State v. Nelsen, 11409

• Decision Date: 26 March 1975
• Docket Number: No. 11409,11409
• Citation: 89 S.D. 1,228 N.W.2d 143
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Douglas NELSEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 143

228 N.W.2d 143

89 S.D. 1

STATE of South Dakota, Plaintiff and Respondent, v. Douglas NELSEN, Defendant and Appellant.

No. 11409.

Supreme Court of South Dakota.

March 26, 1975.

Robert A. Wichser, Asst. Atty. Gen., Pierre, on the brief, Kermit A. Sande, Atty. Gen., Pierre, Larry F. Hosmer, State's Atty., Yankton, for plaintiff and respondent.

WINANS, Justice.

Defendant-appellant was charged with three counts of unlawfully distributing a controlled substance, Lysergic Acid Diethylamide (LSD), on three separate occasions in July of 1972.

The State's primary witness, Keith Brown, a paid undercover agent, testified that he had purchased LSD from Defendant on July 12, 15 and 17 of 1972. He had come to Yankton, South Dakota in June, at the request of local authorities to investigate drug abuse and related activities in Yankton County. The arrest of Appellant resulted from this investigation.

Mr. Brown's activities were supervised by Sheriff F. L. Scott of Yankton County and Special Agent Patterson of the Division of Criminal Investigation. After purchase the LSD was turned over to Agent Patterson (DCI) who delivered it to Assistant State Chemist, Donald Frasch. Mr. Frasch testified at trial that chemical analysis of the substances disclosed that all three contained LSD. In addition, Brown, the undercover agent identified State's exhibits one, two and three as the purchased substances which he had conveyed to Agent Patterson, DCI.

Upon return of a verdict of guilty on all three counts of Distribution or Dispensing a Controlled Substance the Defendant was sentenced to the State Prison for a three-year term on each of the three counts, the terms to run concurrently.

Appellant maintains the charge, as contained in the complaint, was inadequate to apprise him of what he was charged with. He states that an injustice was worked on him because he could not exactly ascertain the nature of his alleged criminal conduct. Although ambiguous, we interpret 'injustice' to mean that Appellant contends that he was deprived of due process of law by not being fully informed of the particular offense charged.

The complaint alleged that Appellant on three separate occasions did 'willfully, unlawfully and feloniously, distribute or dispense a controlled substance, to-wit: Lysergic acid diethylamide, * * * all in violation of SDCL 39--17'.

Our State Constitution declares that:

'In all criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation against him; to have a copy thereof'. Art. VI, Sec. 7 (Bill of Rights)

To effectuate this provision of our Constitution it is provided by statute that:

'The indictment or information is sufficient if it can be understood therefrom:

(6) That the offense charged is designated in such a manner as to enable a person of common understanding to know what is intended.' SDCL 23--32--12(6)

The other half of the constitutional standard imposed by due process requirements is that the complaint must inform what offense is charged with reasonable certainty:

'An information must apprise a defendant with reasonable certainty of the accusation against him so that he may prepare his defense and plead the judgment as a bar to subsequent prosecution for the same offense.' State v. Long, 1971, 85 S.D. 431, 185 N.W.2d 472, 477.

Does the complaint before us pass the test of allowing 'a person of common understanding' to know with 'reasonable certainty' what he is charged with? Appellant asserts that the complaint is defective because in it he is charged alternatively with distributing or dispensing a controlled substance. Thus, he contends that the complaint is unclear as to what exactly is charged against him. This court cannot agree. Distributing is defined as the delivery (transfer) of a controlled drug to another, while dispense means to deliver (transfer) a controlled drug to the ultimate user. See SDCL 39--17--44(6), (7), (8). Whether or not the undercover agent in the instant case ingested the LSD is of incidental importance. The statute prohibits either distributing or dispensing. See SDCL 39--17--88. The criminal conduct is complete upon transfer. Delivery is the offensive act and not the later ingestion of the substance by the buyer. Dispensing and distributing, therefore, are not mutually exclusive offenses because they involve the same conduct on the part of a defendant leading to a violation of statute. The conduct involved in dispensing or distributing diverges only after the forbidden transfer has occurred.

We, therefore, hold that the State's charge against Appellant of distributing or dispensing a controlled substance did not confuse him as to the nature of his alleged offense. Rather, the complaint apprised Appellant of the charge with that preciseness required to satisfy due process.

The Defendant further contends that the trial court erred in refusing to give Defendant's proposed instruction pertaining to the defense of entrapment. This defense has been defined by this Court as:

'(T)he inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal proceedings against him.' State v. Williams, 1970, 84 S.D. 547, 551, 173 N.W.2d 889, 891.

If an alleged offender is apprehended by use of undercover agents, the entrapment defense is applicable:

'When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act'. Sorrells v. United States, 1932, 287 U.S. 435, 445, 53 S.Ct. 210, 214, 77 L.Ed. 413, 418.

In State v. Williams, supra, this Court adopted the Sorrell's majority test for entrapment which seeks to determine where the intent to commit the crime originated. Under the 'origin of intent' test 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. State v. McGranahan, 1973, Iowa, 206 N.W.2d 88; Wood v. United States, 10 Cir., 317 F.2d 736. See also Annot. 33 A.L.R.2d 883. 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.

The entrapment defense is soundly grounded in public policy. According to the majority's position in Sorrells:

'The defense is available, not in the view that the accused though guilty may go free, but that the government cannot be permitted to contend that he is guilty of a crime where the government officials are the instigators of his conduct.' Sorrells v. United States, supra, 287 U.S. at 452, 53 S.Ct. at 216.

If entrapped, the defendant is found not guilty for the reason that he has violated no statute 'because it cannot be supposed that the Congress intended that the letter of its enactment should be used to support such a gross perversion of its purpose.' Sorrells, supra, at 452, 53 S.Ct. at 216. The entrapped defendant is, therefore, innocent of the crime charged.

There are two components required to successfully establish an entrapment defense: defendant must show police inducement to commit the crime, and that prior to this inducement he was not predisposed to commit the criminal act.

How is defendant's predisposition or lack of it to be proven at trial? In State v. Williams, supra, this Court specifically reaffirmed language in Sorrells that defendant, 'cannot complain of an appropriate and searching inquiry into his own conduct and predisposition'. In pursuit of this 'searching inquiry' the federal courts allow the prosecution to introduce evidence of prior criminal conviction and criminal reputation to show a preexisting criminal intent. See Sherman v. United States, 1958, 356 U.S. 369, 375, 78 S.Ct. 819, 2 L.Ed.2d 848.

In United States v. Russell, 1973, 411 U.S. 423, 433, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366, 374, the Supreme Court stated that 'the defense (of entrapment) is not of a constitutional dimension'. This Court is free, therefore, to select its own standards for this defense. Because the prejudicial effect of evidence of prior convictions or criminal reputation is devastating, far outweighing its probative value; and because this Court believes that the defendant should be tried for his present conduct, and not on the basis of past crimes, evidence of prior convictions should not be introduced on the issue of predisposition. As stated by Justice Frankfurter, 'Past crimes do not forever outlaw the criminal.' Sherman v. United States, supra, 356 U.S. 369, at 383, 78 S.Ct. 819, at 826.

In espousing this approach we join the Supreme Court of California which stated that '(E)vidence that defendant had previously committed similar crimes or had the reputation of being engaged in the commission of such crimes or was suspected by the police of criminal activities is not admissible On the issue of entrapment.' (emphasis supplied) People v. Benford, 1959, 53 Cal.2d 1, 11, 345 P.2d 928, 935.

It is important to note that evidence of prior convictions or criminal reputation Should be admitted if it is admissible on independent grounds. The entrapment defense may not be used as a shield to prevent the admission of evidence admissible upon grounds...