Guzman v. StateGuzman v. State
- Reporters:
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- Before:
- Sognier
Annie Ortiz Guzman was charged with attempted possession of cocaine as a result of a reverse sting operation conducted by the Richmond County Sheriff’s Department. She was convicted by a jury, and she appeals from the judgment of conviction and sentence entered by the trial court.
On the night of March 22, 1991, Sheriff’s Investigator Larry Tarver was posing as a drug dealer on an Augusta street known as a center of drug activity. He was equipped with a body microphone and pieces of wax modellеd into chunks resembling crack cocaine. Investigator Allen Rollins was videotaping Tarver’s activities from a surveillance vehicle parked nearby. After Tarver сompleted his transactions, other officers posted nearby would stop and arrest the perpetrators several blocks away.
Tarver’s testimony and Rollins’ vidеotape established that appellant drove by Tarver in a station wagon with her children in the back seat, circled the block, and returned to Tarver. She askеd whether he had seen a man named Jerome, and when he responded negatively, she asked if she could “get half a slab for fifty.” (The deputies explained that “slab” is а street term for a large piece of crack cocaine usually sold for about $50 to $100.) Tarver replied that he only had small pieces for sale and handed one piece to appellant. She placed it to her lips (which Tarver explained was a common practice used by drug purchasers to tеst the product because cocaine will deaden nerve endings), shook her head, returned the piece to Tarver, and drove away. She was arrested by thе backup officers a few blocks away.
Appellant testified that earlier in the day a man had snatched a bracelet from her wrist as she stood in line at a local health center. Another woman standing in the same line identified the thief as a local drug dealer named Jerome and suggested to appellant that she drivе around a certain neighborhood that night and pretend to be seeking drugs in an effort to find Jerome. Appellant, who had no prior criminal record, testified that she had no money with her and did not intend to buy any drugs. Tarver testified that he neglected to follow the standard procedure for the undercover operation of asking to see appellant’s money before he showed her the fake cocaine, and the arresting officer confirmed that appellant had no money on her person or in her car when the arrest was made.
1. Appellant contends in two enumerations that the trial court erred in ruling on her argument that the deputies had aсted unlawfully. The court granted the State’s motion in limine to preclude appellant from arguing or presenting evidence that the deputies had acted unlawfully under еither
We find no error. It appears from the record that the wax pieces used in the reverse sting operation fell within the definition of an “imitation controlled substanсe” (
2. Appellant also enumerates as error the trial court’s denial of her motion for directed verdict of acquittal. “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. [Cit.] [That is, we must consider whether the] evidence set forth above was sufficient to authorize a rational trier of fact to find аppellant guilty of [attempted possession of cocaine] beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); [cits.].” Garrett v. State, 184 Ga. App. 715, 716 (3) (362 SE2d 423) (1987).
Appellant contends she was entrapped by the illegаl acts of the deputies. “ ‘Entrapment exists where the idea and the intention to commit the act originate with a police officer, who, by undue persuasion and deceitful means, induces the defendant to violate the law. But there is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense.’ [Cit.]” Orkin v. State, 236 Ga. 176, 195 (223 SE2d 61) (1976). Given our holding in Division 1 concerning the legality of the deputies’ possession of the wax pieces, we find no merit in appellant’s argument thаt they entrapped her by acting unlawfully and deceitfully. Moreover, by her own admission, appellant approached Tarver and inquired about a drug purchasе. “It does not constitute entrapment where a defendant approaches a police officer with an offer to commit a crime, if that officer thеn plays a role in order to provide the defendant with an opportunity to commit the intended offense. [Cit.]” Id. Accordingly, a finding of entrapment was not demanded as а matter of law. See id. at 195-196 (8).
“ ‘An attempt to commit a crime consists of three elements: first, the intent to commit the crime; second, the performance of somе overt act towards the commission of the crime . . .; and third, a failure to consummate its commission.’ [Cit.]”
Howell v. State,
157 Ga. App. 451, 454 (4) (278 SE2d 43) (1981). The overt act must be one that would be proximately conneсted with the completed crime, and “there must be an apparent possibility to commit the crime in the
The fact that Tarver offered only imitation cocaine to appellant does not relieve appellant of сulpability for attempting to possess cocaine because there is no evidence
she
was aware the substance was not cocaine. See
“[W]hen there is no conflict in the evidence and it clearly demands а verdict of acquittal as a matter of law there is a duty upon the trial judge to grant a motion for a directed verdict of acquittal and his failure to do so will constitutе reversible error on appeal.” Merino v. State, 230 Ga. 604, 605 (198 SE2d 311) (1973). Having found that impossibility is a complete defense to the charged crime, we must hold the trial court erred by denying appellant’s motion for directed verdict of acquittal because the evidence did not meet the standard set forth in Jackson v. Virginia, supra.
Judgment reversed. Cooper, J., concurs.
McMurray, P. J., concurs in judgment only.