State v. Ashworth

292 S.E.2d 615, 170 W. Va. 205, 1982 W. Va. LEXIS 791
CourtWest Virginia Supreme Court
DecidedJune 18, 1982
DocketNo. 15376
StatusPublished
Cited by2 cases

This text of 292 S.E.2d 615 (State v. Ashworth) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ashworth, 292 S.E.2d 615, 170 W. Va. 205, 1982 W. Va. LEXIS 791 (W. Va. 1982).

Opinion

McHUGH, Justice:

This action is before this Court upon the petition of Roy Ashworth for an appeal from his 1981 conviction in the Circuit Court of McDowell County, West Virginia, of the offense of delivery of marihuana. That conviction arose from an alleged delivery of marihuana by the defendant to an undercover police officer on January 12, 1981. This Court has before it the petition for appeal, all matters of record, and the briefs and argument of counsel.

On February 17, 1981, a McDowell County grand jury returned a two count indictment against defendants Ashworth and Ricky Hagy. Count one of that indictment stated as follows:

The Grand Jurors of the State of West Virginia, in and for the body of McDowell County, now attending said Court, upon their oaths present that Roy Ash-worth and Ricky Hagy on the said 12th day of January 1981 in the said County of McDowell, did unlawfully and felo-niously deliver to Dorsey K. Hylton a quantity of marihuana, defined by stat[207]*207ute in West Virginia Code 60A-l-101(n), same being listed as a controlled substance under Chapter 60A, Article 2, Section 204 of the Code of the State of West Virginia, as amended, the said Roy Ash-worth and Ricky Hagy not being a person authorized by law to possess and deliver said controlled substance, and in violation of the provisions of Chapter 60A, Article 4, Section 401(a)(l)(ii) of the Code of the State of West Virginia, as amended, against the peace and dignity of the State.

Count two of that indictment charged defendants Ashworth and Ricky Hagy with the unlawful and felonious delivery of ly-sergic acid diethylamide, a controlled substance pursuant to W. Va. Code, 60A-2-204 [1981]. Count two of that indictment, however, is not before this Court in this appeal.

The trial of the defendants Ashworth and Ricky Hagy upon count one of the indictment began on June 1, 1981, and on June 2, 1981, the jury returned the following verdict with respect to defendant Ash-worth: “We, the jury, upon the issue joined between the State of West Virginia and the defendant, Roy Ashworth, find the defendant, Roy Ashworth, guilty of delivery of marihuana, as charged in the indictment.” Defendant Ricky Hagy was found not guilty.

By order entered on July 15, 1981, the trial judge denied defendant Ashworth’s motion to set aside the verdict of the jury. Pursuant to that order, Ashworth was sentenced to a penitentiary term of not less than one year nor more than five years. Pursuant to W.Va.Code, 58-5-25 [1931], this Court by order entered on January 6, 1982, granted the motion of defendant Ash-worth for leave to move to reverse the final order of the Circuit Court of McDowell County.

Two witnesses testified at the trial of defendants Ashworth and Ricky Hagy. The first witness called to testify was Robert S. White, a police chemist, who identified the substance delivered by Ashworth to the undercover officer as 21 grams of marihuana. The second witness called to testify was Trooper Dorsey K. Hylton, an undercover police officer working in McDowell County during the period in question.

Trooper Hylton testified that in January, 1981, he went to the City of War, McDowell County, West Virginia, for the purpose of conducting investigations relating to controlled substances. In that city he became acquainted with defendant Ash-worth. Trooper Hylton testified that on January 12, 1981, he met with Ashworth and Wilbur Austin in a local tavern. Trooper Hylton asked Ashworth where drugs could be acquired, to which question Ashworth referred to Squire, McDowell County, West Virginia.

Trooper Hylton testified that at Ash-worth’s direction, Trooper Hylton, Ash-worth and Wilbur Austin drove that evening in Trooper Hylton’s motor vehicle to Squire, where upon their arrival they parked at an establishment known as Tony’s Beer Garden. Trooper Hylton and Wilbur Austin remained in the vehicle while Ashworth entered Tony’s Beer Garden. Ashworth then returned to the vehicle with Ricky Hagy, both of whom indicated that a person by the name of “Scott” would arrive shortly to sell marihuana. A white motor vehicle then drove into the parking lot at Tony’s Beer Garden from which defendant Ashworth physically delivered marihuana to Trooper Hylton. Trooper Hylton then gave Ashworth forty dollars ($40), and Ashworth apparently transferred that money to the person seated in the white vehicle. Trooper Hylton, Ash-worth and Wilbur Austin then returned to War. Subsequently, Trooper Hylton mailed the marihuana to Charleston, West Virginia, for analysis.

The principal assertions of defendant Ashworth in this appeal are that (1) the actions of Trooper Hylton constitute entrapment as a matter of law, and (2) the actions of defendant Ashworth as a mere go-between in the transaction in question do not constitute a crime.

I

Defendant Ashworth contends that inasmuch as Trooper Hylton suggested the marihuana transaction at War, provided [208]*208the purchase money for the marihuana, and also provided transportation to Squire, an entrapment of defendant Ashworth by Trooper Hylton was shown as a matter of law. We reject that contention, however, and conclude that, under the circumstances of this case, the issue of entrapment was properly submitted to the jury.

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the defendant was convicted in federal court of unlawfully manufacturing and processing methamphetamine (“speed”) and of unlawfully selling and delivering that drug. In that action, the defendant and others maintained a laboratory in the State of Washington for the illicit manufacture of methamphetamine. A federal undercover agent infiltrated the operation and provided the perpetrators with an essential ingredient to the manufacturing process. The defendant conceded predisposition to commit the offense but asserted that entrapment existed as a matter of law.

Upon appeal from the defendant’s conviction, the Court of Appeals in Russell held that the conduct of the undercover agent in supplying a scarce ingredient essential to the manufacture of methamphetamine established the defense of entrapment. The United States Supreme Court, however, reversed. Noting that the undercover agent was not the only source the perpetrators had for the ingredient necessary to the manufacture of methamphetamine, the Supreme Court declined to hold that the conduct of the undercover agent was intolerable or overzealous. Rather, the court in Russell reaffirmed the principle that a defendant’s predisposition to commit the crime, rather than the type and degree of government conduct relating to that crime, constitutes the essential element of the defense of entrapment. 411 U.S. at 433, 93 S.Ct. at 1643, 36 L.Ed.2d at 374.

Furthermore, the court in Russell recognized that “... there are circumstances when the use of deceit is the only practicable law enforcement technique available.” 411 U.S. at 436, 93 S.Ct. at 1644-1645, 36 L.Ed.2d at 375-376. As the court stated with respect to the illicit manufacture of drugs:

The illicit manufacture of drugs is not a sporadic, isolated criminal incident, but a continuing, though illegal, business enterprise. In order to obtain convictions for illegally manufacturing drugs, the gathering of evidence of past unlawful conduct frequently proves to be an all but impossible task.

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Related

State v. Wade
490 S.E.2d 724 (West Virginia Supreme Court, 1997)
State v. Taylor
337 S.E.2d 923 (West Virginia Supreme Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
292 S.E.2d 615, 170 W. Va. 205, 1982 W. Va. LEXIS 791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ashworth-wva-1982.