                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Kelsey and Alston
UNPUBLISHED


              Argued at Chesapeake, Virginia


              LAWREESE JEROME BOWSER
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0662-13-1                                     JUDGE ROBERT P. FRANK
                                                                                  MARCH 4, 2014
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                              John R. Doyle, III, Judge

                               Diane P. Toscano (The Law Firm of Diane P. Toscano, P.C., on
                               brief), for appellant.

                               John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli,
                               II, Attorney General, on brief), for appellee.


                     Lawreese Jerome Bowser, appellant, was convicted in a bench trial of three counts of

              possession of cocaine with intent to distribute, second or subsequent offense, in violation of

              Code § 18.2-248. The convictions are for incidents that occurred on three separate dates. On

              appeal, he argues that no rational trier of fact could have found him guilty, as he did not initiate

              the drug transactions and was instead persuaded by a police officer to sell drugs to her.

              Essentially, he contends he was the victim of entrapment.1 For the reasons stated, we disagree

              with appellant and affirm the trial court.

                                                        BACKGROUND

                     “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

              granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                         Appellant does not contest that he sold drugs to the police officer.
Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987)).

       So viewed, on the afternoon of February 16, 2012, Norfolk Police Investigator Dallas

Greeson was working undercover with the Vice & Narcotics Unit. Greeson approached a man

who was walking down Manson Avenue. Investigator Greeson asked the man “who was looking

out,” which is common street parlance for who is selling or who has drugs. The man nodded

across the street in the direction of a man whom Greeson identified as appellant.

       Appellant approached Investigator Greeson’s car and asked what she wanted. Greeson

said she wanted a dub, which is a street term for $20 worth of crack cocaine. Appellant asked

Greeson if she was the police, and she said she was not. Appellant said, “Look, I have a lot to

lose.” Greeson responded that she also had a lot to lose and that she was trying to get her

children back. Investigator Greeson also gave appellant her phone number when he asked for it.

Greeson told appellant, “[n]o one really wants to f*** with me out here.” Appellant took a

couple of steps back and hesitated. At trial, Greeson explained that she meant that no one else

was willing to sell drugs to her.

       Appellant then asked Greeson where the money was, and she handed him $20. Appellant

dropped a small, rocklike substance into Greeson’s passenger seat. The substance was later

identified as crack cocaine. As Investigator Greeson drove away, she received a phone call, and

she recognized the caller’s voice as appellant’s. He identified himself as DL and told her to call

him back if she needed to get another hookup.

       On February 20, 2012, Investigator Greeson telephoned appellant and told him she

“needed a little fix.” Appellant said, “I don’t do that anymore. I’m saved.” Greeson said okay,

and then appellant asked her where she was. After she told him, appellant told Greeson to meet




                                                -2-
him at a nearby restaurant. Greeson asked appellant, “are you going to hook me up?” and

appellant told her to just meet him at the restaurant.

       When Investigator Greeson arrived at the restaurant, she called appellant. He told her to

come inside because he had food for her. Greeson told him she did not want any food and was

going to get sick if she didn’t get “the stuff.” Appellant came outside and got into Greeson’s car.

He told Greeson that he was very skeptical of her. Appellant asked Greeson, “[a]re you going to

ride with me to get it?” Greeson responded that she would, and she started to pull out of the

parking lot. Then appellant got out of Greeson’s car, and he told Greeson, “Meet me at the street

you were before the first time but on the next street over. I’m going to follow you.”

       At appellant’s direction, Investigator Greeson drove to Vine Street. When she got there,

she called appellant and asked him where he was. Appellant said he had to drop off a car and

would be there within twenty minutes. Ten minutes later, Greeson drove away and called

appellant. She told him she had to leave, saying, “my old man’s going to whip my ass if I don’t

get home.” Appellant said he was coming to her. Greeson made a U-turn, and a car honked at

her. Appellant was in the passenger seat of the car. The car pulled up beside Greeson.

Appellant nodded at the driver, who then held out his hand. Greeson gave the driver $25, and

the driver handed the money to appellant. Appellant handed the driver two small baggies of

suspected crack, and the driver dropped them into Greeson’s hand.

       On February 23, 2012, Investigator Greeson called the phone number appellant had given

her. There was no answer. Greeson then drove to the 1500 block of Manson Street, the location

where the first sale had occurred, and saw appellant. She asked appellant who was “looking out”

that day. Appellant responded, “huh?” and Greeson said “let me get a dub.” Appellant again

said, “huh?” and Greeson repeated, “let me get a quick dub.” Appellant said he did not do that,

so Greeson said, “listen, baby, give me a call.” Appellant nodded and said okay.

                                                -3-
        Greeson drove away and pulled into the parking lot of a convenience store. As she was

pulling in, a small white car pulled up behind her and started honking the horn. Appellant was

driving, and he pulled in beside Investigator Greeson. Greeson rolled down her window, and

appellant told her to get out of the car. As she approached the driver’s side of appellant’s car, he

opened the door and threw a small bag of suspected crack cocaine to the ground, then held out

his hands. Greeson asked appellant where the bag was, and he pointed to the ground. Greeson

handed appellant $20, picked up the bag, and left the parking lot.

        The Commonwealth introduced appellant’s prior conviction order for possession of

heroin with intent to distribute, and it was admitted into evidence without objection.

        At trial, Investigator Greeson acknowledged being friendly and using terms like “baby”

and “dear” with appellant. She denied flirting with appellant.

        The trial court found that the first incident was “quite straightforward” with no evidence

of entrapment. The court further noted that appellant gave Investigator Greeson his phone

number after that transaction, indicating “a willingness to engage in future sales.” The court

went on to say “that certainly indicates – I think just in and of itself indicates that there’s no

entrapment here.” Regarding the second transaction, the court noted that although appellant

initially said he no longer sold drugs when Greeson called him, he then directed her to a

restaurant, where he sold drugs to her. As for the third incident, the court noted that after

appellant told Greeson he did not sell drugs, Greeson left and went to a convenience store, but

appellant followed her and made another sale. The trial court did not accept appellant’s

entrapment defense. This appeal follows.




                                                 -4-
                                            ANALYSIS

       Appellant contends that no rational trier of fact could have found him guilty, because he did

not initiate the drug transactions with Investigator Greeson, but instead was persuaded, or entrapped,

into selling drugs to Greeson.

                                             Sufficiency

       When the sufficiency of the evidence is challenged on appeal, this Court will “review the

evidence in the light most favorable to the Commonwealth and give it all reasonable inferences

deducible therefrom.” McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740

(1987). We will affirm the judgment appealed from unless it appears from the evidence that it “is

plainly wrong or without evidence to support it.” Id. (citing Naulty v. Commonwealth, 2 Va. App.

523, 529, 346 S.E.2d 540, 544 (1986)).

               Moreover, “[i]f there is evidence to support the conviction, an
               appellate court is not permitted to substitute its own judgment for
               that of the finder of fact, even if the appellate court might have
               reached a different conclusion.” Commonwealth v. Presley, 256 Va.
               465, 466, 507 S.E.2d 72, 72 (1998).

               Furthermore, “[t]he credibility of a witness and the inferences to be
               drawn from proven facts are matters solely for the fact finder’s
               determination. In its role of judging witness credibility, the fact
               finder is entitled to disbelieve the self-serving testimony of the
               accused and to conclude that the accused is lying to conceal his
               guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500
               S.E.2d 233, 235 (1998) (citations omitted).

Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10 (2000).

                                             Entrapment

       When an appellant asserts an entrapment defense, the subject of entrapment is an issue of

fact and should be resolved by the trial court, as the trier of fact. Schneider v. Commonwealth,

230 Va. 379, 383, 337 S.E.2d 735, 737 (1985). The trial court’s factual findings “will not be




                                                -5-
disturbed on appeal unless plainly wrong or without evidence to support them.” Id. at 382, 337

S.E.2d at 736.

       Entrapment is an affirmative defense. See McCoy v. Commonwealth, 9 Va. App. 227,

229, 385 S.E.2d 628, 630 (1989). “In Virginia, a criminal defendant typically bears the burden

of ‘producing evidence in support of [an affirmative defense] sufficient to raise a reasonable

doubt of [his or her] guilt.’” Williams v. Commonwealth, 57 Va. App. 341, 352, 702 S.E.2d

260, 265 (2010) (quoting Regular Veteran’s Assoc., Ladies Auxiliary v. Commonwealth, 18

Va. App. 683, 688, 446 S.E.2d 621, 624 (1994)).

       “‘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.’” McCoy, 9 Va. App. at 231, 385 S.E.2d at 630 (quoting

Stamper v. Commonwealth, 228 Va. 707, 715, 324 S.E.2d 682, 687 (1985)). “There is nothing

improper in the use, by the police, of decoys, undercover agents, and informers to invite the

exposure of willing criminals and to present an opportunity to one willing to commit a crime.”

Stamper, 228 Va. at 707, 324 S.E.2d at 687.

       In this case, there was no entrapment. Appellant had a reputation for selling drugs.

When asked by Greeson who was selling drugs, the unidentified man nodded toward appellant.

The first encounter between Greeson and appellant was initiated by appellant. Further,

appellant’s criminal record demonstrates that he has previously been convicted of selling drugs.

Moreover, during the first encounter with Investigator Greeson, appellant asked if she was the

police, indicating that he knew he was about to commit a crime. When Greeson gave appellant

money, he gave her the cocaine immediately. The fact that the drugs were already on his person

shows his predisposition to sell drugs.




                                               -6-
       Furthermore, appellant’s initial hesitancy to sell to Investigator Greeson is not surprising.

He was about to commit an illegal act, and many people in that situation would act with some

caution. This is particularly true in this case, as appellant did not know Greeson. However,

appellant initiated the contact with Investigator Greeson, before she made any overture toward

him, and despite his initial caution, appellant sold to Greeson shortly after meeting her.

       After that first transaction, appellant reached out to Greeson once more by calling her and

telling her to call him if she needed to buy drugs again. As the trial court properly noted, this act

demonstrated appellant’s predisposition to engage in future illegal drug transactions.

       When Greeson called appellant on February 20, appellant told her he had been saved and

no longer sold drugs. Greeson did not attempt to talk appellant into the sale. However, appellant

then asked Greeson where she was and told her to meet him at a restaurant. Appellant set up that

transaction and later sold her two baggies of crack cocaine.

       The third transaction occurred on February 23. Again, while appellant initially denied

that he was selling drugs, he followed Greeson after she left. Appellant reinitiated the contact

with Greeson, and he completed a third drug transaction.

       Appellant may have expressed some hesitation before he sold cocaine to Investigator

Greeson, but this does not equate with entrapment. “Entrapment occurs only when the criminal

conduct was the product of a ‘creative activity’ that implants in the mind of an otherwise

innocent person the disposition to commit an offense.” Schneider, 230 Va. at 382, 337 S.E.2d at

736 (quoting Johnson v. Commonwealth, 211 Va. 815, 817-18, 180 S.E.2d 661, 663 (1971)).

Even when Greeson asked appellant to sell to her, her actions did not constitute entrapment. See

Neighbors v. Commonwealth, 214 Va. 18, 19, 197 S.E.2d 207, 208 (1973) (where a police

informant begged the defendant to sell him drugs, the defendant did not establish that he was

entrapped).

                                                -7-
        Finally, we find that Investigator Greeson’s use of terms such as “baby” and “dear” is of

no significance. Greeson testified that while she smiled, acted friendly, and used those words,

she did not flirt with appellant. Such terms of endearment, under the facts of this case, do not

constitute entrapment, as appellant initiated the drug transactions.

        The issue of entrapment in this case was a factual issue resolved by the trial court in its

capacity as trier of fact. Giving the judge’s factual findings the weight to which they are entitled,

we cannot say as a matter of law that they are plainly wrong or unsupported by the evidence.

See Schneider, 230 Va. at 383, 337 S.E.2d at 737. As such, we will affirm the judgment of the

trial court.

                                          CONCLUSION

        Appellant was predisposed to sell drugs, so he was not entrapped by Investigator

Greeson. As such, the evidence was sufficient to support his convictions, and the trial court did

not err in finding him guilty.

                                                                                           Affirmed.




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