COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
EDDIE ROBERTSON, S/K/A
EDDIE DARNELL ROBERTSON
MEMORANDUM OPINION * BY
v. Record No. 0191-96-1 JUDGE RICHARD S. BRAY
NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
William L. Person, Jr., Judge
Andrew A. Protogyrou (Knight, Dudley, Clarke &
Dolph, P.L.C., on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Eddie Darnell Robertson (defendant) was convicted in a bench
trial for distribution of cocaine in violation of Code
§ 18.2-248. Defendant complains on appeal that the trial court
erroneously rejected his entrapment defense. Finding no error,
we affirm the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the issue on appeal.
"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,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
persuasion, or fraud of the officer." Stamper v. Commonwealth,
228 Va. 707, 715, 324 S.E.2d 682, 687 (1985) (quoting Sorrells v.
United States, 287 U.S. 435, 454 (1932)); see McCoy v.
Commonwealth, 9 Va. App. 227, 231, 385 S.E.2d 628, 630 (1989).
Entrapment occurs when criminal conduct of an accused results
from "'creative activity' [by police] that implants in the mind
of an otherwise innocent person the disposition to commit an
offense and induces its commission in order to prosecute."
Stamper, 228 Va. at 715, 324 S.E.2d at 687 (quoting Johnson v.
Commonwealth, 211 Va. 815, 817-18, 180 S.E.2d 661, 663 (1971)).
However, "[t]here is nothing improper in the use, by the police,
of decoys, undercover agents, and informers to invite the
exposure of willing criminals and to present an opportunity to
one willing to commit a crime." Id.; see Pannell v.
Commonwealth, 9 Va. App. 170, 173, 384 S.E.2d 344, 346 (1989).
Moreover, "[r]eluctance to engage in crime is not transformed
into entrapment whenever a person hesitantly, but willingly,
acquiesces in the request of a close ally to commit a crime."
McCoy, 9 Va. App. at 232, 385 S.E.2d at 630.
When a defendant waives a jury trial the
trial judge assumes the role of the jury in
deciding whether entrapment has occurred.
Accordingly, his factual findings are
entitled to the same weight as that accorded
a jury verdict and will not be disturbed on
appeal unless plainly wrong or without
evidence to support them. This is so because
the credibility of witnesses and the weight
accorded their testimony are matters solely
for the fact finder who has the opportunity
of seeing and hearing the witnesses.
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Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,
736-37 (1985) (citations omitted).
Here, although defendant initially may have been unaware of
the undercover officer's intention to purchase drugs, once her
purposes were made known to him, he stated that he had "no
problem" with people using crack cocaine and he could take the
officer to "somebody that had it." When the officer refused to
purchase the cocaine herself, defendant received the purchase
money from her, obtained the drug from another and delivered it
to the officer. Under such circumstances, we are guided by the
Supreme Court's holding in Neighbors v. Commonwealth, 214 Va. 18,
197 S.E.2d 207 (1973).
In Neighbors, the government agent came to Neighbors' home,
"begging" for drugs, and "had to be forced 'out the door.'" Id.
at 19, 197 S.E.2d at 208. Later that same day, the agent again
asked Neighbors for drugs, pleading that he was "'about to die.'"
Id. After advising that "he did not 'have anything' but would
see what he could do," Neighbors purchased the requested
narcotics, contacted the agent, and resold the drugs to him. Id.
The Court reasoned that "all the police . . . did was to afford
an opportunity for the commission of the offense, an opportunity
the defendant willingly accepted," concluding that "the evidence
was insufficient, as a matter of law, to create . . .
entrapment." Id. at 19, 197 S.E.2d at 208-09.
Here, the officer's overtures were even less compelling, but
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defendant willingly facilitated the transaction, acting as both
agent and courier, free of trickery, persuasion, or fraud by
police.
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Accordingly, we affirm the conviction.
Affirmed.
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