MATTHEWS, Senior Justice.
John C. White was convicted after a jury trial of three counts of misconduct involving a controlled substance in the third degree in violation of AS 11.71.030(a)(1) (sale of cocaine) and one count of misconduct involving a controlled substance in the second degree in violation of AS 11.71.020(a)(1) (sale of oxycodone). He received a 20-year sentence for the sale of oxycodone and concurrent 10-year sentences for the cocaine sales. In addition, White's probation in two other cases was revoked because of these convictions, and he was ordered to serve an additional 6 years consecutive to the 20-year sentence.
White presents two issues on appeal. First, he claims that the trial court erred in failing to find entrapment because the undercover agents who bought drugs from him held out the prospect of employing him in a well-paying job. Second, he claims the court erred by rejecting a proposed mitigating factor that the offense concerning oxycodone involved a small quantity. For the reasons explained below, we reject these claims and affirm White's convictions.
White filed a pretrial motion to dismiss the indictment based on the affirmative defense of entrapment. The court held an evidentiary hearing. One of the witnesses at that hearing was a confidential informant.
The informant testified that when he came to Juneau, he frequented bars, "partied" with locals, and began making inquiries about buying drugs. Some people identified White as a drug seller and introduced the informant to him. The informant claimed to be on a construction crew from out of town, and he said that his boss, the foreman of the crew, would be coming to town and would like to purchase cocaine. The informant also told White there would be a job opportunity with the construction crew. But the informant made preliminary arrangements to buy drugs from White before discussing this prospective employment with him.
On May 26, 2010, White filled out an employment application, and the informant arranged what would be a police-monitored drug purchase for May 27. The informant told White, and White's girlfriend Priscilla Barr, that he would have money to make a purchase on that day, that his boss also wanted to make a purchase, and that they would be present in a local bar. The boss was actually Sitka Police Detective Kyle Ferguson, who was also working undercover.
When the time for the purchase came, White was reluctant to enter the bar and instead signaled the informant to come outside. The informant, White, and Barr walked down the street, where White sold 3 grams of cocaine to the informant. The sale took place about twenty feet from two police officers parked in an unmarked vehicle. This sale was the subject of the first count of the charges against White.
After the first purchase, the police obtained a warrant to record future drug purchases from White. A second, recorded purchase occurred on June 8, 2010, at White's and Barr's apartment. When the informant and Ferguson appeared at the apartment, Barr initially told Ferguson to wait outside. Ferguson, with Barr listening, told the informant to ask about "oxies." The informant asked Barr what the price would be, and Barr answered "170." The informant then introduced Ferguson to Barr as his boss, and Barr let both the informant and Ferguson into the apartment.
While in the apartment, the informant and Ferguson purchased an 80-milligram oxycodone pill and four grams of cocaine from Barr and White. Ferguson observed that White had six or eight small packets of cocaine on his bed and a large roll of cash. White took the cocaine from a bag, and Barr took the oxycodone pill from a bag containing fifteen or twenty pills. The June 8 sale of cocaine by White formed the basis for the second count of the charges.
The third and final purchase occurred on June 9, 2010. Ferguson went alone to White's and Barr's apartment. Ferguson and White initially discussed White's job application and then Ferguson asked to buy drugs. White left to go to another apartment in the same complex to obtain the drugs. During White's absence, Barr asked Ferguson what White's wage would be if he were hired. Ferguson told her he would be getting $10.50 an hour. When White returned with a bag containing drugs, Ferguson purchased an 80-milligram oxycodone pill and two grams of cocaine. He again observed a roll of cash on White's bed. The June 9 sales of cocaine and oxycodone formed the basis for the third and fourth counts of the charges against White.
When the decision to arrest White was made, the police decided it would be best to make the arrest out in the open, away from the apartment. To accomplish this, Ferguson called White and told him the job was going to start soon and that Ferguson needed to meet with him to issue him some safety equipment.
At the conclusion of the evidentiary hearing, defense counsel argued that the undercover agents offered employment to White at least implicitly in exchange for the opportunity to buy drugs: "[Y]ou know, you hook me up, I'll hook you up kind of thing." Counsel argued this was reprehensible conduct that constituted entrapment regardless of White's inclination to sell drugs. In response, the State's attorney focused on the evidence of White's willingness to make illegal sales of drugs without any inducement other than the purchase price.
The trial court ruled the defense of entrapment had not been established. The court noted that a judicially mandated two-part test governed entrapment claims:
The court also observed that, in evaluating the nature of the police conduct, the actual facts and circumstances of the transaction should be considered. Turning to the facts, the court found that White indicated a willingness to sell drugs to the informant before there was any discussion of the job and that the prospect of a job was not an inducement for the drug sales.
The court also suggested that the offer of a job paying $10.50 per hour "was not the kind of inordinate amount of money that the [Alaska] Supreme Court used as an example of something that would be entrapment." The court concluded:
Alaska Statute 11.81.450, the statute establishing the defense of entrapment, states:
This statute was enacted in 1978 as part of a comprehensive revision of Alaska's criminal laws. The statutory language has its roots in a case decided by the Alaska Supreme Court, Grossman v. State, 457 P.2d 226 (Alaska 1969).
When Grossman was decided, the prevailing rule was exemplified by the United States Supreme Court's decision in Sorrells v. United States.
Because the Sorrells test focused on the motivations and character traits of the defendant, it became known as a "subjective" test.
In Grossman, the supreme court recognized weaknesses in the approach of Sorrells. By focusing on the defendant's criminal history and predisposition to commit crimes, the Sorrells test tended to prejudice the jury against the defendant because of his past offenses and character. The test also could countenance unfair and unconscionable police conduct.
The Grossman court expressed this new test in terms the legislature closely followed when it enacted AS 11.81.450:
Although the Grossman court characterized this as an "objective" test, to distinguish it from the "subjective" test articulated in Sorrells,
Subsequently, in Pascu v. State, 577 P.2d 1064 (Alaska 1978), the Alaska Supreme Court held that the "average person" formulation set out in Grossman was too narrow. In Pascu, a police agent bought drugs from the defendant despite the defendant's initial resistance to making the sale because the buyer was a good friend who made persistent pleas of need. In reversing the trial court's conclusion that there was no entrapment, the supreme court stated:
Under Pascu's formulation of the entrapment test, police conduct is considered "unreasonable or unconscionable" if the inducements "go beyond those measures which, objectively considered, are likely to provoke to the commission of crime only those persons, and not others, who are ready and willing to commit a criminal offense."
We acknowledge there is a potential conflict between the Pascu formulation of the entrapment defense
This Court has repeatedly and consistently held that when a defendant claims entrapment, the defendant must show that the questioned police conduct actually caused the defendant to engage in the illegal conduct. We discussed this rule in Anchorage v. Flanagan, 649 P.2d 957, 962 (Alaska App. 1982), where we explained that Pascu had not altered the requirement that the defendant prove a causal link between the police conduct and commission of the crime. Thus, under both Pascu and Grossman, the entrapment doctrine applies only to "those cases in which commission of an offense was apparently the direct result of inducement by law enforcement officials."
Since then, we have reiterated this causality requirement in Washington v. State, 755 P.2d 401, 405 (Alaska App. 1988), and State v. Yi, 85 P.3d 469, 472 (Alaska App. 2004).
As we explained above, the superior court found as a factual matter that this causality requirement was not met in White's case — that White was willing to sell drugs to the informant before there was any discussion of a potential job and that the later prospect of a job did not induce White to engage in the drug sales.
On appeal, White argues that the trial court's finding was clearly erroneous. He contends that, despite the absence of a formal quid pro quo, he could have reasonably believed he had to sell drugs to get a job because drug sales were being discussed at the same time as the job.
But White's argument hinges on viewing the facts in the light most favorable to his claim of entrapment, while we are obliged to view the facts in the light most favorable to the trial court's ruling. Viewing the evidence in this light, we readily conclude the trial court's finding — that there was no causal relationship between the job offer and the drug sales — is not clearly erroneous.
There is no evidence that White refused or attempted to resist the police agents' efforts to buy drugs. The informant testified that, within moments of his first introduction to White, White offered to sell him cocaine and gave the informant a code of what to say over the telephone when he was ready to make a purchase. The informant also testified that White subsequently called him a couple of times in the middle of the night, trying to make a sale. Further, there was ample evidence that White was in the business of selling illegal drugs and that the profit from these sales, rather than the opportunity for legitimate employment, was White's inducement for making the sales in question.
White argues that the State should not have been allowed to introduce evidence that White was previously engaged in selling drugs (before the events at issue in this case). We conclude, however, that this evidence was relevant and that the trial court could properly consider it when ruling on White's claim of entrapment. Evidence as to White's prior conduct and his preexisting willingness to sell drugs was relevant to the question of whether White was actually induced by the questioned police behavior to make the sales at issue in this case, and whether White was ready and willing to commit these offenses without special persuasion.
For these reasons we uphold the superior court's ruling that White failed to establish the defense of entrapment.
At the sentencing hearing the court found six aggravating factors argued by the State.
On appeal, White argues that the fact that the sale of oxycodone was only one pill priced at $170 shows it was a small quantity. The State contends White's argument is moot in light of the court's statement that even accepting the proposed mitigating factor, it would have imposed the same sentence. We agree that the issue is moot in light of the trial court's determination that crediting the existence of the mitigator would not have affected the court's sentence.
The effect of an aggravating factor is to permit the court to impose a sentence above the applicable presumptive sentencing range, and the effect of a mitigator is to permit the court to impose a sentence below the applicable presumptive range. But neither aggravating nor mitigating factors require a sentencing court to deviate from the presumptive range. Rather, when aggravating or mitigating factors are proved, the sentencing judge must analyze the case using established sentencing criteria to determine "[w]hether, or how much, a presumptive [range] should be adjusted on account of aggravating and mitigating factors."
Given the court's explicit declaration that the presence of the additional mitigating factor advocated by White would have made no difference to the sentence, and because of the discretionary authority of the court as to the effect of mitigating factors, any mistake that the court may have made concerning whether the oxycodone sale involved a small quantity within the meaning of AS 12.55.155(d)(13) is moot.
For the above reasons, the judgment in this case is AFFIRMED.
Commentary to the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 138, 1978 Senate Journal 1399.
