State v. BecknerState v. Beckner
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- Before:
- Caporale
Robert H. Beckner, Jr., defendant-appellant, was charged in an information filed in the District Court for Dodge County, Nebraska, with delivery of a controlled substance, to wit: marijuana, in violation of
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In his brief on appeal, appellant has listed 12 assignments of error on the part of the trial court. However, many of the assigned errors are not discussed in his brief. Therefore, pursuant to Rule 8.a.2.(3) of this court, these allegations of error are not considered. Cockle v. Cockle, 204 Neb. 88, 281 N.W.2d 392 (1979). The remainder of appellant’s assignments can be summarized as follows: (1) That the appellant was entrapped; (2) That the statements of the cooperating individual were not corroborated sufficiently; and (3) That the sentence imposed was excessive. We find these assignments of error to be without merit.
The record reveals that in January of 1981, Jeffards R. Byington was employed as a “cooperating individual” or informant by the Nebraska State Patrol. He was to gather information about drug traffickers and to relay that information to law enforcement officials. Byington operated in Dodge County where he became acquainted with the appellant through a mutual friend. On February 5, 1981, Byington arranged for a meeting between Officer Dennis J. Mayberger, an undercover drug investigator for the Nebraska State Patrol, and the appellant at the trailer home owned by Beekner in Ames, Nebraska. Upon their arrival, negotiations commenced between Mayberger and Beekner concerning the purchase of a quantity of marijuana. The appellant produced a plastic bag which contained several smaller plastic bags, each containing approximately 1 ounce of marijuana. In addition, Beekner produced another quantity of marijuana. Officer Mayberger asked the appellant how much he *444 wanted per ounce of marijuana, and was told by Beckner the price was $40 an ounce. Mayberger also inquired as to the purchase price for a quarter pound of marijuana, and was told by the appellant that the cost was $130. Thereafter, Mayberger purchased a quarter pound of the controlled substance from the appellant.
Appellant does not deny the possession of marijuana, nor contest selling a quarter pound of the substance to Officer Mayberger. He alleges, however, that he was improperly induced to sell the drugs by informant Byington and was therefore entrapped. We note the parties have stipulated that the chain of custody of the evidence was proper and that the chemical analysis performed by the State Health Laboratory identified the substance purchased from appellant as marijuana.
In reviewing claims of entrapment by criminal defendants in drug-related cases, this court has held that where a person has no previous intent or purpose to violate the law, but does so only because he is induced to commit the act by law enforcement officers or agents, he is entitled to the defense of entrapment. But where a person already has the readiness or willingness to violate the law, the fact that an officer or agent provides a favorable opportunity for the violation does not constitute entrapment. State v. Lampone, 205 Neb. 325, 287 N.W.2d 442 (1980); State v. Amen, 190 Neb. 362, 208 N.W.2d 279 (1973). In addition, we have held that the mere fact that artifice or stratagem may be employed to apprehend those engaged in criminal activity does not in and of itself give rise to the defense of entrapment. State v. Ransburg, 181 Neb. 352, 148 N.W.2d 324 (1967). The rationale for employing such stratagems was stated by the U.S. Supreme Court in United States v. Russell, 411 U.S. 423, 432, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973), as follows: “The illicit manufacture of drugs is not a sporadic, isolated *445 criminal incident, but a continuing, though illegal, business enterprise. In order to obtain convictions for illegally manufacturing drugs, the gathering of evidence of past unlawful conduct frequently proves to be an all but impossible task. Thus in drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of investigation . . . .” See, also, Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932).
In support of the contention that he was entrapped, appellant testified that Byington had made repeated promises to do bodywork on a truck owned by Beckner, refinish several stereo speakers, and acquire a safety inspection sticker for a van owned by the appellant which was in defective condition. Byington testified that he made such offers to the appellant, but stated that he had never performed any of the tasks and that the offers were not made in the hopes of acquiring marijuana. It appears from the record that such offers were made by the informant as an attempt to gain the appellant’s friendship. There is nothing in the record which indicates Byington suggested or preconceived any plan for the sale of the marijuana to Officer Mayberger. The record reflects that after Byington introduced the appellant to Mayberger, the law enforcement officer negotiated for the sale of the substance and Byington had no role in determining how the sale was made. Byington testified that he observed the appellant sell marijuana to another individual approximately 5 days prior to the sale of the substance to Officer Mayberger. This testimony was relevant in that it reveals a predisposition originating on the part of the appellant to traffic in drugs.
*446 It is doubtful that the above evidence is sufficient to raise the defense of entrapment. Annot., Modern Status of the Law Concerning Entrapment to Commit Narcotics Offense — State Cases, 62 A.L.R.3d 110 (1975). It is certainly insufficient to support a finding that the appellant was entrapped as a matter of law, which is what he contends. In any event, the issue of entrapment was submitted to the jury under instructions, the correctness of which the appellant does not challenge, and the jury found against the appellant.
Nor can we concur with appellant’s allegation that the testimony of Byington should have been excluded as not sufficiently corroborated.
The testimony produced at trial clearly presented a factual dispute for the resolution of the jury. In this case, the jury resolved the issues in favor of the State and found the appellant guilty as charged. The rule is well established that in determining the sufficiency of the evidence necessary to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Weible, ante p. 174, 317 N.W.2d 920 (1982); State v. Rust, 208 Neb. 320, 303 N.W.2d 490 (1981).
Finally, we turn to appellant’s contention that the sentence imposed by the District Court was an abuse of discretion and that the court erred by sentencing him to a term of imprisonment rather than probation. Pursuant to
The jury’s verdict and the judgment and sentence of the trial court are affirmed.
Affirmed.