Appeal from Superior Court of King County. Docket No: 95. Date filed: 07/01/96. Judge signing: Hon. Janice B. Niemi.
PER CURIAM. -- Willie Robinson appeals his conviction for delivery of a controlled substance. The State concedes that the case should be reversed and remanded for a new trial because the court erred by refusing to instruct the jury on the lesser included offense of possession of a controlled substance. The concession is well-taken and we accept it.
We accelerate review and reverse and remand for a new trial. Because the parties are familiar with the facts, we recite only those facts necessary to our decision.
A defendant is entitled to an instruction on a lesser included offense if each element of the lesser is a necessary element of the offense charged (legal prong) and the case supports an inference that the lesser crime was committed (factual prong). *fn1
Both prongs are satisfied in this case. Under the charged offense, it is unlawful to deliver, manufacture, or possess with intent to deliver, a controlled substance. *fn2 Because possession is a necessary element of "delivery" or "manufacturing," it satisfies the legal prong. And Robinson testified that he did not deliver cocaine to the undercover officer, but that the officer grabbed the cocaine from his hand. Thus, the record contains affirmative evidence from which a jury could conclude that Robinson committed only the lesser charge. *fn3
Because the court erred by failing to instruct the jury on the lesser included offense, we reverse and remand for a new trial. *fn4
Robinson argues the trial court erred by refusing to instruct the jury on the entrapment defense. The State asks the court to resolve this issue in order to provide guidance to the trial court upon retrial.
A defendant is entitled to an entrapment instruction if the defendant presents evidence sufficient to "permit a reasonable juror to conclude that the defendant has established the defense of entrapment by a preponderance of the evidence." *fn5 The defendant's preDisposition is "the focal element of the defense." *fn6 Simply providing the defendant with an opportunity to commit the crime is not entrapment. *fn7 Thus, the central question is whether the jury could conclude by a preponderance of the evidence that the defendant had no intent to deliver a controlled substance until it was implanted in his mind and that he was induced to deliver drugs through fundamentally unfair police tactics. *fn8
Here, an undercover officer approached Robinson on a street in downtown Seattle. The entire transaction lasted only a matter of minutes.
Accepting Robinson's version of events, he told the undercover officer he didn't want to sell him any drugs. After refusing the officer, Robinson noticed two young women on the street. Because they looked "like school girls," he decided to steal their drugs. After he took some cocaine from one of the young women, he noticed the undercover officer again. He told the officer, "I got the dope, give me the money." Robinson testified that the officer grabbed the cocaine from his hand and then tried to put money in his hand. In short, Robinson denied that he intentionally delivered the cocaine. Given these circumstances, there is no evidence that the officer lured Robinson into committing a crime that he was not predisposed to commit. Thus, the trial court properly refused to give an entrapment instruction.
We reverse and remand for a ...