Where the evidence shows that it was appellant’s idea to become a confidential informant and participate in a controlled drug buy with a high-level distributor, the trial court correctly refused to instruct the jury on entrapment at appellant’s trial for selling drugs without police approval and supervision.
After appellant was arrested and jailed on drug charges unrelated to this case, he and his attorney approached the police about appellant becoming a confidential informant. There was an agreement that appellant would participate in a controlled buy with a drug distributor known as “Johnny.” The terms of appellant’s agreement provided that he would not sell drugs unless the police approved and supervised the sale.
After being released on bond, he violated the agreement by selling narcotics. As a result, the police set up controlled buys with R.W., another informant, who bought drugs from appellant on three different occasions. Appellant was tried and convicted on charges arising from the three drug sales. On appeal, he argues that the trial court should have instructed the jury on entrapment.
“‘Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.’ … If the conception and planning of the offense originates with a defendant, then no entrapment has occurred. …
“The origination element of entrapment was addressed by the portion of appellant’s proposed instruction that provided that the evidence had to establish that ‘an officer of the law, directly or through his agents, originated in the mind of the defendant the idea to commit the crime[.]’ …
“In rejecting the instruction, the trial court found that no evidence was produced to establish this element. The trial court stated that, even viewing the ‘evidence in the light most favorable to’ appellant, there was ‘no scintilla of evidence that [the detectives] originated th[e] idea’ of appellant selling drugs; that idea originated with appellant.
“We agree[.] … Accepting appellant’s testimony as true confirms that the police never asked appellant to sell drugs and that the idea that he would sell drugs came from appellant. In fact, appellant conceded at oral argument in this Court that he was the person who first raised the prospect of his selling drugs, responding in the affirmative when asked if the ‘first person to raise [appellant] selling drugs was not the police, it was’ appellant.
“Accordingly, there is no evidence from which a rational factfinder could conclude that law enforcement originated the idea of appellant selling drugs.
“This is fatal to appellant’s entrapment claim. Both the law of entrapment and the jury instruction offered by appellant require that the idea that appellant ‘commit the crime’ originate with law enforcement. …
“The instruction’s use of the definite article ‘the’ limited the scope of the origination element to those crimes for which appellant was on trial, namely the sale of drugs to R.W., and not other crimes that occurred or possibly could occur. …
“The conclusion that entrapment requires law enforcement to have originated the idea of the crime for which the defendant is charged as opposed to some other criminal offense flows not just from rules of grammar and usage, but from common sense. Law enforcement’s entrapment of a citizen by enticing him to commit a particular crime he was not predisposed to commit does not give that citizen a license to commit other crimes.
“The protection afforded by an entrapment defense is coextensive with the crime or crimes police entice a citizen to commit and those that are factually necessary components of any such crime or crimes. The evidence here established that law enforcement originated the idea that appellant commit a particular crime – possession of a controlled substance that he was to purchase from Johnny or Johnny’s associate.
“Nothing about the commission of that crime required appellant to sell drugs; the subsequent sale of drugs is not an element of simple possession. Even viewed in the light most favorable to appellant, nothing in the evidence suggests that, in requesting that appellant purchase drugs from Johnny, the detectives requested, coerced, or did anything else to entice appellant to engage in drug distribution, a distinct criminal act.
“Because the idea that appellant sell drugs did not originate with the detectives, the evidence did not support the origination element of an entrapment defense.”
Middleton v. Commonwealth, Record No. 0668-18-4, March 3, 2020. CAV (Russell, Huff dissenting) from Prince William Cir. Ct. (Johnston). Christopher Feldmann for appellant, Leanna C. Minix for appellee. VLW 020-7-039, 18 pp. Unpublished.