                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Senior Judge Hodges
Argued at Richmond, Virginia


DOUGLAS OLGERS
                                          MEMORANDUM OPINION * BY
v.   Record No. 1776-98-2                 JUDGE WILLIAM H. HODGES
                                             NOVEMBER 23, 1999
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                        Thomas V. Warren, Judge

            David B. Hargett (Joseph D. Morrissey;
            Morrissey, Hershner & Jacobs, on brief), for
            appellant.

            Marla Graff Decker, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     Douglas Olgers (appellant) appeals his jury trial

convictions for four counts of possession of a firearm by a

convicted felon, seven counts of spotlighting deer, and three

counts of unlawfully selling deer meat pursuant to Code

§§ 18.2-308.2, 29.1-523 1 and 29.1-553 respectively.   On appeal,


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
         Code § 29.1-523 provides as follows:

                 Any person who kills or attempts to
            kill any deer between a half hour after
            sunset and a half hour before sunrise by use
            of a light attached to any vehicle or a
            spotlight or flashlight shall be guilty of a
            Class 2 misdemeanor. The flashing of a
            light attached to any vehicle or a spotlight
he contends the trial court erred in refusing to instruct the

jury on the defense of entrapment.     For the reasons that follow,

we agree and reverse his convictions.

                               FACTS

     The Commonwealth's evidence consisted solely of the

testimony of Mike Campbell, a Special Agent for the Virginia

Department of Game and Inland Fisheries.    He testified that in

the fall of 1997 he was assigned to conduct an undercover

investigation of "the hunting activities" of appellant and his

associates.   Campbell testified appellant was his "number one"

target.   Campbell "went in posing as a hunter" and paid

appellant $50 to join his hunting group.    Campbell's


           or flashlight from any vehicle between a
           half hour after sunset and half hour before
           sunrise by any person or persons, then in
           possession of a rifle, shotgun, [or] pistol,
           . . . without good cause, shall raise a
           presumption of an attempt to kill deer in
           violation of this section. Every person in
           or on any such vehicle shall be deemed a
           principal in the second degree and subject
           to the same punishment as a principal in the
           first degree. Every person who, in any
           manner, aids, abets or acts in concert with
           any person or persons violating this section
           shall be deemed a principal in the second
           degree and subject to the same punishment as
           a principal in the first degree.

     Code § 29.1-553 provides as follows:

               A. Any person who offers for sale,
           sells, offers to purchase, or purchases any
           wild bird or wild animal, or any part
           thereof, . . . except as provided by law,
           shall be guilty of a Class 1 misdemeanor.

                               - 2 -
investigation continued from late September 1997 until January

1998.    Campbell testified when he initiated contact with

appellant, he did not know that appellant had a reputation as an

alcoholic and did not know that appellant was a convicted felon.

        Campbell initially told appellant he was in the wholesale

seafood business, which he said was slow during the winter.

Appellant, who was unemployed, asked Campbell to give him a job,

but Campbell stated that he never offered appellant a job.

        Campbell testified that on November 17, 1997, he met

appellant at appellant's residence at 5:30 a.m., before sunrise,

and at appellant's request.    Appellant asked if Campbell's

shotgun was in the truck.    Campbell said he had both his shotgun

and his rifle, and appellant responded, "[G]ood let's go."      When

they entered Campbell's vehicle, Campbell told appellant the

shotgun was not loaded.    Appellant asked for the shells and

loaded the gun.    Appellant then "directed [Campbell] to drive to

numerous locations around the . . . area in an attempt to locate

deer."    At 5:52 a.m., appellant spotted some deer on the side of

the road, and he "directed [Campbell] to stop [his] truck and

keep the headlights on the deer."    Appellant fired Campbell's

shotgun at the deer but he missed the deer.

        Campbell testified that on the afternoon of December 9,

1997, appellant asked Campbell if he wanted "to ride the

fields," and appellant directed Campbell to a field where

another hunter spotted a deer.    Appellant obtained Campbell's

                                 - 3 -
rifle from the back seat, told Campbell to stop the truck, and

he shot the deer from the window of Campbell's truck.

     Campbell testified that on December 18, 1997, he and

appellant hunted together in Brunswick County, and appellant

took home a deer.    The men returned to appellant's residence,

where appellant skinned and cut up the deer.   Campbell "arranged

for the purchase of that deer" from appellant, for which

appellant set a price of $50.   Campbell paid appellant the $50

and picked up the deer later that night.   At some point in their

encounters, Campbell told appellant that "[h]e had a good market

up north for deer meat."

     Campbell testified that on December 26, 1997, he went to

appellant's residence.   Appellant told Campbell that he and his

fellow hunters had killed four deer that day, and he asked if

Campbell wanted to buy some deer meat.   When Campbell said yes,

appellant then asked another hunter if he wanted to sell

Campbell some deer meat.   Campbell and the other hunter

negotiated a price, and appellant placed the meat into

Campbell's cooler.   Appellant then asked Campbell if he wanted

to buy a deer tenderloin from appellant for $5.   Campbell said

that he did and paid appellant for the meat.

     Campbell testified that on January 1, 1998, he went to

appellant's residence, where another hunter appeared and began

to cut up a deer.    Appellant arrived, had a conversation with

the hunter and then approached Campbell.   Appellant and the

                                - 4 -
hunter finished cutting up the deer and put it in Campbell's

cooler.    Campbell paid the other hunter $50 for the deer.

        Campbell testified that on the afternoon of January 2,

1998, while he and appellant were driving to a particular

location to hunt, appellant spotted several deer by the side of

the road.    Appellant grabbed Campbell's shotgun, which Campbell

earlier had loaded, and appellant killed one of the deer.

Campbell purchased this deer meat from appellant.

        In the late afternoon of January 7, 1998, Campbell went to

appellant's house, and appellant asked him "to go riding."

Appellant directed Campbell to drive around, and they looked for

deer.    Appellant was drinking and was "pretty drunk that night."

At appellant's request, Campbell bought appellant a six-pack of

beer at two different times that night.

        At 6:11 p.m., after sunset, they spotted two deer, and

appellant directed Campbell to stop the vehicle and keep his

headlights on the deer.    Appellant retrieved Campbell's rifle

and fired at the deer, but the rifle was not loaded.     As they

continued to drive around, appellant repeatedly "instruct[ed]

[Campbell] how to manipulate [his] truck" in order to use his

headlights to search for more deer.      At 6:20 p.m., they saw more

deer, and appellant again instructed Campbell to keep his

headlights on the deer, but the deer ran away before appellant

could fire.



                                 - 5 -
     At 7:49 p.m., appellant instructed Campbell to drive to the

residence of an acquaintance, where appellant obtained a

spotlight and some unknown pills, which appellant took.

Appellant then told Campbell to drive to another area, and on

the way, he shined the spotlight at two different groups of

deer, at 8:18 and 8:23 p.m.   Appellant pointed Campbell's gun at

each group, but the deer ran away before he could fire.

     On three additional occasions that night--at 8:30 p.m.,

just a minute or two after that, and again at 8:41 p.m.--

appellant saw more deer and directed Campbell to shine his

headlights on them.   On the first two of these occasions,

appellant shot and missed, and on the third occasion, the deer

ran away before he was able to fire.

     Campbell testified that he bought alcohol for appellant on

four occasions:   he bought appellant a six-pack of beer when

they first met in September 1997; on another occasion, at

appellant's request, he gave appellant a dollar to buy alcohol;

and on January 7, 1998, he bought appellant two six-packs, each

of which was purchased at a different time.   Of the time that

Campbell spent hunting with appellant, he could not remember a

day that appellant did not drink alcohol.   Although Campbell

recalled buying alcohol for appellant on only those occasions

listed above, Campbell testified that appellant regularly asked

Campbell to stop so that appellant could buy beer.   On several



                               - 6 -
of the days appellant drank, Campbell also saw appellant smoke

marijuana.

     Appellant's evidence contradicted Campbell's testimony in

significant, material matters.    Appellant testified that when he

met Campbell, Campbell said he was a wholesale seafood

distributor and, with knowledge that appellant was unemployed,

Campbell offered appellant a job catching baby eels after

hunting season that would pay $30,000 for three months of work.

Appellant also testified that Campbell initially brought up the

subject of selling deer meat, asking appellant when they first

met "if [he] had ever sold any meat."    Appellant said he had

sold "coon meat," and when Campbell inquired about deer,

appellant said he had never sold deer meat.   Campbell told

appellant, "You don't know what you are missing. . . . [Y]ou

ought to carry it up north" where people are "crazy" about it.

Campbell told appellant that Campbell could sell the deer for

$100 per deer and that he would pay appellant $50 per deer.

     Appellant testified he does not own any guns or a vehicle.

Appellant said Campbell kept a loaded rifle in his truck, and

appellant denied having to load the gun before using it.

Appellant did not provide any ammunition during the incidents.

     Appellant testified that Campbell joined his hunt club by

paying $50.   All members either paid $50 or permitted the club

to hunt on their land or to use their dogs for hunting.



                                 - 7 -
Appellant stated that he usually drove the dogs and carried a

stick to flush the deer during hunts.

     Appellant admitted that he probably committed the offenses

with which he was charged.   However, he denied actually killing

or even seeing any deer at night while hunting with Campbell.

Appellant testified, "[Campbell] came to my house and got me, he

put this idea in my head."   Appellant admitted trying to use the

spotlight until it "went dead" but, again, said that it was

Campbell's idea.

     Appellant also offered evidence that Campbell supplied him

with "beer, liquor and drugs" every time they hunted.    He stated

that Campbell gave him marijuana on several occasions.

Appellant said he did not drink on the days that Campbell did

not hunt with him.

     Appellant testified that he had been drinking alcohol for

eight years and that, when riding with Campbell, appellant would

drink "[a]s much as [he] possibly could."   Appellant stated that

when Campbell gave appellant the marijuana, Campbell said, "You

can smoke it now or you can save it for later on this evening."

Campbell then asked, "We are going to ride around this evening

later, ain't we?"    Appellant said, "Yes, I guess, you know if

you want to."

     Appellant testified Campbell sometimes arrived at

appellant's residence with beer in his cooler but Campbell

usually gave appellant the money with which to purchase beer.

                                - 8 -
Campbell often stopped to allow appellant to buy beer while they

were riding around in Campbell's truck.    Appellant testified

that Campbell "kept [him] drunk constantly" and that appellant

was "stoned, high, drunk, [and] didn't even know what [he] was

doing half the time [he] was with [Campbell]."    Appellant stated

that Campbell "kept him in a dream, [he] was so high."

Appellant testified that if he committed the offenses with which

he was charged he did so because Campbell "kept [him] drunk and

high."

        Other witnesses corroborated that appellant drank

frequently while hunting with Campbell, and they confirmed that

Campbell supplied appellant with at least some of the alcohol he

drank while hunting, including twelve-packs of beer.    One

witness stated appellant was "sometimes" unable to drive the

dogs later in the day when he had consumed too much alcohol.

Another witness also testified that Campbell told appellant,

"the more [deer] you kill the more [deer meat] I am going to

buy."

        At trial, appellant offered the following jury instruction:

                  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 an
             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 encourage[d] the commission of
             the offense is not entrapment. If you
             believe:

                                 - 9 -
               (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.

     Appellant contended that his evidence provided a sufficient

factual basis for the instruction.     The trial court refused the

instruction, holding that appellant's evidence, "even if

believed, . . . does not rise to a level of entrapment [because]

the officer merely provided a favorable opportunity for the

offense to have been committed."

                             ANALYSIS

     On appeal of the denial of a jury instruction, "we view the

evidence with respect to the refused instruction in the light

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

App. 130, 131, 415 S.E.2d 250, 251 (1992).    In Neighbors v.

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

Court stated that in reviewing a refused entrapment instruction,

the Court views the evidence "in the light most favorable to the

theory of entrapment."   "If any credible evidence in the record


                              - 10 -
supports a proffered [jury] instruction . . . , failure to give

the instruction is reversible error."     Boone, 14 Va. App. at

132, 415 S.E.2d at 251.   However, that credible evidence must

amount to "more than a mere scintilla."     Id.

     "'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.'"     Stamper v. Commonwealth,

228 Va. 707, 715, 324 S.E.2d 682, 687 (1985) (quoting Falden v.

Commonwealth, 167 Va. 549, 555-56, 189 S.E. 329, 332 (1937)).

"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) (quoting Stamper, 228 Va. at 715, 324

S.E.2d at 687).   "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.

     "[W]hen a principle of law is vital to a defendant in a

criminal case, a trial court has an affirmative duty properly to

instruct a jury about the matter."     Jimenez v. Commonwealth, 241

Va. 244, 250, 402 S.E.2d 678, 681 (1991).

                              - 11 -
     The conflicting facts and circumstances present sufficient

evidence upon which the question of entrapment should have been

submitted to the jury.   Appellant presented evidence that

Campbell repeatedly furnished him with alcohol and drugs,

keeping appellant "stoned, high, drunk [so that appellant]

didn't even know what [he] was doing half the time."   Appellant

testified that Campbell "kept [him] in a dream, [he] was so

high."    Furthermore, appellant testified that when he first met

Campbell, Campbell raised the issue of selling deer meat, and

Campbell told appellant he ought to sell the meat "up north" or

that Campbell would buy deer meat from appellant for resale "up

north."    Appellant stated that on January 7, 1998, it was

Campbell's idea to spotlight deer and that Campbell came to

appellant's house "and got [him]" to take him riding that

evening.   Appellant testified that Campbell always carried a

loaded gun in his truck, and appellant never provided guns or

ammunition for his hunting with Campbell.   Moreover, appellant,

who was unemployed during the incidents, stated that Campbell

offered him a job.

     Thus, appellant's theory is that Campbell targeted

appellant, then plied him with drugs and alcohol and initiated

the scheme by persuasion, fraud or trickery, implanting in

appellant's impaired mind the disposition or intent to commit

the crimes.   Campbell then encouraged appellant to sell deer

meat, offering appellant money and employment, providing the

                               - 12 -
vehicle, weapons, ammunition, and instructing appellant on how

to sell the meat.   We cannot say that appellant's evidence is

inherently incredible or not worthy of belief as a matter of

law.   Appellant's evidence created a question of fact, which the

fact finder should have been allowed to resolve after being

instructed on the law of entrapment.    See McCoy, 9 Va. App. at

231, 385 S.E.2d at 630.

       Accordingly, we hold that the trial court erred in failing

to instruct the jury on the defense of entrapment.   Therefore,

we reverse the convictions and remand the case to the trial

court for such further action as the Commonwealth may be

advised.

                                          Reversed and remanded.




                               - 13 -
