State v. Nehring

• Citation: 509 N.W.2d 42
• Decision Date: 02 December 1993
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Mary J. NEHRING, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Emil O. NEHRING, Defendant and Appellant. os. 930127, 930128.
• Court: United States State Supreme Court of North Dakota

Page 42

509 N.W.2d 42

STATE of North Dakota, Plaintiff and Appellee, v. Mary J. NEHRING, Defendant and Appellant.

STATE of North Dakota, Plaintiff and Appellee, v. Emil O. NEHRING, Defendant and Appellant.

Cr. Nos. 930127, 930128.

Supreme Court of North Dakota.

Dec. 2, 1993.

Janet H. Zander of Anseth & Zander, Williston, for defendants and appellants.

Peter H. Furuseth, State's Atty., Williston, for plaintiff and appellee.

LEVINE, Justice.

Mary J. Nehring and Emil O. Nehring appeal from criminal judgments entered against each of them for two counts of delivery of a controlled substance. The Nehrings' convictions arose from an undercover operation conducted by the Williams County Sheriff's Department. Because we believe the facts of these cases do not establish entrapment as a matter of fact or law, we affirm.

During most of 1992, the Williams County Sheriff's Department employed Richard White to make undercover drug buys. The Sheriff's Department gave White a list of suspected drug users and dealers, which included the Nehrings. Over several months, White established a friendship with the Nehrings. On September 7, 1992, White routed a drug buy through the Nehrings' home. He contacted a dealer, Terri Cole, who was unaware that White was working for the Sheriff's Department, and asked her to deliver some quarter bags of marijuana to the Nehrings' home, where he would pick them up. White went to the Nehrings' home and told Emil Nehring that he wanted two bags. Emil gave White the bags and White paid him. On September 10, 1992, White went to the Nehrings' home again, where he purchased a third quarter bag from Emil. On October 5, 1992, White routed another drug buy through the Nehrings' home. He again contacted Cole and asked her to deliver a quarter bag of marijuana to the Nehrings' home, where he would pick it up. White picked up the marijuana while Mary Nehring was present. He later returned with money for the purchase, which he left with Mary, and picked up a second quarter bag of marijuana, for which he paid Cole directly the next day. White resigned from his position with the Sheriff's Department in December 1992, criticizing the Department's methodology. According to White, the Sheriff's Department had targeted the Nehrings for political reasons and had authorized White's drug use during the undercover operation.

Mary and Emil were tried separately after waiving their rights to a jury trial. The trial court entered judgments against Mary and Emil after finding each guilty of two counts of delivery of a controlled substance under NDCC Sec. 19-03.1-23(1)(b). ¹ The trial court sentenced each to a one-year term of imprisonment, which it suspended, and ordered each to pay a fine and restitution. Mary and Emil appealed from the criminal judgments against them. We consolidated their oral arguments and because the facts of their respective cases are substantially identical and the same law is applicable in each case, we resolve their cases in this single opinion.

On appeal, the Nehrings raise two issues: first, whether the trial court erred in finding that the evidence was insufficient for entrapment, and second, whether Mary and Emil established entrapment as a matter of law under State v. Kummer, 481 N.W.2d 437 (N.D.1992). We address each issue in turn.

The Nehrings' first argument is that the evidence at trial was sufficient to establish entrapment as a matter of fact. The defense of entrapment is set out in NDCC Sec. 12.1-05-11:

"1. It is an affirmative defense that the defendant was entrapped into committing the offense.

"2. Entrapment occurs when a law enforcement agent induces the commission of an offense, using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

"3. In this section 'law enforcement agent' includes personnel of federal and local law enforcement agencies as well as state agencies, and any person cooperating with such an agency." NDCC Sec. 12.1-05-11 (1985) (current version at NDCC Sec. 12.1-05-11 (Supp.1993)). ²

North Dakota applies the objective test for entrapment, in which the focus is on the conduct of the law enforcement agents and its likely effect on a normally law-abiding person. E.g., State v. Hoffman, 291 N.W.2d 430 (N.D.1980). Predisposition of the defendant to commit the crime is irrelevant to the defense, and the defendant has the burden of proving entrapment by a preponderance of the evidence. E.g., Kummer, supra. To establish entrapment, a defendant must prove two elements: that law enforcement agents induced the commission of the crime and that such inducement was likely to cause a normally law-abiding person to commit the crime. E.g., id.

The Nehrings argue that White's testimony at trial about political targeting and the list of suspected drug users and dealers sufficiently proves entrapment. Our standard of review for a criminal bench trial is the same as if the case had been tried to a jury. State v. Johnson, 425 N.W.2d 903 (N.D.1988). In cases challenging a factual conclusion that entrapment did not occur, we do not weigh conflicting evidence, nor do we judge the credibility of witnesses; instead, we look only to the evidence and its reasonable inferences most favorable to the verdict to see if substantial evidence exists to warrant a conviction. State v. Overby, 497 N.W.2d 408 (N.D.1993).

The Nehrings do not dispute the sufficiency of the evidence supporting the trial court's separate determinations that they delivered a controlled substance under NDCC Sec. 19-03.1-23(1)(b), supra. Therefore, our only concern is whether the evidence was sufficient for the trial court to decide in each case that Mary and Emil were not entrapped. State v. Weisz, 356 N.W.2d 462 (N.D.1984). At Mary's trial, White testified that a sergeant in the Sheriff's Department "told me Girard Nehring [Emil's brother] had run for sheriff at one time, and it would be real good if I build [a case on the Nehrings] to keep him from running again." White testified to the same effect at Emil's trial. The sergeant also testified at Mary's trial and denied that he told White to target the Nehrings specifically, for any reason. The trial court found White's testimony about political targeting at both trials incredible. We will not reweigh the conflicting evidence regarding political targeting nor judge White's credibility. The Sheriff's Department did not deny that it provided White with a list of suspected drug users and dealers. However, the trial court found that the list, by itself, was not evidence of entrapment. The trial court commented, "[I]f someone new comes to a community and is not given whatever scuttlebutt is available by law enforcement officials, it would be rather bizarre...." We agree that the list, standing alone, does not prove that law enforcement agents induced the commission of the crime or likely would cause a normally law-abiding person to commit the crime. We conclude that the evidence was sufficient in both cases to allow the trial court to reject Mary's and Emil's entrapment defenses.

The Nehrings' second argument is that the facts of their cases establish entrapment as a matter of law under Kummer, supra. Ordinarily, entrapment is a question of fact. Id. However, a trial court may find entrapment...