parents' farm and lived in a mobile home thereon approximately 25 miles northwest of Winner, South Dakota.

In the following months of 1984, Boots observed Moeller in the local bars. In July 1984, Boots tried to buy Moeller a drink in a local tavern, but Moeller declined. After this, and until March 1985, Boots did not investigate Moeller to any great extent. Boots, however, did observe Moeller smoking marijuana on two occasions, but Boots had no interaction with Moeller until March 1985. ¹

In March 1985, Boots learned that Moeller was interested in selling a sports car. Thereafter, Boots phoned Moeller's parents several times and expressed an interest in purchasing the car. Moeller, through another individual, then contacted Boots about the car sale. On March 14, 1985, Boots and a local individual who was cooperating in the investigation, went to Moeller's residence under the pretense of purchasing Moeller's car. Since the car was not there, the three talked and smoked some of Moeller's marijuana. Boots twice asked Moeller to sell him some marijuana. Moeller refused stating that he did not deal in drugs. Thereafter, Moeller did give Boots two marijuana joints for the road.

Moeller met Boots at a Winner bar the next day, March 15, 1985 and Boots gave Moeller $100 to hold the sports car. Purchase price of the car was agreed at $2,200 but its wholesale market value in Denver was only $700 to $800. Moeller set the price for the car. At this time, Boots suggested a trade of 24 pounds of Columbian marijuana for 12 pounds of Sensamelion marijuana. Sensamelion marijuana is a hybrid of more value in illegal drug markets. Boots previously made it known that he was from California and that Sensamelion was not as readily available in California as was Columbian marijuana. Moeller responded that he did not deal but that he might know some interested individuals.

Boots thereafter left the Winner area for two weeks under the pretense of going to California. Upon his return to Winner, and on one of the first two days of April 1985, Boots again met with Moeller at the latter's residence. At this time, the car sale was discussed. Boots then stated that his father owned a construction company in California and his father's company needed workers. Boots further stated he had previously made $9,000 a month working for his father's construction company and that Moeller could make $5,000 a month. Employing a calendar, Boots and Moeller planned when they could leave for California and when they could return to Winner for a scheduled event and pick up Moeller's cousin Tim. On this same date, Boots again suggested the marijuana trade. Moeller thereupon inquired as to how many pounds of Columbian marijuana he could get in trade for his sports car.

In the following days, Moeller informed his parents of the $5,000-a-month California construction job and arranged for his cousin Kathy to take over some of his farm duties. Moeller also contacted an individual in Pierre concerning the marijuana trade.

April 7, 1985, was the date set for the marijuana trade. On this day, at 2:45 p.m., Boots told Moeller that Moeller and the person trading marijuana should possess some drugs so that he, Boots, would be sure they were not undercover narcotics officers. Moeller stated that he could obtain cocaine from an individual in Winner and various quantities of cocaine were further discussed. As testified to at trial, however, the sole reason Boots wanted Moeller to get drugs was so he could arrest Moeller for having drugs. Later that afternoon, Moeller phoned Boots and stated that everything was fine on his end.

That evening, the parties met in a Winner bar and then proceeded to the Winner airport. There, Moeller and the individual from Pierre removed from their persons small packets containing cocaine and handed them to Boots. Boots asked the price and then handed money to the person from Pierre. Moeller received the cocaine he possessed from the individual from Pierre and possessed it as Boots had requested so that Boots would believe he, Moeller, was not an undercover narcotics officer.

Within minutes, the parties were arrested. During Moeller's booking at the Winner Police Station, a cocaine spoon necklace and a cocaine sifter were taken from Moeller. Although in Moeller's possession, the cocaine sifter was the property of the individual from Pierre.

After a jury trial, Moeller was convicted of possession and distribution of cocaine. At all appropriate times, defense counsel moved for the dismissal of the charges because entrapment, as a matter of law, existed. This the trial court refused to do. Instead, the entrapment issue was left for the jury's resolution and they were instructed thereon.

DECISION

I.

DOES THE EVIDENCE REVEAL ENTRAPMENT AS A MATTER OF LAW? WE HOLD THAT IT DOES NOT.

Entrapment is the "inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal proceedings against him." State v. Williams, 84 S.D. 547, 551, 173 N.W.2d 889, 891 (1970). When determining whether entrapment exists, this Court uses the subjective test first espoused in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Under this test, also known as the origin of intent test, State v. Nelsen, 89 S.D. 1, 7, 228 N.W.2d 143, 147 (1975), the focus is on where the intent to commit the crime originated, i.e., whether in the defendant or in the government agent. State v. Johnson, 268 N.W.2d 613, 614 (S.D.1978). Thus,

it is the jury's duty to decide whether the defendant was predisposed to commit the crime. In other words, does the evidence show that the criminal intent is traceable to the defendant or to the Government Agent? Where the genesis of the intent to commit the criminal act is in the mind of the Government Agent "and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act" entrapment is established. If, however, the defendant was predisposed to commit the crime when encouraged to do so by an agent, the defense will fail because there is no entrapment when agents merely offer the defendant an opportunity to commit the offense. Thus, to decide this issue the subjective intent of the defendant should be focused on by the jury, to-wit, was he intent on performing the criminal act with the police only furnishing him an opportunity, or was he an innocent person lured into committing a crime.

State v. Nelsen, 89 S.D. at 7-8, 228 N.W.2d at 147 (citations omitted). When conflicting evidence exists as to the origin of the intent to commit the crime charged, the question of entrapment is for the jury, Williams, 84 S.D. at 553, 173 N.W.2d at 892, and when there is substantial evidence from which the jury may infer that the criminal intent originated in the defendant's mind, entrapment as a matter of law is not established. Id.

"There are two components to the entrapment defense; the defendant must show police inducement to commit the crime and that he was not predisposed to commit the specific criminal act." State v. Iverson, 364 N.W.2d 518, 528 (S.D.1985). The four principal inducements which may locate the intent in the State are appeals to friendship, sympathy, offers of excessive amounts of money, and appeals to a narcotic's needs. State v. Nagel, 279 N.W.2d 911, 916 (S.D.1979). "In addition to showing such inducements, the defendant 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' ...." Nelsen, 89 S.D. at 10-11, 228 N.W.2d at 148 (citations omitted). In determining whether a defendant was predisposed to commit the specific criminal act, the facts surrounding the transaction are relevant as are several definite criteria such as whether the defendant first suggested the crime; the defendant's readiness to commit the crime; the defendant's familiarity with the criminal activity; the defendant's possession of a large supply of illegal contraband before the alleged entrapment; the defendant's ready access to the contraband; and the defendant's ability to collect a large quantity of contraband in a short time. Id., 89 S.D. at 10, 228 N.W.2d at 148.

In the...