State v. Hilleshiem

492 N.W.2d 381, 172 Wis. 2d 1, 1992 Wisc. App. LEXIS 596
CourtCourt of Appeals of Wisconsin
DecidedOctober 29, 1992
Docket91-1237-CR
StatusPublished
Cited by9 cases

This text of 492 N.W.2d 381 (State v. Hilleshiem) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hilleshiem, 492 N.W.2d 381, 172 Wis. 2d 1, 1992 Wisc. App. LEXIS 596 (Wis. Ct. App. 1992).

Opinions

DYKMAN, J.

Becki Hilleshiem appeals from her conviction on ten counts of delivery of a controlled substance and party to the crime of delivery of a controlled substance, contrary to secs. 161.41(l)(c)l., 161.41(l)(h)l. and 939.05, Stats. The issues are: (1) whether the tried court erred by refusing to give an entrapment instruction on eight counts; (2) whether the trial court erred in four evidentiary rulings during trial; and (3) whether the trial court abused its sentencing discretion.

[8]*8We conclude that the trial court did not err in refusing to give the entrapment instruction. We also conclude that any error by the trial court in its evidentiary rulings was harmless and that the court did not abuse its discretion at sentencing. Therefore, we affirm.

The charges against Hilleshiem arose out of an undercover operation conducted in Richland county. Steve Owen was an agent in this operation, using the alias Steve Sandtini. Owen became acquainted with Hil-leshiem in August 1988 and participated in numerous drug transactions with her from October 1988 until her arrest in August 1989. The jury convicted her on six counts of delivery of cocaine, two counts of delivery of THC (the active ingredient in marijuana), and two counts of being a party to the crime of delivering cocaine. It acquitted on five similar charges.

I. ENTRAPMENT

Hilleshiem requested an entrapment instruction on thirteen counts. The court granted it on four. Hilleshiem argues that her convictions on counts 2, 3, 5-8, 10, and 13 should be reversed because of the court's failure to properly instruct the jury.

Entrapment is a defense to a charge when the "evil intent" and the "criminal design" of the offense originate in the mind of the government agent, and the defendant would not have committed an offense of that character except for the urging of the government. State v. Saternus, 127 Wis. 2d 460, 469, 381 N.W.2d 290, 294 (1986). To establish the defense of entrapment, the defendant must show by a preponderance of the evidence that she was induced to commit the crime. Id. at 472, 381 N.W.2d at 295. If the defendant meets her burden of persuasion, then the burden falls on the state to prove [9]*9beyond a reasonable doubt that the defendant was predisposed to commit the crime. Id. at 474, 381 N.W.2d at 296. Because the defense of entrapment allows a person, who under normal circumstances would be guilty, to go free, it is disfavored in the law and should not be entertained lightly by the courts. State v. Bjerkaas, 163 Wis. 2d 949, 955, 472 N.W.2d 615, 617 (Ct. App. 1991).

The fact that a government agent furnishes the accused with an opportunity to commit the crime does not by itself constitute entrapment. State v. Hochman, 2 Wis. 2d 410, 414, 86 N.W.2d 446, 448 (1957). Furthermore, the law permits law enforcement officers to engage in some inducement, encouragement, or solicitation in order to detect criminals. Wisconsin J I — Criminal 780.1 Thus, entrapment will only be established if the law enforcement officer used excessive incitement, urging, persuasion, or temptation, and prior to. the inducement, the defendant was not already disposed to commit the crime. Id. In the context of narcotics transactions, merely seeking or offering to buy drugs is not the kind of inducement which establishes entrapment. Bjerkaas, 163 Wis. 2d at 955, 472 N.W.2d at 617.

A trial court is justified in declining to give a requested instruction in a criminal case, including an instruction on the defense of entrapment, if it is not reasonably required by the evidence. Id. at 954, 472 N.W.2d at 617. When the appeal is from a denial of a requested instruction, we will view the evidence in the most favorable light it will reasonably admit from the [10]*10standpoint of the accused. Johnson v. State, 85 Wis. 2d 22, 28, 270 N.W.2d 153, 156 (1978).

Before applying the above standards to the record on each count for which the instruction was denied, we address two other arguments Hilleshiem raises concerning the entrapment defense. First, relying on Sherman v. United States, 356 U.S. 369, 374 (1958), Hilleshiem claims that in a multiple-count case, it is appropriate for this court to view each count as part of a continuing course of conduct rather than as an isolated transaction.2 With the former approach, it would not be necessary for Hilleshiem to prove that Owen explicitly offered her money or cocaine before each transaction to establish entrapment.

We disagree that Sherman requires a continuing course of conduct approach in our review. In Sherman, a government informer met the defendant in a doctor's office where both were being treated for drug addiction. After repeated requests and appeals to the defendant's sympathy, the defendant delivered narcotics to the informer. The defendant was convicted for three sales made to the informer after he had alerted government agents. The Court rejected the government's attempt to isolate the three sales its agents observed from the previous sales. Instead, the Court chose to view all of the sales [11]*11as a continuing course of conduct. As the case at bar does not involve a government informer from whose actions the government is trying to dissociate itself, it is not controlled by Sherman.

We also reject the continuing course of conduct approach because it expands the concept of entrapment, resulting in a disfavored defense becoming more readily available.

Hilleshiem's second argument is that we should consider her cocaine addiction, which rendered her "powerless" to resist Owen's offers, when deciding if there was sufficient evidence of inducement to give the entrapment issue to the jury. We reject this suggestion as unsound policy. As addicts are frequently the people who deliver controlled substances, Hilleshiem's proposed modification to the entrapment defense would allow those most likely to engage in such criminal activity to escape conviction. Such a modification would have negative consequences for law enforcement and the public welfare. We note that other jurisdictions have similarly refused to make an allowance for addiction when the defendant asserts entrapment in a narcotics delivery case.3

[12]*12We now review the record on each count to determine whether the evidence4 reasonably required the entrapment instruction.

Count 2

Hilleshiem testified that on October 27,1988, Owen came into the music shop where she worked, looking for cocaine. When she told him that she had none, he asked if she could get him some. She asked: "What am I going to get you some for if I can't get some?" After Owen said he would buy her some cocaine without specifying any quantity, Hilleshiem called up Bob Larsen to set up a deal. The two then drove to Larsen's house, where Hil-leshiem brought Larsen over to Owen's car and the sale of a gram of cocaine was completed.

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State v. Hilleshiem
492 N.W.2d 381 (Court of Appeals of Wisconsin, 1992)

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Bluebook (online)
492 N.W.2d 381, 172 Wis. 2d 1, 1992 Wisc. App. LEXIS 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hilleshiem-wisctapp-1992.