State v. Parks, 82-221

• Decision Date: 01 October 1982
• Docket Number: No. 82-221,82-221
• Parties: STATE of Nebraska, Appellee, v. Jeff PARKS, Appellant.
• Court: Nebraska Supreme Court

Page 673

324 N.W.2d 673

212 Neb. 635

STATE of Nebraska, Appellee, v. Jeff PARKS, Appellant.

No. 82-221.

Supreme Court of Nebraska.

Oct. 1, 1982.

Syllabus by the Court

1. Entrapment. Where a person has no previous intent or purpose to violate the law, but does so only because he is induced to commit the act by law enforcement officers or agents, he is entitled to the defense of entrapment. But where a person already has the readiness or willingness to violate the law, the fact that an officer or agent provides a favorable opportunity for the violation does not constitute entrapment.

2. Entrapment: Proof. Entrapment is a defense which is in the nature of an affirmative defense. This being so, the defendant has the initial burden of going forward with evidence of governmental involvement and inducement, following which the ultimate burden, the risk of nonpersuasion, as in all criminal cases, is on the State.

3. Entrapment: Proof. When assessing the evidence in an entrapment case, the court must first determine if the defendant has submitted sufficient evidence, more than a scintilla, to give rise to the defense. If the defendant has met that burden, the question of entrapment then becomes one of fact to be decided by the jury.

4. Appeal and Error. It is not the province of this court to resolve conflicts in the evidence, pass upon the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence.

5. Entrapment: Appeal and Error. Facts constituting entrapment are ordinarily to be determined by the jury or trier of fact in each individual case, and its findings will be disturbed only when the preponderance of evidence against such findings is great and they clearly appear to be wrong.

6. Entrapment: Evidence. In finding predisposition, the jury need not look specifically to any particular fact or piece of evidence, but may find such predisposition on the part of the defendant from the totality of the circumstances.

7. Criminal Law: Evidence. In criminal cases it is not error to exclude evidence which is not substantive proof of any fact relative to the issue, and evidence which does not tend to establish the guilt or innocence of a defendant of a crime charged is immaterial and should be excluded.

8. Criminal Law: Witnesses: Jury Instructions. An accused is not entitled to a cautionary instruction where the witnesses who testify against him are regular public law enforcement officers.

9. Indictments and Informations. Where the elements of a crime defined by statute are set out in an information or complaint, it is sufficient; and if words appear in such information or complaint which might be stricken, leaving a crime sufficiently charged, and such words do not tend to negative any of the essential averments, they may be treated as surplusage and be entirely rejected.

10. Criminal Law: Pleadings: Waiver. By demurring or pleading to the general issue without requesting a ruling on a motion to quash an information as to certainty, particularity, or redundancy, the defendant has waived all such defects which were raised by the motion to quash.

11. Sentences: Appeal and Error. In the absence of an abuse of discretion by the trial court, we will not disturb on appeal a sentence imposed within the statutory limits.

Richard L. Kuhlman, Fremont, for appellant.

Paul L. Douglas, Atty. Gen., and Frank J. Hutfless, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ.

HASTINGS, Justice.

The defendant, Jeff Parks, was convicted by a jury of the felony crimes of delivery of lysergic acid diethylamide and delivery of marijuana. Following concurrent sentences of 5 to 10 years and 4 to 8 years, the defendant has appealed to this court. His assignments of error include the jury's rejection of his defense of entrapment, the trial court's sustaining of the State's motions in limine, its failure to give an instruction on the testimony of a paid informer, its overruling of a plea in abatement, and the excessiveness of the sentences.

The basic facts in this case are not in dispute. The defendant was contacted by one James Louden on July 3, 1981. This contact was initiated by Louden to determine if a friend of Louden's, an undercover patrol officer, could buy a quantity of marijuana from Parks. At this time, Parks indicated that such a sale was possible, but not at that precise time. Parks told Louden to contact him later. At all times relevant to this case, James Louden was acting as a paid cooperating individual with the Nebraska State Patrol.

After Louden's initial contact with Parks, Louden recontacted Parks 8 to 10 times in the following few days. Each of these times Parks stated that he was having trouble making contact with his source and instructed Louden to get in touch with him again later. On July 7, 1981, a buy was set up between undercover officer Charles L. Phillips, Louden, and Parks. Officer Phillips and Louden picked up Parks at his residence located at 903 Pierce Street in Fremont on July 7. Under Parks' direction they all three proceeded to 605 South I Street in Fremont. Upon their arrival, Parks, leaving Louden and Officer Phillips in the vehicle, went into an apartment building located at that address. After some time elapsed, Parks returned to the vehicle and asked, "Would anybody be interested in any acid?" meaning lysergic acid diethylamide (LSD). Officer Phillips agreed to purchase some. Parks then returned to the apartment building and came back with a quarter pound of marijuana and five "hits" of LSD. Officer Phillips paid $125 for the marijuana and $10 for the LSD. Sometime later, Parks was arrested.

The trial court properly instructed the jury on the defense of entrapment. The test to determine when a party has been entrapped is set forth in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and has been followed in Nebraska. "Where a person has no previous intent or purpose to violate the law, but does so only because he is induced to commit the act by law enforcement officers or agents, he is entitled to the defense of entrapment. But where a person already has the readiness or willingness to violate the law, the fact that an officer or agent provides a favorable opportunity for the violation does not constitute entrapment." State v. Lampone, 205 Neb. 325, 328, 287 N.W.2d 442, 444 (1980). The question to be answered by the court under the test is whether or not the defendant was predisposed to recommit the offense in question.

Entrapment is a defense "which is in the nature of an affirmative defense ...." State v. Ransburg, 181 Neb. 352, 354, 148 N.W.2d 324, 326 (1967). This being so, the defendant has the initial burden of going forward with evidence of governmental involvement and inducement. The ultimate burden, however, as in all criminal cases, is on the government. This is the risk of nonpersuasion.

When assessing the evidence in an entrapment case, a two-step process is used. First, the court must determine if the defendant has submitted sufficient evidence to give rise to the defense. This requires only "more than a scintilla" of evidence. United States v. Wolffs, 594 F.2d 77, 80 (5th Cir. 1979). If the defendant meets this burden, the question of entrapment becomes one of fact to be decided by the jury. See, United States v. Wolffs, supra; United States v. Rodrigues, 433 F.2d 760 (1st Cir. 1970).

In the present case the defendant did introduce evidence of governmental involvement, inducement, and lack of predisposition on the part of Parks. This was done mainly by way of Parks' direct testimony. The evidence offered was more than a mere scintilla, making the entrapment question one for the jury to decide. The jury found against defendant Parks on this question, since they found him guilty.

When reviewing questions decided by the trier of fact in a criminal case, this court has stated the standard of review to be a limited one. "It is not the province of this court to resolve conflicts in the evidence, pass upon the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it." State v. Woodruff, 205 Neb. 638, 640-41, 288 N.W.2d 754, 757 (1980). More specifically, when reviewing jury verdicts regarding the defense of entrapment, this court has stated: "Facts constituting entrapment, which is in the nature of an affirmative defense, are ordinarily to be determined by the jury or trier of fact in each individual case, and its findings will be disturbed only when the preponderance of evidence against such findings is great and they clearly appear to be wrong, or when the findings are clearly contrary to law." State v. Ransburg, supra, 181 Neb. at 354-55, 148 N.W.2d at 326. Inasmuch as this is the standard of review, the only inquiry for the court to make in this case is, was there sufficient evidence in the record on which the jury could have based its verdict?

In finding predisposition the jury need not look specifically to any particular fact or piece of evidence. Rather, the jury may find predisposition on the part of the defendant from the totality of the circumstances. This was the conclusion reached by the Court of Appeals in United States v. Rodrigues, supra. The facts in Rodrigues are similar to those in the present case. In Rodrigues the court faced a defendant convicted of selling drugs to a government agent. The defendant Rodrigues raised the question of entrapment, and in response to this defense the government had no direct evidence of predisposition on the defendant's behalf. Specifically, Rodrigues had not been convicted of selling drugs before, as is the situation with Parks in the present case. The defendant was convicted of the...