ELLETT, Chief Justice:
The State appeals from a pretrial dismissal of the case against Shane Bridwell, wherein he was charged with the offense of "unlawful distribution for value of a controlled substance" (marijuana). The court held that the respondent was entrapped and in doing so stated:
Now let us consider the evidence which when looked at "in the light most favorable to the case going on trial" would justify the trial court in ruling as it did. The trial judge further stated:
The officer who was "out there trying to take care of the types of things that the people, the citizens of this community, are demanding that they take care of, and doing it the best way they can" did the best way he knew. He testified that he first went to Shane Bridwell's home on November 21, 1975, and there he asked if Bridwell could arrange to get a "lid" (jargan meaning a can of marijuana). Bridwell told the officer to come back in three days and he should have some pounds by then.
Three days later the officer and Mr. England, the contact man, returned. Both of them testified that they were told to sit on the couch and shortly afterwards, Mr. Bridwell sold a pound of marijuana to a man named Brown who paid cash for it. In a few moments Mr. Bridwell brought a second pound of marijuana from out of the kitchen and gave it to the officer who paid him $130. Mr. England had gone into the kitchen with Mr. Bridwell and testified that the closet from which the marijuana was taken contained five or six other pound-bags of marijuana.
The reason for attempting to buy marijuana from Mr. Bridwell was because the
Mr. England was in some sort of trouble with the law and agreed to help the officers for some consideration on their part. He had known Mr. Bridwell since they were in junior high school, and it was thought that he could be the contact man to introduce the officer to Mr. Bridwell.
Mr. Bridwell and his wife testified that England asked for the marijuana and Bridwell got it as an accommodation, selling it for the exact cost. If their testimony has to be believed, then one could find that the particular sale was induced by the conduct of England and the officer. It is difficult for us to believe that a jury would, on hearing the testimony, come to the same conclusion as did the trial judge about the matter.
The law applicable to this case is set out in State v. Curtis
One dealing heavily in drugs as was Mr. Bridwell would naturally be expected to be careful and reluctant to sell to anyone who did not come properly recommended to him. That disarming recommendation was given by Mr. England and the respondent was caught — not entrapped. The best that can be said for Mr. Bridwell is that there is a jury question involved in the matter.
The ruling of the trial court is reversed and the case remanded with directions to proceed with the trial thereof.
CROCKETT, J., concurs.
HALL, J., concurs in result.
MAUGHAN, Justice (dissenting):
Before us is a judgment of the trial court rendered after an entrapment hearing. The court found entrapment and dismissed the case. We should affirm. All references are to U.C.A. 1953, unless otherwise noted.
The State specifically appealed to this court for guidance in the proper interpretation of Sec. 76-2-303(1), U.C.A. 1953, as enacted 1973. The majority opinion does not specifically and directly respond to this plea.
The trial judge ruled that under this new enactment, the legislature had elected to follow the "objective theory" of entrapment. Under this concept the character of disposition of the defendant is irrelevant; the crucial issue is an evaluation of the police conduct, viz, did the state employ impermissible deceits and persuasions to induce the defendant to commit the offense.
The state's appeal is predicated on the ground there is a vestige of the "subjective theory" remaining in the new enactment and that the trial judge erred in not giving adequate weight to the evidence, which indicated defendant's predisposition to commit the crime. Under this concept there are two requirements, inducement by the government and innocence on the part of the defendant. The pertinent issue thereunder is whether the criminal design originated with the officials of the government and they implanted in the mind of an innocent person the disposition to commit the alleged offense and induced its commission in order that they might prosecute.
76-2-303(1), as enacted 1973, provides:
The foregoing follows the format and theory set forth in Sec. 2.13(1) of the Model Penal Code, Proposed Official Draft (1962):
Significantly, in the Tentative Draft No. 9, another provision was offered, which set forth the subjective theory of entrapment, and the provision which was ultimately adopted by the institute was deemed an alternative formulation. The original proposed provision stated:
In the commentary, following the tentative draft, the differentiation between the two theories is explained as follows:
The foregoing analysis is particularly pertinent to the issues presented. The trial court found, an informer, Charles England, made overreaching appeals to compassion and friendship and thus moved defendant to sell narcotics.
The court stated that assuming the evidence indicating predisposition were true (there was conflicting evidence), the issue was not whether such evidence would justify the entrapment. The court framed the issue as follows:
The court continued:
The court ruled that a jury would have a difficult time finding there was no entrapment, beyond a reasonable doubt. "Accordingly, the motion is granted, under the particular circumstances."
The operative words of Sec. 76-2-303(1) and Sec. 2.13 of the Model Penal Code are the same. There is no provision or phraseology in the statute which can be construed as providing a "predisposition" or "innocence" requirement to constitute an entrapment defense. Concededly, prior to the adoption of this statute, this court had adopted the subjective test, viz, whether the accused had a predisposition to commit the crime.
The doctrine of entrapment is to promote a social policy.
The rationale to sustain the objective theory of entrapment is set forth as follows:
A further factor which verifies the legislative intention to enact an objective theory of entrapment is subdivision (6) of Sec. 76-2-303. There it is provided:
The trial court did not err by limiting the issue of entrapment to the question of whether the informer, Charles England, induced the commission of the offense, by methods creating a substantial risk the offense would be committed by one not otherwise ready to commit it. In applying the objective test, the course of conduct between the accused and the agent of the police should be evaluated. The transactions leading up to the offense, the interaction between the agent and the accused, and the accused's response to the inducements of the agent are all to be considered in judging the effect of the agent's conduct on a normal person.
The majority opinion remands the case for trial by jury of the entrapment issue. Section 76-2-303(4) provides that the court shall hear evidence on the issue and shall determine as a matter of fact and law whether the defendant was entrapped to commit the offense. If the majority is of the view that the subjective theory is applicable under Sec. 76-2-303(1), then the matter should be remanded to the trial court for a determination of the facts. The evidence concerning defendant's predisposition was seriously disputed and no finding was made; there was substantial evidence to support either of the conflicting versions of the event. A review of the relevant statutory provisions indicates this court could only remand a case for a jury trial where the dismissal by the trial court was not based on any substantial evidence to support the defense of entrapment.
Although prolonging this dissent, the facts as revealed through the testimony of defendant and his wife merit review. In Sherman v. United States,
Defendant and his wife had known Charles England for many years. England and defendant had been friends since Junior High School days — some friend. On August 20, England attended defendant's birthday party as a companion of defendant's sister. England sold defendant a bicycle on that same day. Thereafter, England frequently visited in defendant's home. On several occasions, he requested marijuana; he was consistently refused. Defendant and his wife explained to England they had discontinued all use of drugs the previous spring, for the reasons that drugs had caused discord in their marital relationship, and Mrs. Bridwell was expecting a second child. England further ingratiated himself to the Bridwells by bringing his supervisor to their home for the purpose of meeting defendant and possibly employing him. Defendant had been actively seeking work, and, although the meeting did not result in employment, he was grateful for England's interest and assistance.
According to defendant on November 24, England came by his home in the morning urgently seeking marijuana. Defendant described him as nervous and upset. It was under these circumstances that defendant procured the drug, which he sold that evening to England. The majority opinion relates the conflicting testimony of the police officer, who had accompanied England to defendant's home. Significantly, the Bridwells, England, and the officer all differed as to the number of occasions the officer went to the home prior to the sale, which constituted the offense.
WILKINS, J., concurs in Justice MAUGHAN'S dissent.