State v. Wilson

615 S.W.2d 571, 1981 Mo. App. LEXIS 3355
CourtMissouri Court of Appeals
DecidedMarch 30, 1981
DocketNo. WD 30976
StatusPublished
Cited by7 cases

This text of 615 S.W.2d 571 (State v. Wilson) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wilson, 615 S.W.2d 571, 1981 Mo. App. LEXIS 3355 (Mo. Ct. App. 1981).

Opinion

PER CURIAM.

This is a direct appeal from a jury conviction for the sale of a controlled substance in violation of § 195.020, R.S.Mo.Supp. (1975). Upon an express finding of the applicability of the persistent offender act, the court affixed punishment at 5 years in the Department of Corrections. The judgment is affirmed.

Appellant presents two points of error, which in summary allege the trial court [572]*572erred (1) in overruling his motion for acquittal because entrapment was an issue and the evidence was insufficient to show that appellant was predisposed to sell a controlled substance and (2) in overruling his (appellant’s) motion to quash the jury panel following a juror’s comment because this comment inferred that appellant had engaged in prior criminal conduct, such ruling being an abuse of discretion by the court.

On May 2, 1978, an undercover narcotics officer and an informant met appellant outside a local tavern. This meeting had been previously arranged by the informant. The officer and the informant were in an unmarked vehicle. Appellant entered the vehicle and agreed to sell the officer five tablets of dilaudid for $100.00. After an agreement was reached, appellant directed the officer to drive to another location. While en route, appellant gave the officer a valium tablet and the officer put the tablet in his pocket. After arriving at a second location, appellant parked the vehicle on the shoulder of the road. After the officer gave appellant $100.00, appellant left the vehicle and in approximately 10 minutes, returned and handed the officer a plastic bag containing five yellow tablets. The officer and informant then drove appellant to his home.

The state’s witnesses included the officer, a criminologist who identified the pills as dilaudid or hydromophone, a derivative of morphine and a Schedule II controlled substance. Appellant did not testify, but offered the transcript testimony of the informant from a previous trial. The transcript testimony was offered to support a claimed defense of entrapment.

The jury returned a guilty verdict. After the trial court overruled a timely motion for new trial and sentencing, this appeal followed.

In support of his first point of error, appellant argues that since entrapment was an issue, the evidence was insufficient to establish that he was predisposed to commit the offense. In cases of entrapment, Missouri recognizes the “origin of intent” test in determining the entrapment issues, see State v. Decker, 321 Mo. 1163, 14 S.W.2d 617 (1929). This test is subjective, see State v. Keating, 551 S.W.2d 589 (Mo. banc 1977), and therefore focuses on the accused’s predisposition to commit the offense. If there is substantial evidence of entrapment, the prosecution assumes the burden to prove the absence thereof or the predisposition to commit the offense, which must also be proven by substantial evidence, see State v. Weinzerl, 495 S.W.2d 137 (Mo.App.1973).

In disposing of appellant’s first point, this court must determine whether the criminal intent to sell the tablets was supplied by the officer, State v. Admire, 495 S.W.2d 132 (Mo.App.1973). The record indicates that appellant had never before sold or attempted to sell drugs to the officer. The officer contacted the informant and in exchange for potential leniency on charges against the informant, the informant agreed and arranged the meeting between the officer and appellant. The informant called appellant several times and initiated the discussion of a drug sale. The intent and purpose of these calls was to consummate a drug sale between appellant and the officer. In talking with the informant, appellant agreed to find some drugs for purchase. The informant told the officer that appellant had some dilaudid for sale, but that appellant “would not want to venture out for ... less than five pills, which would have been $100.00.”

At the meeting, appellant asked the officer if he wanted to buy, and then directed the officer and the informant to the location of the sale. En route to the sale location, appellant gave the officer one valium tablet. Once, at the sale location, the officer gave appellant $100.00. Appellant left the vehicle, returned shortly and gave 5 dilaudid tablets to the officer. Appellant was then driven to his home and upon exiting the vehicle the last time, appellant told the informant to give the officer appellant’s telephone number for use in future drug purchases.

[573]*573For entrapment to occur, two factors must be presented. There must be solicitation and a showing of reluctance or unreadiness of the accused to accept the solicitation. Mere solicitation by a law enforcement agent will not raise the issue of entrapment, see State v. Disandro, 574 S.W.2d 934 (Mo.App.1978), and that these two factors must occur, see Weinzerl, supra, and State v. Devine, 554 S.W.2d 442 (Mo.App.1977).

While appellant argues that the evidence was not sufficient to establish his predisposition to commit the offense, the evidence, in fact, indicates there was only a possible inference that appellant was reluctant to sell the drugs. There is no substantial evidence of appellant’s reluctance. The record reveals that the informant initially approached appellant. Several phone calls between the informant and appellant occurred, but it is unclear whether the calls were made to convince appellant to sell. Other than his unwillingness to sell anything worth less than $100.00, the record contains no evidence of any reluctance exhibited by appellant.

The state herein met its burden of proof by substantial evidence, even if the issue of entrapment was a viable issue in the case. Appellant agreed to make the sale to the officer. En route to the sale location, appellant gave another drug (valium) to the officer. On the issue of predisposition, unlawful involvement with a controlled substance can be given consideration, see State v. Hyde, 532 S.W.2d 212 (Mo.App.1975); State v. Prock, 577 S.W.2d 663 (Mo.App.1979) and State v. Van Regenmorter, 465 S.W.2d 613 (Mo.1971).

After the sale, appellant instructed the informant to give his (appellant’s) telephone number to the officer for possible future drug sales. The evidence regarding appellant’s reluctance to “venture out” for nothing less than $100.00 shows both a reluctance (in that appellant would take the time and risk involved for a minimum amount) and a predisposition to commit the offense for the amount of money was sufficient.

The issue of entrapment was tendered to the jury by the court’s instruction No. 6. There was no substantial evidence to support a finding of a lack of predisposition to commit the offense by appellant. Such substantial evidence means such evidence from which the triers of fact could reasonably find the issues in harmony therewith, see State v. Taylor,

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Bluebook (online)
615 S.W.2d 571, 1981 Mo. App. LEXIS 3355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilson-moctapp-1981.