               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2007 MT 200N



STATE OF MONTANA,                                                 DA 06-0636
                                                                  DC 2006-024
           Plaintiff and Respondent,

      v.

MELODY CASEY,

           Defendant and Appellant,

and

NORMA COPE,                                                       DA 06-0637
                                                                  DC 2005-085
             Defendant and Appellant,

and

SUNNY MARTIN,                                                     DA 06-0638
                                                                  DC 2005-086
             Defendant and Appellant.



APPEAL FROM:        District Court of the Nineteenth Judicial District,
                    In and For the County of Lincoln,
                    Honorable Michael C. Prezeau, Presiding Judge


COUNSEL OF RECORD:

             For Appellant:

                    William A. Douglas, Douglas Law Firm, Libby, Montana

             For Respondent:

                    Hon. Mike McGrath, Montana Attorney General, Jonathan Mark Krauss,
                    Assistant Attorney General, Helena, Montana

                    Bernard G. Cassidy, Lincoln County Attorney, Grant W. Gibson,
                    Deputy County Attorney, Libby, Montana
                                 Submitted on Briefs: May 23, 2007

                                           Decided: August 14, 2007


Filed:

         __________________________________________
                           Clerk




                             2
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and

its case title, Supreme Court cause number and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Melody Casey, Norma Cope and Sunny Martin were found guilty of the offense of

unlawful transactions with a child—in this case, selling alcohol to a minor. They appeal their

convictions. We affirm.

                                           ISSUE

¶3     Did the District Court err by denying Casey’s, Cope’s and Martin’s consolidated

motion to dismiss and motion for directed verdicts on the grounds of entrapment?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶4     After several months of receiving complaints that businesses in and around Eureka,

Montana, were selling alcohol to underage purchasers, the Lincoln County Sheriff’s Office

devised a “sting” operation in which it recruited an 18-year old high school senior to enter

various establishments and order an alcoholic beverage. Accompanied by undercover

officers, on February 4, 2005, the young man visited ten different establishments, six of

which sold him alcohol. Melody Casey, Norma Cope and Sunny Martin (Appellants) were

three of the six individuals who did so. Prior to that night, the accompanying officers had no

information that any of the defendants were known to sell alcohol to underage patrons.



                                              3
¶5     Each of the Appellants was cited for violating § 45-5-623(c), MCA, a misdemeanor,

and given notice to appear in Justice Court. They all entered “not guilty” pleas. However,

separate juries in Justice Court convicted each of them. All three were sentenced to a 30-day

suspended sentence and ordered to pay a $300.00 fine and surcharges of $85.00. All three

appealed to the Nineteenth Judicial District Court, which in turn consolidated the three

appeals. Adopting an identical defense, the Appellants filed a consolidated Motion to

Dismiss on grounds of entrapment. The District Court held an evidentiary hearing in April

2006, and on May 9, 2006, denied their motion. Subsequently, the District Court held a

bench trial on August 25, 2006. At the close of the State’s case, Casey, Cope and Martin

made a joint motion for directed verdict on the grounds of entrapment. The District Court

denied the motion and found each Appellant guilty of the charged offense. The three

defendants appeal, arguing that the “sting” operation constituted entrapment.

                               STANDARD OF REVIEW

¶6     A district court’s denial of a motion to dismiss involves a legal question that we

review de novo to determine whether the district court’s interpretation of the law is correct.

State v. Frazier, 2005 MT 99, ¶ 3, 326 Mont. 524, ¶ 3, 111 P.3d 215, ¶ 3. Additionally,

because denials of a directed verdict involve application of the law (i.e., the applicable

statute) to the facts of the case, we review such denials de novo as well. See State v. Swann,

2007 MT 126, ¶ 17, 337 Mont. 326, ¶ 17, 160 P.3d 511, ¶ 17, in which this Court clarified

that denials of motions for directed verdict were reviewed de novo, and overruled prior cases

applying an “abuse of discretion” standard to such denials.

                                       DISCUSSION
                                              4
¶7     Section 45-2-213, MCA, Montana’s “entrapment” statute, provides that “[a] person is

not guilty of an offense if his conduct is incited or induced by a public servant or his agent

for the purpose of obtaining evidence for the prosecution of such person. However, this

section is inapplicable if a public servant or his agent merely affords to such person the

opportunity or facility for committing an offense in furtherance of criminal purpose which

such person has originated.”

¶8     Casey, Cope and Martin argued to the District Court and to this Court on appeal that

the County’s sting operation constituted entrapment because it indiscriminately targeted

drinking establishments and individual bartenders or clerks within those establishments

without any “preexistent evidence” that the establishments or individuals were “predisposed

to sell alcohol to a minor.” In its Findings of Fact, Conclusions of Law, and Order denying

the consolidated Motion to Dismiss, the District Court analyzed relevant Montana law and

noted that once a defendant produces evidence he or she was induced into committing a

crime, the burden shifts to the prosecutor to prove that the defendant was “predisposed” to

commit the crime, and that law enforcement merely provided the opportunity for the

defendant to exercise such predisposition. State v. Brandon, 264 Mont. 231, 242, 870 P.2d

734, 740 (1994). The District Court also observed that we have drawn a distinction between

inducing a person with no disposition to commit a crime and “[m]erely affording the

defendant the opportunity or facility for committing an offense . . . .” State v. Sweet, 287

Mont. 336, 342, 954 P.2d 1133, 1137 (1998). While the District Court found that using an

underage decoy constituted inducement, it rejected the Appellants’ argument that the



                                              5
Sheriff’s Office needed “prior knowledge of any predisposition on the part of [the

Appellants] to sell alcohol to underage purchasers.” The court stated:

       That argument adds an element that is not part of Montana law. The [c]ourt
       can find nothing in Montana law that requires prior law enforcement
       knowledge of a defendant’s predisposition to commit a crime. Predisposition
       can be proved by facts and circumstances surrounding the commission of the
       crime. A defendant’s statements and conduct prior to commission of the
       offense can be sufficient to prove a predisposition to commit the offense. Prior
       knowledge of the predisposition would no doubt add weight to proof that a
       predisposition existed, but it is not a required element, the absence of which
       mandates dismissal as a matter of law.

       The District Court concluded that whether any or all of the Appellants had a

predisposition to sell alcohol to an underage purchaser was a question of fact, and that the

officers’ lack of prior knowledge of such a predisposition did not mandate dismissal.

Accordingly, the District Court denied the Defendants’ motions to dismiss and for a directed

verdict.

¶9     We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. It is manifest on the record before us that the legal issues presented are clearly

controlled by settled Montana law which the District Court correctly interpreted.

¶10    For the foregoing reasons, we affirm the judgment of the District Court.



                                                  /S/ PATRICIA COTTER




                                              6
We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER




                          7
