Defendant Kim Beddoes appeals his third degree felony conviction for possession of a controlled substance with intent to distribute, a violation of section 58-37-8 of the Utah Code. We affirm.
The Utah Highway Patrol stopped Ned Shepherd in Juab County. A search of Shepherd's vehicle revealed fifteen pounds of marijuana. Officers also found, in Shepherd's wallet, a list of names and telephone numbers, including defendant's. The Juab County Sheriff's office, from independently gathered information, suspected that defendant had been selling drugs. Shepherd explained that he and defendant had been friends for over twenty years, and that they
Shepherd telephoned defendant at home to inform him that Shepherd would be coming to defendant's house. After completing the phone call, Shepherd suggested that the officers send him to defendant's home with a pound of marijuana. The Juab County Sheriff's office supplied Shepherd with approximately twenty-three ounces of marijuana from their evidence locker. The Sheriff's office placed a transmitter on Shepherd to record the operation.
When he arrived at defendant's home, Shepherd offered defendant the marijuana and told him that it would cost $1600. Shepherd also reminded defendant that he already owed Shepherd $450 from a previous drug transaction. Defendant replied that he did not have any money at that time. Shepherd then offered to "front" the marijuana to the defendant.
Approximately twenty minutes later, law enforcement officers executed a search warrant at defendant's home. The officers arrested defendant after finding him in the bathroom of the home attempting to flush the marijuana down the toilet. Following a jury trial, defendant was found guilty of possession of marijuana with the intent to distribute.
STANDARD OF REVIEW
Defendant challenges the jury's verdict of guilt. When a jury's verdict is challenged, we must "use a high standard of review: We affirm the conviction unless reasonable minds, acting fairly on the evidence, have a reasonable doubt that [defendant] was entrapped." State v. LeVasseur, 854 P.2d 1022, 1024 (Utah App.1993) (citing State v. Martinez, 848 P.2d 702, 706 (Utah App.)), cert. denied, 862 P.2d 1356 (Utah 1993). Accordingly, we "review the evidence and all its reasonable inferences drawn from it in the light most favorable to the jury's verdict." State v. Moore, 782 P.2d 497, 501 (Utah 1989).
Defendant first contends that the trial court erred by not concluding that, as a matter of law, defendant was entrapped. Before trial, defendant moved to dismiss the charges on grounds of entrapment. Based essentially on undisputed facts, however, the trial court ruled that reasonable minds could differ on whether or not entrapment occurred and allowed the issue of entrapment to go to the jury. See Utah Code Ann. § 76-2-303(5) (1990).
Defendant contends that the State entrapped defendant by conducting a "reverse sting" in that the State sold, rather than purchased, the marijuana. Defendant encourages this court to adopt a per se rule of entrapment. As adopted by other jurisdictions, the entrapment per se rule basically provides that if an officer or agent provides illicit drugs, or offers illicit drugs for sale, then that conduct automatically constitutes entrapment as a matter of law. See generally State v. Kummer, 481 N.W.2d 437, 441 (N.D.1992).
Utah has never recognized a per se rule of entrapment. Rather, the Utah entrapment statute requires an objective review of each individual situation. See State v. Taylor, 599 P.2d 496, 500 (Utah 1979). Utah's entrapment statute provides, in pertinent part:
Utah Code Ann. § 76-2-303(1) (1990). The objective standard focuses solely on the actions of the government, and not on the defendant's predisposition, to determine whether entrapment has occurred. Taylor, 599 P.2d at 500. In State v. Richardson, 843 P.2d 517 (Utah App.1992), the court succinctly summarized the principal factors that must be analyzed when entrapment is raised:
Id. at 519 (citations omitted). Entrapment cases are very fact-sensitive. We will therefore uphold the fact-finder's determination unless we can hold, based on the given facts, that reasonable minds cannot differ as to whether entrapment occurred. Only then can we hold that entrapment occurred as a matter of law.
In the present case, defendant claims there are several factors that constitute entrapment as a matter of law. Defendant argues that Shepherd appealed to his friendship to make the drug deal. Utah courts have held, however, that "friendship alone does not constitute entrapment." Moore, 782 P.2d at 501; see also Martinez, 848 P.2d at 707 (holding that "[t]he mere existence of a personal relationship does not establish entrapment"). To establish entrapment under this factor, defendant must demonstrate that the State's agent exploited the relationship in an appeal to defendant's sympathy or pity. Taylor, 599 P.2d at 498-99, 503-04 (holding that defendant's former lover played on his sympathy and pity while suffering from apparent heroin addiction withdrawals); see also State v. Wright, 744 P.2d 315, 319 (Utah App.1987) (holding that family relationship was not exploited and that there were "no pleas of desperation nor appeals to friendship and loyalty.") Shepherd did not exploit his friendship with defendant to induce defendant's
Defendant also claims that by "fronting" him the marijuana, Shepherd was, in effect, offering defendant inordinate amounts of money because defendant was not required to pay for the marijuana at delivery. The record shows that although defendant stated that he did not have any money at the time of the delivery, defendant agreed to the price of the marijuana and understood that he would have to pay for the marijuana. Shepherd indicated that he expected to be paid by reminding defendant that he still owed Shepherd approximately $450 from a previous transaction in which Shepherd had fronted him marijuana. Defendant did not refuse the marijuana, nor did he dispute the amount of money that Shepherd indicated was owed by defendant. By accepting the marijuana, defendant recognized his debt to Shepherd.
Defendant makes much of the fact that Shepherd testified that it was not his usual practice to front drugs a second time unless the previous debt had been paid. The State correctly asserts that even if Shepherd departed from his usual practice, that fact alone does not compel the conclusion that defendant was induced to buy the marijuana. Indeed, the issue was properly presented to the jury, and the jury reasonably determined that defendant accepted the additional debt to receive the marijuana that Shepherd offered to him. See State v. Salmon, 612 P.2d 366, 368-69 (Utah 1980) (holding that trial court properly allowed factual entrapment questions to be determined by jury).
Defendant finally argues that he did not expect a delivery from Shepherd on the day in question. This fact also does not compel a conclusion that defendant was entrapped. "Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment." Utah Code Ann. § 76-2-303(1) (1990). It is true that defendant did not know, before the day of the delivery, when Shepherd was going to deliver the marijuana. The record shows, however, that defendant had previously informed Shepherd that he wanted more marijuana delivered to him the next time Shepherd went to California. The record also shows that Shepherd had gone to California without informing anyone, including his wife. Therefore, the jury could reasonably conclude from the evidence that the date of delivery was not crucial, and that the important fact was that defendant expected a delivery from Shepherd whenever he returned from California.
We hold that the jury did not unreasonably determine that defendant was guilty of possession of a controlled substance with intent to distribute, and that there was no entrapment by the government. Defendant's conviction is affirmed.
WILKINS, J., concurs.
ORME, J., concurs in result.