Lead Opinion
[¶ 1] Justin T. Hammeren appealed from a criminal judgment entered following a jury verdict finding him guilty of delivery of a controlled substance. We conclude the trial court did not err in denying Hammeren’s motion for judgment of acquittal based on entrapment as a matter of law or in denying Hammeren’s requested jury instructions regarding contributing to the delinquency of a minor. We affirm.
I.
[¶ 2] On November 30, 2000, law enforcement officers received information from an adult confidential informant that Hammeren, age 16 at the time, was involved in drug-related activity. The confidential informant stated to law enforcement officers that he had purchased drugs from Hammeren in the past. Officers met with the confidential informant at his house where the confidential informant made two tape-recorded telephone calls to Hammeren to set up a meeting. Hammer-en agreed to let the confidential informant come over to Hammeren’s house to purchase drugs. A radio transmitter was placed on the confidential informant and he was given $300 to buy three grams of coсaine and an undetermined amount of lysergic acid diethylamide (LSD). The confidential informant rode with a deputy to Hammeren’s house. Once inside the house, Hammeren told the confidential informant he did not have any cocaine left but sold him fifteen “hits” of LSD for $150. A pеtition dated July 20, 2001, an amended petition dated September 5, 2001, and an amendment to petition dated September 17, 2001, were filed with the juvenile court alleging Hammeren was a delinquent child, who willfully committed the delinquent act of delivery of a controlled substancе.
[¶ 3] Jurisdiction was transferred from juvenile court to the district court under N.D.C.C. § 27-20-34 and on September 28, 2001, Hammeren was charged by information with delivery of a controlled substance (LSD), in violation of N.D.C.C. §§ 19-03.1-23 and 19-03.1-05(5)(s).
. [¶ 4] Prior to trial, Hammeren requested jury instructions on entrapment and
II.
[¶ 5] Hammeren argues the trial court erred in denying his motion for judgment of acquittal because he was entrapped as a matter of law. Hammeren contends law enforcement officers violated the law by contributing to the delinquency of a minor since he was 16 years old at the time of the sale, and the officers’ actions constitute entrapment as a mattеr of law. Hammeren’s argument is confusing because it blends the issues of contributing to the delinquency of a minor and entrapment as a matter of law.
[¶ 6] Under Rule 29, N.D.R.Crim.P., a court can order the entry of judgment of acquittal of one or more offenses charged “if the evidence is insufficient to sustain a conviction of such offense or offenses.” Thus, “a motion for a judgment of acquittal is properly granted only if the evidence is insufficient to sustain a conviction of the offenses charged.” State v. Ohnstad,
[¶ 7] Hammeren argues he was entrapped as a matter of law; therefore the trial court erred in denying his motion for judgment of аcquittal. The entrapment defense is set out in N.D.C.C. § 12.1-05-11(2):
A law enforcement agent perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result, causes another person to engage in conduct constituting such a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is reаdy to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.1
Entrapment is an affirmative defense. N.D.C.C. § 12.1-05-11(1). The defendant has the burden of proving, by a preponderance of evidence, an affirmative defense. N.D.C.C. § 12.1-01-03(3); City of Bismarck v. Nassif,
[¶ 8] Hammeren argues he was entrapped as a matter of law under State v. Kummer,
[¶ 9] The facts in this case are distinguishable from the facts in Rummer. The alleged entrapment in this case consisted of a confidential informant calling Ham-meren at his house, inviting the sale, and completing thе purchase with funds supplied by the police. The confidential informant had purchased drugs from Hammer-en prior to this sale. Hammeren invited the confidential informant over to his house to complete the sale. Law enforcement officers did not prоvide the LSD to the confidential informant to complete the sale; Hammeren possessed the LSD that was sold to the confidential informant. There is nothing in the facts of this case to indicate law enforcement officers engaged in outrageous cоnduct.
[¶ 10] “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” N.D.C.C. § 12.1-05-11. Neither does “[t]he mere fact that an acquaintance persuaded [the defendant] to make the sale[,]” State v. Overby,
[¶ 11] We conclude the facts of this case do not establish entrapment as a matter of law. There is substantial evidence in the record to support the guilty verdict; thus the triаl court did not err in denying Hammeren’s motion for judgment of acquittal.
III.
[¶ 12] Hammeren also argues the trial court should have instructed the jury on the offense of contributing to the delinquency of a minor. The jury instructions requested by Hammeren included: (1) an instruction on the defense of police misconduct and contributing to the delinquency of a minor; (2) the burden of proof for contributing to the delinquency of a minor; and (3) an instruction adding an element to the offense charged which would require the State to disprove that law enforcement officers contributed to the delinquency of a minor.
[¶ 13] “This Court reviews jury instructions as a whole, and determines ‘whether they correctly and adequately inform the jury of the applicable law, even though part of the instructions when standing alone may be insufficient or erroneous.’ ” State v. Schumaier,
[¶ 14] Hammeren contends that becausе he was 16 years old at the time of the sale, law enforcement officers violated the law when they “acted to willfully encourage, cause, or contribute to the delivery of controlled substances by a minor.” Section 14-10-06(1), N.D.C.C., provides: “[a]ny person who by аny act willfully encourages, causes, or contributes to the delinquency or deprivation of any minor is guilty of a class A misdemeanor.”
[¶ 15] Hammeren’s argument asserts that § 14-10-06, N.D.C.C., establishes a policy which would prohibit police from using law enforcement tactics cоmmonly used against adult offenders, such as having a confidential informant make a controlled purchase, when the target of the investigation is a minor. This argument is countermanded by the legislature’s enactment of N.D.C.C. § 27-20-34. Section 27-20-34, N.D.C.C., acknowledges that minors will be engaged in drug-related activity and declares those minors should be prosecuted as adults if certain circumstances exist. Section 27-20-34(l)(b), N.D.C.C., in part, provides:
After a petition has been filed alleging delinquency based on conduct which is designated a crime or public оffense under the laws, including local ordinances or resolutions of this state, the court before hearing the petition on its merits shall transfer the offense for prosecution to the appropriate court having jurisdiction of the offense if:
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b. The child was fоurteen years of age or more at the time of the alleged conduct and the court determines that there is probable cause to believe the child committed the alleged delinquent act and the delinquent act involves the offense of ... the mаnufacture, delivery, or possession with intent to manufacture or deliver a controlled substance in violation of subdivision a or b of subsection 1 of section 19-03.1-23, except for the manufacture, delivery, or possession with intent to manufacture or deliver marijuаna in an amount less than one pound [.45 kilograms][.]
A juvenile judge’s authority to transfer a minor from juvenile court to the district court implies that “society has acknowledged that certain actions taken by juveniles may signal an end to childhood.” In Interest of M.D.N,
VI.
[¶ 16] The trial court did not err in denying Hammeren’s motion for judgment of acquittal based on entrapment as a matter of law or in denying Hammeren’s requested jury instructions regarding contributing to the delinquency of a minor. We affirm the judgment of the trial court.
Notes
. Because the State has not raised the issue, we have not examined whether on the facts of this case, Hammeren was entitled to an instruсtion on entrapment.
. Other jurisdictions have approached a similar issue by concluding it is the role of the district attorney, not the trial court, to decide whether to charge the deputy with violating a criminal statute, such as contributing to the delinquency of a minor. See State v. Bonilla,
Concurrence Opinion
concurring in the result.
[¶ 18] I believe Hammeren’s argument blending the issues of contributing to the delinquency of a minor and entrapment as a matter of law is the result of the majority opinion in State v. Kummer,
But rather than confuse what heretofore has been a clear judicial exposition of a clear legislative statute on the law of entrapment by attempting to tug and stretch the concept of entrapment so that it fits our view of the case, I believe we should confront the issue directly and declare that as a matter of public poliсy we will not sustain a conviction obtained by intolerable conduct on the part of law enforcement agents, notwithstanding the entrapment statute. That is a neater and more candid position for this court.
Kummer, at 445 (VandeWalle, J., concurring speciallyXfoоtnote omitted).
[¶ 19] I adhere to that rationale in this case. However, for the reasons stated by Justice Kapsner at ¶ 15 of the majority opinion, I agree the action on the part of law enforcement was not intolerable conduct in this instance.