HALL, Chief Justice:
Defendant appeals his conviction of distribution of a controlled substance (marijuana) for value,
On August 19, 1982, around 10:00 p.m., defendant and a friend were sitting in a park-like area across from the Manti Temple, conversing. Undercover agents James Tauffer and Ed Spann saw the two and approached them to make a contact. Defendant and his friend were neither using controlled substances nor talking about them. Further, Tauffer had not seen either person before and testified that he had no reason to believe that defendant or his friend were involved with drugs. Tauffer initiated the conversation with small talk and eventually turned the conversation to marijuana, asking defendant if he knew where Tauffer could get some. Defendant told Tauffer his best bet would be to go to Provo. After further discussion, defendant gave Tauffer his name and telephone number and told Tauffer that he could call defendant later. Defendant took no action to obtain marijuana for Tauffer, and no phone contacts were made by either person.
On the afternoon of August 27, 1982, Tauffer and Spann went to defendant's place of employment and asked defendant if he knew where Tauffer could get a quarter-ounce of marijuana. Defendant told them that he was going to Gunnison that night and might be able to get some there. Tauffer urged a meeting, so defendant told Tauffer and Spann to come to Ephraim that night and he would find them there. Defendant did not go to either Gunnison or Ephraim.
On August 31, 1982, Tauffer spotted defendant at a cafe in Manti, pulled over and again approached defendant. Defendant told Tauffer that it was possible that he could get Tauffer a small amount of marijuana from someone else. Tauffer asked to see the marijuana first. Defendant left the cafe, returning a short time later with another person. Outside the cafe defendant handed Tauffer a small bag containing one gram of marijuana. Tauffer gave defendant
Based on this transaction, defendant was charged with distributing a controlled substance for value. Defendant moved to dismiss the case on the ground of entrapment pursuant to U.C.A., 1953, § 76-2-303. The judge declined to dismiss. Defendant appeals his conviction.
Section 76-2-303(1) states:
This Court has adopted the objective test for determining whether a defendant has been entrapped.
Defendant relies on State v. Kourbelas,
That language applies in this case as well. It was Tauffer who first approached defendant, with no reason to believe that defendant used or sold drugs, and suggested the purchase of drugs. After a week had passed, it was again Tauffer who approached defendant with the request for marijuana, which defendant did not provide. Finally, after Tauffer approached defendant a third time, defendant provided a gram of marijuana to Tauffer. Defendant testified that he did this because he wanted to be a friend to Tauffer.
Therefore, we conclude that the offense was induced by the persistent requests by Tauffer, not by the initiative and desire of defendant. Accordingly, the defendant's conviction is reversed. Since we reverse on the issue of entrapment, we do not address the issue of admissibility of evidence.
OAKS, HOWE and DURHAM, JJ., and SCOTT DANIELS, District Judge, concur.
STEWART, J., does not participate herein; DANIELS, District Judge, sat.