Opinion
Court of Appeals No. A-10493.
May 25, 2011.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge, Trial Court No. 4FA-08-273 CR.
Robert John, Law Office of Robert John, Fairbanks, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
James K. Hinkle Jr. was convicted of misconduct involving a controlled substance in the third degree for selling cocaine to a friend, Keith Lindsey, who was acting as a police informant. Hinkle defended on the ground that, although he had sold the cocaine to Lindsey, he had been entrapped. Superior Court Judge Michael A. MacDonald denied Hinkle's entrapment defense. Hinkle appeals. We affirm.
Discussion
Entrapment is an affirmative defense established by statute in Alaska:
In any prosecution for an offense, it is an affirmative defense that, in order to obtain evidence of the commission of an offense, a public law enforcement official or a person working in cooperation with the official induced the defendant to commit the offense by persuasion or inducement as would be effective to persuade an average person, other than one who is ready and willing, to commit the offense. Inducement or persuasion which would induce only a person engaged in an habitual course of unlawful conduct for gain or profit does not constitute entrapment.
AS 11.81.450.
Entrapment is an issue for the trial court to decide rather than the jury. The defendant must establish entrapment by a preponderance of the evidence.
Yates v. State, 681 P.2d 1362-64 (Alaska App. 1984).
State v. Yi, 85 P.3d 469, 472 (Alaska App. 2004); Bachlet v. State, 941 P.2d 200, 206 (Alaska App. 1997).
At the time Hinkle's offenses were committed, in December 2006 and January 2007, Hinkle and Lindsey had been friends for several years. They appear to have been close friends. They drank beer, smoked marijuana, and sometimes used cocaine together. They also played video games, watched NASCAR racing, and worked on their cars. They saw each other three to five times a week. Lindsey, a nurse, also took care of Hinkle's mother, who has multiple sclerosis.
At the grand jury hearing, Lindsey testified that police had caught him running a marijuana grow operation and that as a result, he agreed to become a government informant. Officer Jason Pugh, an Alaska State Trooper assigned to drug enforcement who also supervised Lindsey, explained how informants worked with the State:
If somebody gets . . . in trouble, and they're involved in the drug world, we give them an opportunity, depending on their criminal history and their current situation, to work for us as a confidential [informant]. No promises are made. . . . What's told to the informant is, the more you help us, the more you help yourself and, you know, if you do a good job, we'll pass that word on to the district attorney's office.
Lindsey explained at grand jury that he targeted Hinkle because Hinkle was an acquaintance who used cocaine frequently, and he thought Hinkle would be willing to sell him cocaine. He testified that Hinkle had offered him cocaine many times before. Lindsey testified that, on December 8, 2006, Hinkle sold him 3.5 grams of cocaine for $250 in marked government money. On January 9, 2007, Hinkle sold him about 6.6 grams for $500.
Hinkle moved to dismiss the charges based upon an entrapment defense. Judge MacDonald held an evidentiary hearing on the motion. At the hearing, Hinkle testified that he and Lindsey were good friends and that Lindsey sold him marijuana many times. Lindsey liberally granted Hinkle credit when Hinkle didn't have money for the marijuana. Hinkle said he would do anything for his friends. So on December 8, 2006, when Lindsey asked Hinkle to get him some cocaine so that Lindsey and his wife would have some for recreational purposes on a trip to Anchorage, he obtained one eighth of an ounce of cocaine. Hinkle stated that he did not think that the request was odd. When Lindsey came by to pick up the cocaine, they used some of the cocaine together.
A month later, Lindsey told Hinkle that he wanted to make a little money and asked Hinkle if he could obtain a quarter of an ounce of cocaine. Lindsey gave Hinkle the money in advance. Hinkle testified that he actually obtained one half of an ounce of cocaine, intending the second quarter ounce for his own personal use. He was able to get the second quarter ounce for "basically half-price." He testified that Lindsey promised to share with Hinkle some of the money that he made from selling the cocaine. But Lindsey never fulfilled this promise. Hinkle stated that, prior to the transactions with which he was charged, he had shared his cocaine with Lindsey, but he denied ever having previously sold cocaine to him.
In two written orders, Judge MacDonald denied Hinkle's entrapment defense. He concluded that Hinkle "was not unduly motivated by friendship." He found that Hinkle had previously shared cocaine with Lindsey. He found that Hinkle was motivated to sell the cocaine for his own personal benefit. This included Hinkle's desire to obtain cocaine for himself in the first transaction, to obtain a good price for an entire quarter ounce in the second transaction, and to share in the profits when Lindsey sold the cocaine. He reasoned that, although Hinkle's cocaine activity could fairly be described as "petty . . . it was illegal nonetheless."
Judge MacDonald's findings are supported by the record and support his decision to deny Hinkle's entrapment defense.
See Bachlet, 941 P.2d at 206-07.
Hinkle also argues that the actions of the police amounted to a violation of his due process rights. Government conduct may be a bar to prosecution where it was outrageous. This standard is met where "the government . . . engineered and directed the criminal enterprise from start to finish." We reject Hinkle's due process claim for the reasons we set out in upholding Judge MacDonald's ruling rejecting Hinkle's entrapment defense.
Vaden v. State, 768 P.2d 1102, 1107-08 (Alaska 1989) (quoting United States v. Williams, 791 F.2d 1383, 1386 (9th Cir. 1986)).
Conclusion
The judgment of the superior court is AFFIRMED.