State v. Rodriguez

• Decision Date: 29 November 1990
• Docket Number: No. 18390,18390
• Citation: 118 Idaho 948,801 P.2d 1299
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Matilde Y. RODRIGUEZ, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1299

801 P.2d 1299

118 Idaho 948

STATE of Idaho, Plaintiff-Respondent, v. Matilde Y. RODRIGUEZ, Defendant-Appellant.

No. 18390.

Court of Appeals of Idaho.

Nov. 29, 1990.

Gara B. Newman, Rupert, for defendant-appellant.

Jim Jones, Atty. Gen. and Jack B. Haycock, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Matilde Rodriguez was charged with delivery of cocaine, a controlled substance. I.C. § 37-2732(a)(1)(B). He waived his right to a jury and was found guilty of the charge following a trial before the court. Rodriguez received a unified sentence of nine years, with a fixed term of three years' incarceration. On appeal, Rodriguez challenges the district court's decision to exclude testimony that Rodriguez contends was relevant to his defense of entrapment. Rodriguez further asserts that the sentence imposed was excessive. As explained below, the judgment of conviction, including the unified sentence, is affirmed.

The following facts were presented at trial. A police informant, Joe Beltran, telephoned Rodriguez and asked if he would sell him cocaine. Rodriguez responded that he did not have any cocaine, but agreed to make some telephone calls to try to find someone who did. Beltran telephoned Rodriguez several more times that day, and ultimately arranged to meet Rodriguez for the purpose of selling cocaine to Scott Ward, an undercover police officer. Beltran and Ward then met at the local sheriff's office, where Beltran was searched to make sure he was not in possession of any controlled substances. They left the office and drove to Rodriguez' home. Rodriguez arrived at about the same time as Ward and Beltran and they went into the house together. Rodriguez removed two plastic bags of cocaine from his trouser pockets and placed them on a table. He used a set of scales to measure a quarter ounce of cocaine from one of the bags. The measured cocaine was given to Ward. Ward in turn placed four hundred and twenty dollars on the table in front of Rodriguez and then left with Beltran. They returned to the sheriff's office where Beltran was again searched to make sure he was not carrying any drugs. Rodriguez subsequently was arrested and charged with delivery of cocaine.

At trial, Rodriguez maintained that he did not supply the cocaine for the transaction, but rather that he was unable to locate any cocaine, and that Beltran had agreed to supply the cocaine himself. Rodriguez asserted that Beltran offered him fifty dollars to operate the scales, which was his sole involvement in the transaction. Contrary to the testimony of Officer Ward and of Beltran, Rodriguez testified that Beltran initially entered the house alone, leaving Ward outside for several minutes. Rodriguez related that before Ward entered the house, Beltran produced the bags of cocaine from a small box wrapped in clothing and set it on the table. Rodriguez claimed that when Beltran walked outside to signal Ward to come in, Rodriguez became nervous and hid the cocaine in his pockets. Once Ward was inside, Rodriguez removed the bags and replaced them on the table.

Rodriguez also testified that he spoke to Beltran several months following his arrest, and that Beltran told him that he had been "in trouble" and had needed "to get five people in trouble" in order to get himself out of the situation. Beltran denied these allegations.

At the conclusion of the trial, the court found Rodriguez guilty. The court specifically found that the testimony of officer Ward and of Beltran was more credible than the evidence introduced by Rodriguez. On appeal, Rodriguez does not directly challenge the sufficiency of the evidence to support the court's verdict. Instead he claims the court erred in refusing to admit other evidence offered by the defense.

Rodriguez sought to introduce the testimony of two witnesses who had been arrested and charged with delivery of cocaine in separate, unrelated transactions with Beltran. Through an offer of proof, counsel for Rodriguez informed the court the first witness would testify that Beltran had persistently approached him seeking to purchase cocaine, until the witness sold him cocaine. The testimony of the second witness would have been that Beltran tried to get him to sell cocaine, and when he was unable to locate any, Beltran himself supplied the drugs, but persuaded the witness to make the sale. Counsel related that both witnesses were subsequently arrested and separately charged with delivery of a controlled substance. Following Rodriguez' presentation, the trial judge excluded the evidence, stating that "the probative value of this evidence is outweighed by its remoteness." Rodriguez maintains that this testimony was relevant to his entrapment defense for the purpose of showing the conduct of the government agents. He argues that the court erred in refusing to allow it into evidence.

I

Preliminarily, we note that, in asserting the conduct of the government as an issue in the case, Rodriguez relies upon State v. Mata, 106 Idaho 184, 677 P.2d 497 (Ct.App.1984), in which we discussed the varying theories underlying the defense of entrapment. We observed that Idaho courts traditionally have adhered to a "subjective" approach, which focuses on whether the intent to commit the crime originated in the mind of the defendant, rather than placed there by the government. We also recognized that other jurisdictions have taken a broader approach, examining the objective conduct of the government viewed in light of its probable impact, not upon the particular defendant, but upon the average person other than one who is willing to commit such an offense. Id. However, in Mata, we noted that the Idaho Supreme Court had yet to pass upon the merits of the latter approach, and that because the question whether the unlawful conduct of the government would provide a cognizable basis for maintaining the defense in this state was not squarely before us, we did not need to decide it and resolved the case on other grounds. Likewise, as our discussion below indicates, we believe that the trial court properly excluded the evidence, regardless of whether a subjective or objective approach to analysis of the entrapment defense is applicable.

II

We turn now to the evidentiary issue. Rodriguez maintains that the trial court erred in excluding evidence of Beltran's and Ward's other acts and conduct offered through the testimony of two witnesses. We note that evidence of a person's actions and conduct, other than that set forth as an ultimate issue for trial, is generally inadmissible under I.R.E. 404(b). This rule provides that "evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." The basis for the inadmissibility of a person's "other acts" is that such evidence is not relevant to prove the conduct in question. 22 WRIGHT & GRAHAM, FEDERAL PRACTICE AND PROCEDURE EVIDENCE § 5239 (1978). However, Rule 404(b) further states that "other acts" evidence may be admissible for purposes other than to prove how a person acted on a given occasion. These permissible uses include proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. ¹

However, establishing that the evidence of other acts is relevant for some purpose not involving the forbidden inference of a propensity does not render the evidence automatically admissible. Rule 404(b) states only that the evidence "may" be admissible for some other purpose....