                                          No. 04-463

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 145

                                               _______________________________________

STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

NANCY LYNN SMITH,

              Defendant and Appellant.

                                                ______________________________________

APPEAL FROM:         District Court of the Seventeenth Judicial District,
                     In and for the County of Blaine, Cause No. DC 2003-03
                     The Honorable John C. McKeon, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Carl S. White, Attorney at Law, Havre, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Joslyn M. Hunt, Assistant
                     Attorney General, Helena, Montana

                     Yvonne Laird, Blaine County Attorney; Chinook, Montana


                                                  ____________________________________

                                                       Submitted on Briefs: September 13, 2005

                                                                 Decided: June 27, 2006
Filed:

                       ______________________________________
                                        Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     Nancy Lynn Smith (Smith) appeals her conviction of criminal distribution of

dangerous drugs in the Seventeenth Judicial District Court, Blaine County. We affirm.

¶2     The issue presented is whether the District Court erred in denying Smith’s motions

for a directed verdict at the close of the State’s case and for a new trial, because she was

entrapped as a matter of law.

¶3     On December 14, 2002, informant Levi Morin (Morin), under the direction of law

enforcement, went to Smith’s house to make a controlled drug purchase. Smith sold him

two marijuana cigarettes for $10.

¶4     The State also alleged that on December 16, 2002, Smith sold to Morin, again

acting at the direction of law enforcement, three codeine pills for $5.

¶5     At trial, following the presentation of the State’s evidence, Smith moved for a

directed verdict arguing that she was induced into making the charged dangerous drug

sales; that is, she was entrapped as a matter of law. The District Court found that the

cross-examination of the State’s witnesses presented evidence that Smith was induced to

make the sales, and thus concluded that the State would be required to prove that she was

not so induced, beyond a reasonable doubt. The District Court also concluded that the

evidence could support a verdict that Smith was predisposed to make the sales, and thus

denied her motion for a directed verdict.

¶6     The jury found Smith guilty of selling the two marijuana cigarettes and not guilty

of selling the codeine pills. Smith filed a motion for new trial based on her entrapment

arguments, which the District Court denied. This appeal followed Smith’s sentencing.


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¶7    We review a district court’s denial of motions for both a directed verdict of

acquittal and a new trial for abuse of discretion. State v. Ray, 2003 MT 171, & 34, 316

Mont. 354, & 34, 71 P.3d 1247, & 34; State v. Aakre, 2002 MT 101, & 8, 309 Mont. 403,

& 8, 46 P.3d 648, & 8. “A directed verdict is appropriate when there is no evidence upon

which a jury could base a guilty verdict. No abuse of discretion occurs if, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Ray, & 34.

We review a district court’s conclusions of law de novo for correctness. Ray, & 34.

¶8    The entire transaction in question took between three and four minutes.

Understandably, pursuant to Rule 404(b), M.R.Evid., there was no evidence that Smith

was in the marijuana business.      Morin and Smith both testified at trial as to what

happened during the transaction. Morin testified as follows:

      Q: What did you do when you entered the residence?
      A: Asked Nancy if I could buy some marijuana or pills from her.
      Q: Did she respond to that?
      A: Yes, ma’am.
      Q: What was her response?
      A: I bought two joints from her.
      ....
      Q: And who retrieved the joints from her purse?
      A: Nancy did, ma’am.
      Q: What did she do with them after she retrieved them from her purse?
      A: Gave them to me, and I exchanged the money with her.
      Q: And how much money did you give her?
      A: $10.00.
      Q: What did you do at that point?
      A: Not to—I don’t really remember that much. I just remember buying
      them and telling her that I’d come back later on, and I left the residence.

¶9    Smith testified as follows:


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       Q: Okay. Tell the jury, if you would, what transpired from the time Levi
       came to the door?
       A: Well, when Levi came to the door I was in bed, which is in the living
       room. I was in front of the TV, and Kenny answered the door. I was half
       asleep. I wanted to see who he was talking to. I sat up. Levi was looking
       for marijuana, and he wanted joints, specifically, and I did not know what
       to tell him about where to go to get it, who to call, and Kenny said that he
       had some and he needed money. He had on a quilted flannel shirt, and he
       had a chew can, or whatsoever that stuff guys put in their lip, but it was
       empty, and there was a bag with marijuana in it, and that’s where Levi got
       his marijuana from.
       ....
       Q: Okay. So did you have anything to do with what—did you have any
       involvement with the sale of the marijuana?
       A: No, I did not. I did not receive money. I don’t even know if Kenny
       received money for what he gave Levi.
       Q: Did you touch the drugs?
       A: Yes, I touched the drugs. I am the one who rolled the two joints out of
       Kenny’s bag, and I did hand them to Levi, but I never took any money, and
       I didn’t see any money either.

Smith did not testify that Morin pleaded, begged, or coerced her into selling drugs to him.

¶10    Section 45-2-213, MCA, provides:

       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.

¶11    Smith claims that because Morin came to her house for the purpose of purchasing

marijuana, and there is no evidence that she was predisposed to make the sale, there can

be no doubt that the illegal sale originated with law enforcement. Thus, entrapment as a

matter of law is established.

¶12    We have previously explained the difference between providing the opportunity to

commit an offense, and being induced into committing a crime:


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      Entrapment occurs only when the criminal intent of design originates in the
      mind of the police officer or informer and not with the accused, and the
      accused is lured or induced into committing a crime he had no intention of
      committing. Only when the criminal design originates, not with the
      accused, but in the mind of government officers and the accused is by
      persuasion, deceitful representations, or inducement, lured into the
      commission of a criminal act, can a case of entrapment be made out. In
      short, there is a controlling distinction between inducing a person to do an
      unlawful act and setting a trap to catch him in the execution of a criminal
      design of his own conception. The fact that the Yellowstone County
      sheriff's office afforded the opportunity or facility for the commission of
      the offense, does not come within the entrapment rule. In this class of
      offenses, usually committed secretly, it is difficult if not almost impossible
      to secure the evidence necessary to convict by any other means than by the
      use of decoys. Certainly, there can be no objection to their use if the
      officers do not by persuasion, deceitful representations or inducement, lure
      a person who otherwise would not be likely to break the law, into a
      criminal act.

State v. Karathanos (1972), 158 Mont. 461, 470, 493 P.2d 326, 331.

¶13   In State v. Harney (1972), 160 Mont. 55, 499 P.2d 802, the defendant agreed to

sell drugs to an informant. Law enforcement officials set up surveillance of the sale and

arrested the defendant after the sale. Harney, 160 Mont. at 57, 499 P.2d at 803. We

rejected the defendant’s allegation of entrapment because, rather than “plead, beg, or

coerce the [defendant] into selling,” the informant “merely asked [the defendant] if he

could furnish him with some drugs.” Harney, 160 Mont. at 60, 499 P.2d at 805. We

explained that a “casual offer to buy is not sufficient to avail the appellant with the

defense of entrapment.” Harney, 160 Mont. at 60, 499 P.2d at 805.

¶14   Similarly, in State v. Sweet, 1998 MT 30, 287 Mont. 336, 954 P.2d 1133, law

enforcement officers used an informant to conduct two separate controlled drug

purchases. Sweet, &¶ 5, 8-9. We rejected the defendant’s allegation of entrapment,



                                            5
because:

      [The informant] approached Sweet and inquired whether Sweet would sell
      him marijuana. Sweet then provided [the informant] with marijuana in
      exchange for money. Sweet was merely presented with the opportunity to
      commit the crime of criminal sale of dangerous drugs. There is no
      evidence on the tapes derived from the body wire to suggest that Sweet
      lacked criminal intent and was lured into committing a crime which he had
      no intention of committing.

Sweet, & 23.

¶15   The present case is analogous to both Harney and Sweet. We conclude that the

record of the sale could be interpreted by a jury to show that Morin merely presented

Smith with the opportunity to sell him marijuana, by inquiring if she was willing to do so,

and it was Smith who took that opportunity.

¶16   In this instance, after hearing the adroit arguments of her counsel, the District

Court determined that a jury might find from the evidence that Smith was induced into

the criminal transaction. The District Court made this determination even though the

short conversation neither shows efforts by Morin to persuade her to make the sale, nor

reflects deceitful representations or other inducement to lure her into committing the

criminal act. Thus, the District Court, in accord with State v. Brandon (1994), 264 Mont.

231, 242, 870 P.2d 734, 740, instructed the jury that it was the State’s burden to prove

beyond a reasonable doubt that Smith was predisposed to violate the law before the State

intervened. The District Court’s determination that the circumstances of the sale could be

interpreted to mean that Smith was induced into making the sale, and therefore imposing

an additional burden of proof on the prosecution, does not translate into a requirement




                                              6
that Smith was entrapped as a matter of law. We conclude that the District Court did not

err in sending the case to the jury.

¶17    Smith also argues that this Court must, as a matter of law, determine that the

police cannot send an informant into someone’s home to purchase a small amount of

marijuana, and by that sale transform the misdemeanor offense of possession of

marijuana, § 45-9-102(2), MCA, into the felony offense of distribution of dangerous

drugs, § 45-9-101, MCA. It is within the province of the legislature to distinguish

between criminal offenses and to establish punishments. State v. Webb, 2005 MT 5, ¶ 37,

325 Mont. 317, ¶ 37, 106 P.3d 521, ¶ 37.

¶18    Affirmed.

                                               /S/ JOHN WARNER


We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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