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State v. Perez-Avalos

March 31, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
AMADO PEREZ-AVALOS, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-07346-4. Date filed: 02/23/96. Judge signing: Hon. William L. Downing.

PER CURIAM. Amado Perez-Avalos appeals his conviction for delivering cocaine. He contends an undercover police officer pressured him into selling cocaine and therefore the court erred in denying his requested entrapment instruction. We disagree and affirm the judgment and sentence.

FACTS

Perez-Avalos testified he went to the Seattle waterfront one evening to "get some drugs." He maintained that he did not intend to sell drugs and had not sold drugs in the past. While he was smoking crack cocaine, he heard someone shouting they wanted drugs. A man he later learned was Officer Norton, an undercover narcotics officer, asked Perez-Avalos if he was selling drugs. Perez-Avalos replied that he didn't sell. The officer told him several times he needed drugs and asked him to sell. Perez-Avalos twice asked him how much he wanted, but declined to sell. When asked by defense counsel what concerns he had about talking with Norton, he stated, "That they wanted to take away my drugs," explaining that once before someone had wanted to take his drugs.

Perez-Avalos testified that he did not want Norton to "bother" him again and so he offered him a smoke from his pipe, which Norton declined. Finally, when Norton again said he wanted drugs, Perez-Avalos told him, "Show me the money", and they completed the sale.

On cross-examination, the prosecutor asked whether Norton threatened to hurt him if he did not sell him drugs. Perez-Avalos replied, "No."

Norton testified that he was led to Perez-Avalos, and they negotiated and completed the sale. There was evidence that Norton was considerably taller and heavier than Perez-Avalos. There was also evidence that Perez-Avalos was standing with his back to a gangway or ramp during the sale, while facing Norton and another man.

Perez-Avalos requested an entrapment instruction, which the court denied.

ANALYSIS

RCW 9A.16.070 provides that entrapment is available as a defense when (1) the criminal design originated in the mind of law enforcement officials and (2) the defendant was lured or induced to commit a crime which he had not otherwise intended to commit. The defense is not established by a showing only that law enforcement officials "merely afforded" the defendant an opportunity to commit a crime. RCW 9A.16.070(2).

Perez-Avalos contends the trial court erred in denying the instruction because he produced evidence that he was induced to sell the drug rather than have it stolen from him. Suggesting that he was intimidated by Norton's superior size, and he could not freely walk away, Perez-Avalos contends Norton badgered and pressured him into selling the drug.

This argument is not persuasive. The relevant question is whether the trier of fact could conclude by a preponderance of the evidence that the defendant had no intent to sell drugs until it was implanted in his mind and that he was induced to deliver the drugs through fundamentally unfair efforts by police. State v. Smith, 101 Wash. 2d 36, 42-43, 677 P.2d 100 (1984); State v. Trujillo, 75 Wash. App. 913, 918, 883 P.2d 329 (1994), review denied, 126 Wash. 2d 1008, 892 P.2d 1088 (1995); State v. Enriquez, 45 Wash. App. 580, 585, 725 P.2d 1384 (1986), review denied, 107 Wash. 2d 1020 (1987). To determine whether the evidence supports giving an instruction, a court should consider the defendant's testimony and the inferences that can be drawn from it. State v. Galisia, 63 Wash. App. 833, 836, 822 P.2d 303, review denied, 119 Wash. 2d 1003, 832 P.2d 487 (1992). The defendant must show more than mere reluctance to violate the law and that police used more than a normal amount of persuasion to overcome expected resistance to sell drugs. State v. Smith, 101 Wash. 2d at 42-43; State v. Trujillo, 75 Wash. App. at 918.

The evidence in this case does not support an entrapment instruction. Norton's repeated requests for drugs were no more than normal persuasion and did not amount to badgering or improper pressure. State v. Enriquez, 45 Wash. App. at 586. Further, his testimony does not support the argument that the officer's alleged size advantage influenced Perez-Avalos in any way. Perez-Avalos did not testify that he was fearful, intimidated, or otherwise coerced into selling. The record does not indicate there was anything "fundamentally unfair" about the officer's conduct or that Perez-Avalos exhibited more than mere reluctance to sell. The police merely offered him the opportunity to commit the crime of delivering cocaine. In sum, because Perez-Avalos did not present sufficient evidence to persuade a reasonable jury that he had established entrapment by a preponderance of the evidence, the court did not err in denying the instruction. State v. Trujillo, 75 Wash. App. at 918.

Affirmed.

19970331 ...


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