                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia


ROBERT ALONZA HARRELL
                                           MEMORANDUM OPINION * BY
v.   Record No. 2821-99-1         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                  V. Thomas Forehand, Jr., Judge

          Richard L. Buyrn for appellant.

          Shelly R. James, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Robert Alonza Harrell (appellant) was convicted in a jury

trial of attempting to possess cocaine.    On appeal he contends the

trial court erred by failing to give the jury an entrapment

defense instruction.    We disagree and affirm his conviction.

                                  I.

     On appeal, we must view the evidence "in the light most

favorable to the theory of entrapment" to determine if the

evidence could have supported a finding of entrapment.    Neighbors

v. Commonwealth, 214 Va. 18, 19, 197 S.E.2d 207, 208 (1973);

accord Lynn v. Commonwealth, 27 Va. App. 336, 344, 499 S.E.2d 1,

4-5 (1998), aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     Viewed in the light most favorable to appellant, on the night

of March 22, 1996, appellant and a friend drove to the MacDonald

Manor area of Chesapeake to find appellant's son.    He testified

that he was not looking for drugs that evening.    At approximately

10:40 p.m. appellant parked his car, got out and yelled at two men

on the street corner, a known drug area, whether they had seen his

son Tion.     The men on the street corner were undercover police

officers conducting a reverse sting operation.    The undercover

officers responded that Tion was not around, and appellant began

toward a friend's house.     As he was walking away from the corner,

one of the undercover officers, Detective Hammond (Hammond),

called out to him and initiated a conversation.    Hammond was

dressed in the manner of a drug dealer and spoke to appellant as

if he was a drug dealer.     Appellant did not "think he was a police

officer."     As Hammond approached, he showed appellant what

appeared to be drugs.    Appellant gave Detective Hammond twenty

dollars and received the drugs in return.    Appellant admits that

he purchased the drugs claiming "I was weak at that time" and "was

just being vulnerable."

     Appellant argues that the undercover officers tricked him

into believing that they were drug dealers selling "crack

cocaine." 1   He was not the instigator of the transaction and but



     1
       The "crack cocaine" was actually macadamia nuts coated
with flour.


                                 - 2 -
for the police actions, he would not have bought the "crack

cocaine."

     Appellant was arrested later that evening and charged with

attempting to possess crack cocaine.    At trial, appellant

requested an instruction on entrapment.2   The trial court refused,

stating there was no evidence that the officers originated the

criminal intent in the mind of the defendant.    They merely

presented an opportunity which appellant took.




     2
         Appellant's proposed jury instruction read:

                 Entrapment is the origination and
            planning of an offense by an officer of the
            law and his procurement of its commission by
            one who would not have committed it except
            for the trickery, persuasion or fraud of the
            officer. Where a person intends to and does
            commit the crime, the fact that officers of
            the law provided a favorable opportunity
            for, aided or encouraged the commission of
            the offense is not entrapment. If you
            believe:

                 (1) That the defendant had no previous
                 intent or purpose to commit the crime;
                 and
                 (2) That an officer of the law,
                 directly or through his agents,
                 originated in the mind of the defendant
                 the idea to commit the crime; and
                 (3) That an officer of the law,
                 directly or through his agents, caused
                 the defendant to commit the crime by
                 trickery, persuasion or fraud.

            Then you shall find the defendant not guilty
            even though you may believe from the
            evidence that he consented to the commission
            of the crime.

                                - 3 -
                                 II.

       The sole issue on appeal is whether the trial court erred

in refusing to grant appellant's request for an entrapment jury

instruction.   "'[T]he trial court should instruct the jury only

on those theories of the case which find support in the

evidence.'"    Woolridge v. Commonwealth, 29 Va. App. 339, 348,

512 S.E.2d 153, 157 (1999) (quoting Morse v. Commonwealth, 17

Va. App. 627, 632-33, 440 S.E.2d 145, 149 (1994)).      Even though

an instruction correctly states the law, it should not be given

"'if it is not applicable to the facts and the circumstances of

the case.'"    Id. (quoting Hatcher v. Commonwealth, 218 Va. 811,

813-14, 241 S.E.2d 756, 758 (1978)).      Unless sufficient evidence

exists to support giving the instruction, it is error to give

the instruction even if the instruction correctly states the

law.    See Howard v. Commonwealth, 17 Va. App. 288, 293, 437

S.E.2d 420, 424 (1993).   The instruction "must be supported by

more than a scintilla of evidence" which "is a matter to be

resolved on a case-by-case basis."       Woolridge, 29 Va. App. at

348, 512 S.E.2d at 157 (citations omitted).

       "In a jury trial, it is a trial court's function to

determine whether there is sufficient evidence to submit the

issue of entrapment to the jury."       Schneider v. Commonwealth,

230 Va. 379, 382, 337 S.E.2d 735, 736 (1985).

            "Entrapment is the conception and planning
            of an offense by an officer, and his
            procurement of its commission by one who

                                - 4 -
             would not have perpetrated it except for the
             trickery, persuasion, or fraud of the
             officer." Entrapment occurs when the
             defendant's criminal conduct was the product
             of "'creative activity' [by the police] that
             implants in the mind of an otherwise
             innocent person the disposition to commit an
             offense and induce its commission in order
             to prosecute." If the criminal design
             originated in the mind of the defendant and
             the police did no more than "afford an
             opportunity for the commission of a crime"
             by a willing participant, then no entrapment
             occurred.

McCoy v. Commonwealth, 9 Va. App. 227, 231, 385 S.E.2d 628, 630

(1989) (citations omitted).

     "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 v. Commonwealth, 228 Va.

707, 715, 324 S.E.2d 682, 687 (1985).    A conviction will not be

barred on grounds of entrapment because the police merely afford

an opportunity to commit a crime to one already willing to

commit it.     See Schneider, 230 Va. at 382, 337 S.E.2d at 736.

     Furthermore, the fact that the undercover agents initiated

the conversation regarding drugs does not entitle the appellant

to a jury instruction on entrapment.     See Panell v.

Commonwealth, 9 Va. App. 170, 173, 384 S.E.2d 344, 346 (1989).

"Encouragement or solicitation of the commission of a crime by

one who is willing and predisposed to commit the crime does not

constitute entrapment."     McCoy, 9 Va. App. at 232, 385 S.E.2d at


                                 - 5 -
630.   A person's willing acquiescence to engage in crime does

not constitute entrapment because he hesitated before committing

the crime.    See id. at 232, 385 S.E.2d at 630.

       When viewed in the light most favorable to appellant, the

evidence established that two undercover officers, who appeared

to be drug dealers, initiated a conversation concerning the sale

of drugs.    One of the undercover officers showed appellant what

appellant believed was "crack cocaine."   Upon being presented

with an opportunity to buy what appeared to be "crack cocaine,"

appellant, without hesitation, purchased the drugs for twenty

dollars.

       Appellant's argument that he bought the drugs only because

he was tricked into believing the undercover officers were drug

dealers selling drugs is insufficient to establish the requisite

basis for an instruction on entrapment.   Once appellant's

attention was drawn to the possibility of purchasing drugs, he

readily accepted it.   There was no evidence that Detective

Hammond coerced, cajoled, threatened or otherwise persuaded

appellant to buy the drugs.   Accordingly, we hold that the trial

court did not err when it refused to instruct the jury on

entrapment and affirm the trial court's decision.

                                                    Affirmed.




                                - 6 -
Benton, J., dissenting.

     "Although the Commonwealth prevailed at trial, the

appropriate standard of review requires that we view the

evidence with respect to the refused instruction in the light

most favorable to [Harrell]."    Boone v. Commonwealth, 14 Va.

App. 130, 131, 415 S.E.2d 250, 251 (1992).   Thus, we must view

the evidence in the light most favorable to the theory of

entrapment.    The law is well established that "'[e]ntrapment is

the conception and planning of an offense by an officer, and

[the officer's] procurement of its commission by one who would

not have perpetrated it except for the trickery, persuasion, or

fraud of the officer.'"    Falden v. Commonwealth, 167 Va. 549,

555-56, 189 S.E. 329, 332 (1937) (quoting Sorrells v. United

States, 287 U.S. 435, 454 (1932) (Roberts, J., concurring)).

"Entrapment occurs when the defendant's criminal conduct was the

product of '"creative activity" [by the police] that implants in

the mind of an otherwise innocent person the disposition to

commit an offense and induce its commission in order to

prosecute.'"    McCoy v. Commonwealth, 9 Va. App. 227, 231, 385

S.E.2d 628, 630 (1989) (citation omitted).

     "It is a general rule that where the criminal intent

originates in the mind of the entrapping person and the accused

is lured into the commission of a crime which [the accused] had

otherwise no intention of committing in order to prosecute [the

accused] therefor, no conviction may be had, though the

                                - 7 -
committing of the act is not affected by any question of

consent."     Ossen v. Commonwealth, 187 Va. 902, 911, 48 S.E.2d

204, 208 (1948).    "If there be conflict in the evidence as to

whether the criminal intent originated in the mind of the

accused or was induced or incited by the officer, then the

solution of the question should be submitted to the jury."

Falden, 167 Va. at 556, 189 S.E. at 332.    In this case, as in

Schneider v. Commonwealth, 230 Va. 379, 383, 337 S.E.2d 735, 737

(1985), "the evidence, when viewed in the light most favorable

to the theory of entrapment, was sufficient to create an issue

thereon for the fact finder."

     The evidence proved the police officers were standing on a

street playing the role of drug dealers and dressed so as to

pass for drug dealers.    They talked the language of people

trying to sell drugs.    When Donnell Hassell and Harrell left

Harrell's car to walk to a friend's house, two men, later

identified as police officers in plain clothes, called them to

"come here for a second."    As Harrell approached them, one of

the officers "had his hand [open] like this trying to show him

something."

     Harrell testified that the officer in plain clothes called

to him, "Hold up a minute," and "presented himself as a drug

dealer."    The officer "showed [Harrell] what [Harrell] thought

was drugs" and instigated the conversation about drugs.    Harrell

testified that the officer "came up to [him] and was talking

                                 - 8 -
. . . and he was saying, Look.    What's up.   I got this."   He

testified that the officer "convinced [him] to buy it."

     This evidence was sufficient for the jury to conclude that

the officers actively initiated and instigated the sale of the

cocaine by orally soliciting Harrell to come to them and

convincing Harrell to buy the substance.    Despite Harrell's

testimony that he "had a drug problem at one time" and "was a

little vulnerable," the jury could have reasonably inferred that

when the officer lured Harrell to purchase the cocaine the

officers were actively soliciting buyers.

             Whatever may be the demerits of the
          defendant or his previous infractions of law
          these will not justify the instigation and
          creation of a new crime, as a means to reach
          him and punish him for his past
          misdemeanors. He has committed the crime in
          question, but, by supposition, only because
          of instigation and inducement by a
          government officer. To say that such
          conduct by an official of government is
          condoned and rendered innocuous by the fact
          that the defendant had a bad reputation or
          had previously transgressed is wholly to
          disregard the reason for refusing the
          processes of the court to consummate an
          abhorrent transaction. It is to discard the
          basis of the doctrine and . . . , in effect,
          pivots conviction in such cases, not on the
          commission of the crime charged, but on the
          prior reputation or some former act or acts
          of the defendant not mentioned in the
          indictment.

             The applicable principle is that courts
          must be closed to the trial of a crime
          instigated by the government's own agents.
          No other issue, no comparison of equities as
          between the guilty official and the guilty
          defendant, has any place in the enforcement

                                 - 9 -
            of this overruling principle of public
            policy.

Sorrells, 287 U.S. at 458-59 (Roberts, J., concurring).

     This record contains evidence that the police did more than

merely provide the opportunity to commit a crime, cf. Schneider,

230 Va. at 381-82, 337 S.E.2d at 736, and did more than initiate

a conversation about the sale of drugs, cf. Pannell v.

Commonwealth, 9 Va. App. 170, 173, 384 S.E.2d 344, 346 (1989).

In this case, Harrell testified that when he arrived at the

scene of the transaction, he "was not looking for drugs.    [He]

was looking for [his] son."    Thus, he produced evidence that,

despite any past involvement with drugs, at the time in

question, he was not at all predisposed to purchase drugs.

Harrell did not acquire the desire to purchase drugs until the

police "convinced" him to buy the fake drugs.    This creative

activity implanted the disposition in Harrell to commit the

offense.    See McCoy, 9 Va. App. at 231, 385 S.E.2d at 630.     But

for this intervention, Harrell, according to his testimony,

never would have purchased crack cocaine on the date in

question.   Whether this testimony is believable is an issue that

must be left to the jury.     See Falden, 167 Va. at 556, 189 S.E.

at 332.

     The evidence of persuasion by the officers is significant.

"In the numerous cases . . . which deal with entrapment the line

of cleavage seems to be whether the inducement or incitement on


                                - 10 -
the part of the officer has been active or passive."   Id.    Based

upon ample evidence of persuasion and inducement by the officer,

Harrell was entitled to have the jury decide whether he was

induced and encouraged by the officer and whether, absent that

inducement and encouragement, he would have otherwise purchased

the cocaine.   See Ossen, 187 Va. at 911, 48 S.E.2d at 208.   This

evidence was sufficient to create a question of fact which the

jury should have been allowed to resolve after being properly

instructed on the law of entrapment.

     For these reasons, I would reverse the conviction and

remand for a new trial.   I dissent.




                              - 11 -
