COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
DOUGLAS OLGERS
MEMORANDUM OPINION * BY
v. Record No. 1776-98-2 JUDGE WILLIAM H. HODGES
NOVEMBER 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Thomas V. Warren, Judge
David B. Hargett (Joseph D. Morrissey;
Morrissey, Hershner & Jacobs, on brief), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Douglas Olgers (appellant) appeals his jury trial
convictions for four counts of possession of a firearm by a
convicted felon, seven counts of spotlighting deer, and three
counts of unlawfully selling deer meat pursuant to Code
§§ 18.2-308.2, 29.1-523 1 and 29.1-553 respectively. On appeal,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Code § 29.1-523 provides as follows:
Any person who kills or attempts to
kill any deer between a half hour after
sunset and a half hour before sunrise by use
of a light attached to any vehicle or a
spotlight or flashlight shall be guilty of a
Class 2 misdemeanor. The flashing of a
light attached to any vehicle or a spotlight
he contends the trial court erred in refusing to instruct the
jury on the defense of entrapment. For the reasons that follow,
we agree and reverse his convictions.
FACTS
The Commonwealth's evidence consisted solely of the
testimony of Mike Campbell, a Special Agent for the Virginia
Department of Game and Inland Fisheries. He testified that in
the fall of 1997 he was assigned to conduct an undercover
investigation of "the hunting activities" of appellant and his
associates. Campbell testified appellant was his "number one"
target. Campbell "went in posing as a hunter" and paid
appellant $50 to join his hunting group. Campbell's
or flashlight from any vehicle between a
half hour after sunset and half hour before
sunrise by any person or persons, then in
possession of a rifle, shotgun, [or] pistol,
. . . without good cause, shall raise a
presumption of an attempt to kill deer in
violation of this section. Every person in
or on any such vehicle shall be deemed a
principal in the second degree and subject
to the same punishment as a principal in the
first degree. Every person who, in any
manner, aids, abets or acts in concert with
any person or persons violating this section
shall be deemed a principal in the second
degree and subject to the same punishment as
a principal in the first degree.
Code § 29.1-553 provides as follows:
A. Any person who offers for sale,
sells, offers to purchase, or purchases any
wild bird or wild animal, or any part
thereof, . . . except as provided by law,
shall be guilty of a Class 1 misdemeanor.
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investigation continued from late September 1997 until January
1998. Campbell testified when he initiated contact with
appellant, he did not know that appellant had a reputation as an
alcoholic and did not know that appellant was a convicted felon.
Campbell initially told appellant he was in the wholesale
seafood business, which he said was slow during the winter.
Appellant, who was unemployed, asked Campbell to give him a job,
but Campbell stated that he never offered appellant a job.
Campbell testified that on November 17, 1997, he met
appellant at appellant's residence at 5:30 a.m., before sunrise,
and at appellant's request. Appellant asked if Campbell's
shotgun was in the truck. Campbell said he had both his shotgun
and his rifle, and appellant responded, "[G]ood let's go." When
they entered Campbell's vehicle, Campbell told appellant the
shotgun was not loaded. Appellant asked for the shells and
loaded the gun. Appellant then "directed [Campbell] to drive to
numerous locations around the . . . area in an attempt to locate
deer." At 5:52 a.m., appellant spotted some deer on the side of
the road, and he "directed [Campbell] to stop [his] truck and
keep the headlights on the deer." Appellant fired Campbell's
shotgun at the deer but he missed the deer.
Campbell testified that on the afternoon of December 9,
1997, appellant asked Campbell if he wanted "to ride the
fields," and appellant directed Campbell to a field where
another hunter spotted a deer. Appellant obtained Campbell's
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rifle from the back seat, told Campbell to stop the truck, and
he shot the deer from the window of Campbell's truck.
Campbell testified that on December 18, 1997, he and
appellant hunted together in Brunswick County, and appellant
took home a deer. The men returned to appellant's residence,
where appellant skinned and cut up the deer. Campbell "arranged
for the purchase of that deer" from appellant, for which
appellant set a price of $50. Campbell paid appellant the $50
and picked up the deer later that night. At some point in their
encounters, Campbell told appellant that "[h]e had a good market
up north for deer meat."
Campbell testified that on December 26, 1997, he went to
appellant's residence. Appellant told Campbell that he and his
fellow hunters had killed four deer that day, and he asked if
Campbell wanted to buy some deer meat. When Campbell said yes,
appellant then asked another hunter if he wanted to sell
Campbell some deer meat. Campbell and the other hunter
negotiated a price, and appellant placed the meat into
Campbell's cooler. Appellant then asked Campbell if he wanted
to buy a deer tenderloin from appellant for $5. Campbell said
that he did and paid appellant for the meat.
Campbell testified that on January 1, 1998, he went to
appellant's residence, where another hunter appeared and began
to cut up a deer. Appellant arrived, had a conversation with
the hunter and then approached Campbell. Appellant and the
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hunter finished cutting up the deer and put it in Campbell's
cooler. Campbell paid the other hunter $50 for the deer.
Campbell testified that on the afternoon of January 2,
1998, while he and appellant were driving to a particular
location to hunt, appellant spotted several deer by the side of
the road. Appellant grabbed Campbell's shotgun, which Campbell
earlier had loaded, and appellant killed one of the deer.
Campbell purchased this deer meat from appellant.
In the late afternoon of January 7, 1998, Campbell went to
appellant's house, and appellant asked him "to go riding."
Appellant directed Campbell to drive around, and they looked for
deer. Appellant was drinking and was "pretty drunk that night."
At appellant's request, Campbell bought appellant a six-pack of
beer at two different times that night.
At 6:11 p.m., after sunset, they spotted two deer, and
appellant directed Campbell to stop the vehicle and keep his
headlights on the deer. Appellant retrieved Campbell's rifle
and fired at the deer, but the rifle was not loaded. As they
continued to drive around, appellant repeatedly "instruct[ed]
[Campbell] how to manipulate [his] truck" in order to use his
headlights to search for more deer. At 6:20 p.m., they saw more
deer, and appellant again instructed Campbell to keep his
headlights on the deer, but the deer ran away before appellant
could fire.
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At 7:49 p.m., appellant instructed Campbell to drive to the
residence of an acquaintance, where appellant obtained a
spotlight and some unknown pills, which appellant took.
Appellant then told Campbell to drive to another area, and on
the way, he shined the spotlight at two different groups of
deer, at 8:18 and 8:23 p.m. Appellant pointed Campbell's gun at
each group, but the deer ran away before he could fire.
On three additional occasions that night--at 8:30 p.m.,
just a minute or two after that, and again at 8:41 p.m.--
appellant saw more deer and directed Campbell to shine his
headlights on them. On the first two of these occasions,
appellant shot and missed, and on the third occasion, the deer
ran away before he was able to fire.
Campbell testified that he bought alcohol for appellant on
four occasions: he bought appellant a six-pack of beer when
they first met in September 1997; on another occasion, at
appellant's request, he gave appellant a dollar to buy alcohol;
and on January 7, 1998, he bought appellant two six-packs, each
of which was purchased at a different time. Of the time that
Campbell spent hunting with appellant, he could not remember a
day that appellant did not drink alcohol. Although Campbell
recalled buying alcohol for appellant on only those occasions
listed above, Campbell testified that appellant regularly asked
Campbell to stop so that appellant could buy beer. On several
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of the days appellant drank, Campbell also saw appellant smoke
marijuana.
Appellant's evidence contradicted Campbell's testimony in
significant, material matters. Appellant testified that when he
met Campbell, Campbell said he was a wholesale seafood
distributor and, with knowledge that appellant was unemployed,
Campbell offered appellant a job catching baby eels after
hunting season that would pay $30,000 for three months of work.
Appellant also testified that Campbell initially brought up the
subject of selling deer meat, asking appellant when they first
met "if [he] had ever sold any meat." Appellant said he had
sold "coon meat," and when Campbell inquired about deer,
appellant said he had never sold deer meat. Campbell told
appellant, "You don't know what you are missing. . . . [Y]ou
ought to carry it up north" where people are "crazy" about it.
Campbell told appellant that Campbell could sell the deer for
$100 per deer and that he would pay appellant $50 per deer.
Appellant testified he does not own any guns or a vehicle.
Appellant said Campbell kept a loaded rifle in his truck, and
appellant denied having to load the gun before using it.
Appellant did not provide any ammunition during the incidents.
Appellant testified that Campbell joined his hunt club by
paying $50. All members either paid $50 or permitted the club
to hunt on their land or to use their dogs for hunting.
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Appellant stated that he usually drove the dogs and carried a
stick to flush the deer during hunts.
Appellant admitted that he probably committed the offenses
with which he was charged. However, he denied actually killing
or even seeing any deer at night while hunting with Campbell.
Appellant testified, "[Campbell] came to my house and got me, he
put this idea in my head." Appellant admitted trying to use the
spotlight until it "went dead" but, again, said that it was
Campbell's idea.
Appellant also offered evidence that Campbell supplied him
with "beer, liquor and drugs" every time they hunted. He stated
that Campbell gave him marijuana on several occasions.
Appellant said he did not drink on the days that Campbell did
not hunt with him.
Appellant testified that he had been drinking alcohol for
eight years and that, when riding with Campbell, appellant would
drink "[a]s much as [he] possibly could." Appellant stated that
when Campbell gave appellant the marijuana, Campbell said, "You
can smoke it now or you can save it for later on this evening."
Campbell then asked, "We are going to ride around this evening
later, ain't we?" Appellant said, "Yes, I guess, you know if
you want to."
Appellant testified Campbell sometimes arrived at
appellant's residence with beer in his cooler but Campbell
usually gave appellant the money with which to purchase beer.
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Campbell often stopped to allow appellant to buy beer while they
were riding around in Campbell's truck. Appellant testified
that Campbell "kept [him] drunk constantly" and that appellant
was "stoned, high, drunk, [and] didn't even know what [he] was
doing half the time [he] was with [Campbell]." Appellant stated
that Campbell "kept him in a dream, [he] was so high."
Appellant testified that if he committed the offenses with which
he was charged he did so because Campbell "kept [him] drunk and
high."
Other witnesses corroborated that appellant drank
frequently while hunting with Campbell, and they confirmed that
Campbell supplied appellant with at least some of the alcohol he
drank while hunting, including twelve-packs of beer. One
witness stated appellant was "sometimes" unable to drive the
dogs later in the day when he had consumed too much alcohol.
Another witness also testified that Campbell told appellant,
"the more [deer] you kill the more [deer meat] I am going to
buy."
At trial, appellant offered the following jury instruction:
Entrapment is the origination and
planning of an offense by an officer of the
law and his procurement of its commission by
one who would not have committed it except
for the trickery, persuasion or fraud of an
officer. Where a person intends to and does
commit the crime, the fact that officers of
the law provided a favorable opportunity
for, aided or encourage[d] the commission of
the offense is not entrapment. If you
believe:
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(1) That the defendant had no previous
intent or purpose to commit the crime;
and
(2) That an officer of the law,
directly or through his agents,
originated in the mind of the defendant
the idea to commit the crime; and
(3) That an officer of the law,
directly or through his agents, caused
the defendant to commit the crime by
trickery, persuasion or fraud[,]
then you shall find the defendant not
[guilty] even though you may believe from
the evidence that he consented to the
commission of the crime.
Appellant contended that his evidence provided a sufficient
factual basis for the instruction. The trial court refused the
instruction, holding that appellant's evidence, "even if
believed, . . . does not rise to a level of entrapment [because]
the officer merely provided a favorable opportunity for the
offense to have been committed."
ANALYSIS
On appeal of the denial of a jury instruction, "we view the
evidence with respect to the refused instruction in the light
most favorable to [appellant]." Boone v. Commonwealth, 14 Va.
App. 130, 131, 415 S.E.2d 250, 251 (1992). In Neighbors v.
Commonwealth, 214 Va. 18, 19, 197 S.E.2d 207, 208 (1973), the
Court stated that in reviewing a refused entrapment instruction,
the Court views the evidence "in the light most favorable to the
theory of entrapment." "If any credible evidence in the record
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supports a proffered [jury] instruction . . . , failure to give
the instruction is reversible error." Boone, 14 Va. App. at
132, 415 S.E.2d at 251. However, that credible evidence must
amount to "more than a mere scintilla." Id.
"'Entrapment is the conception and planning of an offense
by an officer, and his procurement of its commission by one who
would not have perpetrated it except for the trickery,
persuasion, or fraud of the officer.'" Stamper v. Commonwealth,
228 Va. 707, 715, 324 S.E.2d 682, 687 (1985) (quoting Falden v.
Commonwealth, 167 Va. 549, 555-56, 189 S.E. 329, 332 (1937)).
"Entrapment occurs when the defendant's criminal conduct was the
product of '"creative activity" [by the police] that implants in
the mind of an otherwise innocent person the disposition to
commit an offense and induce its commission in order to
prosecute.'" McCoy v. Commonwealth, 9 Va. App. 227, 231, 385
S.E.2d 628, 630 (1989) (quoting Stamper, 228 Va. at 715, 324
S.E.2d at 687). "If there be conflict in the evidence as to
whether the criminal intent originated in the mind of the
accused or was induced or incited by the officer, then the
solution of the question should be submitted to the jury."
Falden, 167 Va. at 556, 189 S.E. at 332.
"[W]hen a principle of law is vital to a defendant in a
criminal case, a trial court has an affirmative duty properly to
instruct a jury about the matter." Jimenez v. Commonwealth, 241
Va. 244, 250, 402 S.E.2d 678, 681 (1991).
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The conflicting facts and circumstances present sufficient
evidence upon which the question of entrapment should have been
submitted to the jury. Appellant presented evidence that
Campbell repeatedly furnished him with alcohol and drugs,
keeping appellant "stoned, high, drunk [so that appellant]
didn't even know what [he] was doing half the time." Appellant
testified that Campbell "kept [him] in a dream, [he] was so
high." Furthermore, appellant testified that when he first met
Campbell, Campbell raised the issue of selling deer meat, and
Campbell told appellant he ought to sell the meat "up north" or
that Campbell would buy deer meat from appellant for resale "up
north." Appellant stated that on January 7, 1998, it was
Campbell's idea to spotlight deer and that Campbell came to
appellant's house "and got [him]" to take him riding that
evening. Appellant testified that Campbell always carried a
loaded gun in his truck, and appellant never provided guns or
ammunition for his hunting with Campbell. Moreover, appellant,
who was unemployed during the incidents, stated that Campbell
offered him a job.
Thus, appellant's theory is that Campbell targeted
appellant, then plied him with drugs and alcohol and initiated
the scheme by persuasion, fraud or trickery, implanting in
appellant's impaired mind the disposition or intent to commit
the crimes. Campbell then encouraged appellant to sell deer
meat, offering appellant money and employment, providing the
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vehicle, weapons, ammunition, and instructing appellant on how
to sell the meat. We cannot say that appellant's evidence is
inherently incredible or not worthy of belief as a matter of
law. Appellant's evidence created a question of fact, which the
fact finder should have been allowed to resolve after being
instructed on the law of entrapment. See McCoy, 9 Va. App. at
231, 385 S.E.2d at 630.
Accordingly, we hold that the trial court erred in failing
to instruct the jury on the defense of entrapment. Therefore,
we reverse the convictions and remand the case to the trial
court for such further action as the Commonwealth may be
advised.
Reversed and remanded.
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Douglas Olgers v. Commonwealth of Virginia
Combined Opinion