State v. Ontiveros, 19021
| Decision Date | 09 November 1983 |
| Docket Number | No. 19021,19021 |
| Citation | 674 P.2d 103 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Victor ONTIVEROS, Defendant and Appellant. |
| Court | Utah Supreme Court |
Michael D. Esplin, Provo, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.
Appellant Victor Ontiveros was convicted in the Fourth Judicial District in Utah County of distribution of a controlled substance for value in violation of U.C.A., 1953, § 58-37-8(1)(a)(ii). The questions on appeal concern the sufficiency of the evidence to support the conviction and a claim that the defendant was entrapped by an undercover narcotics officer. We reverse.
During most of 1982, Officer Richard Mack of the Provo Police Department worked as an undercover officer disguised as a taxi cab driver. 1 Mack was the only witness called by the State. He testified that two or three weeks before June 10, 1982, he was called by one Billy Roberts, who had already sold some drugs to Mack and did not know that Mack was actually a police officer. Roberts told Mack that he knew where they could both get some drugs. Mack said he was interested, picked up Roberts and drove to Victor Ontiveros' home in Springville. There Roberts introduced Mack to Ontiveros as someone interested in buying some "mushrooms," a form of hallucinogenic drug. Ontiveros responded that he did not have any at the time, that he was "dry," but that he was expecting to get some later. Mack told Ontiveros that he drove a cab and gave him his business card. Mack also asked him when he would be getting some mushrooms or other drugs. Ontiveros responded that it would be "later" and that Mack would have to get back in touch with him then.
After this initial meeting, Mack twice called Ontiveros to see if he had any drugs. Each time, Ontiveros replied that he had not yet received any. Mack then said he would get back with him later.
On June 10, 1982, Mack went to Ontiveros' home again. Ontiveros was having a birthday party for his young son, and several people were present. Ontiveros saw Mack at the door and said, "I guess you want some weed." Mack responded that he did, and Ontiveros told him, "Well come back in a while ... we are having a party here." Mack returned in about an hour. Ontiveros offered him a beer and told him he would have to make a phone call to see if someone else had any marijuana. Ontiveros made the call and while he was on the phone told Mack that he could get some marijuana at $40 for a half ounce. Mack agreed and the two left for Provo.
Ontiveros directed Mack to pull up to a certain corner, where Mack gave Ontiveros $40. Ontiveros got out of the car, entered a residence a short distance away, stayed for five to ten minutes and returned to the car to give Mack a plastic bag containing marijuana. As the two returned to Ontiveros' home, Ontiveros took some marijuana out of the bag at Mack's invitation, rolled a marijuana cigarette and shared it with Mack. Ontiveros then asked Mack to sell him enough marijuana for a second cigarette. Mack told him just to "go ahead and take a pinch," which Ontiveros did.
Appellant seeks reversal of his conviction on the ground that the evidence presented at trial does not establish the crime of distributing a controlled substance for value. He also claims that he was entrapped.
U.C.A., 1953, § 58-37-8(1)(a)(ii), under which the appellant was charged, provides as follows:
(a) Except as authorized by this act, it shall be unlawful for any person knowingly and intentionally:
(ii) to distribute for value or possess with intent to distribute for value a controlled or counterfeit substance.
No...
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State v. Moore
...actions involved more than a mere agency relationship and that his receipt of the money and a line constituted value. See State v. Ontiveros, 674 P.2d 103 (Utah 1983). II Next, defendant contends that the evidence establishes an entrapment defense as a matter of law, based on his alleged fr......
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State v. Fixel, s. 860151
...Utah Code Ann. § 58-37-8(1)(a)(iv) (Supp.1985) (amended 1986; repealed 1987). Although the State responds by arguing that our decision in Ontiveros misconstrues the applicable statute, we nevertheless follow our prior interpretation and analysis of the provisions constituting the controlled......
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..."FOR VALUE" Defendant next contends that the distribution was not "for value" and his conviction must be set aside. In State v. Ontiveros, 674 P.2d 103 (Utah 1983), the evidence clearly established that Ontiveros, a known drug dealer, was acting merely as the officer's agent in making the p......