DONNIE RILEY v. COMMONWEALTH OF KENTUCKY
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RENDERED: February 12, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002054-MR
DONNIE RILEY
APPELLANT
APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 1997-CR-000005
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
Donnie Riley appeals from an August 6, 1997,
judgment of the Caldwell Circuit Court convicting him of
trafficking in a controlled substance in the first degree
(cocaine) (KRS 218A.1412) and sentencing him to five (5) years in
prison.
Riley contends that his trial was rendered unfair by the
trial court’s refusal to give a jury instruction on the defense
of entrapment.
Finding no error, we affirm.
In January 1997, the Caldwell Grand Jury indicted Riley
on two (2) counts of trafficking in a controlled substance in the
first degree.
He was charged with having sold cocaine on two (2)
occasions, once in late September and then again in early October
1996.
The two (2) counts were severed, and on May 21, 1997,
Riley was tried on the alleged October incident.
At trial, Officer William Poe of the Princeton Police
Department testified that in September 1996 he had recently
joined the police force and had been assigned to an undercover
narcotics operation.
Poe’s duty was to attempt to make “felony”
drug transactions and then to help prosecute the drug sellers.
Pursuant to this undercover duty, he had arranged to meet with
Riley during the evening of October 3, 1996.
him obtain cocaine.
Riley.
Riley was to help
In exchange Poe would share the cocaine with
The two (2) met that evening as planned, and Poe gave
Riley $20.00 for a “rock” of cocaine.
difficulty completing the deal.
Riley, though, had
He made several phone calls to
potential suppliers, and he had Poe drive him to numerous
locations in search of a supplier, but without success.
The two
(2) persevered, however, and finally, after more than an hour of
searching, Riley presented Poe with slightly less than one (1)
gram of “crack.”
Riley did not dispute Officer Poe’s description of
events.
Instead, he proposed to raise an entrapment defense on
the ground that Officer Poe had been the moving force behind the
transaction.
There was no evidence, Riley claimed, that apart
from Officer Poe’s inducements he, Riley, had had any
predisposition to sell cocaine.
When Riley made apparent this defensive strategy, the
Commonwealth sought to introduce evidence of Riley’s other
alleged trafficking offense.
Riley objected on the ground that
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evidence of alleged prior bad acts is not admissible.
The trial
court overruled his objection, however, and told Riley that he
must choose between excluding evidence of the other charge and
obtaining an instruction on entrapment.
Riley opted to forgo an
entrapment instruction, but he objected to having to make the
choice and now contends that the court erred and rendered the
trial unfair by thus conditioning an entrapment instruction.
Riley is correct that evidence of a defendant’s other
crimes is generally inadmissible as proof of the defendant’s
criminal character.
KRE 404(b) provides, however, that such
evidence may be admissible “[i]f offered for some other purpose,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident . . . .”
As discussed below, motive and intent are issues at the
core of an entrapment defense.
The trial court did not err by
ruling that Riley’s pursuit of such a defense would render
evidence bearing on those issues admissible, including evidence
of his other alleged trafficking offense.
We are not persuaded, moreover, that Riley’s entrapment
defense was viable even had evidence of his prior alleged
trafficking offense been excluded.
KRS 505.010 provides for a
defense of entrapment, in pertinent part, as follows:
(1) A person is not guilty of an offense
arising out of proscribed conduct when:
(a) He was induced or encouraged to engage
in that conduct by a public servant or by a
person acting in cooperation with a public
servant seeking to obtain evidence against
him for the purpose of criminal prosecution;
and
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(b) At the time of the inducement or
encouragement, he was not otherwise disposed
to engage in such conduct.
(2) The relief afforded by subsection (1) is
unavailable when:
(a) The public servant or the person acting
in cooperation with a public servant merely
affords the defendant an opportunity to
commit an offense.
As stated in the 1974 commentary to this statute, its
purpose is to prevent overreaching by police officers and their
confederates “which may result in the commission of crime by
previously innocent individuals.”
The statute is aimed at
abusive police conduct, and should be narrowly construed in
accordance with that aim.
Entrapment is an affirmative defense.
Once suitably
raised it imposes an additional burden on the Commonwealth which
must be reflected in the jury instructions.
To create this
additional burden, it is incumbent on the defendant to show that
it is warranted:
[I]n order for the defense to be raised, so
as to call for an instruction placing the
burden on the Commonwealth, there must be
something in the evidence reasonably
sufficient to support a doubt based on the
defense in question.
Brown v. Commonwealth, Ky., 555 S.W.2d 252, 257 (1977).
To raise
such a doubt, not only must there be evidence that the defendant
was encouraged or induced to engage in the offense, but also
there must be evidence that the inducement gave rise to a
criminal intent, a willingness to commit the crime, that
otherwise was lacking.
Farris v. Commonwealth, Ky. App., 836
S.W.2d 451 (1992); Sebastian v. Commonwealth, Ky. App., 585
S.W.2d 440 (1979).
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Riley claims that aside from the evidence relating to
his prior alleged trafficking offense there was no evidence of
his predisposition to traffic in cocaine, and thus the
Commonwealth should have been obliged to show that he was not
entrapped by Officer Poe’s inducements.
We disagree.
Indeed,
we are not persuaded that the evidence raises any doubt
concerning Riley’s willingness to break the law or suggests the
least impropriety in Officer Poe’s methods.
Riley admitted that he willingly sold cocaine to
Officer Poe, that in fact he sought Officer Poe’s business and
made somewhat elaborate arrangements to carry it out.
He
admitted also that he did so in order to obtain cocaine for his
own use.
These admissions belie Riley’s claim that Officer Poe
entrapped him, for they clearly indicate a predisposition, a
preexisting willingness, to violate the law.
They thus show that
Riley’s criminal intent was independent of Officer Poe’s
inducements.
Riley also maintains that the anti-trafficking statutes
are aimed at large-scale drug transactions where financial profit
is the principal motive, not small transactions such as the one
between himself and Poe which are prompted only by a desire to
obtain drugs for personal use.
Having thus defined
“trafficking,” Riley argues that there was no evidence of his
intent to “traffic.”
We are not persuaded, however, by Riley’s
interpretation of the statutes.
“Traffic” is defined at KRS 218A.010(24) as follows:
“Traffic” means to manufacture, distribute,
dispense, sell, transfer, or possess with
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intent to manufacture, distribute, dispense,
or sell a controlled substance.
“Sell” is defined at KRS 218A.010(22) and means:
to dispose of a controlled substance to
another person for consideration or in
furtherance of commercial distribution.
Although arguably, as he maintains, Riley did not distribute
cocaine commercially, nevertheless, he did provide cocaine to
Officer Poe for consideration.
His actions amounted to
“trafficking” as defined above, and his intent to “traffic” is
not made doubtful by the fact that his prime interest was to
obtain drugs for his own use.
S.W.2d 883 (1974).
Shavers v. Commonwealth, Ky., 514
That Riley’s offense can be considered
relatively minor and might not have been committed absent the
opportunity Officer Poe provided is simply not enough to entitle
him to an entrapment instruction.
Riley failed, therefore, to
raise the necessary doubt concerning his predisposition to engage
in the crime.
For these reasons, we conclude that the trial court did
not err by refusing to instruct the jury on the defense of
entrapment or by ruling that such an instruction would open the
door to evidence of Riley’s other alleged offense.
Accordingly
we affirm the August 6, 1997, judgment of the Caldwell Circuit
Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
A.B. Chandler III
Attorney General
Anitria M. Franklin
Assistant Attorney General
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Frankfort, Kentucky
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